Author Topic: Steps in Litigation  (Read 14905 times)

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Flyingifr

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Steps in Litigation
« on: June 27, 2007 10:46:53 PM »
Here are the basic steps. Check your Court Rules to see if there are any variations.

1. Answer the Summons. The Answer should contain as many of the following are as applicable:
A. Denials of the allegations in the Complaint and a demand for strict proof thereof.
B. General Defenses (defenses that the Plaintiff should be aware of, like offsets)
C. Affirmative Defenses - things the Plaintiff may not be aware of, such as asserting the Statute of limitations
D. Counterclaims - against the Plaintiff, not the Attorney. FDCPA violations by the attorney are dealth with through a lawsuit against the attorney him/herself.
E. Statement that Defendant requests adequate time to proper Discovery.

2. Discovery - DB has threads in the Sample Pleadings section and has helps throughout. Check your Court Rules, there may be limits on the number of Discovery items. The purpose of Discovery is twofold: First, to see the case of the Plaintiff, and second to narrow the issues by seeing what both sides can agree to as far as facts are concerned. This "agreement" is called "Stipulating". When both sides agree to ma fact, they will Stipulate it, as in "Plaintiff and Defendant both stipulate that the Earth is round and orbits the sun". This is probably all you should stipulate. In Discovery you will do any or all of the following:
A. Propose Admissions - statements that you are asking the other side to Stipulate. A commons Admission request from a creditor will read "Admit that you owe the amount claimed in the Complaint and that all your defenses are imaginary." Obviously, you Admit only the most obvious things - things no rational person can deny.
B. Interrogatories: These are questions you ask in order to get specific facts. In the Interrogatories section it is typical to include a statement like "In the event Respondent's response is based on reference to any Document, that reference will constitute a Demand for production of a true and complete copy of that document." Word your Interrogatories carefully. A common response to interrogatories is "Objection. Question is vague" or "Objection. Respondent claims the response is privileged."  When they object to the Interrogatory, it provides you an opportunity to petition the Court to rule on the legality of the question, which they will have to pay their attorney to oppose.
C. Demands for Production of Documents: Unlike Interrogatories, you make these as expansive as possible. An example would be "Produce a true, correct and complete copy of all Collector's notes regarding the account named in the Complaint, from the date of the inception of the alleged account to the date of the filing of the Summons and Complaint, on whatever medium they may exist, transcribed onto paper. This includes e-mails, internal memoranda, ledger card notes and any comments of any nature whatsoever regarding the collection process, thoughts, strategies, policies, procedures of any nature whatsoever."

3. Motions: After Discovery has been served you may need to file any or all of the following Motions with the Court and the other side. When you file the Motion with the Court, do so in at least three copies and include an Order of the Court that would execute the Motion with the Motion. This is not an expansive list. In fact, it is probably closer to the bare minimum.
A. Motion and Order to Compel - this wold be used when the other side ignores your Discovery demands, which is common. It orders them, by the Court, to respond.
B. Motion and Order to Preclude: This would be used when they ignore the Order to Compel. It serves as a Judicial Order to exclude from trial any and all evidence, documents, testimony or other things that could have or should have been revealed in Discovery. Basically, it throws their entire case into the garbage can.
C. Motion for Summary Judgment - used when there are no issues of Law or Fact at issue and a Judgment is yours as a right of law.

Obviously, should the other side file any Motions, you will promptly file an Opposition to their Motion detailing the reasons their Motion should be denied.

This, while not complete, gives a good idea of what you can expect before trial. My experience is that unless you are being sued for a huge debt, the other side will usually throw in the towel when presented with this onslaught.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

winndknot

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Re: Steps in Litigation
« Reply #1 on: June 04, 2008 07:32:45 PM »
I have been sued, I requested VOD with green card retrun and recd nothing.  I amswered summons and complaint with denials.  I asked plantiff for discovery, I have to answer their discovery.  They have violated (FDCPA) Section 805(c), (FDCPA) Section 809 §1692c, and (2) times of (FCRA) 623

Do I file a counterclaim and how do I do that, I am in Idaho.

Thanks so much your posts and many others are so helpful when filing pro se

Fighting Manatee

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Re: Steps in Litigation
« Reply #2 on: May 14, 2010 03:43:11 AM »
Remember to review your local rules of civil procedure. You may need to file a motion to dismiss before the Answer or certain defenses may be waived.

pro se active

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Re: Steps in Litigation
« Reply #3 on: October 11, 2010 08:15:58 AM »
Answered Summons
Received notice of Discovery
Received Interrogatories
Received Admissions  (Need help)
Admissions Request 10: that the defendant has no affirmative defenses to Plaintiffs complaint
Admissions Request 11: That the Defendant admits all allegation contained in Plaintiffs complaint
Admissions Request 12: If you deny Request 10 set forth all affirmative defenses in detail

What is my affirmative defense?  That a Junk Debt buyer doesn't have the right to bring suit because of lack of chain of custody?  How do you word that
being sued by CachLL via  lawyer who also does collections  (for a credit card.)

I have not sent my interrogatories to them yet.  Doing research on DB to get the best.  Do I need to file for discovery, do I send admissions to them?
I am not an attorney.  I am just pro se active!

Admin6572

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Re: Steps in Litigation
« Reply #4 on: October 12, 2010 11:03:45 AM »
-BUMP-

silverzgirl

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Re: Steps in Litigation
« Reply #5 on: October 12, 2010 01:07:23 PM »
Affirmative defenses: Here is a list from Texas.

http://www.gaddywells.com/AFFIRMATIVE_DEFENSES.html

You can check your state, but if you Google AD you should be able to come up with some. You ALWAYS want affirmative defenses. So admission 10 is a deny.

Number 11 would be a deny, if you disagree with ANY of the allegation.

Number 12 would be what you glean out of number 10; where you will list the ADs that you find. Trust me, you probably have many...not to mention counterclaims.
“Know your enemy and know yourself and you can fight a hundred battles without disaster.”  - Sun-Tzu

I am not a lawyer, nor do I play one on TV. I once thought I was a lawyer when I was litigating in a courtroom, but turns out I just had Patron induced bed spins and dreamed it all. Take my posts with a grain of salt...and a shot of Patron. But not so much you think you are a lawyer.

pro se active

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Re: Steps in Litigation
« Reply #6 on: October 13, 2010 08:29:52 AM »
Thanks Silverzgirl!  I did a google and found the following.  You are right there are alot how many defenses should you take?

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.
I am not an attorney.  I am just pro se active!

Mr. Reps

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Re: Steps in Litigation
« Reply #7 on: December 15, 2010 01:44:48 PM »
Your local court rules are very important They can work for you and  against you. Make sure the opposition has followed all local court rules if not bring the to the courts attention.

survivor23

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Re: Steps in Litigation
« Reply #8 on: March 15, 2011 04:50:40 PM »
I would also add:

1) Do research on what constitutes jurisdiction. A lot of times, there is no jurisdiction for OP to even bring you to court! The jurisdiction issue has to be raised right away or else you are giving the court jurisdiction.

survivor23

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Re: Steps in Litigation
« Reply #9 on: March 16, 2011 04:02:35 AM »
Regarding the debt collection laws, I've read that some judges will not enforce since they are federal laws. apparently this is a court by court decision, but how in the world do you find this out ahead of time?

 

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