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Answering a Lawsuit

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  • Answering a Lawsuit

    Here are some samples from various states of what some people have used as their written response to lawsuits.

    You need to read and understand your own state's rules of civil procedure, or consult a paralegal or an attorney to make sure you do it right, or your answer to the lawsuit may be dismissed on technical grounds. But this gives you some idea of how to word it.

    If you do your homework and already have your answer pretty much written out and ready, your lawyer or paralegal won't have to waste much time, and it might end up costing you less money.

    If your computer didn't already come with the appropriate software, you might be able to use this free one from Microsoft. Again check with your local court system to find out what they require. A paralegal will also have the proper forms available, but for a fee.

    http://office.microsoft.com/en-us/te...006087001.aspx

    ...........................

    Affirmative Defenses
    These can be included in your motions, but again, you need to read your state's rules of civil procedures to see if this is proper. It should be included IN ADDITION to written answers you will provide to interrogatories (questions directed at you by the people filing the suit and which related to your personal information and the lawsuit itself.) .


    Pick among these, your case may not relate to some of them below. This is only a template

    As and for a First Defense
    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 the Defendant for which relief can be granted.

    As and for a Second Defense
    Defendant alleges that this action is time-barred under §<insert the law which states SOL> of the laws of <name of your state>.

    As and for a Third Defense
    Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

    As and for a Fourth Defense
    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 is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

    As and for a Fifth Defense
    Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

    As and for a Sixth Defense
    Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

    As and for a Seventh Defense
    Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

    As and for an Eighth Defense
    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.

    As and for a Ninth Defense
    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.

    As and for a Tenth Defense
    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.

    As and for an Eleventh Defense
    The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

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

    As and for an Thirteenth Defense
    Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

    As and for a Fourteenth Defense
    Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements. The Plaintiff is not any of the following: an attorney at law; a person regularly employed on a regular wage or salary in the capacity of credit men or a similar capacity, except as an independent contractor; a bank, including a trust department of a bank, a fiduciary or a financing and lending institution; a common carrier; a title insurer or abstract company while doing an escrow business; a licensed real estate broker; an employee of a licensee; nor a substation payment office employed by or serving as an independent contractor for public utilities.

    As and for a Fifteenth Defense
    Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais.

    As and for a Sixteenth Defense
    Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

    As and for a Seventeenth Defense
    Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the 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.

    As and for an Eighteenth Defense
    Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

    As and for a Nineteenth Defense
    Plaintiff has no Fiduciary Duty.


    As and for a Twentieth Defense
    Plaintiff has failed to name all necessary parties.

    As and for a Twenty-first Defense
    Plaintiff's alleged damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control.

    As and for a Twenty-second Defense
    Plaintiff's alleged damages are the result of acts or omissions committed by the Plaintiff.

    As and for a Twenty-third Defense
    Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

    As and for a Twenty-fourth Defense
    Plaintiff's alleged damages are limited to real or actual damages only.

    As and for a Twenty-fifth Defense
    Defendant invokes the doctrines of Scienti et volenti non fit injuria (a person who knowledgeably consents to legal wrong has no legal right) and Damnum absque injuria (harm without injury).

    As and for a Twenty-sixth Defense
    <Have you sued these folks before and won? If so, include this defense>
    Since under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case, plaintiff’s claims are barred. We cite case XXXX-XXXX September 2004.

    As and for a Twenty-seventh Defense
    Since a court will not grant a judgment or other legal relief to a party who has not acted fairly by having made false representations or concealing material facts from the other party, <insert others here>, we maintain that equitable estoppel bar plaintiff’s claims.

    As and for a Twenty-eight Defense
    Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.


    MOTION TO COMPEL DISCOVERY

    IN THE SUPERIOR COURT OF THE STATE OF <YOUR STATE>
    IN AND FOR THE COUNTY OF <YOUR COUNTY>

    Case No._____________________
    MOTION TO COMPEL DISCOVERY

    MIDLAND CREDIT MANAGEMENT
    Plaintiff

    Vs.

    Joseph Consumer
    Defendant(s)

    COMES Now Defendant, xxxxxxx, and files this MOTION TO COMPEL DISCOVERY, and requests the Court to grant such Motion based on facts stated below:


    1. Defendant served Discovery Requests by certified U.S. Mail to Plaintiff's attorney, xxxxxxxx, on April 18, 2005. A copy of the certified mail receipt is attached hereto as Exhibit "A."

    2. Defendant faxed a Good Faith letter to Plaintiff's attorney xxxxxx on May 18, 2005, requesting Discovery answers and documents, or for Plaintiff to request an enlargement of time to answer Discovery. A copy of the faxed letter is attached as Exhibit "B."

    Respectively, 12 O.S. Section 3237 E.:
    "FAILURE OF PARTY TO ATTEND AT OWN DEPOSITION OR SERVE ANSWER TO INTERROGATORIES OR RESPOND TO REQUEST FOR INSPECTION. If a party fails:
    2. To serve answers or objections to interrogatories submitted under Section 3233 of this title, after proper service of the interrogatories;
    The court, in which the action is pending on motion, may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs a, b and c of paragraph 2 of subsection B of this section."

    CONCLUSION
    Defendant has made good faith efforts to remind the Plaintiff of his responsibilities to answer Discovery, and as of this date, no documents are forth coming nor has he communicated any request for extention. Plaintiff's lawsuit and Motion for Summary Judgement is based on documents and facts that they allegedly possess. Defendant has repeatedly requested these documents and proofs of facts, but has been denied.

    Respectfully submitted this _________ day of May, 2005.


    IN THE CIRCUIT COURT OF THE STATE OF OREGON
    FOR THE COUNTY OF DESCHUTES

    Case No._____________________

    MIDLAND CREDIT MANAGEMENT
    Plaintiff

    Vs.

    FIRST AMENDED ANSWERS, DEFENSES AND COUNTERCLAIMS

    <Your Name>
    Defendant(s)

    Defendant, appearing pro se, for its reply to the Complaint of Midland Credit Management (hereafter "Midland") 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.

    4. In response to paragraph #4, to the extent a response is required, 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.

    DEFENSES
    5. As and for a First Defense
    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 the Defendant for which relief can be granted.

    6. As and for a Second Defense
    Defendant alleges that this action is time-barred under § O.S. 12-95-2 of the laws of Oklahoma.

    7. As and for a Third Defense
    Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

    8. As and for a Fourth Defense
    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 is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

    9. As and for a Fifth Defense
    Defendant claims a Failure of Consideration as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

    10. As and for a Sixth Defense
    Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

    11. As and for a Seventh Defense
    Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parol Evidence Rule.

    12. As and for an Eighth Defense
    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.

    13. As and for a Ninth Defense
    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.

    14. As and for a Tenth Defense
    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.

    15. As and for an Eleventh Defense
    The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

    16. As and for a Twelfth Defense
    Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

    17. As and for a Thirteenth Defense
    Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

    18. As and for a Fourteenth Defense
    Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements. The Plaintiff is not any of the following: an attorney at law; a person regularly employed on a regular wage or salary in the capacity of credit men or a similar capacity, except as an independent contractor; a bank, including a trust department of a bank, a fiduciary or a financing and lending institution; a common carrier; a title insurer or abstract company while doing an escrow business; a licensed real estate broker; an employee of a licensee; nor a substation payment office employed by or serving as an independent contractor for public utilities.

    19. As and for a Fifteenth Defense
    Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais.

    20. As and for a Sixteenth Defense
    Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

    21. As and for a Seventeenth Defense
    Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the 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.

    22. As and for an Eighteenth Defense
    Plaintiff failed to comply with normal and accepted business practices.

    23. As and for a Nineteenth Defense
    Plaintiff’s claim is in violation of federal statute.

    24. As and for a Twentieth Defense
    Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence, or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

    25. As and for a Twenty-first Defense
    Plaintiff has no Fiduciary Duty.

    26. As and for a Twenty-second Defense
    Plaintiff has failed to name all necessary parties.

    27. As and for a Twenty-third Defense
    Plaintiff's alleged damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control.

    28. As and for a Twenty-fourth Defense
    Plaintiff's alleged damages are the results of acts or omissions committed by the Plaintiff.

    29. As and for a Twenty-fifth Defense
    Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment as the Plaintiff would receive more money than plaintiff is entitled to receive.

    30. As and for a Twenty-sixth Defense
    Plaintiff's alleged damages are limited to real or actual damages only.

    31. As and for a Twenty-seventh Defense
    Defendant invokes the doctrines of Scienti et volenti non fit injuria and Damnum absque injuria.

    32. As and for a Twenty-eighth Defense
    Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

    COUNTERCLAIMS

    FIRST CAUSE OF ACTION

    Statement of Facts
    33. February 2, 2004, Defendant sent Midland, by way of certified mail, request for validation of alleged debt, including a questionnaire about said debt and a request for documentation. Request noted their agent, xxx, P.C. (hereafter “xxx”) was given notice of same.

    34. Similar letters and request for validation were sent to Midland by way of certified mail on March 1, 2004 and March 22, 2004.

    35. Up until the date of this filing, no attempt at validation was received from Midland, yet through their agent, xxx, continued to collect on alleged debt.

    Statement of Claim
    36. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act (hereafter “FDCPA”) in the following respects:
    (a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b).

    SECOND CAUSE OF ACTION

    Statement of Facts
    37. Defendant repeats and re-alleges each allegation in paragraphs 33-36 with like effect as if fully repeated herein.

    38. Defendant received notice from xxx dated December 16, 2004 stating Midland’s account had been turned over to their office for collection. Said notice contained the statement: “Unless you, within 30 days after receipt of this notice, dispute the validity of the debt, or any portion thereof, we will assume the debt to be valid. If you notify this law firm, xxx, P.C., in writing, within the 30 day period, that the debt, or any portion thereof, is disputed, our law firm, xxx, P.C., will obtain verification of the debt and mail a copy of the verification to you. Upon your written request within the 30 day period, our law firm, xxx, P.C., will also provide you with the name and address of the original creditor, if different from the current creditor. This is a communication from a debt collector. This communication is an attempt to collect a debt and any information obtained from this communication will be used for that purpose.”

    39. Defendant received notice from xxx entitled “NOTICE – PAYMENT DUE” dated January 2, 2004, which stated a payment of $50.00 was due on the 15th of each month.

    Statement of Claim

    40. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:

    (a) by making a demand for payment by the 15th of the month, Plaintiff instilled a false sense of urgency of payment. Since payment date was within the 30 day period, Plaintiff overshadowed Defendant’s right to request validation within 30 days, violating 15 USC 1692g(a)

    THIRD CAUSE OF ACTION

    Statement of Facts
    41. Defendant repeats and re-alleges each allegation in paragraphs 33-36 and 38-40 with like effect as if fully repeated herein.

    42. On January 6, 2004, Defendant sent xxx a notice of dispute and request for validation of alleged debt. Defendant also enclosed a questionnaire regarding the same.

    43. Defendant received a notice from xxx, dated January 29, 2004, stating they had completed the questionnaire and if Defendant wanted to resolve the account, to contact the offices or they would proceed. Said questionnaire was completed and included in communication.

    44. On February 4, 2004, Defendant sent xxx a second request for validation and documentation regarding alleged debt.

    45. Defendant received notice from xxx, dated April 5, 2004, entitled “Midland Credit vs. Defendant” and stating general information about alleged debt. Stapled to said notice was an Affidavit which appeared to have been filed with the San Diego County Clerk. It stated “Midland Credit Management Inc., Plaintiff, vs. Defendant, Defendant.” A file number had been handwritten at the top.

    46. As of the date on said notice, no case had been filed in San Diego County Court or otherwise pertaining to alleged debt or between Midland Credit Management Inc and Defendant.

    Statement of Claim

    47. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:

    (a) by using deceptive or misleading representation for collection of the alleged debt and therefore violating 15 USC 1692e

    (b) by falsely representing the legal status of the alleged debt and therefore violating 15 USC 1692e(2)(A)

    (c) by sending written communication which falsely simulated a court-issued document and therefore violating 15 USC 1692e(9)

    (d) by falsely representing a document as legal process and therefore violating 15 USC 1692e(13)

    FOURTH CAUSE OF ACTION

    Statement of Facts
    48. Defendant repeats and re-alleges each allegation in paragraphs 33-36, 38-40 and 42-47 with like effect as if fully repeated herein.

    49. Defendant’s previously stated notice from xxx, dated December 16, 2003, noted a Balance of $3,000.

    50. Defendant’s previously stated notice from xxx, dated January 2, 2004, noted a Balance of $3,500.

    Statement of Claim

    51. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:
    (a) By falsely representing the amount of the alleged debt and therefore violating 15 USC 1692e(2)(A)

    FIFTH CAUSE OF ACTION

    Statement of Facts
    52. Defendant repeats and re-alleges each allegation in paragraphs 33-36, 38-40, 42-47 and 49-51 with like effect as if fully repeated herein.

    53. Defendant had asked for documents concerning alleged debt as validation on three occasions.

    54. Defendant received a notice from xxx, dated April 27, 2004, stating LBN was awaiting the arrival of the file associated with alleged debt and that xxx would forward a copy to Defendant upon its arrival. xxx did not send said file to Defendant.

    55. On October 24, 2004, Defendant was served with Summons concerning alleged debt.
    Statement of Claim

    56. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:

    (a) by failing to cease collection of an alleged debt after the Defendant notified xxx in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b).

    SIXTH CAUSE OF ACTION

    Statement of Facts
    57. Defendant repeats and re-alleges each allegation in paragraphs 33-36, 38-40, 42-47, 49-51 and 53-56 with like effects as if fully repeated herein.

    58. Plaintiff and Plaintiff’s agent’s acts as described above were deceptive trade practices and unfair trade practices and therefore violated the Oklahoma Consumer Protection Act.

    59. Plaintiff and Plaintiff’s agent’s acts as described above were done in bad faith and therefore violated the Oklahoma Consumer Protection Act.

    60. Plaintiff and Plaintiff’s agent’s acts as described above were unconscionable and therefore violated the Oklahoma Consumer Protection Act.

    NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF:

    PRAYER FOR RELIEF:

    61. A. For Defendant’s First Cause of Action
    1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury ;
    2) Statutory damages as specified in 15 USC 1692k in the amount of $1,000;

    B. For Defendant’s Second Cause of Action
    1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury;
    2) Statutory damages as specified in 15 USC 1692k in the amount of $2,000;

    C. For Defendant’s Third Cause of Action
    1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $20,000 or as so deemed by judge or jury;
    2) Statutory damages as specified in 15 USC 1692k in the amount of $4,000;

    D. For Defendant’s Fourth Cause of Action
    1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury;
    2) Statutory damages as specified in 15 USC 1692k in the amount of $1,000;

    E. For Defendant’s Fifth Cause of Action
    1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury;
    2) Statutory damages as specified in 15 USC 1692k in the amount of $2,000;

    F. For Defendant’s Sixth Cause of Action
    1) Statutory damages as specified in 15 O.S. Supp. 1999 §761.1 in the amount of $16,000;

    G. Actual damages in an amount to be determined by judge or jury;

    H. Exemplary relief in an amount to be determined by judge or jury;

    I. Injunctive relief;

    J. Declaratory relief;

    K. Any attorney fees if applicable;

    L. costs;

    M. That any and all contracts having balances owed to the Plaintiff by the Defendant be declared null and void.

    FURTHER, sayeth naught.

    62. As a result of the above violations of the Oregon Consumer Protection Act, Plaintiff’s and Plaintiff’s agent’s acts were unconscionable and Plaintiff is therefore liable to the Defendant for damages in the amount of Sixteen Thousand Dollars (Two Thousand Dollars ($2,000) per violation.)

    63. Therefore, Defendant prays judgment in Defendant’s favor and asks relief in the total amount of Twenty-Four Thousand Dollars ($24,000) plus any applicable attorney’s fees.

    63. That any and all contracts having balances owed to the Plaintiff by the Defendant be declared null and void.


    FURTHER, sayeth naught.

    Dated: December 2, 2004

    by
    <Your Name>
    <Your Address>

    TO: xxx, P.C.
    <Collection Agency’s Name>
    <Collection Agency Address>

    ...........................


    Even if you can't find the exact form for consumer law, sometimes you can take another form and customize it with your own wording to fit your situation. For instance, when I fought the lawsuit by CITIBANK, I utilized old custody motions and just changed the wording. If you really have to have the exact wording for a consumer lawsuit, you'll have to go down to your local Law Library and find a lawsuit you can use for an example.

    Good luck.
    ............................


    Dismissal of complaint:

    =====================
    Superior Court of California
    County of San Mateo
    Superior Court

    Case No. XXXXXX
    Motion to Dismiss Complaint

    Palisades Collections, Inc.
    Plaintiff

    Vs.

    Josephine Debtor
    Defendant

    MEMORANDUM OF POINTS AND AUTHORITIES

    Comes now the Defendant Josephine Debtor, and files this Request for Dismissal of Complaint, as follows:

    1. The Causes of Action specified in the complaint filed by the Plaintiff is insufficient as a matter of law.

    The complaint does not set forth the True facts upon which Plaintiff seeks a summary judgment. The complaint should be dismissed.

    2. Defendant received the Plaintiff's Complaint on or about December 1, 2005. Defendant answered the complaint on or about December 28, 2005.

    3. The Plaintiff has failed to provide any contract or agreement bearing the signature of the Defendant, nor any itemized statements or billing of said debts.

    4. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

    5. The Plaintiff has failed to provide any proof of a relationship between themselves and the alleged original creditor, specifically the authority of the Plaintiff to collect the debt on behalf of the original creditor.

    WHEREFORE, Defendant, Josephine Debtor, respectfully submits that the Court should dismiss the deny the Plaintiff's complaint, filed herein Palisades Collections, Inc. and prays for Dismissal of the complaint by the Plaintiff.

    Defendant's Request submitted this ___________ day, of __________ 20__
    Motion to Dismiss Summary Judgment

    =============
    IN THE SUPERIOR COURT OF THE STATE OF <YOUR STATE>
    IN AND FOR THE COUNTY OF <YOUR COUNTY>

    Case No._____________________


    <Collection Agency>
    Plaintiff

    Vs.

    Joseph Consumer
    Defendant(s)

    MOTION FOR DISMISSAL OF SUMMARY JUDGMENT

    Comes now the Defendant, XXXXXXX, and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment And Supplement filed herein by Plaintiff, <Your Plantiff>, Inc., as follows:

    1. The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law.

    A party moving for summary judgment has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.

    Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment and Supplemental Motion filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only “That there is no genuine issue as to any material fact and that Plaintiff is entitled to a judgment as a matter of law with regard to all Counts.” Motion for Summary Judgment should be denied.

    2. Defendant received the Plaintiff's Summons on <Date upon which You received Summons>. Defendant answered the request on <Date which you answered Summons>.

    3. Trial was set for <Date on which trail was set for>.

    4. Motion for discovery was filed on <date the motion was filed>. Documents requested from plaintiff included any documentation of relationship between plaintiff and RSC, the alleged original plaintiff, any payment history, and any breakdown of the sum requested by plaintiff. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented.

    [The appeals court overturned the default summary in Spears vs. Brennan
    Court of Appeals, 745 N.E.2d 862; 2001 Ind. App. LEXIS 509; because the collection agency lawyer did not meet the rules of the FDCPA 15 U.S.C. § 1692g
    (b) Validation of Debts.]

    5. The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. Even if such documents were available, a purchasing/assignee’s plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

    6. Defendant alleges that this action is time-barred under § 735 ILCS 5/13-204- 735 ILCS 5/13-206 under Illinois’s civil code (statute of limitations for open accounts is 5 years). Per the Plaintiff’s own summons, date of last payment was 10/07/2000. Date of summons was 10/31/2005.

    7. 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 the Defendant for which relief can be granted.

    8. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

    WHEREFORE, Defendant, XXXXXXXXXX, respectfully submits that the Court should deny the Plaintiff's Motion and Supplemental Motion for Summary Judgment, filed herein by National Check Bureau and prays for Dismissal of the complaint by the Plaintiff for damages of $983.73 and any further relief this court deems just and proper.


    Defendant's motion for dismissal of summary judgment submitted this ___________ day o
    Last edited by GoingDown; 09-14-2012, 10:38 AM.
    The world's simplest C & D Letter:
    "I demand that you cease and desist from any communication with me."
    Notice that I never actually mention or acknowledge the debt in my letter.

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