Received Summons

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Karin:
I've been served a summons to appear in court for a pretrial hearing regarding a credit card debt that I have disputed (for over three years) and asked for debt validation. To date, all I have received is a copy of a statement that validates existence of an account and a copy of the existence of an application from a law firm, not the original creditor. They have yet to prove that I charged or that they lent or the original signed contract which I asked for. I know the law demands they validate the debt and feel that under FDCPA protection they have violated my rights. Also, I've been told I do not have to file an ANSWER, just show up. I'd like to be prepared. The law firm states the account has been turned over to them, which I find hard to believe. How can I find out if they bought the account and if the documents they sent actually came from the OC.

Dragon:
File an answer within 20 days or they will get a default! No excuses. Just do it. Keep it simple and deny everything and demand strict proof. Don't screw up like I did on the response. Keep it short & simple.

Karin:
I was told by an attorney I did not have to file an answer, just show up, but to be on the safe side, can you give me an example of a short, simple answer?

Karin:
Would this be enough for an ANSWER?

Defendant

Defendant, appearing pro se, for its reply to the Complaint of Bank of America states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. In response to paragraph #1, the Defendant disputes the alleged debt, as solicited in paragraph #1 of the complaint.

2. In response to paragraph #2, the Complaint states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof.

3. In response to paragraph #3, the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

Florida Debtor:
You will probably want to do  defenses and possibly counter claims. You normally cant use defenses you did nor bring up in your answer. Here is a boilerplate list.

1. Plaintiff failed to state a claim upon which relief can be granted, Plaintiff's Complaint, and each cause of action therein; fails to state facts sufficient to constitute a cause of action against Defendant for which relief can be granted.

2. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint was not in writing and signed by Defendant or by some other person authorized by Defendant and who was to answer for the debt, default, or miscarriage of another person.

3. Defendant invokes the Doctrines of Scienti et volenti non fit injuria ; Defendant invokes the Doctrine of Damnum absque injuria.

4. Defendant claims a Failure of consideration as there has never been any exchange of any money or item of value between Plaintiff and Defendant.

5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

6. Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

7. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide; Plaintiff's complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

8. The Plaintiff is not an Assignee for the purported agreement and no evidence appears on the record to support any related assumptions.

9. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the original creditor received other compensation in the form of monies or credits.

10. Defendant invokes the Doctrine of Unclean Hands as Defendant alleges that Plaintiff or the person or entity that assigned the claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

11. Defendant alleges that Plaintiff is precluded from bringing this action under the Doctrine of Unclean Hands, whereas Plaintiff has violated statutes of the Fair Debt
Collections Act.

12. Defendant alleges that Plaintiff’s actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

13. Defendant alleges an Improper Notice of Breach in that Plaintiff or the person or entity that assigned the claim to Plaintiff failed to give proper notice to this
Defendant of the claimed breach of the alleged debt prior to filing this lawsuit. Notice was required, and failure to give notice deprived this Defendant of the opportunity to timely correct the breach.

14. Defendant alleges that the Complaint includes references to alleged agreements made outside the alleged written contract, violating the Parole Evidence Rule.

15. Defendant alleges that Plaintiff or the person or entity that assigned the claim to Plaintiff is not entitled to reimbursement of attorneys’ fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

16. Defendant alleges that Plaintiff or the person or entity that assigned the claim to Plaintiff waited too long to file this lawsuit, making it difficult or impossible for Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense been lost or destroyed.

17. Plaintiff has failed to name all necessary parties.


18. Plaintiff’s damages are the result of acts or omissions committed by non-parties to this action over whom Defendant has no responsibility or control.

19. Plaintiff’s damages are the result of acts or omissions committed by Plaintiff.

20. Defendant alleges that the granting of Plaintiff’s demand in the Complaint would result in Unjust Enrichment as the Plaintiff would receive more money than Plaintiff is
entitled to receive.

21. Plaintiff's damages are limited to real or actual damages only.

22. Plaintiff's actions are precluded by the Statute of Limitations, including but not limited to the following.

   
23. The Plaintiff, with malice, has identified and named the wrong party as defendant to this action.

24. The Plaintiff, by gross negligence and/or acts of omission has identified and named the wrong party as defendant to this action.

26. Defendant reserves the right to plead additional affirmative defenses that may become available to her later.

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