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Answer and affirmative defenses





Sub: Answer and affirmative defenses
Sat, 17/01/2009 16:06

Please help me! I am gonna go nuts reading all of these rules!!! I was given a summons from a CA attorney for old cc debt. I could use some much needed helpful advice about my Answers and Affirmative Defenses for this "Complaint Under Simplified Civil Procedure".


Complaint says;

1. Defendant is a resident of-------county with and address of -------

2. The amount claimed herein does not exceed the jurisdiciton of the court.

3.Such claim arises from the folling event or transaction

a. Plaintiff is the assignee and owner of defendant's credit account number xxx---- orignially held by Bank ___N.A. (USA). Defendant agreed to the terms of the cardholder agreement as stated by plaintiff's assignor and used the credit to obtain one or more items of value.

b. Defendant is in default on this account.

c. On November 26, 2004, the amount owing to plaintiff's assignor was $1,860.81, which accrues interest at the penalty rate of 8%, per annum, compounded monthly. As of today the total amount due is $2,111.20, minus any payments made. Defendant is obligated for attorney's fees as provided by contract.

4. The defendant is not in the military.....

5. The plaintiff does not demand a trial by jury.


FYI - This complaint is the first and only notice (to the best of my knowledge) ever given to me regarding this debt. So I sent them a DV letter (certified return receipt req.) SOL in Colorado for cc debt is 6 years. There wasn't anything else attached to the summons other than the answer page. I went to the courthouse and asked for copies of everything filed concerning the case. She gave me 3 pages. A copy of the summons, a copy of the complaint, (already had those, except now they have a case number on them) and a copy of the return service of summons. That's it.

My Ansers so far: (same format as the complaint)

1. Admitted

2. Admitted

3.
a.) Defendant hereby denies the statements made by plaintiff in paragraph a.
b.) Defendant here by denies the statements made by plaintiff in paragraph b.
c.) Defendant hereby denies the statements made by plaintiff in paragraph c. Plaintiff has not supplied defendant with any documentation that substantiates the claims made.
4. Admitted
5. Admitted


I don't believe that this cc account and amount are actually mine. I keep all of my old original cc statements from cc accounts but not a one of them reflect the account number (stated as “credit account number of original creditor”) in the complaint. This CA is going to be fishing for a case. I don’t want to end up giving them one by filing unnecessary stuff in the wrong way.

I don't have a clue as to how to word my Affirmative Defenses. I don’t even know for sure what they are. I'm not even sure if I have enough in my answers! Thank you so much if you can help.



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Sub: #1 I found these but I don't think I understand them enough to be aSat, 01/17/2009 - 16:06



I found these but I don't think I understand them enough to be able to use them.

- Failed to state the bases of the lawsuit: They did not cite an actual state law which was violated.

- Statute of frauds: No contract exists as proof
Failure of Consideration: No exchange of money or goods occured between the and the defendant.

- Lack of Privity: No relationship exists between the CA and you. You never signed a contract or agreement with the collection agency.

How do you find out if these defenses should apply or not? I don't want to include them if I don't even know why they should apply.

I found this too...

Affirmative Defenses should ALWAYS be used when you answer a complaint/summons. If you do not give them in your answer, you lose the right to bring them up in court later. These defenses are a way to convince the court that a debt collector's case against you is full of holes and should be dismissed.

Does this help?


Shazzers
Shazzers


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Sub: #2 I'm not sure about that, but keep checking back, I am sure someoSat, 01/17/2009 - 12:34



I'm not sure about that, but keep checking back, I am sure someone will have some advice to offer. :)

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Sub: #3 Should I try to have the case dismissed before I file my answer Sat, 01/17/2009 - 11:08



Should I try to have the case dismissed before I file my answer and affirmative defense? Anyone every try that?

I found this:

8.5 RESPONDING TO THE COMPLAINT

In the vast majority of cases, the Defendant's first step is to file an Answer with the court, responding to the Complaint's factual allegations and legal claims, and asserting "affirmative defenses" to those claims.

Instead of initially filing an Answer, the Defendant sometimes has other options available... And if there is arguably no legal basis at all for the Plaintiff's claims, the Defendant could file a motion to dismiss the Complaint on the ground that it fails to state a proper claim that could result in the requested relief. [Because such a motion requires the court to assume all of the facts alleged by the Plaintiff are true and to interpret those facts in the light most favorable to the Plaintiff, such a motion is rarely successful, unless the Plaintiff is asserting an unusual or innovative claim.] All of these motions will have the effect of postponing the Defendant's actual Answer until the motion is resolved.

If the Defendant does not have such preliminary options available or does not choose to exercise them, the primary decision is what "affirmative defenses" to include in the Answer. A defendant sued for having breached a contract, for example, may simply deny that any such breach occurred. The Defendant may also have certain "affirmative defenses" available that would supplement that denial.

These affirmative defenses are not really resolved in any different way than the Defendant's mere denial of the Plaintiff's claims, except that it is the Defendant who has the burden of proving such defenses, whereas the Plaintiff has such "burden of proof" as to its own claims.

A defendant who does not timely respond to a complaint by either filing an answer or a motion to dismiss runs the risk that the court will enter a judgment in the plaintiff's favor by "default."


Shazzers
Shazzers


Posts: 17128
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Sub: #4 I don't think a CA Attorney can charge ANY interest rate until ASat, 01/17/2009 - 08:54



I don't think a CA Attorney can charge ANY interest rate until AFTER a judgment is made unless the original contract states it. I wouldn't affirm anything except my address, name, etc. Just state the Plaintiff (You) can not affirm or deny any of the paragraphs without proper documentation.

Visit my blog-TAKE CONTROL!
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Online Complaints Ohio Attorney General
Online complaints: Federal Trade Commission.
Ohio Payday Loan Laws


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Sub: #5 Could be beyond SOL.Sat, 01/17/2009 - 04:12



Could be beyond SOL.


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