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fighter81

Just got served please help?

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I just received a summons yesterday. I live in will county Illinois and apparently all cases over $10,000 have to do mandatory non-binding arbitration. Plaintiff is FIA card services (I googled them and it said they are bank of america but BOA is not mentioned at all on any of the paperwork) This is what I received:

 

Complaint

 

Now comes the Plaintiff, by and through its attorneys, Blitt and Gaines PC and complaining of the Defendant(s), states as follows:

 

1. The Defendant(s) utilized a charge account and/or line of credit issued by Plaintiff or its assignors whereby Defendants(s) could charge goods and services to their accout and/or receive cash advances.

 

2. The Defendants(s) subsequently defaulted by failing to pay for the indebtedness incurred resulting in the balance due Plaintiff of $10,285.38

 

3. Due demand has been made on the Defendant(s) to pay this amount and the Defendants(s) have failed to do so.

 

WHEREFORE, Plaintiff prays for judgement against the Defendant(s) in the amount of $10,285.38 plus court costs.

I obviously will deny all 3 of these but I don't know the exact wording I should use. Do I need to file an answer with the court? My summons says I have to be in court room # and then it gives a time to answer the complaint. I was thinking I need to file an appearance and answer to the complaints.

 

Also attached were 2 affidavits the first one says:

 

FIA Card Services, N.A. Plaintiff v. me

Case no. left blank

AFFIDAVIT

 

The undersigned, being duly sworn, makes the following oath:

 

1. I am over 18 years old and competant to make this affidavit. I am a Custodian of Records and an authorized Officer of Plaintiff FIA card services, N.A. for the purposes of this affidavit. I am duly authorized to make this affidavit, and because of the scope of my job responsibilities, I am familiar with the manner and method by which Plaintiff maintains its normal business books and records, including computer records of defaulted accounts.

 

2. These books and records are made in the course of regularly conducted business activity: (1) at or near the time the events they purport to describe occured, by a person with knowledge of acts and events, or (2) by a computer or other similar digital means, which contemporaneously records an event as it occurs. The contents of this affidavit are believed to be true and correct based upon my personal knowledge of the processes by which Plaintiff maintains its business books and records.

 

3. The books and records of Plaintiff show that Defendant(s) opened account with FIA services, N.A., or a predecessor in interest, for the purpose of obtaining an extension of credit and did thereafter use or authorize the use of the account for the aquisition of goods, services, or cash advances in accordance with the customer agreement governing use of that account. Further, Defendant(s) has/have breached the Agreement by failing to make periodic payments as required thereby.

 

4. The books and records of Plaintiff show that Defendant(s) is/are currently indebted to Plaintiff on account number (they only list the last 4) for the just and true sum of $10285.38 and that all just and lawful offsets, payments, and credits have been allowed. The customer agreement entered into between the Defendant(s) and the Plaintiff, or a predecesor in interest, also authorizes to recover from Defendant(s) reasonable costs to the extent permitted by law.

 

5. I declare under penalty of purgery that the foregoing is true and correct and if called as a witness I would competently testify, under oath, thereto.  Then its signed and notarized by the affiant from North Carolina

 

The second affidavit is ab affidavit as to military service. I was thinking to file a motion to strike this affidavit but I don't know how to write it. I was also thinking I could summons the person from North Carolina.  (he won't show up) Can I file both a motion to strike and a summons? That doesn't make sense to summons somone and strike the affidavit at the same time though? If I file a motion to strike affidavit how I will refer it to the first one they arent labeled as "exibit A" or anything. I feel that this affidavit proves nothing. They don't mention the dates of the "so called" account. Should they have to prove it by putting date opened and last date paid? Should they have to prove the "transactions" from zero balance to the $10,285.38? I know there is something called discovery but I'm not sure when this happens. The arbitration is a 2 hour thing and I don't know if I can request it and have it done before the court date. PLEASE help I have posted a link about the mandatory arbitration

 

http://www.willcountycourts.com/index.php?option=com_content&view=article&id=175&Itemid=168

 

 

 

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I'm hoping someone might move your post to the main forum as your arbitration is different than JAMS or another elected arbitration.  I'm in Oregon where we have mandatory arbitration also, and it's a different ballgame.

 

Or you can just post in the main legal forum: 

 

http://www.creditinfocenter.com/community/forum/177-is-there-a-lawyer-in-the-house/

 

Someone will chime in to help you answer more of your questions, but to begin with, since you just got served you can elect JAMS arbitration (more info on this site), as your card probably had an arbitration clause that you can elect.  There are varying opinions on whether doing the JAMS arbitration is a good idea, but I do know that you have a small window in which to elect it so ask more questions.

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BOA removed arbitration in 2010 so no arbitration.

A mandatory arbitration hearing is a legal proceeding held before a panel of three Illinois-licensed attorneys (called "arbitrators") who have taken a court certified arbitrator training program. The hearing is conducted like a trial where the parties may be represented by an attorney, or they may represent themselves. The arbitrators act in place of a judge and render a decision (called "award") at the conclusion of the hearing.

If one of the parties disagrees with the award, that party may file a rejection within 30 days of the arbitration hearing.

http://webcache.googleusercontent.com/search?q=cache:1fZQCxW_hf8J:courtadr.org/files/guide_to_arb.pdf+&cd=3&hl=en&ct=clnk&gl=us A Lawyer’s Guide to Mandatory Arbitration in Illinois

http://webcache.googleusercontent.com/search?q=cache:3Xiim_DVMAMJ:www.cookcountycourt.org/Portals/0/Mandatory Arbitration/Mandatory Arbitration Handbook.PDF+&cd=2&hl=en&ct=clnk&gl=us handbook

http://webcache.googleusercontent.com/search?q=cache:0sjgtcxVW18J:www.heylroyster.com/_data/files/Seminar_2009/2009 06 Salemi.pdf+&cd=4&hl=en&ct=clnk&gl=us WHAT YOU NEED TO KNOW

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EXAMPLE

In The Circuit Court of Cook County, Illinois

FIA Card Services, N.A.

Plaintiff

Vs.

fighter81

Defendant

Case 2013-M1-123456

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT

Now Comes Defendant fighter81 in answer to Plaintiffs Complaint, states as follows:

1. The Defendant(s) utilized a charge account and/or line of credit issued by Plaintiff or its assignors whereby Defendants(s) could charge goods and services to their accout and/or receive cash advances.

1.ANSWER: Defendant states that paragraph 1 contains conclusions of law to which Defendant is not required to plead. To the extent an answer is deemed required, Defendant is without information sufficient to admit or deny the allegations of paragraph 1, and therefore defendant denies the same. It is denied that The Defendant(s) utilized a charge account and/or line of credit issued by Plaintiff or its assignors and leaves Plaintiff to its proofs.

2. The Defendants(s) subsequently defaulted by failing to pay for the indebtedness incurred resulting in the balance due Plaintiff of $10,285.38

2.ANSWER: Defendant states that paragraph 2 contains conclusions of law to which Defendant is not required to plead. To the extent an answer is deemed required, Defendant is without information sufficient to admit or deny the allegations of paragraph 2, and therefore defendant denies the same. It is denied that The Defendant(s) subsequently defaulted by failing to pay for the indebtedness incurred resulting in the balance due Plaintiff or its assignors of $10,285.38 and leaves Plaintiff to its proofs.

3. Due demand has been made on the Defendant(s) to pay this amount and the Defendants(s) have failed to do so.

3.ANSWER: Defendant admits it refuses to pay, but denies Defendant has any indebtedness to Plaintiff or its assignors and leaves Plaintiff to its proofs.

4.WHEREFORE, Plaintiff prays for judgement against the Defendant(s) in the amount of $10,285.38 plus court costs.

4.ANSWER: This is Plaintiff's list of the remedies that Plaintiff is seeking from the Court No Response is Required To the extent an answer is deemed required, Defendant is without information sufficient to admit or deny the allegations of Plaintiffs paragraph 4 and therefore Defendant denies the same.

As to any and all remaining allegations of fact in the numbered or unnumbered ¶1 through ¶ 4 of the complaint not specifically admitted, Defendant denies all such allegations. As to all remaining allegations which call for a legal conclusion, Defendant lacks sufficient knowledge or information to respond to such legal conclusions and, therefore, denies them.

(Example of how to plead Affirmative Defenses these may or may not apply to your case. Any that you plead you will have to prove and or Argue. The right ones can be a game changer)

AFFIRMATIVE DEFENSES

As and for Defendant's affirmative defenses, the Defendant asserts and states as follows:

FIRST AFFIRMATIVE DEFENSE

Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

SECOND AFFIRMATIVE DEFENSE

Failure of Consideration: No exchange of money or goods occurred between the Plaintiff and the Defendant.

THIRD AFFIRMATIVE DEFENSE

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

FOURTH AFFIRMATIVE DEFENSE

Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

FIFTH AFFIRMATIVE DEFENSE

Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

SIXTH AFFIRMATIVE DEFENSE

Plaintiff's complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

SEVENTH AFFIRMATIVE DEFENSE

Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

EIGHTH AFFIRMATIVE DEFENSE

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt.

NINTH AFFIRMATIVE DEFENSE

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no contract attached to the complaint or entered in to evidence or a statement if the contract is oral or written .

TENTH AFFIRMATIVE DEFENSE

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

ELEVENTH AFFIRMATIVE DEFENSE

Defendant alleges Plaintiff made false representations or concealed material facts from the other party, Defendant maintain's that equitable estoppel bars plaintiff's claim.

TWELFTH AFFIRMATIVE DEFENSE

Defendant reserves the right to amend and / or add additional Answers, Defenses and/or Counterclaims at a later date.

THIRTEENTH AFFIRMATIVE DEFENSE

To all causes of action alleged in the complaint, this answering defendant allege that plaintiffs failed to mitigate their damages.

FOURTEENTH AFFIRMATIVE DEFENSE

To all causes of actions alleged in the complaint, this answering defendant allege that plaintiffs are barred from recovering any damages because of plaintiffs’ own acts of carelessness, negligence and/or other fault, and further, that such carelessness, negligence and/or other fault proximately contributed to the injuries, and damages complained of in Plaintiff's Complaint, if any.

FIFTEENTH AFFIRMATIVE DEFENSE

Plaintiff assumed the risk of injury and that defendant is not responsible in law or fact for plaintiffs’ injuries, if any.

SIXTEENTH AFFIRMATIVE DEFENSE

To all causes of action in the complaint, this answering defendant alleges that he has not knowingly or intentionally waived any applicable affirmative defenses and reserve the right to assert and rely on such other applicable affirmative defenses as may come available or apparent during discovery proceedings and further reserve the right to amend this answer and defenses accordingly and to delete defenses if determined are not applicable during the course of discovery and other proceedings in this case.

SEVENTEENTH AFFIRMATIVE DEFENSE to all causes of action in the complaint, the answering defendant alleges that he did not breach any duty to plaintiffs.

WHEREFORE, defendant prays that:

1. Plaintiffs take nothing by their complaint and that said complaint and each cause of action therein be dismissed as to defendant;

2. Defendant requests that this Court enter a judgment of no cause for action and award costs and fees wrongfully incurred.

3. For such other relief the court deems proper.

Respectfully Submitted,

Certificate of Service

That a true and correct copy of the foregoing Answer To Plaintiff's Complaint was sent via U.S.mail certified return receipt to the Clerk of the Court and to Plaintiff's Law Office at this address 1212 mocking Bird lane.

my name

my address

my phone

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What do your state's RCPs say about affirmative defenses?  Usually it's best to include them.

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RCP = rules of civil procedure

 

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2017&ChapterID=56 rules of civil procedure

 

Do I need to have affirmative defenses or just the answer?

http://webcache.googleusercontent.com/search?q=cache:ZHmZ1LeHtvUJ:www.jurisdictionary.com/Sidepages/Samples/pForms.pdf+&cd=2&hl=en&ct=clnk&gl=us

by Dr. Frederick D. Graves, JD

 

 

 

 because those stated defenses are the defendant’s arsenal, and they

need to be made a part of the court’s record at the very beginning of the lawsuit.

One or more affirmative defenses should always be filed – if you have any, that is.

Affirmative defenses include any defense in fact or law that would prevent plaintiff from winning his case. Common examples include:

 Statute of Limitations – suit brought beyond statutory limit date

 Laches – suit brought beyond equitable limit, prejudicing defendant

 Accord and Satisfaction – parties already settled the dispute

 Assumption of Risk – plaintiff knowingly exposed himself to danger

 Statute of Frauds – absence of writing to enforce contract

 Estoppel – plaintiff’s own actions prevent him from seeking a remedy in court

The list is, however, virtually endless and includes any other matter constituting an avoidance or defense. Every defense likely to prevent the plaintiff from winning should be asserted in the answer as an affirmative defense.

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I was going to file a motion to compel private contractual arbitration using the credit card agreement with JAMS. The lawyer did not include any agreement when filing which he should have done so wouldn't the agreement I present be considered valid? BOA used JAMS in 2003.

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They have no dates on the paper work I was served. Credit report shows opened 2005 defaulted 2011. So I was thinking to just file the BOA agreement that has JAMS because they don't have any dates about the alleged account.

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