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…
