Suing Your Creditors > Sample Pleadings

Being sued by Gurstel Chargo (Discover)

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cajunman4life:
I was served via US Mail on June 25th (paperwork is dated June 20th) by Gurstel Chargo, representing Discover Bank. Here is their complaint:

Discover Bank vs. (ME)
Plaintiff Defendent

COMES NOW the Plaintiff, and for its cause of action against the Defendant, hereby alleges and states as follows:

COUNT I.
1. That defendant is a resident of the city of Omaha, Douglas County, Nebraska.
2. That defendant applied for a revolving credit card from plaintiff, and plaintiff accepted defendant's application and issued the defendant its credit card having the account number **** NNNN (where NNNN is 4 digits)
3. That defendant accepted and used said credit card thus issued to defendant and thereby agreed to abide by the terms and conditions accompanying said credit card.
4. That pursuant to the terms of the credit agreement, Plaintiff is entitled to recover its reasonable attorney fees.
5. That defendant owes to plaintiff for the purchase of goods, wares, and services, on or before January 31, 2012, the sum of $4,XXX.XX.
6. That although duly demanded, defendant has failed and refused to pay said amount and therefor is indebted to the plaintiff in the amount of $4,XXX.XX, plus interest at the rate of 6% per annum from and after January 31, 2012, plus reasonable attorneys fees.

COUNT II.
7. Plaintiff realleges the allegations set forth in paragraphs 1 through 6, and incorporates them herein by reference.
8. From time to time, plaintiff made and rendered to defendant accurate invoices and/or statements of account of the transactions between said parties. Said invoices and/or statements of account were received by defendant, accepted and retained by said defendant without objection being made to any item thereof within a reasonable period of time.
9. In furtherance of the charges made and cash advances taken, a full, just, and true account was made and stated between plaintiff and defendant, which showed a balance of $4,XXX.XX plus interest at the rate of 6% per annum from and after January 31, 2012 plus reasonable attorneys fees due to plaintiff from defendant over and above all sums received from defendant and for which defendant is entitled to credit.
10. That although duly demanded, no part or portion thereof has been paid.

WHEREFORE, plaintiff prays judgement against defendant as follows:
1. For the principal amount of $4,XXX.XX plus interest at the rate of 6% per annum from and after January 31, 2012, plus reasonable attorneys fees, plust post judgment interest at the statutory rate;
2. For plaintiff's costs and disbursements incurred herein; and
3. For such further and additional relief as the Court deems just, fair and equitable in the premises.

Dated: June 20, 2012


Here is what I have thus far for my answer:

NOW COMES Defendant, xxxxxx (“Defendant”), pro se, for its reply to the Summons and Complaint of Plaintiff, Discover Bank (“Plaintiff”), states as follows: All Answers correspond to the numbered paragraph of the Complaint. All the allegations of the Complaint are denied unless expressly admitted herein.

1.    Admit.
2.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the claim.
3.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the claim.
4.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the claim.
5.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the claim.
6.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the claim.
7.    Defendant incorporated by reference paragraphs 1 - 6.
8.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the claim.
9.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the claim.
10.  Defendant lacks knowledge or information sufficient to form a belief as to the truth of the claim.

Defendant, having answered the Complaint of the Plaintiff, respectfully requests this Honorable Court dismiss with prejudice the Plaintiff’s Complaint and award no damages or costs against the Defendant.

I'm interested in getting your feedback on improving my answer, and incorporating other things.

For informational purposes, I live in Nebraska.

Edited to remove personal information, i.ie, the OP's name. Use caution when posting and keep your identity protected. Attorneys and collection agecies frequent Debtorboards.

E. Normis Debtor:
I'm sorry, I missed any defenses in your answer.  Where are they?

They'll come up with a few monthly statements with your mailing address on them, and an affidavit from a custodian of records.  They'll move for summary judgment and it will all be over.......in their favor.

cajunman4life:
I'm open for suggestions here. I'm just starting to study things.

GRINGO:
I have been dealing with this out fit for quite some time.  I used what you have written however I included the statement-

-"Affirmative Defenses-  The Defendants reserve the right to add  affirmative defenses later."

Once that was mailed back within the time frame, I did my research for the next part. You need to find out if there is Jams in your agreement. If so, file a motion to Compel Arbitration ASAP!

The court in my area sits on it for 2o days to give the other side time to contest it before the judge responds.

There was no issue from the court on my answer!! Different courts may object, however I used the one two punch method on my first case with them.

Now, I get to learn how to deal with a JDB instead of an OC with the same firm. I believe they handle all lawsuits in my area. Pretty soon we will be speaking on a first name basis-not!!

I would delete the statement "Defendant, having answered the Complaint of the Plaintiff, respectfully requests this Honorable Court dismiss with prejudice the Plaintiff's Complaint and award no damages or costs against the Defendant."

I would never use that in an answer. That would be reserved for another legal  issue-say perhaps in a motion, never in an answer.

E. Normis Debtor:
They've filed a petition, and you have to defend against it; not just answer.  Their statements, and affidavit, will provide the court with the knowledge and information you seem to lack.

While I won't provide your defense, some could include: (these are not numbered to correspond to their petition)
1.  I never had an account with x
2.  The statute of limitations has run
3.  Plaintiff lacks standing to sue
4.  Lack of consideration
5.  I never agreed to the terms proffered by the plaintiff
6.  Terms are unenforceable under state law making any agreement void

etc. etc.

You'll want to go through the discovery process and have them produce any agreement.  Is arbitration an option.

You have some homework to do, but keep in mind your objective is to provide defenses to their claim, not play dumb.





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