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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 30162
Experience:  Lawyer
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I have been served by a junk debt buyer in CO (under the simplified

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I have been served by a junk debt buyer in CO (under the simplified civil procedure) and the only thing attached to the complaint is an affidavit from an employee of the JDB claiming to be familiar with THEIR records. I want to file a motion to strike the affidavit but am not sure when to do it. Is the affidavit entered because it was included with the complaint or do I need to wait until the trial, or with my answer and counterclaim?? When's best?

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that you've been served.

The Affidavit is considered part of the record because it was attached to the Complaint. That means that you can file a Motion to Strike the affidavit now. If the Complaint is insufficient without the affidavit, or there is no other evidence that you owe the debt, it may be possible to then file for dismissal or summary judgment. Rule 12 provides that a Motion to Strike is filed before a responsive pleading.

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Customer: replied 4 years ago.

Does this apply to the Colorado County Courts under the simplified civil procedure? I thought I saw somewhere that no motions are allowed before the answer.

Rule 307 of the County Courts Civil Procedure states that Motions to Dismiss for failure to state a claim are not allowed (and those are always filed before an Answer). It doesn't state that no motions are allowed. The exact language is "Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used." Rule 307(b) did say something about motions, but it was repealed.
Customer: replied 4 years ago.

So would the motion to strike be appropriate (and allowed) before the answer? Would filing the motion to strike instead of an answer leave the plaintiff in a position to file for a default?

A plaintiff can only file for a default if the party doesn't respond to the Complaint at all. If there's a pending motion, that's not a grounds for default. Rule 307 allows some motions, and doesn't specifically prohibit a Motion to Strike.
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