amyw

Help needed for answer and affirmative defenses

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Hi I just filed Motion for arbitration, and am now preparing the answer and affirmative defenses. I will post the complaint and my draft of answer and affirmative defenses below. Any critique is welcome! BTW, the case is in Ohio.

 

My questions are:

1. Should it be better to just state "Denied" in the answer? I saw various wordings in denying... but not sure which I should use.

2. How do my affirmative defenses look like? I do want to emphasize arbitration and SOL. (I will not include counterclaim since adding it probably may waive my arbitration right) 

3. As for SOL, the alleged card is from Citibank. Do I need to include in the answer statements to show the last payments/purchases, or just leave it as it is now?

4. Together with my answer and affirmative defenses, I will also include Exhibit A for card agreement, affidavit (saying this is the operative agreement), and certificate of service. Is there anything else I should include?

 

 

Thank you all in advance!!!

 

Complaint:

1. Plaintiff is the owner of the Defendant's citibank account, account number... See attached Exhibit A (bill of sale) 

2. By use of the account, the Defendant became bound by the Account's agreement.

3. Defendant breached the agreement by failing to make payment

4. The amount now due and owing is $xxxx. Copies of statements are attached as Exhibit B.

5. Although demand has been made upon the Defendant to liquidate the balance due and owing, the Defendant failed to do so.

 

My answer:

 

Now comes the Defendant, PRO SE, and submits the answer and affirmative defenses to the allegations contained in the Plaintiff's Complaint.

 

ANSWER

1. Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the corresponding averment. Consequently, this averment is denied and strict proof demanded.

2. Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the corresponding averment. Consequently, this averment is denied and strict proof demanded.

3. Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the corresponding averment. Consequently, this averment is denied and strict proof demanded.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the corresponding averment. Consequently, this averment is denied and strict proof demanded.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the corresponding averment. Consequently, this averment is denied and strict proof demanded.

 

 

 

AFFIRMATIVE DEFENSES

1. This Court lacks jurisdiction due to Defendant electing private contractual arbitration as provided in the card agreement (Exhibit A) for the alleged account.

2. Plaintiff, as the Defendant is informed and believes, lacks the legal standing to bring and maintain this action.

3. Plaintiff’s action is time barred by either applying Ohio’s six-year statute of limitations for oral contracts in R.C. 2305.07 or applying the borrowing statute R.C. 2305.03( B) and the choice of law provision in the card agreement for the alleged account (Exhibit A) specifying application of South Dakota law with six-year statute of limitations. 

4.Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

5. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

 

Respectfully submitted,

My signature

My name

address

 

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This is related to your two other threads?

http://www.creditinfocenter.com/community/topic/324616-sued-by-midland-in-oh-need-help-on-motion-for-more-definite-statement/

http://www.creditinfocenter.com/community/topic/325853-sued-by-jdb-in-ohio-questions-on-sol/

 

If outside of SOL did you contact an attorney to see about getting them on FDCPA?

Some states when you start answering, you can forget about arbitration, the court will consider you waived your right to arbitrate.

Why arb when the case should be dismissed in court?

 

If you're going to answer with the insufficient info line see if your state's rules require an affidavit along with that.

 

I'd look more into a Motion to Dismiss if found to be outside of SOL and if found to be within SOL go for a Motion to Stay Proceedings and Compel Arbitration. I wouldn't answer. If you've got a FDCPA case, an attorney can get a separate lawsuit going for that.

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They are trying to sue you based on a written contract which carries an 8 year sol. But in their complaint they list the things that would say it is an account stated complaint, which is an oral contract, and would carry the 6 year sol.

Read here to know the difference. http://www.creditinfocenter.com/legal/account-stated-vs-contract-defenses.shtml

I would not compel arb, I would answer with a counter claim for suing me on a time barred debt.

You may try contacting a few consumer attorneys to see if they would take your case on contingent, but you can do this yourself.

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This case is interesting. It shows that you can also use the choice law provision using the other states sol on your debt. Only makes your case stronger.

https://www.supremecourt.ohio.gov/ROD/docs/pdf/11/2012/2012-Ohio-1886.pdf

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