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Roger
Roger, Attorney
Category: Bankruptcy Law
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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A lawsuit has been file against me from Bank of America for ...

Resolved Question:

A lawsuit has been file against me from Bank of America for a credit card debt of the amount of 12,500 and they demands judgment against me. I have to answer by writing if I want the court to hear my case. Since may 2007 I give all my credit card to a Professional debt settlement call DEBT SHIELD INC. They withdraw amount of money from my bank account every month on the 2 to settle my credit card debt and I want them to continu negotiate with bank of america. My question is: What do I have to write to respond to this summons to make sure the court will give me the opportunity to let Debt Shield to negotiate the amount due. Or tell me what is the way for me to get thru this
Submitted: 6 years ago.
Category: Bankruptcy Law
Expert:  Roger replied 6 years ago.

If you've been sued, you need to file an "Answer" to the complaint. The answer is a paragraph by paragraph response to the complaint. If you don't file it within the time provided, Bank of America will take a default judgment against you, which will give it the ability to garnish your wages, attach property, freeze your bank account, etc. Thus, it is imperative that you file an answer.

Below is a sample form that you can use to answer. You don't have to use all of the affirmative defenses if they don't apply - but there is no harm in leaving them in there even if they don't apply:

(Name, Address Of Party or attorney) ____________ ____________ ____________ State Bar No: ______ (____) _____ - ________ Attorney for _______ (Or "In Pro Per")

___________ COURT OF THE STATE OF ____________ COUNTY OF ________

[PLAINTIFF(S) NAMES]
Plaintiffs,
v.
[DEFENDANT(S) NAMES]
Defendants
_____________________
)
)
)
)
)
)
)
)
)
)
)
CASE NO: _______
ANSWER TO COMPLAINT

COMES NOW the defendant, ____, for himself alone and in answering the allegations of the complaint on file herein, affirms, denies, and alleges as follows:

 

<>. Answering the allegations of Paragraph ___ of the complaint, defendant___ incorporate___ herein ___ answers to Paragraphs ___ through ___ of plaintiff's purported ___ Cause of Action the same as though fully set out herein at length.

 

<>. Answering the allegations of Paragraph__, Defendant__ admit each and every allegation contained in said Paragraph__.

 

<>. Answering the allegations of Paragraph__ , Defendant__ admit ___. Except as heretofore admitted, Defendant__ deny__ each and every remaining allegation contained in said Paragraph__.

 

<>. Answering the allegations of Paragraph__ ___ of the Complaint, defendant__ deny__ each and every allegation contained in said Paragraph__.

 

<>. Answering the allegations of Paragraph__ , Defendant__ allege__ that ___ ___ no information or belief sufficient to allow ___ to answer and so ___ deny__ each and every allegation contained in said Paragraph__

 

AFFIRMATIVE DEFENSES

 

 

FIRST AFFIRMATIVE DEFENSE

 

(Failure to State a Cause of Action)

 

 

<>. These answering _____s allege that the ____ each and every Cause of Action therein fails to state a Cause of Action.

 

SECOND AFFIRMATIVE DEFENSE

 

(Unclean Hands)

 

 

<>. These answering Defendants allege that to the extent the ______ seeks equitable relief, ______s' inequitable conduct constitutes unclean hands and therefore bars the granting of relief to _______ herein.

 

THIRD AFFIRMATIVE DEFENSE

 

(Anticipatory Repudiation)

 

 

<>. These answering ___s are informed and believe and on such information and belief allege that ____s breached their contract, if any, with ___, and that by reason of said breach of contract, ____ have been excused of their duties to perform all obligations set forth in said contract.

 

FOURTH AFFIRMATIVE DEFENSE

 

(Offset)

 

 

<>. These answering ___s allege that they have suffered damage by reason of ____ conduct; that they have the right of offset if any amount of money is owed to ___s or due ____s by way of damage.

 

FIFTH AFFIRMATIVE DEFENSE

 

(Waiver)

 

 

<>. These answering ___s are informed and believe and on such information and belief allege, that ___s were engaged in conduct that constitutes a waiver of their rights under the contract alleged in the ___. By reason of said waiver, ___s are excused from further performance of the obligations under the alleged contract.

 

SIXTH AFFIRMATIVE DEFENSE

 

(Release)

 

 

<>. These answering ___s allege that ___'s actions constituted a full release and waiver by ___s of any and all claims which ___s may have against ___s.

 

SEVENTH AFFIRMATIVE DEFENSE

 

(In Pari Delicto)

 

 

<>. These answering ___s allege that the ___s herein and each and every purported Cause of Action in the ___ are barred because ___s have engaged in acts and courses of conduct which rendered them in pari delicto.

 

EIGHTH AFFIRMATIVE DEFENSE

 

(Equitable Estoppel)

 

 

<>. These answering ___s allege that the ___s herein, and each and every Cause of Action contained in the ___, are barred by reason of acts, omissions, representations and courses of conduct by ___s by which ___s were led to rely to their detriment, thereby barring, under the doctrine of equitable estoppel, any Causes of Action asserted by the ___s.

 

NINTH AFFIRMATIVE DEFENSE

 

(Condition Precedent)

 

 

<>. These answering ___s allege that performance by these ___s of certain acts were contingent upon receipt of specific instructions or otherwise properly directed any action which supposedly were to be undertaken by these ___s, thus ___'s authority, direction and cooperation was a condition precedent to any alleged-obligation-by-these ___s to perform such acts.

 

TENTH AFFIRMATIVE DEFENSE

 

(Contributory Negligence)

 

 

<>. These answering ___s are informed and believe and thereon allege that the damages referred to in the ___ by ___s were proximately caused by the ___s and/or others affiliated in any manner with ___s in that at all times relevant herein, ___s, failed to exercise for their own protection the proper care and precautions which prudent persons under the same and similar circumstances would have exercised and that if these answering ___s committed any wrongful act at all (which supposition is made for the purpose of their defense without admitting such to be a fact), the aforesaid conduct of ___s and/or entities or persons associated in any manner with the ___s contributed to the happenings of ___'s alleged damages.

 

ELEVENTH AFFIRMATIVE DEFENSE

 

(Statute of Frauds)

 

 

<>. These answering ___s allege that the ___ is barred by the provisions of Section 1624 of the Civil Code, i.e., the Statute of Frauds.

 

TWELFTH AFFIRMATIVE DEFENSE

 

(Failure of Consideration)

 

 

<>. These answering __s allege that the __s herein and each and every purported Cause of Action in the ___ are barred as a result of a failure of consideration.

 

THIRTEENTH AFFIRMATIVE DEFENSE

 

(Substantial or Partial Performance/Divisibility)

 

 

<>. These answering ___s are informed and believe and on such information and belief allege that the contract alleged in the ___, if any, has been substantially and/or partially performed, and as such, is subject to divisibility.

 

FOURTEENTH AFFIRMATIVE DEFENSE

 

(Failure to Mitigate)

 

 

<>. These answering ___s are informed and believe and thereon allege that ___s has failed to mitigate and lessen damages, if any it sustained, as required by law, and are barred from recovery by reason thereof against ___s.

 

FIFTEENTH AFFIRMATIVE DEFENSE

 

(Apportionment)

 

 

<>. These answering ___s are informed and believe and thereon allege that the matters complained of in the ___ were proximately caused, in whole or in part, by the acts or omissions of a third party or parties or ___s. Accordingly, the liability of the ___s and responsible parties, named or unnamed, should be apportioned according to their respective degrees of fault or other legal responsibility, and the liability, if any, of these answering ___s should be reduced accordingly.

 

SIXTEENTH AFFIRMATIVE DEFENSE

 

(Modification)

 

 

<>. These answering ___s are informed and believe and thereon allege that the contract in question, if any, was modified by the parties, and that ___s are barred from recovery on the unmodified original contract, if any, by reason of said modification.

 

SEVENTEENTH AFFIRMATIVE DEFENSE

 

(Substituted Contract)

 

 

<>. These answering ___s are informed and believe and thereon allege that a new contract were substituted in place of the original contract, if any, and that ___s are barred from recovery on the original contract, if any.

 

EIGHTEENTH AFFIRMATIVE DEFENSE

 

(Mutual Mistake)

 

 

<>. These answering ___s are informed and believe and thereon allege that if there presently exists or ever existed, any or all of the alleged rights, claims or obligations which ___s seeks by way of their ___, said claims or obligations are unenforceable by reason of mutual mistake.

 

NINETEENTH AFFIRMATIVE DEFENSE

 

(Agreement is Not Fully Integrated)

 

 

<>. These answering ___s are informed and believe and thereon allege that if there presently exists or ever existed, any or all of the alleged rights, claims or obligations which ___s seeks by way of their ___, said claims or obligations are unenforceable because the written agreement is not fully integrated.

 

TWENTIETH AFFIRMATIVE DEFENSE

 

(Assumption of the Risk)

 

 

<>. These answering ___s are informed and believe and thereon allege that if there presently exists or ever existed, any or all of the alleged rights, claims or obligations which ___s by way of their ___, said claims or obligations are unenforceable because ___s assumed the risk involved in the transaction.

 

TWENTY-FIRST AFFIRMATIVE DEFENSE

 

(Statute of Limitations)

 

 

<>. These answering ___s are informed and believe and thereon allege that if there presently exists or ever existed, any or all of the alleged rights, claims or obligations which ___s seeks by way of its ___, each and every cause of action in the ___ is barred by the applicable sections of the California Code of Civil Procedure.

 

 

WHEREFORE, defendant__ pray__ that plaintiff__ take nothing by __ Complaint and that defendant__ have judgment against plaintiff__ and recover costs of suit herein incurred, and such other relief as the court may deem proper.

 

DATED: _______________ _________________________________

 

 

 

VERIFICATION

 

 

 

I, ___, am a ___in the above-entitled action. I have read the foregoing ___and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe it to be true.

I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at ____________, ________________.

 

 

DATED: _________________ ___________________________________

File the original Answer with the court clerk and send the attorney for BofA a copy.

Expert:  Roger replied 6 years ago.
Please let me know if you have any additional questions. If not, please click "Accept"so I may receive credit for my time. Thanks.
Customer: replied 6 years ago.
I am still confuse about how and wich defense I have to use and how to answer. Can't you fill up the form for me, because I wish to answer by myself or should I go see to a lawyer to make him send the response and if I use a lawyer is that gone let Debt shield to negotiate to pay the bank ?????
Expert:  Roger replied 6 years ago.

You can use the entire form and each defense can be listed. A paragraph by paragraph answer should be made before the affirmative defenses are listed.

The 4 different statements immediately under the "COMES NOW" sentence can be used for each paragraph.

<>. Answering the allegations of Paragraph__, Defendant__ admit each and every allegation contained in said Paragraph__.

<>. Answering the allegations of Paragraph__ , Defendant__ admit ___. Except as heretofore admitted, Defendant__ deny__ each and every remaining allegation contained in said Paragraph__.

<>. Answering the allegations of Paragraph__ ___ of the Complaint, defendant__ deny__ each and every allegation contained in said Paragraph__.

<>. Answering the allegations of Paragraph__ , Defendant__ allege__ that ___ ___ no information or belief sufficient to allow ___ to answer and so ___ deny__ each and every allegation contained in said Paragraph__

For example:

1. Answering the allegations of Paragraph1, Defendant admits/denies each and every allegation contained in said Paragraph 1.

2. Answering the allegations of Paragraph 2, Defendant admits/denies. Except as heretofore admitted, Defendant denies each and every remaining allegation contained in said Paragraph 2.

You can use whichever form suits the paragraph best. You can even make up your own if you want.

++++++++++

If this seems overwhealming, you can certainly retain an attorney and allow him to answer the complaint for you.

Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26165
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 2 other Bankruptcy Law Specialists are ready to help you
Customer: replied 6 years ago.
I am still confuse about how and wich defense I have to use and how to answer. Can't you fill up the form for me, because I wish to answer by myself or should I go see to a lawyer to make him send the response and if I use a lawyer is that gone let Debt shield to negotiate to pay the bank ?????
Expert:  Roger replied 6 years ago.

I can't fill the form out for you as we are prohibited from practicing law under the website terms and conditions.

If you use this form by taking and listing the affirmative defenses, and then answer each paragraph separately by either admitting or denying it, then that is a sufficient answer.

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