Is it possible to respond to a lawsuit and claim that the debt is beyond the SOL without actually admitting the debt exists or the account is actually owned by the debtor? We don't believe the CA has any original account records to prove the debtor had an account with the OC or that the debtor owed the amount they are suing for to the OC. However, we also believe that the lawsuit is beyond the SOL. So, we would like to use the SOL defense while still trying to maintain the stance that the debt is not valid. I don't know if this would be possible though? In one paragraph, the plantiff alleges that defendant had an account with the OC. I was thinking of having the defendant admit to this (but am still contemplating). In another paragraph, they state she owed $2000 to the OC. In response to this paragraph I was going to have her deny the debt amount but then state that this debt is time barred by the SOL. However, how can you not admit that the debt exists while stating that it is beyond the SOL? And, for that matter, how can you deny that you had an account with the OC while still using the SOL defense. I just don't want her to admit, yes, the debt exists and the account is hers. Then, for some reason, lose on the SOL argument only to find out that indeed the CA had no original records and her admission says all.
Sure ya can. I don't owe the debt. Even if I did it's [IT WOULD BE] beyond the SOL anyway. GET LOST! .
Butch said exactly what I was going to say. This isn't my debt, but even if it was, who cares? It's past SOL and therefore it doesn't matter if it ever was valid, it sure isn't now!
Technically, making use of the Statute of Limitations defense is known as "Confession and Avoidance", and yes, you would admit the debt is true for the purpose of asserting the defense. But most states also allow "pleading in the alternative", which means that the things you plead do not require internal consistency. Sort of like Bart Simpson saying "I wasn't there/I didn't do it/You can't prove a thing." (older strict pleading rules were that you couldn't plead A in one count and B in another, if B was inconsistent with A). In the unlikely event your state doesn't allow pleading in the alternative, you would likely be forced to choose between SOL and defense on the merits.
Thanks everyone. According to the Michigan Court Rules (MCR), the following is stated in Rule 2.111 (MCR Chapter 2). (A) Pleading to be Concise and Direct; Inconsistent Claims. (1) Each allegation of a pleading must be clear, concise, and direct. (2) Inconsistent claims or defenses are not objectionable. A party may (a) allege two or more statements of fact in the alternative when in doubt about which of the statements is true; (b) state as many separate claims or defenses as the party has, regardless of consistency and whether they are based on legal or equitable grounds or on both. All statements made in a pleading are subject to the requirements of MCR 2.114. (B) Statement of Claim. A complaint, counterclaim, cross-claim, or third-party complaint must contain the following: (1) A statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend; and (2) A demand for judgment for the relief that the pleader seeks. If the pleader seeks an award of money, a specific amount must be stated if the claim is for a sum certain or a sum that can by computation be made certain, or if the amount sought is $25,000 or less. Otherwise, a specific amount may not be stated, and the pleading must include allegations that show that the claim is within the jurisdiction of the court. Declaratory relief may be claimed in cases of actual controversy. See MCR 2.605. Relief in the alternative or relief of several different types may be demanded. (C) Form of Responsive Pleading. As to each allegation on which the adverse party relies, a responsive pleading must (1) state an explicit admission or denial; (2) plead no contest; or (3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial. (D) Form of Denials. Each denial must state the substance of the matters on which the pleader will rely to support the denial. (E) Effect of Failure to Deny. (1) Allegations in a pleading that requires a responsive pleading, other than allegations of the amount of damage or the nature of the relief demanded, are admitted if not denied in the responsive pleading. (2) Allegations in a pleading that does not require a responsive pleading are taken as denied. (3) A pleading of no contest, provided for in subrule (C)(2), permits the action to proceed without proof of the claim or part of the claim to which the pleading is directed. Pleading no contest has the effect of an admission only for purposes of the pending action. (F) Defenses; Requirement That Defense Be Pleaded. (1) Pleading Multiple Defenses. A pleader may assert as many defenses, legal or equitable or both, as the pleader has against an opposing party. A defense is not waived by being joined with other defenses. (2) Defenses Must Be Pleaded; Exceptions. A party against whom a cause of action has been asserted by complaint, cross-claim, counterclaim, or third-party claim must assert in a responsive pleading the defenses the party has against the claim. A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted. However, (a) a party who has asserted a defense by motion filed pursuant to MCR 2.116 before filing a responsive pleading need not again assert that defense in a responsive pleading later filed; (b) if a pleading states a claim for relief to which a responsive pleading is not required, a defense to that claim may be asserted at the trial unless a pretrial conference summary pursuant to MCR 2.401(C) has limited the issues to be tried. (3) Affirmative Defenses. Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting (a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery; (b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part; (c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.
I decided to paste the entire section above as it lays out all the rules for responding. (A)(2) and (F)(1) seems to say we can use both defenses (deny existence of the debt while stating the debt is beyond the SOL). (F)(3)(a) says the SOL defense must be placed under a new heading so I think, in response to the specific paragraph regarding the debt, she can deny it or state that she doesn't have enough knowledge to confirm or deny (since she has not received original account records) but then, at the end, under a new heading, state this debt, if true, would be barred by the SOL. Do I seem correct?
Thanks...I was actually using that page prior to your post. However, I just made a major discovery. With the lawsuit, the CA included an affidavidt stating that, to the best of their knowledge, under penalty of perjury, the debt is owed. This was done under MCL 600.2145 (http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-600-2145&highlight=). Now, according to this section of the MCL, it states: If the plaintiff or someone in his behalf makes an affidavit of the amount due.....such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. This therefore means, basically, the person this is concerning is screwed if the debt is not beyond the SOL. If they state in their answer that they deny the allegations (or lack sufficient knowledge and therefore deny), that means ABSOLUTELY NOTHING unless the defendant also testifies, in front of a notary public, that the debt is not valid. I can almost bet Asset has no original account records whatsoever but, based on the computer print out they have, they testified under oath on this affidavidt and therefore will win unless she testifies under oath that the debt does not exist [or the debt is beyond the SOL]. In previous posts, I read that people state, deny in your answer all allegations (even if true). Well, in this case, denials mean nothing unless sworn to under oath. And, if sworn to under oath, well...you know the consequences. So, my question is, should she testify in front of a notary and state basically: I do not have knowledge or information sufficient to form a belief as to the truth of the past due balance and therefore deny all allegations against me made by Plaintiff. She is denying as she must but she is not flat out denying but rather stating, since you haven't showed me any original account records showing otherwise, I deny that this debt exists because I have not been presented with information to show otherwise and therefore lack knowledge to believe it does exist. Since she really has not been given proof of the debt and since she really doesn't know how much the debt is really for, I don't think that would be purjury. What do you think?
