The Answer
How to answer a lawsuit from creditor? That’s a
common question many debtors have when they’re suddenly faced with a complaint
and summons. First, determine whether you’re being sued in small claims court or
regular civil court. Small claims court has more relaxed rules and procedures
than civil court and each division has its own Rules of Civil Procedure. For
example, the state of Florida has a document titled “Florida Rules of Civil
Procedure” which apply to all civil actions in the circuit courts and county
courts. Small claims court has a document titled “Florida Small Claims Rules”;
the rules apply to civil actions in the county courts in which the amount does
not exceed $5,000 exclusive of costs, interest and attorneys’ fees. We’ll be
referencing the “Florida Rules of Civil Procedure”, unless otherwise stated. To
recap, determine what court you’re being sued in and then get the Rules of Civil
Procedure that govern that court. You may also discover that the court created a
pamphlet that summarizes the Rules of Civil Procedure for the court; for
example, the state of Kansas has a pamphlet titled ‘Small Claims Court’ – What
is it? How do I use it?
A side note; few people will have the intellect to acquire the knowledge of
an experienced collection attorney by reading law books and pamphlets; however, the
knowledge you gain from reading law books will hamper the creditor’s attorney
from taking the short route in ending litigation as soon as possible. For
example, a collection law firm website states that a Summary Judgment is an
important tool to ending litigation earlier; Summary Judgment also exposes the
debtor’s defenses before trial. The law firm has also identified five pressure
points during the litigation process, when the debtor is more willing to strike
a settlement and guess what … filing a Summary Judgment is one of those pressure
points. The law firm states that a Summary Judgment is another headache for the
“pro se” debtor in terms of time and costly for the debtor who is represented by
an attorney; the attorney has to put in time to answer the Summary Judgment.
Furthermore, certain rules and procedures that must be followed for a Summary
Judgment; if you fail to follow the rules, fail to dispute affidavits and/or
carefully draft your answers to interrogatories, admissions and depositions then
you may inadvertently put yourself into a position for the court to grant the
creditor a Summary Judgment. The law firm states that few Summary Judgments are
actually granted; hence, we can speculate that debtors who have no clue about
what’s going on during the legal process are losing lawsuits due to Summary
Judgments. Those debtors that took the time to learn about the rules and
procedures pertaining to Summary Judgments may easily dodge the knock-out punch
thrown by the collection attorney.
The “Florida Rules of Civil Procedure” does not tell you what to write as
your Answer; however, it does tell you how you must answer the complaint and
plaintiff’s pleadings. The plaintiff’s pleadings are plain and simple numbered
statements containing the facts that support the plaintiff’s claim for relief
and a demand for a judgment. The debtor’s Answer should be stated in short and
plain terms, consisting of defenses to each of the creditors claims and should
admit or deny the creditors’ averments. If the debtor is without knowledge of
the creditors averment, then the debtor shall state so and the debtor’s answer
shall be treated as a denial. Affirmative defenses shall be set forth
affirmatively accord and satisfaction, arbitration and award, assumption of
risk, contributory negligence, discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, illegality, injury by fellow servant, laches,
license, payment, release, res judicata, statute of frauds, statute of
limitations, waiver, and any other matter constituting an avoidance or
affirmative defense. For example:
Creditors Pleading:
1. The Defendant opened a credit card account with ABC Bank with account
number: 4011-5565-8789-8548.
2. The Defendant account balance on said credit card is $8700.00.
3. Authorized users were given access to the credit card to buy travel
packages for personal use with no intentions of repaying back the debt.
4. The Defendant owes the Plaintiff $8700.00.
Debtors Answer:
1. Defendant admits having a past business relationship with ABC Bank.
Defendant denies the remaining allegations in paragraph 1 of the complaint.
2. Defendant denies the allegations of paragraph 2 of the Complaint.
3. Defendant is without sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 3 of the Complaint, and
therefore deny them.
4. Defendant denies the allegations of paragraph 4 of the Complaint.
Affirmative Defenses
1. Laches
a. Plaintiff’s claims are barred in whole or in part by
the doctrine of laches.
2. Failure of Consideration
a. Plaintiff’s claims are barred in whole or in part by
failure of consideration.
3. Unclean Hands
a. Plaintiff’s claims are barred in whole or in part by
the doctrine of unclean hands.
Relief Requested
WHEREFORE, Defendant respectfully request the following relief:
1. A judgment in favor of Defendant denying Plaintiffs all relief requested
in their Complaint in this action and dismissing Plaintiffs’ Complaint with
prejudice;
2. That Defendants be awarded their costs of suit, including reasonable
attorney’s fees; and;
3. That the Court award Defendants such other and further relief as the Court
deems just and proper.
Demand For Jury Trial
In accordance with FL. R. Civ. P. 1.430(b), Defendant demands a trial by jury
on all issues so triable.
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