Suit Info - I will eat crow

[treehugger1]

Well! After all the debate around answering a complaint, etc, I went down to my local courthouse and pulled up all the suits initiated by CHITI and their out-of-state attorney firm. They clearly use the same attorney (a BAR member of my state) for all their actions in my backwoods county. There are dozens and dozens of suits. I started going through them, one by one. I was looking for any case where an answer was submitted. It took me a long,long time to find a suit that did not result in a default or stipulated judgment. Then, a few months ago a suit was entered against a defendant who actually answered the complaint. The account is till active with a trial date set for next month! I asked the clerk if I could see the file. I was somewhat astonished that I could have access to a case that is still open, but I guess it is all public record here. I am somewhat astounded at what I discovered.

The answer is a two paragraph GENERAL DENIAL!!! The general denial refers to each allegation in the UNVERIFIED complaint. In addition, the defendant makes ONE simple argument: "The complaint on file is not sworn to or verified." The "answer" is not some answer hacked from some website. It is simple and to the point. I have the sense that perhaps the defendant has some informal legal help.

Since this is all a matter of public record, here is the answer:

"COMES NOW THE DEFENDANT and no other, because the complaint on file is not sworn to or verified, does now enter a GENERAL DENIAL to each allegation set forth in the UNVERIFIED complaint. WHEREFORE, the defendant(s) would ask that this honorable court enter judgment in favor of Defendant(s)..."

I'll be damned! The judge set a hearing date for one month past the answer. The hearing appears to have led to a jury trial about 60 days after the hearing. The original complaint (plaintiff) was filed in mid-June. The defendant answered the complaint mid-July with the general denial. A hearing to discuss the case was scheduled about a week after defendant answered. Then, it appears there was another hearing to discuss a trial date. So, it now appears that the trial has been set for mid-October. That's about 4 months from date of service.

Being the person I am, I called the defendant and left information related to my own predicament. I don't expect a return call, but you never know.

So, I must apologize for some posts where I have always been told, and based on other answers I've seen, that here in my location one needs to clearly establish a matter of defense for each allegation in a plaintiff's complaint; this new answer of a general denial does appear to hold water here.

As I look through my rules of civil procedure, they clearly state an answer must address each and every allegation made by the plaintiff. But, It also appears by this very hard evidence that a general denial is also appropriate here in my local circuit court.

This changes everything if one needs a few more months in my district. In addition, this is also a clear precedent that such an answer is acceptable in my local court district. So, for the price of $189.00, one can file a general denial on a claim over $10K, and expect the court to honor the answer.

Again, my humble apologies.

[GoingDown]

Would you mind posting the entire answer from the defendent? I would like to see how they responded to a lawsuit.

You can leave out any account numbers or dollar amounts or names. Or just use XXXXX to replace them. I just want to see what words they used to file an answer to a lawsuit.

This is cheaper than going to a paralegal if someone wants to challenge a lawsuit.

Or, if you can't post it publicly, could you send me Private Message with the info?

Thanks!

[treehugger1]

I'll PM you.

[CompTweaker]

$189? Wow, thats crazy. I can see how that would be a deterrent for some people. Here, its $25 if I wanted to file a motion after answering, but free to answer and file a sworn denial.

[treehugger1]

CT, that's the rub. But keep in mind that if a party is potentially going down a BK 13 route and will need to make payments to a trustee fo $1000/month or so, then an answer costing $200 could be worth while for a month or two.

This has been my current dilemma. I have about 20 days to make a decision. I have reread the complaint served on me, and it does seem quite probable, and maybe even makes sense to answer with a general denial. I can, in good faith, admit that I am a resident of stated county and generally deny all other allegations. I could certinaly in good faith assert the following under my state and local laws:

"If the party is without knowledge or information sufficient to form a belief as to the truth of an allegation, the party shall so state and this has the effect of a denial." Hence, if this is the case for all but admitting my county of residence, then each of these is a denial. I'm no attorney, but it does appear that based on that simple line, a general denial is well within my civil rights.

I finally found the following under my state's RCP's:

RESPONSIVE PLEADINGS

RULE 19



A Defenses; form of denials. A party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the allegations upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an allegation, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the allegations denied. When a pleader intends in good faith to deny only a part or a qualification of an allegation, the pleader shall admit so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the allegations of the preceding pleading, the denials may be made as specific denials of designated allegations or paragraphs, or the pleader may generally deny all the allegations except such designated allegations or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all of the allegations of the preceding pleading, the pleader may do so by general denial of all allegations of the preceding pleading subject to the obligations set forth in Rule 17.

And, Rule 17 states:

SIGNING OF PLEADINGS, MOTIONS AND OTHER PAPERS; SANCTIONS

RULE 17



A Signing by party or attorney; certificate. Every pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record who is an active member of the Oregon State Bar. A party who is not represented by an attorney shall sign the pleading, motion or other document and state the address of the party. Pleadings need not be verified or accompanied by affidavit or declaration.



B Pleadings, motions and other papers not signed. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.



C Certifications to court.

C(1) An attorney or party who signs, files or otherwise submits an argument in support of a pleading, motion or other document makes the certifications to the court identified in subsections (2) to (5) of this section, and further certifies that the certifications are based on the person’s reasonable knowledge, information and belief, formed after the making of such inquiry as is reasonable under the circumstances.

C(2) A party or attorney certifies that the pleading, motion or other document is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

C(3) An attorney certifies that the claims, defenses, and other legal positions taken in the pleading, motion or other document are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law.

C(4) A party or attorney certifies that the allegations and other factual assertions in the pleading, motion or other document are supported by evidence. Any allegation or other factual assertion that the party or attorney does not wish to certify to be supported by evidence must be specifically identified. The attorney or party certifies that the attorney or party reasonably believes that an allegation or other factual assertion so identified will be supported by evidence after further investigation and discovery.

C(5) The party or attorney certifies that any denials of factual assertion are supported by evidence. Any denial of factual assertion that the party or attorney does not wish to certify to be supported by evidence must be specifically identified. The attorney or party certifies that the attorney or party believes that a denial of a factual assertion so identified is reasonably based on a lack of information or belief.



D Sanctions.

D(1) The court may impose sanctions against a person or party who is found to have made a false certification under section C of this rule, or who is found to be responsible for a false certification under section C of this rule. A sanction may be imposed under this section only after notice and an opportunity to be heard are provided to the party or attorney. A law firm is jointly liable for any sanction imposed against a partner, associate or employee of the firm, unless the court determines that joint liability would be unjust under the circumstances.

D(2) Sanctions may be imposed under this section upon motion of a party or upon the court’s own motion. If the court seeks to impose sanctions on its own motion, the court shall direct the party or attorney to appear before the court and show cause why the sanctions should not be imposed. The court may not issue an order to appear and show cause under this subsection at any time after the filing of a voluntary dismissal, compromise or settlement of the action with respect to the party or attorney against whom sanctions are sought to be imposed.

D(3) A motion by a party to the proceeding for imposition of sanctions under this section must be made separately from other motions and pleadings, and must describe with specificity the alleged false certification. A motion for imposition of sanctions based on a false certification under subsection C(4) of this rule may not be filed until 120 days after the filing of a complaint if the alleged false certification is an allegation or other factual assertion in a complaint filed within 60 days of the running of the statute of limitations for a claim made in the complaint. Sanctions may not be imposed against a party until at least 21 days after the party is served with the motion in the manner provided by Rule 9. Notwithstanding any other provision of this section, the court may not impose sanctions against a party if, within 21 days after the motion is served on the party, the party amends or otherwise withdraws the pleading, motion, document or argument in a manner that corrects the false certification specified in the motion. If the party does not amend or otherwise withdraw the pleading, motion, document or argument but thereafter prevails on the motion, the court may order the moving party to pay to the prevailing party reasonable attorney fees incurred by the prevailing party by reason of the motion for sanctions.

[albacore44]

Hardship

One of the things I noticed reviewing cases in my district is you can petition for financial hardship and get the fee waived on your answer.

[MSbklawyer]

I'm confused. Your rules of civil procedure (like most rules modeled after the federal rules) say that Pleadings need not be verified or accompanied by affidavit or declaration. Rule 17.

Why is the defendant asserting that the complaint is unverified as an answer. The rules plainly state that it "need not be verified"?

[treehugger1]

MSBK, I'm as confused as you are. Originally, I did not believe such an answer was possible, but I had the clerk pull the file, and that is the answer accepted by the court, and then the folder shows two more "Notices of Hearings." These appeared to be conference calls between the judge, plaintiff, and defendant related to the case. Current trial date date is set next month. As mentioned in other posts related to what my take is on acceptable answers, I would never have thought such a simple answer would be acceptable.

The rule states that pleadings "do not have to be accompanied by..." But, perhaps this does not keep one from a general denial. Pretty strange, but just noting this as being acceptable as an answer certainly seems to set a precedent. In particular, this complaint and answer are all within the past 120 days. It could also be the case that this particular law firm and attorney show up in the records many, many times. Maybe the local judges are tired of all the roll-overs by debtors failing to show or answer a complaint. Wierd, as you have noted.

[treehugger1]

I suppose that just because the complaint "need not be verified," does not preclude the answer from calling on such a question. Just guessing. You know that local judges tend to see things differently than we do.

[treehugger1]

Another thought here. Just because the complaint does not have to include any additional information, this does not preclude the alleged debtor from answering with a general denial essentially requesting that such a lack of verification is a valid defense for all allegations. It is so hard to say. In addition, keep in mind that local circuit court judges here are elected officials. I don't even think they need to have a background in the legal system. They can, and probably do, interpret the laws in such a manner that best protects the defendant. This is Oregon, after all. LOL.

[MSbklawyer]

Before the rules of civil procedure were adopted back in the 60s, 70s and 80s in most states, complaints did have to be verified. My guess is this guy is copying from a VERY old answer.

[TrailerTrash]

I sued a former employer in Federal Court. When they answered they denied most of the things I knew to be true. They only acknowledged things that clearly they could not deny, like their name and I was in fact an employee, but even the question about my being fired was denied as they didn't have sufficient information to make form an opinion. When I read this I was livid, then my attorney started laughing at me and then showed me this was how it works, you deny everything but the most obvious. He told me, remember you are suing them you have to prove they knew this! They are not going to help you by admitting they know anything. Anyways just my two cents...

[treehugger1]

MS, the point is that it got the defendant hearings and a court date. I'm going down to the courthouse again next week and look up some answers to some other suits by Discover and Chase. It is still amazing that for the hundreds of suits I finally found in my local court system during the last year, there are very few answers. zDefault judgments seem to be the protocol.

It even gets more interesting, but I'll report on that later.