SHELLY7

Midland Funding Suing In NY

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1 minute ago, SHELLY7 said:

thanks @clysdesmom no yokel here and understand it is free.

What I meant was there isn't a fee for service like that we can point you to for assistance.  This isn't easy but can be done.  Start researching.  You are in a  good spot that you have extra time because you know about the pending suit but have not been served yet.  You could get lucky and they never serve you.

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am hoping, I just like to be "prepared for battle" so I have all my ducks in a row so to speak. I will start my researching today and honestly appreciate you felling me the facts in a straight forward and direct manner;) @Clydesmom

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This appears to be the arbitration section of the NY Rule of Civil Procedure. A quick reading makes it look very "friendly" for our purposes. NY Civil Arbitration

If you follow that link back up the chain, there should be stuff about answering a suit, motions, etc. Also check any rules local to your court - who knows, maybe one court house will only accept things in a certain font, etc. Best to be safe and do things the way they want them. Here some highlights from the arb statutes:

 

Quote

A written agreement to
  submit any controversy thereafter arising or any existing controversy to
  arbitration is enforceable without regard to the  justiciable  character
  of  the  controversy...

 

Quote

...the court shall not consider whether
  the claim with respect to which arbitration is  sought  is  tenable,  or
  otherwise pass upon the merits of the dispute.

 

This would seem to indicate that all of the typical arguments about cost, or "bad faith" should fall on deaf ears - if there's an agreement to arbitrate, that's where it's going, even if it's a joke.

 

 

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@Goody_Ouchlessbless you for this information, I SHALL buy you drinks if you ever come to NY;) My case is in NY Supreme so would it still fall under NY Civil procedure? Sorry for my idiocy

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Hi Guys, am trying to do my due diligence and research per all of your wondrous recommendations am just wanting to make sure I am deciphering my NY arbitration rules correctly. I've pasted below and then will find cases which reference per the suggestion that in your MTC you should add case law from your state. But, to begin just to make sure I am on right track and not a total idiot-the way I am reading this it means to me in essence no matter what the judge in NY pretty much has to rule in favor of arbitration? Or have I got the completely wrong? Sorry again for asking, I will try to cool it on my questions so everyone doesn't hate me...just want to make sure I am on right track and not deciphering wrongly. Please see below:

Section  7501 Effect of arbitration agreement 

Civil Practice Law & Rules (CVP) 

A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. In determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.

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Best info on arb:

 

 

While you will use the Synchrony cardmember agreement, you are no longer dealing with Synchrony (or its predecessor, GE Money Bank) now.  You are dealing with Midland, and would take them to arb, not the OC.  The OC is out of the picture.  The JDB has stepped into the OC's shoes.

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9 minutes ago, nobk4me said:

Best info on arb:

 

 

While you will use the Synchrony cardmember agreement, you are no longer dealing with Synchrony (or its predecessor, GE Money Bank) now.  You are dealing with Midland, and would take them to arb, not the OC.  The OC is out of the picture.  The JDB has stepped into the OC's shoes.

@nobk4me thanks yes I have been reading religiously on this on this forum. Sorry now I am confused I thought I was dealing with Synchrony bank the original cardmember agreement and have that signed with the affidavit etc? So when I file for arbitration I file against Midland using my Synchrony bank agreement is this correct? And then am I correct in assuming that I should not file with AAA but use this JAMS instead since everyone says AAA won't even use midland? sorry I got confused with your wording of not dealing with Synchrony-I thought the whole point was to fall back on them and their arbitration rules?

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I would just like to add some insight onto this topic.

First, everyone just states "file an MTC" like it is something easy to do. It can be a difficult motion to file, because it can be moderately complex. To do it properly it would consist of making arguments and analysis under New York, Federal and usually a third state's laws (if there is a choice of law provision in the agreement). That is not easy for someone who has never had contact with the civil court system before. For the members of this board who are more experienced with the system, it probably isn't difficult at all. But I think that type of motion would take me 8-15 hours and I am an expert at writing motions.

I feel too frequently, people who come to this board are pushed use arbitration against JDB's. In New York, it really isn't necessary. JDB's can be beaten on the merits without using the arbitration tactic. I interned two semesters ago for an attorney who would from time to time handle consumer defense against JDB lawsuits. He got all three lawsuits dismissed, one with prejudice. He didn't use arbitration because he knew the plaintiff's would not have the necessary documentation and witnesses to prove their claims.

He also gained insider knowledge from a colleague he went to law school with. There was a Calvary case on the court one day, the attorney I worked for was in court and called his friend who worked for the debt collection mill to inform him there his case on the calendar, and he's going to miss the call. His colleague from law school said oh that JDB? we don't show up because they can't prove their cases. 

New York has a developed some good case law on JDB cases, using arbitration is not necessary and I think more complicated than just attacking them head on. 

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@usctrojanalum thank you for responding and especially with particular insight for New York, which obviously is very helpful for me since that is where I am located. You are correct that the arbitration does seem easy and God bless the members on here like @fisthardcheese whose arbitration thread I've been stalking like a teenager after The Beibs;) That being said, I get what you are saying too though I also feel like NY has instated some good laws in 2014 to help consumers not receive default judgement in the past which I know was quite prevalent.  If you weren't going to file a motion to compel arbitration in your court answer would you still mention the arbitration law found in my original creditor's Synchrony bank agreement or would you just not at all? I know it's ridiculous as I haven't been served yet, but I see my case filed online and am very determined to be "ready for battle" when they ring my doorbell and do serve me the papers.

Thanks again to everyone for taking the time to weigh in and help me prepare, honestly don't know what I'd do otherwise.

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In the answer, assert that there is a binding arbitration clause. You waive it otherwise. If you decide that arbitration is the best strategy you can always make the motion later on. 

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copy that @usctrojanalum sorry for not knowing the law, but can I just enter my synchrony bank arbitration clauses into the body of the letter or should that be in a separate annexed attachment with the whole sworn affidavit or is the answer just a one pager and doesn't need all this extra stuff until I decide or if and when to make the motion for arbitration 

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Note, you can always post your draft MTC Arb here, and members will help you with it.

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@nobk4me Thanks! I think I will:) Can I post my answer for everyone to help with? What I am wondering, is when I "answer" the court do I say yes, I did have a synchrony account and then mention it in my court answer with the synchrony arbitration into the court answer or no? and also would you recommend filing the motion for arbitration at same time or just doing court answer first. I can see my summons online but they haven't "Served" yet but my mom told me some guy was at our door today but she was too afraid to answer so I'm sure he'll serve me next week it's

4. Plaintiff's predecessor in interest,  (hereinafter "),
offered to open a PAYPAL-branded account, account no. ending in  (hereinafter the "Account"), in Defendant's name on , subject to the terms and conditions provided, or made available in electronic format, to the Defendant (the "Agreement").

so do I admit to number 4? and say I did have that bank and then put in the synchrony card agreement arbitration clause right in my court answer or does that come later?

sorry for confusion....

you guys really are the best!

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I would deny all their claims, except your name and address.  It's possible their papers will include a cardmember agreement.  If so, it will be like an easy judo move - you use their papers against them.

I would file the answer first, then the MTC Arb.

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ok @nobk4me so I deny everything even though I know I had a synchrony care card and I know I made the payment they are referencing? That can't come haunt me if I deny the credit card agreement in the beginning and then later try to file an mtc on that agreement arbitration clause?

just want to make sure I don't do anything that could bite me later on...but will follow advice to a t and of course post my draft here lol

 

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hey guys just weighing in here on my own research. with your guidance I have really been trying to put together everything and go this whole arbitration route per my original creditor (synchrony banks) arbitration agreement and ny's pretty good arbitration rules. It seems easy enough but per everyone's suggestions I have been trying to research specific cases which apply to my case  (or specifically like in my state of NY) as @fisthardcheese recommends since I've been following his arbitration overview and strategy like a Bible. However, in doing so I found that in my Ny circuit (the 10th circuit) it is pretty much mandated that the case is stayed pending arbitration. Other circuits it would seem like the first, fifth and ninth have the discretion to dismiss an action after compelling arbitration. However, my district (the 10th) follows under this:

(b) the Third, Seventh, Tenth, and Eleventh Circuits indicating (expressly or impliedly) that, upon an application, a stay must follow an order compelling arbitration.  The Second Circuit joined the latter group, holding definitively in Katz that the FAA “requires a stay of proceedings when all claims are referred to arbitration and a stay requested.”

So if it is just "stayed" and then midland doesn't want to enter into arbitration because it costs them 5k to do so, aren't I kind of just back where I started from? In a case in my district this then happened after the defendant was granted arbitration and the plaintiff did not-resulting in them basically being back at square one:

 

And after a court issues a stay order, then what?  The court has a potential ancillary role concerning the arbitration.  It would, for example, be available to enforce arbitral subpoenas, to provide (if not otherwise available from the arbitral tribunal) and/or enforce interlocutory relief, and eventually to confirm or vacate an award that is issued by the arbitral tribunal.  As the Katz court noted, the FAA identifies circumstances in which “judicial participation in the arbitral process is permitted” — i.e., (i) to resolve disputes regarding the appointment of an arbitrator or to fill an arbitrator vacancy, 9 U.S.C. §5; (ii) to compel the attendance of witnesses (i.e., to enforce an arbitrator’s subpoena) or to punish a witness for contempt, id. §7; and (iii) to confirm or vacate or modify an arbitral award, id. §§9-11.

And there is also the sometimes-overlooked proviso in FAA §3 that in effect gives the court a backstopping role.  Recall that a stay of a judicial proceeding should be granted as noted above provided “the applicant for the stay is not in default in proceeding with [the] arbitration.”  Notably, “proceeding with [the] arbitration” arguably refers to conduct by the applicant that is most likely to occur after the court stays the judicial proceeding.  Therefore, the court presumably would offer recourse to a litigation plaintiff that had opposed arbitration if the arbitration commenced and the stay applicant then “defaulted” in proceeding with it.

What would constitute such a default?  A refusal to participate in the arbitration, certainly.  Obstruction of the arbitration, possibly.  Thus, not long before the Katz v. Cellco Partnership decision was rendered in the Second Circuit, the Tenth Circuit Court of Appeals identified post-stay conduct by the stay applicant that constituted a “default” regarding the arbitration and thereby justified vacating the stay.  See Pre-Paid Legal Services, Inc. v. Cahill, 2015 WL 3372136 (10th Cir. May 26, 2015).

In Cahill, the defendant had successfully moved to stay the action in question pending arbitration.  (The Tenth Circuit later agreed that a District Court must, upon the request of a party after arbitration is compelled, stay judicial proceedings pending arbitration pursuant to FAA §3.)  The plaintiff — Pre-Paid Legal Services – then commenced an arbitration under the rules of the American Arbitration Association (“AAA”), but Cahill refused to pay his share of the requisite initial fees.  (And Pre-Paid declined to advance those fees on behalf of Cahill on an interim basis as is permitted by the AAA.)  Consequently, after warning the parties, the arbitral tribunal terminated the arbitration, as permitted by the relevant rules.

The District Court then lifted the stay of Pre-Paid’s suit, and Cahill appealed.  (The Tenth Circuit equated the lifting of the stay with the denial of a stay, thereby making the matter appealable under FAA §16(a)(1)(A).)

The Court of Appeals held that Cahill’s conduct put him “in default” in the arbitration.  The arbitration had been conducted in accordance with the relevant arbitration agreement, the arbitral tribunal did not issue an award on the merits, but instead it terminated the proceeding in accordance with AAA rules.  The Court thus determined that when a party successfully obtains a stay of judicial proceedings after arbitration has been compelled, but that stay applicant subsequently does not fulfill its obligation under the relevant rules to maintain the arbitral proceeding, and the arbitration is thereupon terminated, that party was “in default,” and the stay of the judicial proceeding could be lifted by the court accordingly.

SOOOO....I am wondering everyone's thoughts on this...though it seems like arbitration is a good route, I think when @usctrojanalum pointed out it might not be that easy this could very well be the case and if so does anyone have any thoughts or have I simply run myself in circles. Just thought I'd point it out in case I'm missing something or someone else has had something like this happen to them in the past. 

Appreciate everyone's input and help as per usual. @Goody_Ouchless @nobk4me @Harry Seaward Thanks again guys for thoughts or inputs...

 

 

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Every Synchrony agreement that I have seen contains language to the effect that they will initiate arbitration once an MTC is granted. Since they won't, they are then in violation of the court's order to arbitrate if they just try to come back to court. Fist can elaborate on that, as I believe he has experience with that argument. In this case, their contract says that they will initiate arbitration, if compelled. Their only argument against it would be "well, we pick and chose what parts of the contract we like."

The danger with fighting it in court - even with favorable rules - is that those rules were put in place because of sketchy behavior in the past. These guys have upped their game and have all the evidence they need to prove their cases. Trojan makes an excellent point, which we alluded to earlier, about understanding what is required in an answer. It sound like in NY you need to mention the existence of the arbitration clause that you may invoke it, in your answer. 

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yes it seems like a slippery slope @Goody_Ouchless in my district in NY to which I am alluding the 10th, the don't dismiss a case when they grant an arbitration they stay (not sure if I am wording it right.) So in the case I was hoping to reference in my MTA they granted arbitration but then the plaintiff never entered and so it went back to court and the defendant then got a default. so it seems like a huge merry go round where you just end up back in court if you can't get it dismissed from the court when it goes into arbitration. see below and sorry if I'm not making sense

I guess my question is if you are in a court which grants mandatory stay on a case while it goes into arbitration how long does that last? as in....if I did get my MTA but then they never enter arbitration how long is the court case "stayed" it just seems like a looming thing and on the case I was referencing because the one party didn't enter arbitration it then went BACK to the original court. Is there any way of making it so that doesn't happen or some time provision or some such?

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They stay pending compliance. Midland won't comply. If they don't dismiss then we will destroy them there. Now you need to word an answer that can be reviewed. Tiny steps.

 

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thanks @Goody_Ouchless I was very worried about this whole "stay" thing and then in that court case that I referenced the other side didn't do arbitration (as in Midland) so it just ended back at the court, which I don't really want.  I will work on my answer and all of that, is there a time friend on compliance? 

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On 2/9/2019 at 10:30 AM, usctrojanalum said:

I would just like to add some insight onto this topic.

First, everyone just states "file an MTC" like it is something easy to do. It can be a difficult motion to file, because it can be moderately complex. To do it properly it would consist of making arguments and analysis under New York, Federal and usually a third state's laws (if there is a choice of law provision in the agreement). That is not easy for someone who has never had contact with the civil court system before. For the members of this board who are more experienced with the system, it probably isn't difficult at all. But I think that type of motion would take me 8-15 hours and I am an expert at writing motions.

I feel too frequently, people who come to this board are pushed use arbitration against JDB's. In New York, it really isn't necessary. JDB's can be beaten on the merits without using the arbitration tactic. I interned two semesters ago for an attorney who would from time to time handle consumer defense against JDB lawsuits. He got all three lawsuits dismissed, one with prejudice. He didn't use arbitration because he knew the plaintiff's would not have the necessary documentation and witnesses to prove their claims.

He also gained insider knowledge from a colleague he went to law school with. There was a Calvary case on the court one day, the attorney I worked for was in court and called his friend who worked for the debt collection mill to inform him there his case on the calendar, and he's going to miss the call. His colleague from law school said oh that JDB? we don't show up because they can't prove their cases. 

New York has a developed some good case law on JDB cases, using arbitration is not necessary and I think more complicated than just attacking them head on. 

Filing a motion is more difficult than defending yourself on the merits in court?  That seems like an illogical statement.   Additionally, Of course attorneys can beat JDBs.  They also beat JDBs daily here in GA too, but a pro-se defendant can NOT and WILL get steamrolled.  Just because an attorney can win does not mean a pro-se consumer will using the exact same arguments.  That's just how it is.

19 hours ago, Goody_Ouchless said:

Every Synchrony agreement that I have seen contains language to the effect that they will initiate arbitration once an MTC is granted. Since they won't, they are then in violation of the court's order to arbitrate if they just try to come back to court. Fist can elaborate on that, as I believe he has experience with that argument. In this case, their contract says that they will initiate arbitration, if compelled. Their only argument against it would be "well, we pick and chose what parts of the contract we like."

It is very advantageous to the consumer to file the arbitration case and become the "claimant" in arbitration.  This gives you more leverage against the other side unilaterally dropping the case without coming to a settlement agreement with you first.  Additionally, if I file an MTC and the court grants it, I am not going to be parsing over who files on something I motioned and asked the court for.  I will take the inititive and show the court and the other side I mean business.  Besides, why on earth would anyone NOT just file when filing a case in JAMS is very easy and free (and gives you that Clamaint's advantage).  It almost seems stupid to make the other side do it, regardless of what the contract says.

@SHELLY7  I know you are still gathering information, but don't forget to NOT get too ahead of yourself.  Once served, the ONLY things you need to do are file an Answer and file an MTC.  You can start to put the MTC together now and we can help you sort it out and then you can have it ready to file with your answer after you are served.  Everything else is a long way off still - even after being served.

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@fisthardcheese thanks for your insight and you are right I am getting ahead of myself. That being said, I can see my summons and complaint online and my mom said that there was some dude at our house so can only guess I'll be served this week, hence my nervousness to be ready. Could you clarify something for me? I know that I must answer the summons and complaint first (from this forum:) on my summons and complaint it mentions my synchrony care card (whose original credit agreement I'll obviously be falling back on if I'm going to file mtc for private arb)so do I acknowledge that or do I object to literally everything on the summons and complaint? That one confuses me:) and thanks so much for you and to everyone for your time especially on the weekend 

This is the line 

 

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On 2/10/2019 at 4:27 PM, Brotherskeeper said:

@SHELLY7 

Resources for Unrepresented Litigants

http://ww2.nycourts.gov/RULES/CCR/resources.shtml

Oh yes, I have been going over that one @Brotherskeeperlol it seems easy but it isn't. This is what I am so hung up on.  I have seen that people answer the court by going line by line but for this one:


4. Plantiff's predecessor in interest, 
offered to open a -branded account, account no. ending in (hereinafter the "Account"), in Defendant's name on , subject to the terms and conditions provided, or made available in electronic format, to the Defendant (the "Agreement").

I don't know if I acknowledge that or deny? It would seem counter intuitive to deny that if that's the agreement I'm going to fall back on? or no? 

yes it seems like a slippery slope @Goody_Ouchless in my district in NY to which I am alluding the 10th, the don't dismiss a case when they grant an arbitration they stay (not sure if I am wording it right.) So in the case I was hoping to reference in my MTA they granted arbitration but then the plaintiff never entered and so it went back to court and the defendant then got a default. so it seems like a huge merry go round where you just end up back in court if you can't get it dismissed from the court when it goes into arbitration. see below and sorry if I'm not making sense

In Cahill, the defendant had successfully moved to stay the action in question pending arbitration.  (The Tenth Circuit later agreed that a District Court must, upon the request of a party after arbitration is compelled, stay judicial proceedings pending arbitration pursuant to FAA §3.)  The plaintiff — Pre-Paid Legal Services – then commenced an arbitration under the rules of the American Arbitration Association (“AAA”), but Cahill refused to pay his share of the requisite initial fees.  (And Pre-Paid declined to advance those fees on behalf of Cahill on an interim basis as is permitted by the AAA.)  Consequently, after warning the parties, the arbitral tribunal terminated the arbitration, as permitted by the relevant rules.

The District Court then lifted the stay of Pre-Paid’s suit, and Cahill appealed.  (The Tenth Circuit equated the lifting of the stay with the denial of a stay, thereby making the matter appealable under FAA §16(a)(1)(A).)

The Court of Appeals held that Cahill’s conduct put him “in default” in the arbitration.  The arbitration had been conducted in accordance with the relevant arbitration agreement, the arbitral tribunal did not issue an award on the merits, but instead it terminated the proceeding in accordance with AAA rules.  The Court thus determined that when a party successfully obtains a stay of judicial proceedings after arbitration has been compelled, but that stay applicant subsequently does not fulfill its obligation under the relevant rules to maintain the arbitral proceeding, and the arbitration is thereupon terminated, that party was “in default,” and the stay of the judicial proceeding could be lifted by the court accordingly.

So then if they don't appeal which assuming they won't you then have to go back to court to have the stay "lifted?" it just seems like even when you seek arbitration even if you are granted arbitration in my district court at least you kind of just end up back there, assuming midland won't enter into arbitration

I wonder if there is a time limit you could thus put on the arbitration if you were to be granted the motion to arbitrate or if I could site this case as a reason to motion to dismiss with arbitration. if it's just going to all end up back in the same court why even bother?

I think the arbitration is a great route, but so many like myself want to be done and I can't imagine having this bizarre "stay" looming while the other side doesn't enter into arbitration. Maybe I am digging too deep or perhaps there is a way I could put a clause in or such so this doesn't happen or maybe I am very well misunderstanding the whole thing. I suppose I was hoping, like in other districts ((a) the First, Fifth, and Ninth Circuits indicating that a District Court has the discretion to dismiss an action after compelling arbitration) like the first where they would then dismiss an action after compelling arbitration where as mine just holds and it feels like you wind up back in court kind of? or maybe I am misinterpreting  

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10 minutes ago, SHELLY7 said:

4. Plantiff's (1) predecessor in interest, (2) SYNCHRONY BANK (hereinafter (3) "Origind Creditor"), (4) offered to open a (5) PAYPAL-branded account, (6) account no. ending in 4946 (hereinafter the "Account"), in (7) Defendant's name on (8) July 29, 2005, (9) subject to the terms and conditions (10) provided, or (11) made available in electronic format, (12) to the Defendant (the "Agreement").

(I am not an attorney.) There are multiple (at least 12) allegations/assertions in paragraph 4. The JDB claims Synchrony Bank offered to open an account in your name and sent you the "Agreement"; it does not say here you accepted the offer.  Please see the attorney article linked to below.  

New York Consolidated Laws, Civil Practice Law and Rules - CVP § 3018. Responsive pleadings

(a) Denials. A party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial. All other statements of a pleading are deemed admitted, except that where no responsive pleading is permitted they are deemed denied or avoided.

 

New York Practice: Responding to the Complaint

"Once the aforementioned issues have all been addressed, it is finally time to evaluate the substantive allegations contained within the complaint. CPLR §3018 formally provides for three options for responding to allegations in a complaint. These are admit, deny, or deny knowledge or information as to the facts set forth in the complaint. However, by practice, additional responses have been extended to include a denial in the form alleged, which has the effect of a denial, but is generally used when the allegation is improperly worded, contains compound allegations or refers to more than one defendant. Another often used response is to “deny in the form alleged and refer all questions of law to the court.” This, too, has the effect of a denial. It is often used as a response to allegations in the plaintiff’s complaint in which it is alleged that the defendants had a “duty” to do a certain thing. Finally, the “deny in the form alleged but admit portions of the allegations in a specific paragraph of the complaint” is an option. This response is not used as often as it should be. It provides for a defendant to deny portions of an allegation while admitting other portions. Such a response is required in federal court answers. (FRCP 8.) A failure to respond to a specific numbered paragraph or allegation within a plaintiff’s complaint will be deemed an admission. Therefore, the attorney should be sure to do a count of all of the paragraph numbers in the answer to confirm that all allegations have been properly answered. It is suggested that, even if defense counsel intends to admit an allegation in the complaint, such not be left out of the answer. A formal admission should be included with the answer to avoid an inadvertent admission.

Once all of the allegations have been responded to, the attorney must next address the proper affirmative defenses to be included in the answer. CPLR §3018 provides for certain affirmative defenses that must be asserted in the answer or they will be deemed waived. However, there are usually additional affirmative defenses a defendant will assert in an answer. Generally, the rule is that the answer should contain any affirmative defenses to put the plaintiff “on notice” of a reason why the defendant will be claiming that they are not liable or responsible to the plaintiff. (CPLR §3018.)"

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