jdfkl

Vague cause of action -- "indebtedness"; not under breach nor acct stated

Recommended Posts

Just got served by plaintiff (B0nnev1lle -- as an assignee of a credit union).

 

The complaint never states what they are bringing the action under -- only that it is an indebtedness.  

 

I'm not sure if there is a special way to respond to their complaint.  

 

I have written my answer to their allegations as follows -- any insights would be appreciated: 

 

 

COMPLAINT/ANSWER

 

1) Plaintiff is a licensed and bonded collection agency in full compliance with all laws and regulations.  

Response:  Defendant lacks sufficient knowledge to admit or deny this assertion.

 

2) The amount in controversy is less than $xxxxx.  

Response:   Deny.

 

3) Jurisdiction in (this) County is proper -- the defendant is residing in (this) County, State of U.t.a.h.

Response: Admit.

FIRST CAUSE OF ACTION

 

4)  Plaintiff brings this action on behalf of the Plaintiff’s assignor, (credit union), the last charge date of xx-xx-xx.

Response: Deny. 

 

5)  Defendant is indebted to Plaintiff for the sum of $xxxxx for valuable goods and /or services rendered plus pre-prejudgment interest to date of $xxx.

Response:  Deny.

SECOND CAUSE OF ACTION

 

6)  Plaintiff brings this action on behalf of the Plaintiff’s assignor, (credit union), the last charge date of xx-xx-xx.

         Response:  Deny.

 

7)  Defendant is indebted to Plaintiff for the sum of $xxxx for valuable goods and/or services rendered plus pre-judgment interest rate of $xxx.

Response:  Deny.

 

8)  Defendant signed an agreement providing for the payment of a reasonable attorney’s fee in the event of suit and that the same is a reasonable attorney’s fee pursuant to Rule 73 (.d.) U-R-C-P or pursuant to the U.t.a.h. Code Annotated 78 B.5.825.

RESPONSE:  Deny. 

 

 

I apologize for any formatting snafu's.

 

My answer is due very soon.  Any insights would be appreciated!  Thanks :-)

 

 

Share this post


Link to post
Share on other sites

Did they include an agreement? They are asking for interest, so they need to include a contract that show the agreed interest amount.  They also claim the agreement allows for attorney fees.

 

If you are even considering arbitration, I would change 3. Admitted in part and denied in part. The defendant admits he is a resident of xxx, but the Jurisdiction may be impacted by an arbitration agreement if one exist is is therefore denied.

 

As far as the cause of action, check your state and local rules and see if indeptedness is a cause of action in your jurisdiction.  If it is not, use Failure to State a Claim as one of your defenses. 

Share this post


Link to post
Share on other sites

Failure to state a claim will likely result in the Plaintiff being allowed to amend their complaint. It should certainly be brought up so you can develop a proper defense strategy but it won't dismiss the case. 

 

Be careful with admitting jurisdiction. Just because you like in the courts district it doesn't necessarily mean that they have jurisdiction. 

 

Also make sure you review the rules of civil procedure, in some states answering; "Defendant lacks sufficient knowledge to admit or deny this assertion", is not a valid response.

Share this post


Link to post
Share on other sites

Also there are 2 types of jurisdiction; personal and subject matter jurisdiction.

 

You probably can file a motion to dismiss in lieu of an answer if they failed to state a claim (check your local rules, state rules if you can't find anything there). The plaintiff will just file again, but it will make them work harder, and you do need a valid cause of action or common counts to know how to properly defend against it.

Share this post


Link to post
Share on other sites

I apologize for the abbreviated entry I'm about to make (internet company decided to update equipment right in the middle of my last response :/  and I'm running out of time now.)

 

Thank you for the replies.

 

I will look into "indebtedness" in u.t.a.h.   I have never heard of it.  @KentWA have you ever heard of this?

 

The complaint begins with only this:  "Comes now plaintiff and complains agaist defendant and for cause of action alleges as follows:"  That's it.  Then the complaint goes into the enumerated allegations I entered on my first post.

 

It definitely appears they aren't stating their claim.  (?)

Share this post


Link to post
Share on other sites

The attachments are not signed agreements with details.

 

The first attachment is signed -- but at closer investigation, it is a simply waiving a disability insurance policy attached to a loan.  The doc is from the credit union and is titled "Open-End Plan Signatures".  No loan or credit info is included.   The policy was waived by signature.

 

The second attachment is a blank Security Agreement form from the credit union.  It includes no entered data specific to defendant whatsoever.  No signatures. .... But the attorney did go to the trouble to circle the clause allowing for attorney's fees.

 

Based on my limited experience, I am guessing this is not truly evidence of their claims.  (?)

 

Thanks for your responses!  I have to get this wrapped up pretty quickly here  :p

Share this post


Link to post
Share on other sites

I don't see any clear cause of action there. I don't know your rules either, but if it were mine I would want a definite cause of action, so I could look up the jury instructions to know all the elements they would have to prove to prevail. I don't see how you  can do that with what you have.

 

Here in Calie we could motion for a more definite statement, or to dismiss for failure to state a claim on which relief can be granted. I am sure you have a similar rule that you can find in your local court rules or state rules of court.

 

And no I would not believe that they have evidenced much of anything. 

Share this post


Link to post
Share on other sites

@jdfkl

 

I was thinking that perhaps you could file a motion for a more definite statement, but here's what your Supreme Court says about that motion.

 

When a complaint states a claim in general language but the factual allegations are so vague and ambiguous that the defendant cannot draft an answer, the proper course of action is to move for a more definite statement under rule 12(e), not to move for dismissal.  Whipple v. American Fork Irrigation Co., 910 P.2d 1218, 1222 n. 3 (Utah 1996).

 

While the complaint does not specify a cause of action that we seem to able to ascertain, I'm not sure that you can claim that the allegations are so vague and ambiguous that you can't draft an answer.

Share this post


Link to post
Share on other sites
Guest usctrojanalum

it's pretty clear that this is a breach of contract complaint, just because it's not explicitly written does not mean it can't be implied.

Share this post


Link to post
Share on other sites

From "Liquor Control Commission v. Atlas," (Ut Sup Crt. 1955)

 

Motions for a more definite statement are not favored, U.S. v. United Shoe Machinery Co., D.C., 76 F. Supp. 315, and are not properly used to obtain evidence from the pleader, Montgomery v. Kingsland, 83 U.S. App. D.C. 66, 166 F.2d 953Sierocinski v.E.I. DuPont de Nemours & Co., 3 Cir., 103 F.2d 843. Nor should the motion be granted for the convenience of the parties, U.S. v. Association of American Railroads, D.C., 4 F.R.D. 510, but should be summarily dealt with if made for the purpose of delay, Brinleyv. Lewis, D.C., 27 F. Supp. 313. Trial courts have a wide discretion in applying this Rule to effectuate the purpose and spirit of the Rules. U.S. Association of American Railroads, supra. A motion under Rule 12(e) is properly made only when the complaint is indefinite, ambiguous, or vague in either factual allegations or legal theory to such an extent that the moving party cannot reasonably be required to frame his responsive pleading. Brinley v. Lewis, supra

Share this post


Link to post
Share on other sites

Here in "Zoumadakis v. UINTAH Med Center," (Ut. Crt of App. 2005), the court seem to give defendants more latitude about filing a Motion for a More Definite Statement:

 

1] A motion for a more definite statement is available if a defendant feels it needs a more detailed recitation of a plaintiff's claim before it can respond intelligently. See Utah R. Civ. P. 12(e); Whipple v. American Fork Irrigation Co., 910 P.2d 1218, 1222 n. 3 (Utah 1996) (noting "that when a complaint states a claim in general language but the factual allegations are so vague and ambiguous that the defendant cannot draft an answer, the proper course of action is to move for a more definite statement under rule 12(e), not to move for dismissal").

Share this post


Link to post
Share on other sites

Another thing you can do is to file an answer with DENY to all the allegations, and assert, as an affirmative defense; FAILURE TO STATE A CAUSE OF ACTION for which relief can be granted.

 

In the defendants "prayer" you could ask that the case be dismissed without prejudice for the reason of the affirmative defense. They will probably amend the complaint and give you a clear cause of action.

 

The complaint is clear enough to answer, but you have a better chance to defend against it when you have an exact cause of action.

  • Like 1

Share this post


Link to post
Share on other sites
Guest usctrojanalum

Also, failure to state a cause of action is now what everyone itt is making it out to be.  Just because a cause of action is not explicitly stated, does not mean one can't be implied.

 

Failure to state a cause of action is when you sue someone for something that there is no action or remedy for.  Think of me suing you because I don't like the color of your car, or because I don't like the way you brush your teeth in the morning.  There's no cause of action!

Share this post


Link to post
Share on other sites

Thank you for all of your responses.

A couple of factoids that play into this: A few loans have been already been paid in full to this credit union. However, a couple of credit extensions are the accounts in dispute at this time.

Through deductive reasoning, it appears they are suing for the credit-extension accounts. However, plaintiff's attachments look like they would be relevant to the already-paid loans? And their complaint is very unclear as to which accounts they are pursuing specifically.

I'm not sure if the plaintiff's attorney has a clear picture of the basis of their suit?

Share this post


Link to post
Share on other sites

Not really making a big deal out of it , but, if you are being sued you may as well know what the cause of action is, or what is being implied. 

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.