Will they settle prior to a judgment being entered? - PART II

Make sure you take out any personal information before posting it.

 

Was there anything attached to the complaint?

 

Is there a contract or agreement attached to the complaint or is it an affadivit? Or is there anything as to evidence that you used the account at all or that it was your account?

 

As a general suggestion you could answer if your local rules allow: ANSWER AND AFFIRMATIVE DEFENSES DEFENDANT NJTXGirl, appearing pro se, answers the complaint of Plaintiff and, in responses to each numbered paragraph thereof, states: 1. Without knowledge. 2. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in this paragraph and based on that denies and generally and specifically each and every allegation contained herein and demands strict proof. 3. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in this paragraph and based on that denies and generally and specifically each and every allegation contained herein and demands strict proof. 4. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in this paragraph and based on that denies and generally and specifically each and every allegation contained herein and demands strict proof. AFFIRMATIVE DEFENSES 1. Plaintiff failed to allege ultimate facts to establish existence of a contract. 2 . Pursuant to Rule XXXX XX Rules of Civil Procedure, Plaintiff failed to attach notes, bills of exchange, account statements, contracts, or other documents upon which an action may be brought. 3. Pursuant to Rule xxxx xxx Rules of Civil Procedure, the statute of Limitations has lapsed. This needs to be cleaned up for your local rules.

 

OK, I can't get it to format properly.....

 

As a general suggestion you could answer if your local rules allow: ANSWER AND AFFIRMATIVE DEFENSES DEFENDANT NJTXGirl, appearing pro se, answers the complaint of Plaintiff and, in responses to each numbered paragraph thereof, states: 1. Without knowledge. 2. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in this paragraph and based on that denies and generally and specifically each and every allegation contained herein and demands strict proof. 3. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in this paragraph and based on that denies and generally and specifically each and every allegation contained herein and demands strict proof. 4. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in this paragraph and based on that denies and generally and specifically each and every allegation contained herein and demands strict proof. AFFIRMATIVE DEFENSES 1. Plaintiff failed to allege ultimate facts to establish existence of a contract. 2 . Pursuant to Rule XXXX XX Rules of Civil Procedure, Plaintiff failed to attach notes, bills of exchange, account statements, contracts, or other documents upon which an action may be brought. 3. Pursuant to Rule xxxx xxx Rules of Civil Procedure, the statute of Limitations has lapsed. This needs to be cleaned up for your local rules.

 

That'll do . . . and do just fine.

You could file a MTD based on Affirmative Defenses Paragraph's 1 through 3 as well. Of course, that is a matter of procedural preference to large degree.

In any event, I think Enigma is owed some applause here. Good Job!

 

<applause>

Good job, Enigma!!

 

If, after you file your Answers, Defenses and Sworn Denial, you still wish to settle, open the negotiation's at 25% or $650.

 

Ok, I am confused

Why is the $2300 case being heard outside of small claims. Maybe NJ is way different, but this case would be heard in small claims in California.

To be sure, follow the steps as outlined in Apex's post. When you answer the court or even file other motions, it gets us (CA's) moving. We either can prove it or the whole matter gets dropped. As an example, we had a case where a def states that the court filing was 1 day past the statute of limitation. The amount was $170k, so our attorney argued on the basis of discovery of the debt, it was of course dismissed with prejudice based on the fact that we and our attorney dropped the proverbial ball.

 

I knew it, they don't have the paper. Yes, you do have a chance at outright dismissal if they can't show any obligation.

 

Basic point, if you don't make the attempt to beat it, you have no chance of beating it.

As long as you keep the process open, you retain options.

The gratuitous applause, above, notwithstanding, Enigma's draft answer concisely puts the onus of proof on plaintiff, where it belongs. The draft simply says "prove it".

You can parse the situation to see if you have affirmative defenses, and you can use discovery to make sure they prove their case. Depending on what is offered as proof, you may have ways of beating them. You may not. Much too soon to tell.

As Unifund likely owns the debt now, it is an open question as to whether or not they can provide the proof required. All the discrepancies and mismatches of claims can poison their evidence. Failure to provide admissible proof can torpedo their case.

Until a judgment is actually signed by the Court and filed, you have all sorts of options still open, including settlement.

First step is the answer to the complaint.

 

Just speculating

I think by even starting to answer the complaint in an open and unbiased system will have the attorney offering a settlement. I think that Oracle is right, you should start the process as outlined by Enigma and Apex and see where this lands you.

Um, according to the NJ Lawrev, you can negotiate a settlement or confession of the judgment (basically a promissory note) but here is the catch, if you fail to fulfill, the judgment is automatically entered against you.
This one is dicey, but in California, we call it a stipulated jugment where the court monitors the payments. The enforcement of the judgment is not enforced and it doesn't really show up as a judgment until a notice of default is sent to the court on the stipulation.

Here is NJ's rules:

J-12. Ex parte entry of judgment on written settlement agreement

a. A judgment may be entered on a written agreement that consents to the entry of judgment only as provided in this section. Notice of the application for entry of judgment shall be given to the defendant in the form required by the court rules for notice of application for entry of default judgment.

b. The written agreement consenting to entry of judgment may be executed only after the acts or omissions of defendant have created a cause of action against the defendant for the amount of the judgment.

c. The application for entry of judgment shall be supported by an affidavit of the facts on which the judgment is based.

d. The agreement shall authorize entry of judgment for a specific sum or for a
sum to be calculated in a manner provided in the agreement.

e. The agreement may authorize immediate entry of judgment or it may impose new obligations on the defendant and condition entry of judgment upon failure to comply with its terms.

 

First of all, no more emails. You need a paper trail the court will accept.

If it were me:

Dear Attorney,

Thank you for your clients couter offer, which is hereby rejected.

I will shortly file my Answer and affirmative Defenses.

Sincerely

xxxx


Now go file your Answer and defenses along with the Sworn Denial.

Let the games begin.

 

As I originally thought insofar as this is debt collector, they are already backing away from their initial posture because they know they can't prove it up.

I would either 1) file a Motion for a More Definitive Statement or 2) file a Motion to Dismiss for failure to state a claim. In either event, I doubt they Object inasmuch as their case is a loser.

By and large, debt purchasers cannot show a chain of ownership. That is why they must put on out of court statements.

In any event, file something and make it go away. I wouldn't pay them a dime. Enigma's Answer is perfectly fine. It is really a matter of procedural preference as to how you proceed and this point. In the end, it's going to come out as their case is dismissed, striken, and if they can recoup (I don't find this likely), it will be little in light of properly plead equitable defenses.

Again, I'd fight this one.

 

AH HAH! That's most interesting!


I'm not an expert on math or anything, but if your interest went up from 2800 to 3006 in a 1 month period, that would be about equivalent to 89% interest. (formula is =Principle*(1+(Rate/Number of Periods))^(Number of Periods*Total Time in Years)

Help me out on this, wouldn't 89% interest be obviously illegal?

 

Depending in NJ law, it may in fact be usurious and therefore a FDCPA violation and possibly a crime in NJ.