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I am involved in a junk debt credit suit for $500.00. Here are the details; 1. Filed an answer to complaint 2. Answered first set of questions (deny all) 3. Sent in Request for docs and admissions. (no response from plaintiff) 4. Received a default judgment before plaintiffs 30 day time period to respond was up. 5. Went to court to hear my motion to set aside default on the grounds that I never received a notice to appear, but I failed to file an affidavit of meritorious defense. 6. Court gave me two weeks to file affidavit. So here is the wrinkle. I cannot find my initial answer. I have spent the last several days in deep study on how to defend this case and have sited just about every defense along with some case law examples in my affidavit. Also claimed that I intend to strike plaintiffs affidavit because it was filed 3 months before the action was brought. It is hearsay, original contract wasn't attached etc... My deadline to file is in 3 days, I called the court and asked if I could get a copy and they said it will take up to a week. The problem is as I understand it, I cannot add defenses after I answered. I know I can file a motion to leave to amend my initial answer but when can I do that? Before during or after default motion is heard? Or is it ok if I say within my affidavit that I plan on filing an amended answer with all of the info in my affidavit included....I don't recall what I said in my answer, if I used "failure to state claim, Lack of standing, statute of limitations etc...all of which are in my affidavit. I suspect my initial answer was something along the lines of a complete denial but I don't recall if I even entered any affirmative defenses. I know much more now about this that I did when I filed the answer. The plaintiffs affidavit was just a document " I to my personal knowledge blah blah blah" No bills, statements or default date, I don't even know if it is my debt let alone within the SOL. , just the affidavit saying we are the assignee and he owes this much.
Also, it's very difficult from reading the complaint if I am being sued for account stated or contract. I know the answers are different for each, "account stated" is never said, but neither is "contract". Just "account".
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Have you physically gone to the court to look at the court record? Current court cases are kept on site and the clerk should be able to pull out your case file, which would have your answer in it, for you to review. That is your first step.
No I just called and asked, they said it costs $1 and it can take up to a week to get it. I did mention that the case was currently in litigation but did not know that they have the doc right there on file. This is the affidavit I am filing, I am wondering if it is too much or some of it is irrelevant....I have looked up a lot of the case law cited but understand some much better than others....I have tried to include as many defenses as possible. I don't want to piss the judge off but I do want to dissuade the plaintiff to persue for a measly $500.00
I, Robert xxx being duly sworn do hereby depose and say:
Midland Funding v. Brent (No. 3:08-cv-1434), Franklin v.
Midland Funding (No. 3:10-cv-00091), and Vassalle v. Midland Funding (No. 3:11-cv-00096)
(Vassalle Doc. 7).
I declare that to the best of my knowledge and belief, the information herein is true, correct and complete.
Executed this __________day of________, 2013 Defendant_________________________________
County of_______________ State of________________
Sworn to and subscribed before me in my presence this ____________Day of ______, 20_____
Thank you very much...I did copy and paste that bit form your reply and have fixed it. Also there are a few things in there left unfinished as you can see, Still researching. Is there anything in there that I should take out or that dosent apply? I am not sure about 11. of Volenti Non Fit Injuria, if I word it right "invoke" or if it applies...I see so much contradictory information out there. Its hard to tell for sure. Like I said, don't want to irritate the judge, just want to discourage the plaintiff.
The other one is siting cases of falsifying affidavits, not sure if I should go there or not.
Finally, once I file this I go back to court in 2 weeks. I presume the plaintiff will file an answer to strike my affidavit? as I''m thinking all they want is a default since they probably can't win in court. Other than filing the motion to leave, is there anything else ZI should do? or anything in response to there answer to my affidavit?
What does the plaintiff do at that point tho? Should I wait for them to see if they respond? or if they dismiss? or should I file to dismiss?
What does the plaintiff do at that point tho? Should I wait for them to see if they respond? or if they dismiss? or should I file to dismiss? If I am understanding you correctly It sounds like it really dosent matter so much what I said in my initial answer then.
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