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Hello, new here and wishing I'd found this board a lot sooner.

As the title states, being sued by a good ol' cavalry via stillman. I denied the allegations in my answer and my mtc was denied. A pre trial was scheduled and at that hearing, I talked to the lawyer about a settlement in exchange for them dismissing the case or at very least a dismissal w/o prejudice in case I didn't pay. We go before the judge, the attorney states something completely different and the judge schedules a final pre trial which is now a few days away.

There's been no other contact from stillman and I've tried contacting attorneys to represent me. So fas I've been unsuccessful due to the amount (less than 1,300). I'm going to keep calling attorneys today and I've started reading the pinned topics, with the MI specific one first. Is there any long shot option I have with a final pre trial less than 7 days away? I'm not sure what to even expect at a "final pre trial", will the judge move directly to a bench trial the same day if there's no agreement? 

 

Thanks in advance. I'm going to scan the complaint and post it later

 

 Who is the named plaintiff in the suit?  Cavalry 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Stillman

3. How much are you being sued for? Approx 1,200

4. Who is the original creditor? (if not the Plaintiff) Synchrony Bank

5. How do you know you are being sued? (You were served, right?) Service was attempted

6. How were you served? (Mail, In person, Notice on door) Notice on door, called no additional info given. Called court, would not provide additional info unless I showed in person. Served by court clerk.

7. Was the service legal as required by your state? Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? MI, Macomb

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2016

11. When did you open the account? (looking to see which agreement/contract may be applied) 2014

12. When did you open the account (looking to establish what card agreement may be applicable)?

13. What is the SOL on the debt? To find out: 6 years

Statute of Limitations on Debts

14. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). 2nd pre trial set. MTC was denied.

15. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

16. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No

17. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Responded within timeframe, did not receive an interrogatory

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

18. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. OC statements, affidavit,  bill of sale, terms and conditions

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On 7/6/2018 at 6:57 AM, Motorcitymayhem said:

I denied the allegations in my answer and my mtc was denied

Was this a motion to compel arbitration? What reason was given for the denial?

 

On 7/6/2018 at 6:57 AM, Motorcitymayhem said:

We go before the judge, the attorney states something completely different and the judge schedules a final pre trial which is now a few days away.

What did the attorney say to the judge? How was it different from the settlement discussion?

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11 minutes ago, Brotherskeeper said:

Was this a motion to compel arbitration? What reason was given for the denial?

 

What did the attorney say to the judge? How was it different from the settlement discussion?

Thank you for your response.

 

Yes it was to compel arb. Basically the  judge said because he has jurisdiction. I realize now, my fault was not arguing the case properly. He led me down a path away from my motion and  i feel for it. I didnt file a motion to reconsider or appeal so I missed the boat there. The salt in the wound was that the attorney didnt even show up. The judge made his clerk call them(which she had to do twice because they hung up on her the first time after she placed them on hold). After waiting for two hours, the jduge called the case again, stated the lawyer had 5 more mins. Low and behold, about 3 minutes later the attorney comes stumbling in.

 

At the pre trial hearing, the attorney told the judge there was no resolution and ask for a bench trial in response to his question of whether we had worked anything out. Yet in the hallway, he offered a settlement amount and the only thing I asked for was an additional few days and no judgement. He said he would have to get that approved by his boss but shouldnt be an issue.

When yhe judge asked me I told him what we fiscussed to which he looked ay the attorney and responded "well that sounds a lot different than no resolution", asked him how nuch time he needed to get an approval and set a final pre trial.

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@bmc100 Any thoughts for @Motorcitymayhem on next move? 

@Motorcitymayhem can you please post the complaint and your answer with personal info redacted? It's hard to advise without knowing if this is an account stated cause of action and what you've done so far. (I am not a lawyer.) In Michigan, a motion to compel arbitration is brought under the rules for summary disposition, MCR 2.116(C)(7) an agreement to arbitrate, which also should be used as an affirmative defense in an answer. 

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43 minutes ago, Brotherskeeper said:

@bmc100 Any thoughts for @Motorcitymayhem on next move? 

@Motorcitymayhem can you please post the complaint and your answer with personal info redacted? It's hard to advise without knowing if this is an account stated cause of action and what you've done so far. (I am not a lawyer.) In Michigan, a motion to compel arbitration is brought under the rules for summary disposition, MCR 2.116(C)(7) an agreement to arbitrate, which also should be used as an affirmative defense in an answer. 

Sure. I'll get it posted later tonight. 

Thanks again!

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Here's the original complaint and my motion. My answer was the court form, where I denied everything. I almost didn't file that because I read that in MI you can file a mtc in lieu of. I got conflicting answers on whether that was true or not so I filed the form just in case.

They attached  the usual bill of sale and affidavit signed by the infamous lynne fisher and sannon wiltgen respectively. Also a couple statements and the terms and conditions. I didn't scan those but can if I need to

 

Thanks

Redacted MTC.doc

Complaint.jpg

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@Motorcitymayhem 

Cavalry has not submitted a motion for summary disposition, right? 

Did you list any affirmative defenses in your Answer?

10 hours ago, Motorcitymayhem said:

They attached  the usual bill of sale and affidavit signed by the infamous lynne fisher and sannon wiltgen respectively. Also a couple statements and the terms and conditions. I didn't scan those but can if I need to

Yes, please post them. 

(IANAL) I'm surprised that your judge handled your MTC the way he did and then denied it. That Synchrony agreement provided by plaintiff (!), SCOTUS' Conception and no response in opposition should have been more than enough. I don't know whether you could submit a new motion to compel arbitration based on the proper grounds or not. If this case goes to a bench trial skipping summary disposition, you'll have to challenge their evidence. While this may not be true for you, this is a small amount to use so much attorney time for court appearances when a settlement offer has been made. However, a judgment does gives them more power over you. 

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2 hours ago, Brotherskeeper said:

@Motorcitymayhem 

Cavalry has not submitted a motion for summary disposition, right? 

Did you list any affirmative defenses in your Answer?

Yes, please post them. 

(IANAL) I'm surprised that your judge handled your MTC the way he did and then denied it. That Synchrony agreement provided by plaintiff (!), SCOTUS' Conception and no response in opposition should have been more than enough. I don't know whether you could submit a new motion to compel arbitration based on the proper grounds or not. If this case goes to a bench trial skipping summary disposition, you'll have to challenge their evidence. While this may not be true for you, this is a small amount to use so much attorney time for court appearances when a settlement offer has been made. However, a judgment does gives them more power over you. 

Here's the bill of sale, affidavit and their response to my mtc.  I was shocked that my motion was denied too. I saw it coming though, when the judge kept making me wait. He recessed like 3 times before finally calling my case and even then the attorney still hadn't gotten there yet, and that's when he said "five more minutes". For them to file a response and then not even show up until called twice by the clerk baffles me. At any rate, their argument against my motion when weak. The attorney was not prepared at all and and basically argued that (1) I only demanded arb because they sued me and (2) arb would be very expensive for me.

I rebutted those points with the fact that I'd already researched JAMS and my fees would be capped at $250 and even the judge agreed with me that they could not guess at my reason for demanding arb nor did it matter. It was a very strange hearing to say the least and I got yelled at because I asked him to clarify his denial. After he heard out arguments, he said motion is denied, then mumbled something. I asked him what his reason for denial was (so I could write it down to appeal) and he yelled "don't argue with me!". I told him all I was asking for was the reasoning and I wasn't arguing. He simply stated "I have jurisdiction, I'm qualified to hear this matter".  

 

Scan docs stillman.docx

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The other thing that puzzled me was why they didn't take the settlement that they themselves offered when all I asked for was an additional 15 days to pay (45 instead of 30). He got before the judge and didn't even make mention of that conversation which irritated the judge a little. Hell I even offered afterwards a slightly lower amount than their offer but paid within a week. I haven't heard anything from them. And no they haven't filed a motion for summary disposition and here's what I filed with my answer. I copied this from somewhere

 

NOW COMES Defendant, Motorcitymayhem, acting in Pro Se and for him Answer to Plaintiff’s Complaint states as follows:

 

1.     Neither admitted nor denied as no response is needed from this Defendant.

 

2.     Denied for reason is untrue and therefore leaves Plaintiff to its strictest proofs thereof.  Moreover, Defendant denies as Plaintiff has failed to attach any alleged contract in which it bases this frivolous claim on.  Finally, the Truth in Lending Act codified at 15 U.S.C. 1601 et seq. states a credit card is an open account.

 

3.     Denied for reason is untrue and therefore leaves Plaintiff to its strictest proofs thereof.

 

4.     Denied for reason is untrue and therefore leaves Plaintiff to its strictest proofs.  Moreover, there is no account stated between the parties per Unifund CCR Partners v. Riley, 2010 Mich. App. LEXIS 346,*, COURT OF APPEALS MICHIGAN  No. 287599.  Lastly, Plaintiff fails to comply with the simplest of rules per Michigan’s Account Stated Statute codified at MCL 600.2145 et seq. as their affidavit is dated more than 10 days prior to the filing of the claim.

 

5.     Denied for reason is untrue and therefore leaves Plaintiff to its strictest proofs.

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Complaint at paragraph 1:

"1. That the Defendant herein is indebted to the plaintiff upon an open account and/or pursuant to a breach of contract. and defendant accepted same."

Your Answer at paragraph 1.:

42 minutes ago, Motorcitymayhem said:

1.     Neither admitted nor denied as no response is needed from this Defendant.

Can you explain why this was your answer rather than a denial? 

 

Rule 2.111 General Rules of Pleading

(E) Effect of Failure to Deny.

(1) Allegations in a pleading that requires a responsive pleading, other than allegations of the amount of damage or the nature of the relief demanded, are admitted if not denied in the responsive pleading.

(2) Allegations in a pleading that does not require a responsive pleading are taken as denied.

(3) A pleading of no contest, provided for in subrule (C)(2), permits the action to proceed without proof of the claim or part of the claim to which the pleading is directed. Pleading no contest has the effect of an admission only for purposes of the pending action.

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57 minutes ago, Brotherskeeper said:

Complaint at paragraph 1:

"1. That the Defendant herein is indebted to the plaintiff upon an open account and/or pursuant to a breach of contract. and defendant accepted same."

Your Answer at paragraph 1.:

Can you explain why this was your answer rather than a denial? 

 

Rule 2.111 General Rules of Pleading

(E) Effect of Failure to Deny.

(1) Allegations in a pleading that requires a responsive pleading, other than allegations of the amount of damage or the nature of the relief demanded, are admitted if not denied in the responsive pleading.

(2) Allegations in a pleading that does not require a responsive pleading are taken as denied.

(3) A pleading of no contest, provided for in subrule (C)(2), permits the action to proceed without proof of the claim or part of the claim to which the pleading is directed. Pleading no contest has the effect of an admission only for purposes of the pending action.

I realized after checking my court stamps copies that I didn't file that, and I believe I used the court form instead. Problem is I can't find my copy of it to recall what I stated on it.  Sorry for being all over the place, dealing with some other things right now while trying to resolve this.

I gather that unless I explicitly denied the allegations then it's taken as admission and it's pretty much game over. I know for a fact I didn't admit they were true, I just don't remember if I denied or chose the "do not know if statements in paragraph... are true" box, which I know imagine has the same effect as not denying and results in admitting. 

 

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58 minutes ago, Motorcitymayhem said:

I realized after checking my court stamps copies that I didn't file that, and I believe I used the court form instead. Problem is I can't find my copy of it to recall what I stated on it. 

You can check your court file. I find it hard to believe you'd deny as untrue every other allegation without denying those in the first paragraph. If in fact you did essentially admit you are indebted to plaintiff, you denied the amount of the debt. Perhaps you can motion to amend your answer. If not, you've made 2 settlement offers. 

If you have some time, can you please post screenshots or the text of the JDB response in opposition to your motion to compel arb so that it's easy for others to read without opening the linked file? I think this is very valuable information for any Michigan posters who will need to prepare a reply to such a (weak) opposition response. Another Michigan poster, LabLady, had her JDB submit an opposition response that allowed the community to help with her arguments. I'm so sorry that you didn't find this forum in time. @fisthardcheese might have an idea if there's another approach, like a second motion to compel arb brought under the correct summary dispostion Michigan rules rather than the incorrect (for Michigan) rule of lack of jurisdiction, which your judge rejected. 

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1 hour ago, Brotherskeeper said:

You can check your court file. I find it hard to believe you'd deny as untrue every other allegation without denying those in the first paragraph. If in fact you did essentially admit you are indebted to plaintiff, you denied the amount of the debt. Perhaps you can motion to amend your answer. If not, you've made 2 settlement offers. 

If you have some time, can you please post screenshots or the text of the JDB response in opposition to your motion to compel arb so that it's easy for others to read without opening the linked file? I think this is very valuable information for any Michigan posters who will need to prepare a reply to such a (weak) opposition response. Another Michigan poster, LabLady, had her JDB submit an opposition response that allowed the community to help with her arguments. I'm so sorry that you didn't find this forum in time. @fisthardcheese might have an idea if there's another approach, like a second motion to compel arb brought under the correct summary dispostion Michigan rules rather than the incorrect (for Michigan) rule of lack of jurisdiction, which your judge rejected. 

Thanks. Yeah I wish I'd found this forum sooner myself lol. I'll post their response  later on tonight. If it could someone else in the future that'd be at least win :)

 

 

Edited by Motorcitymayhem

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I definately did not admit to one and deny the rest.I was consistent in that regard lol. I really wish I hadnt been bogged done with other life events, otherwise Id have given this the proper attention. I just got overwhelmed with everything else and here came this.

I'm almost certain I selected the third option about not knowing if it were true. Does that essentially mean I did not state a firm denial and it could be argued as admission by them?

 

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15 hours ago, Motorcitymayhem said:

I definately did not admit to one and deny the rest.I was consistent in that regard lol. I really wish I hadnt been bogged done with other life events, otherwise Id have given this the proper attention. I just got overwhelmed with everything else and here came this.

I understand. Look, you didn't get a default judgment like most defendants do. I'm truly surprised that your MTC was denied by the judge for being brought under the wrong rule. You aren't out of the game yet. 

 

15 hours ago, Motorcitymayhem said:

I'm almost certain I selected the third option about not knowing if it were true. Does that essentially mean I did not state a firm denial and it could be argued as admission by them?

They can argue whatever they feel they can get away with--if unrebutted by you. The court rules on pleading say otherwise: 

"MCR 2.111(C) Form of Responsive Pleading. As to each allegation on which the adverse party relies, a responsive pleading must. . .(3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial."

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3 minutes ago, Brotherskeeper said:

I understand. Look, you didn't get a default judgment like most defendants do. I'm truly surprised that your MTC was denied by the judge for being brought under the wrong rule. You aren't out of the game yet. 

 

They can argue whatever they feel they can get away with--if unrebutted by you. The court rules on pleading say otherwise: 

"MCR 2.111(C) Form of Responsive Pleading. As to each allegation on which the adverse party relies, a responsive pleading must. . .(3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial."

Awesome!

 

Thank you for that. 

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I'm contemplating if it's worthwhile to go ahead and file arb anyway. The way I see it, the judges denial doesn't remove my right to request it. If I file anyway, and they refuse again, would there be a basis to sue them for breaching the contract that they are suing me under?

I'm also awaiting a callback on an attorney to look into possible fdcpa violations in an attempt to leverage a federal suit against them. Worst case I'll prepare for trial. 

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On 7/8/2018 at 5:44 PM, Brotherskeeper said:

You can check your court file. I find it hard to believe you'd deny as untrue every other allegation without denying those in the first paragraph. If in fact you did essentially admit you are indebted to plaintiff, you denied the amount of the debt. Perhaps you can motion to amend your answer. If not, you've made 2 settlement offers. 

If you have some time, can you please post screenshots or the text of the JDB response in opposition to your motion to compel arb so that it's easy for others to read without opening the linked file? I think this is very valuable information for any Michigan posters who will need to prepare a reply to such a (weak) opposition response. Another Michigan poster, LabLady, had her JDB submit an opposition response that allowed the community to help with her arguments. I'm so sorry that you didn't find this forum in time. @fisthardcheese might have an idea if there's another approach, like a second motion to compel arb brought under the correct summary dispostion Michigan rules rather than the incorrect (for Michigan) rule of lack of jurisdiction, which your judge rejected.

So I read up on the summary disposition rules and I think I may have something:

Rule 2.116 Summary Disposition

B (2) A motion under this rule may be filed at any time consistent with subrule (D) and subrule (G)(1), but the hearing on a motion brought by a party asserting a claim shall not take place until at least 28 days after the opposing party was served with the pleading stating the claim.

 

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(7) Entry of judgment, dismissal of the action, or other relief is appropriate because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum , infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

 

(2) The grounds listed in subrule (C)(5), (6), and  (7) must be raised in a party's responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party's first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.

The arbitration agreement was brought up in my initial response. So I should be able to file a motion for summary disposition under arbitration agreement.

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1 hour ago, Motorcitymayhem said:

The arbitration agreement was brought up in my initial response.

This is why I asked you if you listed any affirmative defenses in your Answer. (IANAL) An agreement to arbitrate is an affirmative defense. You mentioned you were unsure if a motion to compel arbitration could've been submitted in lieu of submitting an answer. Under MCR 2.116(D)(2), it is allowed. That motion in lieu would then be considered your first responsive pleading. In your case, your Answer was your first responsive pleading. A MTC arb in Michigan is brought as a motion for summary disposition that the claim is barred under MCR 2.116(C)(7), an agreement to arbitrate, and not as a motion under MCR 2.116(C)(4), the court lacks jurisdiction of the subject matter. 

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25 minutes ago, Brotherskeeper said:

This is why I asked you if you listed any affirmative defenses in your Answer. (IANAL) An agreement to arbitrate is an affirmative defense. You mentioned you were unsure if a motion to compel arbitration could've been submitted in lieu of submitting an answer. Under MCR 2.116(D)(2), it is allowed. That motion in lieu would then be considered your first responsive pleading. In your case, your Answer was your first responsive pleading. A MTC arb in Michigan is brought as a motion for summary disposition that the claim is barred under MCR 2.116(C)(7), an agreement to arbitrate, and not as a motion under MCR 2.116(C)(4), the court lacks jurisdiction of the subject matter. 

Ok, things are becoming a lot more clear. Thank you

So now my question is, does it matter that I filed my mtc at the same time as my answer form?

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44 minutes ago, Motorcitymayhem said:

So now my question is, does it matter that I filed my mtc at the same time as my answer form?

Your Answer was your first responsive pleading.

Did you list an agreement to arbitrate as an affirmative defense in your Answer under a separate section titled, "AFFIRMATIVE DEFENSES?"

You may motion the court (under MCR 2.118 (A)(2)(3)) to amend your answer to include affirmative defenses . If granted by the judge, an amended answer takes the place of the previous answer. 

Rule 2.118 Amended and Supplemental Pleadings

(A) Amendments.

(1) A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party, or within 14 days after serving the pleading if it does not require a responsive pleading.

(2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.

(3) On a finding that inexcusable delay in requesting an amendment has caused or will cause the adverse party additional expense that would have been unnecessary had the request for amendment been filed earlier, the court may condition the order allowing amendment on the offending party's reimbursing the adverse party for the additional expense, including reasonable attorney fees.

(4) Amendments must be filed in writing, dated, and numbered consecutively, and must comply with MCR 2.113. Unless otherwise indicated, an amended pleading supersedes the former pleading.

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I spanked Mimi during a case. She left the court pissed when it was dismissed against an OC.

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23 hours ago, Brotherskeeper said:

Your Answer was your first responsive pleading.

Did you list an agreement to arbitrate as an affirmative defense in your Answer under a separate section titled, "AFFIRMATIVE DEFENSES?"

You may motion the court (under MCR 2.118 (A)(2)(3)) to amend your answer to include affirmative defenses . If granted by the judge, an amended answer takes the place of the previous answer. 

Rule 2.118 Amended and Supplemental Pleadings

(A) Amendments.

(1) A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party, or within 14 days after serving the pleading if it does not require a responsive pleading.

(2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.

(3) On a finding that inexcusable delay in requesting an amendment has caused or will cause the adverse party additional expense that would have been unnecessary had the request for amendment been filed earlier, the court may condition the order allowing amendment on the offending party's reimbursing the adverse party for the additional expense, including reasonable attorney fees.

(4) Amendments must be filed in writing, dated, and numbered consecutively, and must comply with MCR 2.113. Unless otherwise indicated, an amended pleading supersedes the former pleading.

I went an got another copy of my answer. I did not list affirmitive defense, just the answer and mtc arb.

I have a hearing this afternoon, 2nd final pre trial. I will motion to amend my answer, but I need some time to prepare it. I started a draft but want to make sure its proper.

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5 hours ago, bmc100 said:

I spanked Mimi during a case. She left the court pissed when it was dismissed against an OC.

That's awesome. Is there a thread on that here? I'd love to read the details

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