Author Topic: Help, Newbie  (Read 1078 times)

0 Members and 1 Guest are viewing this topic.

jomitchell

  • Valued Member
  • Posts: 5
Help, Newbie
« on: April 29, 2012 03:58:52 PM »
I recently was summoned from an attorney for Amex in Florida, with the only attachment is a copy of the Credit card statement.

I prepared an answer an answer, but now after reading these posts I have become a little confused on the best way to respond.

Should I ask for a motion to compel with my answer?

 Ask for a motion to dismiss? If I am correct, in the state of FL, this can serve as my answer as well

Ask for an extension?

If I understand correctly, if I exercise my right to arbitration and they have to present documents, which they may or may not have. I have a greater chance to get this dismissed with prejudice.

My answer is below:

COMES allegations of the Complaint of American Express Bank, FSB (hereafter "AMEX") statesas follows: All answers correspond to the numbered paragraphs of the complaint. All allegations of the complaint are denied unless expressly admitted herein.

GENERAL ALLEGATIONS

1. In response to paragraph #1, Denied. Defendant, not being a lawyer or trained in legal matters, cannot determine if this is true.

2. In response to paragraph #2, defendant admits that he is an individual residing in Saint Lucie County, Florida.

3. In response to paragraph #3,Denied. The Defendant is without knowledge whether conditions precedent have occurred.

4. In response to paragraph #4, Denied. No proof has been submitted into record by the Plaintiff that an account was opened for the Defendant by the Defendant.

5. In response to paragraph #5, Denied. No proof has been submitted by Plaintiff that the Defendant used the account, or accepted funds, good, or services from Plaintiff.Defendant demands strict proof thereof.

6. In response to paragraph #6, Denied. No proof has been submitted into evidence that Defendant received such demands.

WHERFORE, Defendant, requests that the court deny the Plaintiff's request for judgment, and prays for Dismissal of the complaint, with prejudice, by the Plaintiff for damages in the sum of $5,302.40 together with interest and/or court cost.

COUNT I - MONEY LEFT

NOW the Defendant XXXXXXXX, filing Pro Se in answering  Response to Plaintiff repeats and realleges each and every material action set forth in paragraph 1 through 6 hereinabove and incorporates the same by reference,responses have already been given, but to the extent that the court may deem an answer necessary, the Defendant denies the allegations contained therein, and demands the plaintiff provide strict proof thereof.

7. In response to paragraph #7, No proof has been submitted in record to evidence the allegation the Defendant owes sum listed.

WHERFORE, Defendant, requests that the court deny the Plaintiff's request for judgment, and prays for Dismissal of the complaint, with prejudice, by the Plaintiff for damages in the sum of $5,302.40 together with interest and/or court cost.

COUNT II - UNJUST ENRICHMENT

Response to Plaintiff repeats and realleges each and every material action set forth in paragraph 1 through 6 hereinabove and incorporates the same by reference, responses have already been given, but to the extent that the court may deem an answer necessary, the Defendant denies the allegations contained therein, and demands the plaintiff provide strict proof thereof.

8. In response to paragraph #8, Denied. No proof has been submitted by the Plaintiff as evidence that such events occurred.

9. In response to paragraph #9, Denied. No proof has been submitted that Defendant knowingly and voluntarily accepted benefits from Plaintiff.

10. In response to paragraph #10, Denied. No proof has been submitted that the Defendant owes the Plaintiff.

11. In response to paragraph #11, Denied. No proof has been submitted that the Defendant owes the Plaintiff.

The Defendant now brings forth the following Affirmative Defenses:

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

Statute of Frauds. Plaintiff has alleged that a credit agreement exists between Defendant and original creditor but has provided no proof of any written agreement signed by defendant and original creditor that would establish such an agreement under Florida Statute 687.0304 (2).

As and for a Third Defense

Plaintiff has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

As and for a Fourth Defense

Failure to satisfy prima facie elements for a claim of unjust enrichment. Plaintiff has alleged unjust enrichment but has failed to attach any evidence to support this cause of action as called for by Florida Rules of Civil Proceeding 1.130.

As and for a Fifth 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 Sixth Defense

Plaintiff has not proven the alleged debt is valid or the amount of the alleged debt is accurate. The Plaintiff must prove the alleged principal, together with interest and/or delinquency fees and costs are all correct, agreed to in the alleged contract, and lawfully charged. Defendant also insists that the Plaintiff provide the alleged contract and a complete accounting proving the amount of the alleged debt.

As and for a Seventh Defense

Plaintiff has not proven the Defendant used, or authorized use of the alleged card. Exhibit "A" does not show any actual purchases or consumer transactions.

As and for a Eighth Defense

The Plaintiff has failed to provide numerous document material to the claims made. Paragraphs 3,4,5,6,7,8,9,10,11 all depend on the existence of documentation that is material to the nature of the claims made. According to Florida Rules of Civil Procedure 1.130(a) documents and other items material to the case should have been attached to the Plaintiff's pleading

WHEREFORE, Defendant requests that this case be dismissed with prejudice along with any further relief the court deems just and proper.


Please any help with any of these will be helpful…

CleaningUp

  • Valued Member
  • Posts: 8585
Re: Help, Newbie
« Reply #1 on: April 29, 2012 05:07:37 PM »
Do a lot more reading on the board before you start drafting your answer.


The defenses of fraud, unjust enrichment and privity fall flat on their faces when the come in contact with contract law.

They also make it look like you plucked your pleading straight from the internet.   I assure you that the court will take notice, and take notice in ways in which you may not be content.

Also remember, that for every affirmative defense you claim,  you will have to be able to provide evidence and to argue your case in front of the court.

Our advice here is to know what its that you are putting in your pleadings and not try to rely on tall-tale gimmicks that you read about.  If it sounds too good to be true, then it likely is.




jomitchell

  • Valued Member
  • Posts: 5
Re: Help, Newbie
« Reply #2 on: April 29, 2012 06:38:44 PM »
Thanks,

Unfortunately time to read all these post is not that feasible, I have to respond to the summons by the 5th. Would it hinder me if I ask for a extension?

CleaningUp

  • Valued Member
  • Posts: 8585
Re: Help, Newbie
« Reply #3 on: April 29, 2012 06:54:09 PM »
No, it will not hinder.

But what are you going to do if it is denied?

You will soon find out that court proceedings take precedence over everything except heart attacks and cancer surgery.


jomitchell

  • Valued Member
  • Posts: 5
Re: Help, Newbie
« Reply #4 on: April 29, 2012 07:15:53 PM »
How would you proceed?

Would you file your answer  with a mtc or ask for a dismissal?

gowyo

  • Valued Member
  • Posts: 697
Re: Help, Newbie
« Reply #5 on: April 29, 2012 07:27:56 PM »
D. THROWING YOUR CREDITOR OUT OF COURT http://www.debtorboards.com/index.php?topic=10197.0
I am not a lawyer and most likely a crackpot.

howucantoo

  • Valued Member
  • Posts: 4554
Re: Help, Newbie
« Reply #6 on: April 29, 2012 08:25:27 PM »
In FL and against AMEX ?  Read the arbitration thread ASAP.

In FL they use two prong testing for waiver of arbitration, read the rules so to not waive your rights by proceeding in court.

 If it was me I'd  file motion to compel and get a hearing set and notify my opponent of my intent.

Don't tip them if going to file arbitration in JAMS  , just do it soon, otherwise AMEX will want AAA.

In my experience AMEX will not participate in JAMS for small amounts  but, every case is different, use your judgment.
I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.

jomitchell

  • Valued Member
  • Posts: 5
Re: Help, Newbie
« Reply #7 on: April 30, 2012 01:07:32 AM »
Thanks,

I have been reading these boards and things are starting to blend together.

If I file the MTC, do I need to file my answer as well or will this serve as my answer? In my answer should I request to arbitration?

Please I need help as I feel lost and overwhelmed.

gowyo

  • Valued Member
  • Posts: 697
Re: Help, Newbie
« Reply #8 on: April 30, 2012 01:29:02 AM »
If this were my issue, I would file a MTC arb in lieu of an answer. There are many example MTC arb's on this site.
I am not a lawyer and most likely a crackpot.

BrokeBob

  • Valued Member
  • Posts: 985
Re: Help, Newbie
« Reply #9 on: April 30, 2012 01:57:15 AM »
+1 to howucantoo.

In Fla, it is VERY easy to waive arbitration. 

Based on what I have read about arbitration in Fla, if I were in Fla I would immediately initiate in JAMS, and file MTC.  I wouldn't answer.

That is just my intrepreation of what I have read here. 

recover1

  • Valued Member
  • Posts: 294
Re: Help, Newbie
« Reply #10 on: April 30, 2012 02:05:24 AM »
+1 to howucantoo.

In Fla, it is VERY easy to waive arbitration. 

Based on what I have read about arbitration in Fla, if I were in Fla I would immediately initiate in JAMS, and file MTC.  I wouldn't answer.

That is just my intrepreation of what I have read here.

Living in Florida myself, my experience has been, elect, initiate, pay the case management fee, file your MTC.  Then, file your answer stating for each claim, that an answer is unnecessary as arbitration has been elected and initiated.


 

credit