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  1. #1
    Join Date
    Apr 2009
    Posts
    7

    Default Answer to the Court

    My question involves collection proceedings in the District Court of Johnson County, KS, Division 61, Civil Court, Limited Actions.

    I received a summons for a credit card debt that I deny having. I requested proof of debt twice from the Plaintiff and I only received a card agreement statement that did not have any signatures, balance, or itemized transactions, per my request. Below is the answer to the court that I have written in response to the summons.

    APPEARANCE/ANSWER OF DEFENDANT


    On this 25 day of April, 2009 defendant X answer summons:

    X denies the allegations of the petition and summons served on April 13, 2009:

    1. The Defendant acknowledges that the Plaintiff is duly organized and existing by virtue of law
    2. The Defendant denies a credit card issued.
    3. The Defendant denies all knowledge and has not received any benefits related to mentioned account.
    4. The Defendant denies all knowledge of account.
    5. The Defendant denies all knowledge of account.
    6. The Defendant denies all knowledge of account.
    7. The Defendant viewed attached card member agreement, but denies knowledge of account.

    • Proof of debt was requested on 1/26/09 to Jacobs Marsh (Attached), none received
    • Proof of debt was requested on 2/3/09 to Jacobs Marsh (Attached), none was received
    • Proof of debt was requested on 4/16/09 to Carolyn Glenn (c/o McNearney & Associates LLC.)(Attached), none received.



    The Defendant’s answer to the court is that he denies all knowledge and responsibility of the aforementioned debt and requests that the above referenced case have the debt extinguished and dismissed with prejudice.


    Can you please assist me with wording or anything that I have omitted? I ran a credit report and noticed that this account was on it. It is a few numbers off from another account with the same company that I knew I had. Here is the information on the credit report.
    Pay status: Charged off as bad debt
    Account Type: Revolving account
    Responsibility: Individual account
    Date opened: 11/2002
    Date closed: 2/2005
    Date paid: 5/2004
    Remarks: purchased by another lender

    The credit report has the same account number as the summons but a different credit card name. The summons says First USA bank and the credit report says Chase/Bank One. Another report I have lists First USA bank, but has a different account number and says Paid, Closed/Never Late and Closed at consumer's request (which I did in 2/2000). Do you think they could have mixed up the numbers some how?

    Is the status of limitations up since it is only 3 years in Kansas on an open-ended account? It states Delaware in the card agreement they sent but their limitation is 4 years if I am correct.

    Any advice would be appreciated.

  2. #2
    Join Date
    Jul 2008
    Posts
    853

    Default Re: Answer to the Court

    Why didn't you include statute of limitations in your answer?

  3. #3
    Join Date
    Apr 2009
    Posts
    7

    Default Re: Answer to the Court

    i was not for sure if this was accurate or not and I did not want to include it unless I was 100% sure it was correct. If Kansas considers the credit card debt as an open account then it applies? Is it true that all credit cards are considered open-ended accounts? If the card has a signed agreement would it then fall in the written agreement catagory or still under the Open-ended account?

  4. #4
    Join Date
    Apr 2009
    Posts
    7

    Default Re: Answer to the Court

    Here is an updated version of the answer to the court. Please provide feedback.

    APPERANCE/ANSWER OF DEFENDANT


    On this 27 day of April, 2009 defendant X answer summons:

    X denies the allegations of the petition and summons served on April 13, 2009:

    1. The Defendant denies that the Plaintiff is duly organized and existing by virtue of law: Jacobs Marsh LLC is not licensed by the Department of Consumer Affairs as a debt collector (www.nyc.gov/consumers) and their license number is not provided on summons.
    2. The Defendant denies a credit card issued.
    3. The Defendant denies all knowledge and has not received any benefits related to mentioned account.
    4. The Defendant denies all knowledge of account and requested proof of debt from the plaintiff twice on 1/26/09 and again on 2/3/09 (See attached requests).
    5. The Defendant denies all knowledge of account.
    6. The Defendant denies all knowledge of account and has requested proof of debt (none received).
    7. The Defendant viewed attached card member agreement, but denies knowledge of account.

    • Defendant asks about a Statue of Limitations in this case due to plaintiff not being able to provide proof of debt.

    • Defendant claims a violation of the Department of Consumer Affairs and The Federal Trade Commission on the Fair Debt Collection Practices Act Section 809 Validation of Debt validation and proof of debt was request and not provide by the plaintiff

    1. Proof of debt was requested on 1/26/09 to Jacobs Marsh (Attached), none received

    2. Proof of debt was requested on 2/3/09 to Jacobs Marsh (Attached), none was received

    3. Proof of debt was requested on 4/16/09 to Carolyn Glenn (c/o McNearney & Associates LLC.)(Attached), none was received.



    The Defendant’s answer to the court is that he denies all knowledge and responsibility of the aforementioned debt and requests that the above referenced case have the debt extinguished and dismissed with prejudice.

  5. #5
    Join Date
    Jul 2008
    Posts
    853

    Default Re: Answer to the Court

    The FDCPA cannot be used as a defense, neither can the failure to validate. Also, don't ask about SOL, just state "The defendant believes that the cause of action may be time barred by the statute of limitations, insert statute number here." Then you get what you need in discovery, or even as an admission.

  6. #6
    Join Date
    Sep 2005
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    Behind a Desk
    Posts
    98,846

    Default Re: Answer to the Court

    You need to make sure that your pleadings are in proper form for the court. That includes making your headings descriptive, and making it obvious that you're raising affirmative defenses. Read the court rules for the court you're in, and check the county law library to see if they have some practice guides that include sample lawsuit answers and affirmative defenses that you can use as a model. (You can also ask the clerk of the court to pull a couple of answers out of other files; the copying fee shouldn't be much. But those answers would be case-specific, and a practice guide should provide more general information.)

  7. #7
    Join Date
    Apr 2009
    Posts
    7

    Default Re: Answer to the Court

    Quote Quoting divemedic
    View Post
    The FDCPA cannot be used as a defense, neither can the failure to validate. Also, don't ask about SOL, just state "The defendant believes that the cause of action may be time barred by the statute of limitations, insert statute number here." Then you get what you need in discovery, or even as an admission.
    Why am I not able to use the FDCPA Section 809? I have updated the answer. Please provide comments. Thanks in advnace

    ANSWER

    The defendant, X answers the complaint of Jacobs Marsh LLC and, in response to each numbered paragraph thereof, states:

    1. The Defendant denies that the Plaintiff is duly organized and existing by virtue of law: Jacobs Marsh LLC is not licensed by the Department of Consumer Affairs as a debt collector (www.nyc.gov/consumers) and their license number is not provided on summons.
    2. The Defendant denies a credit card issued.
    3. The Defendant denies all knowledge and has not received any benefits related to mentioned account.
    4. The Defendant denies all knowledge of account and requested proof of debt from the plaintiff twice on 1/26/09 and again on 2/3/09 (See attached requests).
    5. The Defendant denies all knowledge of account.
    6. The Defendant denies all knowledge of account and has requested proof of debt (none received).
    7. The Defendant viewed attached card member agreement, but denies knowledge of account.

    The defendant claims the following affirmative defenses:

    1. The Defendant believes that the cause of action may be time barred by the statute of limitations, §60-512 Kansas Statues

    2. Jacobs Marsh LLC is not licensed by the Department of Consumer Affairs as a debt collector (www.nyc.gov/consumers)

    3. Jacobs Marsh LLC is not the original creditor, per attached document in summons, and does not allege its license number in the complaint


    The Defendant’s answer to the court is that he denies all knowledge and responsibility of the aforementioned debt and requests that the above referenced case have the debt extinguished and dismissed with prejudice.


    ___________________________________
    Defendant or Defendant Attorney Signature
    SC#

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