Received response to my answer, I'm confused

NeedDebtHelp · 05-18-2008, 05:04 PM

I submitted my answer containing a number of different defenses and received in the mail from the plaintiff a response to my answer saying it contained a motion to dismiss and implied counterclaim. They are denying my motion to dismiss and filed a motion to dismiss my implied counterclaim.

Can affirmative defenses be construed as a motion to dismiss? I looked at my RCP and wouldn't a response to an answer be considered a pleading. My RCP says

Quote:

(a) Pleadings. — There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

I did include SOL as an affirmative defense and included a date other than what they have listed. I have my credit report to back up the date, but didn’t include it as an exhibit at the time I filed my answer. They are attempting to have that dismissed since I did not include evidence. I thought an actual motion needed to be filed with the court, but I needed time to get the necessary document to together to prove my date. I was unable to obtain the documents within the 20 days to include with the answer.

Technically I did not put a counterclaim in my answer, but did include an affirmative defense stating that I had the right to add one at a later time. My understanding is they can not respond with a pleading unless I stated a counterclaim. Am I totally off track?

All documents can be available if needed. Any insight is appreciated.

Thanks,

Enigma · 05-18-2008, 05:07 PM

Can you post your answer and affirmative defenses and the material you received from the plaintiff?

NeedDebtHelp · 05-18-2008, 09:39 PM

Complaint and answer

Plaintiff's Response

Just a note. They say that they don't have to be licensed and bonded in WV, but one of the statues that they mention, (31D-15 I think, where they say they are exempt) states that they do need to follow the WVCAA since they fall under the definition of "Collection Agency"

NeedDebtHelp · 05-18-2008, 11:02 PM

Also wanted to state that the plaintiff's council says they sent a validation letter on April 8th. I received the letter at the end of April and the letter itself was dated April the 8th, but the post mark date was April 23rd. Will a post mark date hold up in court if I disputed that?

apexcrsrvc · 05-19-2008, 03:25 AM

What difference does it make? They don't have to respond with validation in a certain period.

However and moving forward, yes, this procedural manuever is atypical and rather foolish. I've never seen it done before. Your Answer had no Motion to Dismiss other than the Prayer and there is no legal or equitable damage sought and thus, there is no counter. You Affirmative Defense as to the FDCPA is misplaced in that you should have asserted that as a counter but, you didn't. Therefore, what they're doing is basically stupid.

In any event, you're going to have to file a Reply to their Response and clarify. You may as well leave to amend and do it right with a counter if you're going to file an Answer. The better move would actually be to MTD for non-compliance with WV's affidavit statute and after dismissal, come back on them but, use the WV law. More statutory damages.

Just my two cents . . .

NeedDebtHelp · 05-28-2008, 11:11 AM

Plaintiff used this case in their reply to my answer. I have not been able to find this case anywhere.

Sterns Co. V. United States, 291 U.S. 54, 65 (1934)

I found a Stearns Co. V United States. I am assuming that is the correct one. Right?

NeedDebtHelp · 05-29-2008, 04:29 PM

Ok, I started writing a reply to the plaintiff's response today. I am not finished with it and have a few questions.

Anyways, I am a bit lost how to deny plaintiff's motion to dismiss my implied counterclaim. Anyone able to help with that?

Also, Do I need to file a motion to dismiss on a separate page, or can I just put it into my WHEREFORE statement at the end?

Attached is what I have so far.

Thanks,