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  1. #1
    Join Date
    Jan 2008
    Posts
    2

    Thumbs up Need Help With Written Response To Statements In Complaint

    I live in Gwinnett county Ga. I defaulted on a credit card debt in march 2003. I recieved a summons by the state court and i have until 23 feb 2008 to answer. My defense will be the SOL but i'm not sure how to answer each of the 4 paragraphs in the complaint. The first paragraph is easy..I just affirm that i am a resident of the state...The second paragraph states that i am indebted to the plaintiff for x number of dollars plus interest...The third paragraph states that I have failed and refused to pay this debt...The fourth paragraph states that no attorney fees will be filed if I pay this debt within ten days after recieving this summons. I am defending myself..how do i respond to these statements? What do I admit to or deny..or do i just neither confirm nor deny the statements? Also what is the definition of date of default vs date of last activity concerning the beginning of SOL in credit card accounts in GA? Yours truly//The Ranger

  2. #2
    Join Date
    Jan 2008
    Posts
    1

    Default Re: Need Help With Written Response To Statements In Complaint

    Here is what I found in the Georgia Code:

    5-10-43.
    (a) Actions shall be commenced by the filing of a statement of claim, including the last known address of the defendant, in concise form and free from technicalities. The plaintiff or his or her agent shall sign and verify the statement of claim by oath or affirmation. At the request of any individual, the judge or clerk may prepare the statement of claim and other papers required to be filed in an action. The statement of claim shall include the address at which the plaintiff desires to receive the notice of hearing.
    (b) A copy of the verified statement of claim shall be served on the defendant personally, or by leaving a copy thereof at the defendantīs dwelling or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the claim to an agent authorized by appointment or by law to receive service of process, and such service shall be sufficient. Service of said process shall be made within the county as provided in this Code section. Service outside the county shall be by second original as provided in Code Section 9-10-72. Said service shall be made by any official or person authorized by law to serve process in the superior court, by a constable, or by any person sui juris who is not a party to, or otherwise interested in, the action, who is specially appointed by the judge of said court for that purpose. When the claim and notice are served by a private individual, such individual shall make proof of service by affidavit, showing the time and place of such service on the defendant.
    (c) An answer to the claim must be filed with the court or orally presented to the judge or clerk of the court within 30 days after service of the statement of claim on the defendant to avoid a default. The answer shall be in concise form and free from technical requirements, but must admit or deny the claim of the plaintiff. The answer shall contain the address at which the defendant desires to receive the notice of hearing. If the answer is presented to the judge or clerk orally, the judge or clerk shall reduce the answer to writing. A copy of the answer shall be forwarded to the plaintiff and defendant with the notice of hearing. If an answer is timely filed or presented, the court shall within ten days of filing or presentation of the answer notify the defendant and the plaintiff of the calling of a hearing on the claim. The notice shall include the date, hour, and location of the hearing, which date shall be not less than 15 nor more than 30 days after the date the notice is given. The notice shall be served on the plaintiff and the defendant by mail or personal service to the address given by the plaintiff at the time he or she files his or her claim and the address given by the defendant at the time he or she files or presents his or her answer. The date of mailing shall be the date the notice is given. The clerk shall enter a certificate of service.
    (d) Upon failure of the defendant to answer the claim within 30 days after service of the statement of claim, the defendant shall be in default. The defaulting party may open the default upon filing an answer and upon payment of costs within 15 days of default. If the defendant is still in default after the expiration of 15 days after the answer is due, the plaintiff shall be entitled to a default judgment without further proof if the claim is for liquidated damages. When the claim is for unliquidated damages, the plaintiff must offer proof of the damage amount. Separate notice of the date and time of the unliquidated damages hearing shall be sent to the defendant at his or her service address. The defendant shall be allowed to submit evidence at that hearing on the issue of the amount of damage only.

    (e)(1) When a hearing is scheduled pursuant to subsection (c) of this Code section, upon failure of the defendant to appear for the hearing, the plaintiff shall be entitled to have the defendantīs answer stricken and a default judgment entered. If the claim is for liquidated damages, the plaintiff shall be entitled to take a judgment in the amount set forth in the complaint without further proof. If the claim is for unliquidated damages, the plaintiff shall proceed to prove his or her damages and take judgment in an amount determined by the judge.
    (2) When a hearing is scheduled pursuant to subsection (d) of this Code section, upon failure of the defendant to appear, the plaintiff shall be entitled to submit proof of the damages and take judgment in an amount determined by the judge.
    (3) If the plaintiff fails to appear for a hearing scheduled pursuant to either subsection (c) or (d) of this Code section, the court on motion of the defendant, or on its own motion, may dismiss the plaintiffīs complaint, with or without prejudice, in the discretion of the court.
    (f) At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.
    (g) Notwithstanding the provisions of Code Section 15-10-42, the magistrate court may grant relief from a judgment under the same circumstances as the state court may grant such relief. Requests for relief from judgments in the magistrate court shall be by filing a new action pursuant to this Code section. The procedure shall then be the same as in other cases except the court may assess costs as seem just.
    (h) A complaint in equity to set aside a judgment of the magistrate court may be brought under the same circumstances as a complaint to set aside a judgment in a court of record.
    (i) Nothing in this chapter shall be construed to prohibit an employee of any corporation or other legal entity from representing the corporation or legal entity before the magistrate court.

  3. #3

    Default Re: Need Help With Written Response To Statements In Complaint

    You can basically answer each numbered statement in the complaint in one of three ways:

    1.) Admit
    2.) Deny
    3.) Lack of knowledge to admit or deny.

    I've read it's a good idea to also include an extra answer basically saying you deny anything and everything not included in the complaint.

    Use Google and you'll find some examples of the type of wording you should use to admit or deny.

    Don't forget to include some "affirmative defenses" in your answer. Google it, you'll find what you need.


    This is not legal advise, I am sharing what I've read on the internet. I'd suggest doing as much reading of these forums and research as you can.

  4. #4

    Default Re: Need Help With Written Response To Statements In Complaint

    The SOL is an affirmative defense and you must plead it in your answer or it is waived.

  5. #5
    Join Date
    Oct 2007
    Location
    Atlanta, Georgia
    Posts
    2

    Default Re: Need Help With Written Response To Statements In Complaint

    Your statute of limitations argument might not help you. The Georgia Court of Appeals just issued a decision stating that the statute of limitations on credit card cases with a written agreement, even if not signed by the debtor, is six years, not four years as was usually argued. See Hill v. American Express, Georgia Court of Appeals, Case No. A07A2338, Jan. 24, 2008.

    The foregoing is general information only, not specific legal advice. No attorney/client relationship has been created or should be implied.

  6. #6
    Join Date
    Nov 2007
    Posts
    811

    Default Re: Need Help With Written Response To Statements In Complaint

    You can still fight with the SOL defense on the chance that the attorney for the collection agency as well as the judge is not caught up on the new law. In most cases they know about them within 1-2 months but sometimes the attorneys miss them and that is in your favor. Attorneys are people, too. ...and some of the younger ones involved in these mass "paper factories" for debt collection are not abreast of all the new laws.

    Bob

  7. #7

    Default Re: Need Help With Written Response To Statements In Complaint

    No Prior Course of Dealing may also be an affrimative defense to think about. They are basing their whole attack on the usual "account stated" line of garbage(those dunning letters when all of this started). For the debt attorney to prevail on this, he must allege and prove there were prior dealings between the parties(them) and a reasonably long history of periodic billing(which they have not since they bought this debt for a couple of bucks, 'bundled' with lots of other pieces of of so called charged off debt) That the defendant timely and routinely paid over an extended course of time prior to the lawsuit. SINCE this is a key element in the plaintiffs case, the affirmative defense of "No Prior Course of dealing" is offered to show the ESSENTIAL ELEMEMENT of this cause of action does not exist. Defeat this account stated tatic by showing this debt claimed is new i.e. that there was no prior course of dealing between the parties. Sending an invoice or demand for payment of a debt that includes language such as, "Failure to dispute the amount of this debt will result in the legal conclusion that the debt is owed". Such a demand however does not give rise to a cause of action for "account stated"(which is their 'foot in the door' that debt attorneys use almost exsclusively to 'prove' their case when they send you those dunning letters). A lawsuit on this cause may result in an unjust judgement(summary judgement) if the defendant is un familiar with the law- In particular, the essential fact elements of the cause of action that the plaintiff must allege and prove by the greater weight of admissable eveidence. Failure to respond to some 'demand' letter, without more, is insuffucient to give rise to this cause of action(counter them with a motion to dismiss for this reason perhaps).
    These clowns who are suing you for this 'account stated' lie, when essential elements are clearly absent, need to be counterclaimed for Abuse of Process if it is shown that the plaintiff intended to intimidate the debtor and you had no prior course of dealing with these scumbags.
    Also if any of the so-called paragraphs in their 'answer' demand sheet they sent you contain more than one subject/question then 'deny' would be your answer. Since you have now been served, you can now start your discovery process: interoggs, request for production of documents, etc. Also just to be safe, remove any dough you may have in the bank, they will try to steal it. Only keep the 'overdraft' amount since they can't steal that. Also note, any 'payment' made to them(they will even do it themselves sometimes, if they think they can get away with it) will restart the SOL clock. Monitor this to be sure they haven't pulled this dirty trick. Welcome to the cesspool of the so-called legal world. Make sure the gas mask(knowledge) is snug as debt attorneys do really stink!

  8. #8

    Default Re: Need Help With Written Response To Statements In Complaint

    Hello Everyone.

    Sorry about the lateness of this reply; but I hope that my comment will be well-received nonetheless...

    I specifically want to comment about one sentence from Fireclown's Jan 2008 response:

    ..."Here is what I found in the Georgia Code:"...
    ..."5-10-43. [(c)]"...

    ..."If the answer is presented to the judge or clerk orally, the judge or clerk shall reduce the answer to writing."...

    I am a very strong supporter of appointed counsel in civil matters; even the civil matter of mandamus to compel the appointed counsel in criminal matters to do their job properly - or - mandamus to compel the Bankruptcy Trustee to do their job properly and seek 'causes-in-action' on behalf of the estate (11usc704), instead of just calling something "not viable" and cheating the estate by violating Rule 6007 - as can be seen by my website at www.informapauperis.net . . .

    The appointment of counsel in civil matters is a complex subject since some of those in power do not like having the weaker party made equal. To learn more about this subject, search google.com for "Civil Gideon", or "appointed counsel in all 50 states"...

    Just have a look at all of the posts in this website, and note how many are just lost and want to tell their story in their own way. It seems to me that this oral presentation part of the statute cited, has that potential. Of course, I can see where judges or attorneys might grow impatient with the lack of citation to known causes in action, rights to discovery, or just simple jargon itself. But, isnt that why this website is so important?

    I feel compelled to add this Reply because I think it important to activate this thread so others can know of the right cited regarding oral presentation, as well as my thrill to know that the legal system is trying to reach out in some way...

    Hope this helps.

    alan joseph samson
    sallykish at aol dot com
    www.informapauperis.net
    I Want Justice! Webring - Ringmaster

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