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Thanks, XXXXX XXXXX what I thought. This suit is in progress and contained 8 claims prior to their attempted FED action. After this action, I amended the complaint to include a claim I titled ABUSE OF PROCESS AND BREACH OF CONTRACT BY FRAUD, then i listed the detailed facts about what they did. This suit is being defended by Farmers Insurance Company, the attorney filed an objection to us filing an amended complaint to add the new claim, the judge called a hearing to argue the matter and sided with me and granted my motion to amend my complaint. The purpose of the hearing was specifically about the amended complaint, the attorney was present and well aware that the motion was granted - however, they have failed to file an amended answer to the amended complaint and therefore have technically admitted the allegations made in the claim that was added, including Abuse of Process and Fraud. But if Abuse of process is not proper here then what happens. If I try and take it out, then they get a new chance to answer? What should I do about this?
So that is contrary to what the other attorneys' said and contrary to what case law says. Generally, it seems, a court will grant the motion for default, then the other party files a motion under Rule 60, mistake, excuse, etc to try and get the answer in. Also, let's say I do not file a motion for default, then go to trial and I use it against them, well they certainly can't file and answer at trial right? How can they defend a question they have no answer to. Is the court just supposed to assume they deny the claim. This is difficult to make sense of. Can you explain what you rely upon to state why they have not admitted claims for which they have not denied? Why am I getting such a differing opinions on this?
I am not sure what you mean by stands, but I filed a complaint, they filed an answer, i amended my complaint by dropping 3 claims and adding 1 claim. They did not file and amended answer. Case law and advise from other attorneys on this site indicate that under the rules, failure to answer an amended complaint means they have admitted the allegations. I understand that it is within the judges discretion to allow a late answer but the judges discretion is not the question, we don't have control over judges discretion but still have to apply the law. Please look at the questions again in my email and provide detail. These are valid and specific questions concerning an apparent conflicting aspect of the law. I understand if you do not have time to provide detail, if so please refer this dialogue to some one else.
I was concerned that you were not reading the details of the matter and would not address that your statements were in conflict with others on this forum. However, don't worry about it, its just sometimes difficult to communicate fully in this manner.
Interestingly, the question has sparked quite a bit of controversy with regard to the differences in rules between County Court, District Court, Appellate Court, etc. It appears clear that a procedural violation in District Court under the identical circumstances as described would result in a very strong case for default judgment. However, the lawmakers did not accidentally make the rules vague and different for County Court than for District Court, right? While the law is applied the same in all courts, procedural defects may not be dealt with in the same manner? County judges have significant discretion compared to the scrutiny and precedent District court must follow? Any comments on the subject are welcome.
Have a nice evening!