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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3814
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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What would an individual supply as a defense toward a collection

Customer Question

What would an individual supply as a defense toward a collection suit for motion to dismiss on a fraudulent account opened online with individuals personal information in june of 2006 and case filed in Utah in August of 2012? I reside in Louisiana.
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Hi,

Are you saying that you have been sued in Utah for a fraudulent account and you are inquiring as to the answer and defenses you need to file?

-ZDN
Customer: replied 1 year ago.

Yes it was for an Advanta Business Credit Card fraudulently opened online with balance transfer. A card was also in my daughters name - who was only 6 at the time. When I received the summons in August, I called the collection court and they said to supply them with a letter explaining that it was a fraudulent account and request to dismiss - I did. Now the collection agency Federated Capital/Financial is asking for a ruling on the case in January.

Expert:  Zachary replied 1 year ago.
What court is it in? (district court or justice court)?

Do you have a copy of the lawsuit that was filed against you?

What did you say in the letter and how quickly did you send it in?
Customer: replied 1 year ago.


Third district court.


Yes.


I responded to the summons within 2 days.


Asked to dismiss case based on fraudulence and statute of limitations.


The latest letter was sent usps first class by the collector - I haven't responded

Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your response.

Your letter counts as an answer. Since you are in district court, you need to be more specific in the way you are answering. Your answer needs to be in a legal format rather than a letter (Understand that the court may have said a letter is ok, but the court cannot give you specific legal advice).

The answer needs to look like the form here:
http://www.utcourts.gov/howto/answer/#forms


And you have to specifically deny each allegation they make in their claim:
http://www.utcourts.gov/resources/rules/urcp/urcp008.html

You need to make the denials as to each paragraph in the plaintiff's claim.

Other than the statute of limitations defense and a statement that the credit account was opened through fraud and that you did not authorize the account, there are no specific defenses you need to state.

In Utah, there is no "motion to dismiss" specifically. The motion you would need to file next after filing your answer is a "motion for summary judgment" which requests that the case be dismissed because the plaintiff cannot prove its claim against you. http://www.utcourts.gov/resources/rules/urcp/urcp056.html

The motion for summary judgment should follow the form located on this page: http://www.utcourts.gov/resources/rules/urcp/forms/

In the motion, you should state that "Plaintiff cannot prove that Defendant opened this account and has no proof that Defendant ever agreed to enter into any contract with Plaintiff. As Plaintiff lacks evidence on this crucial and required element of its claim, the court must dismiss Plaintiff's claim."

You should also state that "Plaintiff's claim is barred by the statute of limitations. Plaintiff has admitted in it's own pleading that the account became due on _______. The Plaintiff did not file suit until August 2012, which is more than 4 years after the account became due. Accordingly, the Plaintiff is barred from asserting this claim pursuant to the Utah statute of limitations."

Please let me know if you have further questions. Please remember to rate my service positively so that I might receive payment from the website for my work.

Best regards,
ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3814
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 17 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


Thank You for all the information.


I would benefit greatly from having someone with your knowledge handle this. Thanks again.

Expert:  Zachary replied 1 year ago.
Good Luck

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