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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 85115
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am being sued by Asset Acceptance LLC purchased an alleged

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I am being sued by Asset Acceptance LLC purchased an alleged credit card account from juniperbank. i filed a motion for more definite statement. the judge gave leave of thirty days for them to answer. oh, by they way there was nothing attached to the complaint. i had a beautiful motion full of case law and quoting brown v. columbus manufacturing as the basis for my motion. ASSET denied it. what should i do next?
Submitted: 11 months ago.
Category: Legal
Expert:  Ely replied 11 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

Can you please tell me what state this is in and how much they are alleging you owe?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 11 months ago.

I live in Ohio. $3,063.11.

Expert:  Ely replied 11 months ago.
Thank you. Now that I have this information, your question is:

"What should i do next?"

This is rather open-ended. Did you mean simply if you feel that their amended complaint is still too broad, or, what may be done in general in the suit as a stumbling block?

Also, is this in small claims court, or not? I am guessing that it is, but please confirm.
Customer: replied 11 months ago.

small claims court, yes. i guess my question first would be do i have to now answer the original complaint, and then second, if i deny all claims, which i would, even my last name is XXXXX XXXXX would be a proper motion to file with the answer or not to anwer... sorry lol! i guess you figured this is there reply. it seem almost ignorant to me...

Now comes Plaintiff, xxxx and hereby responds to defendants motion for MDS and asks the is Court to deny Defendant's motion for reasons set forth below.



I. Facts

Complaint is this matter was filed to recover a balance which arose from Defendant's alleged use of a xxxxxx credit card account. Service was perfected and defendant has filed a Motion for MDS pusuant to OHio Civil Rule 12(E)



II. Defendants motion for MDS is imporpper.



Civil rule 12 (E) states:

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a DS before interposing a responsive pleading.



defendant has posed such a motion to the court. However, there is nothing in Plaintiff's Complaint that is so vague as to prevent XXXX from answering. To the contrary, it is clear from reading the complaint that plaintiff alleges defendent applied for a xxxx c.c. and xxxx failed to pay the balance due, that the debt was asssigned to Plaintiff for collections and that therefore defendant owes a sum of money to plaintiff. none of the foregoing allegations are so unclear that defendant could not possilby respond. Therefore xxx Motion for MDS is denied.

III.

Defendant argues Plaintiff's complaint must inclued a comp of the contract and a running balance of his account.( I'm a her and they us "her and him" interchangably throughout) The Complaint included Defendant's name (true) and account number. (14 digits) attached to the complaint is and affidavid of the account and copies of statements in the Defendant's name. (not true)



In the case of blah blah blah the 11th district court of appeals found that the document attached to the pleading was adequate to put defendant on notice and to allow defendant to file a proper responsive pleading. The court focuses on the fact that the plaintiff established a "provable sum" Similarly, the 4th appellate district has stated that a pleading stae in an acion on an account, the beginning balance must be a provable sum, not a proven sum.



Defendant has notice of the claim herein and anple opportunity to form an answer. For the forgoing reasons. Plaintiff respectfully XXXXX XXXXX this honorable court deny defendants motion for DS.

Respectuflly submitted,

blah blah blah

attorney's for

Expert:  Ely replied 11 months ago.
Thank you, K. I like your positive energy.

i guess my question first would be do i have to now answer the original complaint

Not yet. By filing a motion for more definite statement, one is saying "Hey, I'd love to file an answer, but I'm not even sure what this guy is talking about here! How can I file an answer when their claim is as bland as off-brand baloney?"

Now, once they come back with a more specific, amended complaint, then one has to file an ANSWER to that amended complaint.

and then second, if i deny all claims, which i would, even my last name is XXXXX XXXXX would be a proper motion to file with the answer or not to anwer...

Even though your name is XXXXX XXXXX can always modify any judgment against you with a nunc pro tunc pleading to change the name to reflect the proper name. So if they got the last name wrong, this is not in itself an affirmative defense.

Simply, one files the Answer and may call themselves in the caption by the older name, but, in the defense, begin with:

"Here comes now [PROPER NAME], named Defendant in the above matter and wrongly named [IMPROPER NAME], and files this Answer...."

I hope this helps and clarifies.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 11 months ago.

i'm sure i will give u a positive answer, but i'm not sure that i have an answer. what motion do you suggest i file next? and is it legal to file subsuquent motions in ohio. i have read the laws of civil procedure, some i understand this i cant find an answer to. thanks, XXXXX XXXXX being a pain...i appreciate your time!!! also, i know they can change my name, but it would be fun to get of on such a stupid technicality. oh btw, this is an account from 06 i called the original creditor to find the date of last payment, they didnt know. my ex husband opened accounts in my name. i can't say if this is one or not, until i see the documentatiion. so there is a small chance this is also time barred. statute in OH is 6 years. the reason i think the ball is in my court is b/c they answer on 4/8 i look up the case on line everyday....still nothing...

Expert:  Ely replied 11 months ago.
K,

Okay, I am sorry, I will be more specific.

what motion do you suggest i file next?

At this moment, there is no need to file anything until they present their amended, more specific Complaint. Once they do, someone in your situation may wish to file an ANSWER to ensure that you do not default.

and is it legal to file subsuquent motions in ohio

Yes. One may file any number of motions before the Court. The Court will entertain any motion provided it is reasonable.

Understand that one does not use motions as an "attack" per se. Motions are file for genuine relief. For example:

Motion for a More Definite Statement - if their pleading is unclear;

Motion for Continuance - for a continuance;

Motion for Contempt - to hold someone in contempt for not following prior orders...

Etc.

At this point, there is really nothing else to file. A motion should only be filed if there is a genuine issue. Filing motions just to confuse/inundate the other party can lead to the Court sanctioning you for doing so.

If they provide a more definite statement, then one files an Answer and eventually, there will be a hearing. No motion is otherwise necessary unless there is a specific ISSUE that needs to be addressed (do you need a continuance, do you want to object to the Judge's neutrality, etc).

i can't say if this is one or not, until i see the documentatiion. so there is a small chance this is also time barred. statute in OH is 6 years.

IF this is time barred, and IF their more specific, amended complaint confirms that this is for the debt that is out of statute, then a MOTION TO DISMISS in an attempt to simply have the matter dismissed.

I hope this helps and clarifies.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.

one more thing, perhaps i am a little slow. so why hasn't the judge ruled on their reply. again, it was to be submitted by 4/26/13.they submitted 4/8 clearly you can't be in the judges head, but on every other thing that has happened ie:appearance in court, motions filed. the court has answered that day or the nxt. so, because i am thick in the head, and i wnat to be absolutely clear. the next thing to happen after the jdb denying my statement for more definite motion is in the hands of the judge?!

Expert:  Ely replied 11 months ago.
K,

Just to clarify - the pleading you posted earlier, at 4/30/2013 at 3:32, this was their amended complaint? And is that what you mean by "their reply," as in "their reply to the demand to be more specific?"
Customer: replied 11 months ago.

i posted both. 1st is their answer to my motion for more definite statement, the second is my actual motion. they did not amend the complaint. they only denied my motion after the complaint. so (1) i show up in court (2) judge orders me to answer (3) i file motion for mds in lieu of answer (4) they deny my motion. (5) no response from court since 4/8. nothing not a peep from anyone not even the court. assets answer was due 4/26 i hear crickets.

Expert:  Ely replied 11 months ago.
Okay. In this case, it seems that the Court has denied your motion for a more definite answer. This means that you HAVE TO FILE AN ANSWER now - this is the next step.

Then, again, if it is out of status, a Motion to Dismiss may be in order.
Customer: replied 11 months ago.

how has the court denied it? the judge gave the jdb 30 days, they denied it. so that is the courts answer also?!

plz read ASSETS denial to my motion again. it has to be improper...no??? now you have got me really confused. i have been granted a lot of mistakes by the judge and the magistrate. read my motion again and what the magistrate said....he said he would not grant a motion or however they word it, unless there was a cc statement with a provable sum attached..... now you understand why i was confused?!?!

Expert:  Ely replied 11 months ago.
K,

Perhaps we are not communicating clearly. This will be helpful - can you please give me a timeline of what has transpired.

Example:
Jan 1, 2012 - summons received
Jan 20, 2012 - motion for more definite statement filed
Feb 10, 2012 - motion for more definite statement heard, denied...

Etc. This will help us get on the same page.
Customer: replied 11 months ago.

august 8th- summons filed-i ignored.

SOMETIME HERE-DEFENDANT FILED MOTION TO DISMISS

feb 15th-hearing scheduled

march 12-court...granted me til' march 26th ( BECAUSE I SHOWED UP AND THEY HAD NOTHING)to file an answer or other responsive pleadings

march 26- i,me,filed motion for more definite statement

march 27-judge ordered "the plaintiff (ASSET) is given leave until april 26th to file it's response to defendant(me)'s motion for mds.

april 8-asset denied motion for mds.

IT IS LISTED AS HAVING BEEN RECEIVED BY THE COURTS SAME DAY 4/8 BUT NOTHING HAS BEEN NOTED SINCE OR SENT TO ME SINCE.

 

Expert:  Ely replied 11 months ago.

Thank you.

 

april 8-asset denied motion for mds.

 

Did you mean that "Court denied Asset's RESPONSE to your Motion for MSD"

 

OR

 

"Court denies your Motion for MDS after Assets files a response to it?"

 

IT IS LISTED AS HAVING BEEN RECEIVED BY THE COURTS SAME DAY 4/8 BUT NOTHING HAS BEEN NOTED SINCE OR SENT TO ME SINCE.

 

"IT" being what here, exactly?

Customer: replied 11 months ago.

NEITHER....COURT HAS NOT ANSWERED....COURT HAS SENT ME NOTHING....ONLY THING I RECEIVED WAS WHAT i showed you...their answer.

Expert:  Ely replied 11 months ago.
Then what exactly did you mean by:

"april 8-asset denied motion for mds."
Customer: replied 11 months ago.

















DateRemarks















































08/08/2012FILE - NEW FILING, 8/8/2012, COMP FILED. COMP & SUMMONS SENT CERT# XXXXX 3500 0001 1803 2192
08/15/2012COMPLAINT AND SUMMONS WAS DELIVERED TO DEFENDANT, SIGNED BY MICHAEL ?
02/14/2013MOTION FOR DEFAULT JUDGMENT AND AFFIDAVITS FILED
03/12/2013ATTY FOR PLT APPEARED; DEF APPEARED; RE: MOTION FOR DJ; DEF HAS 2 WEEKS TO FILE AN ANSWER AND PT WILL BE SCHEDULED. PLT ATTY TO PROVIDE ACCOUNTING STATEMENTS ALSO WITH COMPLAINT.
03/13/2013CASE W/ CHD
03/13/2013STAT - STATUS, 3/26/2013 9:00:00 AM, FOR DEFENDANT TO FILE ANSWER
03/25/2013DEFENDANTS MOTION FOR MORE DEFINITE STATEMENT FILED. COPY SENT TO PLAINTIFF BY CLERK OF COURT OFFICE
03/27/2013ENTRY AND ORDER DIRECTING CLERK TO SEND A COPY OF THE DEFENDANT'S MOTION FOR MORE DEFINITE STATEMENT TO PLAINTIFF'S COUNSEL - PLAINTIFF IS GIVEN LEAVE UNTIL APRIL 26, 2013 TO FILE ITS RESPONSE TO DEFENDANT'S MOTION
03/27/2013JDST - JUDGES STATUS, 4/26/2013 4:00:00 PM, TO FILE RESPONSE
04/08/2013REPLY TO DEFENDANT'S MOTION FOR MORE DEFINITE STATEMENT


Expert:  Ely replied 11 months ago.
Thank you.

That really helped - thanks again.

Here is what happened:

1) You were served;
2) You ignored it;
3) A Motion for Default Judgment was filed;
4) You survived it;
5) You filed a Motion for MDS;
6) Court told Plaintiff to file a response;
7) Plaintiff filed a Response in opposition to the Motion for MDS.

Here is where you are now.

At this point, someone in your situation may wish to call the clerk of the Court and ask them to set the Motion fot MDS for an oral hearing (or, ask the clerk if the Judge prefers to consider this in camera (without an oral hearing).

Then, the Court will make a decision on the Motion for MDS - either after an oral hearing attended by the both of you, or, simply after reviewing their response, without a hearing (and then you may be mailed the response).

EITHER WAY:

If your motion is granted, the Judge will order them to file a more definite complaint, to which you would have to reply.

If your motion is denied, then the onus would be on you to file an immediate ANSWER so as not to risk default again, as their original complaint would then be seen as proper.

Nothing else needs to be filed until this motion matter is resolved.

I hope this clarifies.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 85115
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 19 other Legal Specialists are ready to help you
Expert:  Ely replied 11 months ago.
Thank you for your generosity.

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