In a Federal Complaint when a Def answers.....

JayinGR · 09-05-2006, 05:22 PM

And they list their Affirmitive Defensnes...and they are complete BS should you submit a Motion to Strike their affirmitive defenses??

Example...

in DW complaint against CA for violations of BK and continued collection...AFTER RECORDED PHONE CALLS and NUMEROUS LETTERS SENT CMRRR...these are some of their AD's

2. The Plaintiff may have breached her duty to mitigate damages....(yeah ok..)

3. The Plaintiff consented to or permitted Defendant's alleged acts of misconduct..(oj whatever).....

5. The debt Defendant was attempting to collect from Plaintiff was not discharged in Bankruptcy, or in the alternative, at all time pertinent thereto, Defendant had no notice of Bankruptcy stay or discharge of said debt...(yeah ok so the multiple letters and calls to them wasnt notice enough)

I mean serious...there are some other which are stupid to...and I know it is their job to rais all AD's but come on...

hannah · 09-05-2006, 05:30 PM

Quote:

Originally Posted by JayinGR

And they list their Affirmitive Defensnes...and they are complete BS should you submit a Motion to Strike their affirmitive defenses??

Example...

in DW complaint against CA for violations of BK and continued collection...AFTER RECORDED PHONE CALLS and NUMEROUS LETTERS SENT CMRRR...these are some of their AD's

2. The Plaintiff may have breached her duty to mitigate damages....(yeah ok..)

3. The Plaintiff consented to or permitted Defendant's alleged acts of misconduct..(oj whatever).....

5. The debt Defendant was attempting to collect from Plaintiff was not discharged in Bankruptcy, or in the alternative, at all time pertinent thereto, Defendant had no notice of Bankruptcy stay or discharge of said debt...(yeah ok so the multiple letters and calls to them wasnt notice enough)

I mean serious...there are some other which are stupid to...and I know it is their job to rais all AD's but come on...

Jay, if you file a motion to strike your brief in support will have to state each reason why each defense should be struck. I would not file a motion to strike unless you don't mind showing all your cards now. If you do, file an MSJ to be heard at same motion hearing.

FixinThings · 09-05-2006, 05:33 PM

Now come on Jay, give the CA a break.... All they are saying is that they are Affirmative Defenses...not Good Affirmative Defenses.

It seems as though in No 2 they might be construed as admitting that there were, in fact, damages....

In number 5, they admit to trying to collect the debt. Enter FDCPA...

The others....well just watch the squirming worm.

JayinGR · 09-05-2006, 05:39 PM

Thats what I thought jlynn...cant do that yet because we are not even in discovery...so I dont want the same thing to happen to me that hapened to RK with palishady..So I will hold off

jlynn · 09-05-2006, 08:26 PM

Quote:

Originally Posted by JayinGR

Thats what I thought jlynn

I haven't said a word Jay...remember, I'm the negative one.

- thus my silence on the affirmative defenses.

jlynn · 09-05-2006, 08:31 PM

Quote:

Originally Posted by JayinGR

2. The Plaintiff may have breached her duty to mitigate damages....(yeah ok..)

This one is a bit interesting. That was some of my negative thoughts. Any bets on whether you can get this one stricken?

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3. The Plaintiff consented to or permitted Defendant's alleged acts of misconduct..(oj whatever).....

Double check - I don't believe you can "waive" your rights under the FDCPA. But DOUBLE CHECK THIS. I may be confusing FDCPA with MY state's laws. So if nothing in FDCPA, double-check Michigan state laws. Sometimes consumers cannot waive such things.

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5. The debt Defendant was attempting to collect from Plaintiff was not discharged in Bankruptcy,

It wasn't was it?

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or in the alternative, at all time pertinent thereto, Defendant had no notice of Bankruptcy stay or discharge of said debt...(yeah ok so the multiple letters and calls to them wasnt notice enough)

No--probably not. Careful with your argument on this one. Which DEFENDANT is answering? Didn't you sue both the OC and the CA?

Quote:

I mean serious...there are some other which are stupid to...and I know it is their job to rais all AD's but come on...

I would like to see the others as well, and clarify, if there were multiple defendants, who is answering?

JayinGR · 09-05-2006, 08:47 PM

LOL jlynn...sorry....Hannah thanks for the comments..Jlynn here are my responses

There are multiple defendants... the OC of this one nor the CA were IIB...but were notified when they sent initil dunning letter to DW while she was in BK7...According to 6th circuit of appeals in madaj...all debts incurred by the discharge are discharged because there were no assets thus no harm to the creditors not listed in the matrix..

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This one is a bit interesting. That was some of my negative thoughts. Any bets on whether you can get this one stricken?

I am lost here jlynn...what do you mean? DW tried over and over to work with these morons...

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Double check - I don't believe you can "waive" your rights under the FDCPA. But DOUBLE CHECK THIS. I may be confusing FDCPA with MY state's laws. So if nothing in FDCPA, double-check Michigan state laws. Sometimes consumers cannot waive such things.

How would I check this...I have never heard of this...but DW never allowed these numb nuts to keep the crap up....her and I both tried putting a stop to it...but they continued

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No--probably not. Careful with your argument on this one. Which DEFENDANT is answering? Didn't you sue both the OC and the CA?

They were notified by recorded call and via CMRRR....on many occasions

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It wasn't was it?

according to madaj it was...I will post the rest when I get back downstairs to my main computer...

Thanks for the comments

jlynn · 09-05-2006, 10:19 PM

Quote:

Originally Posted by JayinGR

LOL jlynn...sorry....Hannah thanks for the comments..Jlynn here are my responses

There are multiple defendants... the OC of this one nor the CA were IIB...but were notified when they sent initil dunning letter to DW while she was in BK7

You received dunning letters DURING the BK??? Before it was discharged???? Why was the matrix not amended to IIB them?????? That's gonna be the first question they throw at you for failure to mitigate.

JayinGR · 09-05-2006, 10:26 PM

DW atty said because it was a bk 7 no asset no need to amend matrix because they are automatically included if the debt was incured prior to discharge

jlynn · 09-05-2006, 10:48 PM

Quote:

Originally Posted by JayinGR

DW atty said because it was a bk 7 no asset no need to amend matrix because they are automatically included if the debt was incured prior to discharge

Then your attorney was a dumbass. While he may have been legally correct ( I don't know), but we are talking about a secured creditor, one in which you stated your intention to reaffirm, and that had not been done.

No wonder the BK attorney's story keeps changing - he's PART OF YOUR PROBLEM.

JayinGR · 09-05-2006, 10:54 PM

Jlynn...this is not for the big case with the house...

This is DW's case she filed in April of this year...

This is for a CA who was collecting on behalf of t-mobile...not secured I dont think...

He is correct for the 6th circuit... in re: madaj

I agree though about him as a problem...

jlynn · 09-05-2006, 10:59 PM

Quote:

Originally Posted by JayinGR

Jlynn...this is not for the big case with the house...

This is DW's case she filed in April of this year...

This is for a CA who was collecting on behalf of t-mobile...not secured I dont think...

He is correct for the 6th circuit... in re: madaj

I agree though about him as a problem...

Disregard everything I've said before- its probably wrong. I thought we were talking about the house.

roybean · 09-05-2006, 11:08 PM

Well, in two different cases I sort of did what Hannah suggested above. In one case the defendant answered my complaint with a blatant lie and I filed a MSJ with proof that they lied along with a motion for sanctions under FRCP 11.

In another case where they made up some ca ca story about the defendant not having an authorized agent in my state that is authorized to accept service and I filed a motion to strike under FRCP 12(f)and a MSJ because it was lunacy to write a response with something ridiculous like that especially after the process server had filed an affidavit of service and the state corp comm has them listed with a RA in my state. So it depends; only you know the facts of your case Jay.

JayinGR · 09-05-2006, 11:17 PM

RB what happened in case with the motion for MSJ and sanction under FRCP 11?

Lets put it this way...They were informed..I have them on tape with me telling them this was BK...I have them on tape with me telling them not to call and them refusing...I have the vonage call log showing all of their calls they deny making...I have all their VM left on the phone still on tape..I have all the letters sent to them CMRRR and I have the GC too showing their sigs.....

In their complaint they admit to some of the facts and outright deny others...they deny DW lives in the city she lives in...they deny she is a consumer...nnot the BP answer leave to proofs...but DENIED....

Anyway thanks for the responses...

JayinGR · 09-05-2006, 11:26 PM

No worry jlynn

roybean · 09-05-2006, 11:28 PM

Quote:

Originally Posted by JayinGR

RB what happened in case with the motion for MSJ and sanction under FRCP 11?

Lets put it this way...They were informed..I have them on tape with me telling them this was BK...I have them on tape with me telling them not to call and them refusing...I have the vonage call log showing all of their calls they deny making...I have all their VM left on the phone still on tape..I have all the letters sent to them CMRRR and I have the GC too showing their sigs.....

In their complaint they admit to some of the facts and outright deny others...they deny DW lives in the city she lives in...they deny she is a consumer...nnot the BP answer leave to proofs...but DENIED....

Anyway thanks for the responses...

If you read my 'botch' thread, it is case #3 and they filed a motion for an extension of time to answer and then sent me a BS settlement offer. I counter offered last week and I am waiting to hear. The judge granted their extension of time although he noted that I was perfectly within my rights and the rules to file a MSJ.

Note: when they lied, I had already uploaded a recorded call to my computer, so I just burned the son of a gun to a disk, assigned it as exhibit Z, and filed my MSJ. What's more, I filed a verified complaint and they answered with an unverified answer which was also part of my MSJ. "Failure to answer the verified complaint properly."

JayinGR · 09-05-2006, 11:32 PM

How to you file exhibits in audio and picture form? I am going to put them in a binder within LRCP...but what about seeing them on pacer?

roybean · 09-05-2006, 11:36 PM