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  1. #1
    aquvasha is offline Junior Member
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    summons and complaint answer

    What is the name of your state (only U.S. law)? South Carolina

    I desperately need help with an answer for a summons and complaint. I will try to include everything: my boyfriend and his friend wrecked my car after leaving a bar. Both were thrown from the car and the friend died instantly. My insurance had lapsed at the time and now I'm being sued for $25,000,000 that has already been paid to the friends family. My bf was charged with dui resulting in death and is now in the process of an appeal. He was not the one driving but there was no evidence or witness to prove who was driving. I want to fight this complaint because I know the friend was the one driving. I feel that I should be given some kind of evidence to prove I am responsible for this judgement. Please, can anyone help me with filing an answer to the complaint? I can't afford an attorney, legal aid won't help me, the clerk of court can't help me...I don't know what to do.
  2. #2
    Antigone* is offline Senior Member
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    Quote Originally Posted by aquvasha View Post
    What is the name of your state (only U.S. law)? South Carolina

    I desperately need help with an answer for a summons and complaint. I will try to include everything: my boyfriend and his friend wrecked my car after leaving a bar. Both were thrown from the car and the friend died instantly. My insurance had lapsed at the time and now I'm being sued for $25,000,000 that has already been paid to the friends family. My bf was charged with dui resulting in death and is now in the process of an appeal. He was not the one driving but there was no evidence or witness to prove who was driving. I want to fight this complaint because I know the friend was the one driving. I feel that I should be given some kind of evidence to prove I am responsible for this judgement. Please, can anyone help me with filing an answer to the complaint? I can't afford an attorney, legal aid won't help me, the clerk of court can't help me...I don't know what to do.
    Who paid the $25 Million dollars
  3. #3
    aquvasha is offline Junior Member
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    Sorry, it is 25 thousand, not million. A property and casualty corp paid the family. The plaintiffs are the property & casualty corp and the estate of the friend that died.
  4. #4
    LillianX is offline Senior Member
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    It sounds like the insurance company is suing you to recover the money they paid the family. Whose insurance paid it?
  5. #5
    Free_Advice is offline Member
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    Responses to a complaint can include (not not exclusive to):

    1- an answer
    2- a request to make more definite
    3- motion to strike (parts of the complaint)
    4- motion to dismiss (complaint fails to connect a cause of action to facts plead or the law does not allow the cause of action)

    Is this YOUR car that you allowed your BF to drive who then drove drunk and resulted in deaths?

    You have a short time period to respond to the complaint before a motion for default judgment will be requested.

    If you don't know how to respond to a complaint, I would think that you cannot handle the case pro se.

    And the clerk cannot help you; free legal aid may not be available.

    Google scholar is a free legal research site (for case law).
  6. #6
    Tex78704 is offline Member
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    If you do nothing else, file a very simple one page response before the deadline that will prevent a default judgment from being entered against you.

    And for that you need to:

    copy the header of the complaint
    below that make a title "Answer to (name of complaint)"
    below that state "Defendant enters a general denial of all claims"
    below that state "Defendant prays that all of Plaintiffs claims for relief be denied"
    below that sign it. Include under your signature printed name, address, phone #
    below that write "Defendant certifies that on (date you file your answer) that a copy of this Answer was mailed by USPS first class mail to (plaintiff's attorney name and address) and sign your name again.

    Take the original and three copies to the court and file one, they may ask for an additional copy, have a copy file stamped for your record, have the copy you are sending to the attorney file stamped, and drop the attorneys copy in the mail that day.

    That should be legally sufficient to prevent an automatic default judgment against you. Then all you can do is wait to see what they do next.
    Last edited by Tex78704; 06-11-2011 at 10:25 PM.
  7. #7
    Free_Advice is offline Member
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    Well, even a default judgment at this stage can be opened so don't rush to the point you are filing something just to get it filed.
  8. #8
    Tex78704 is offline Member
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    Quote Originally Posted by Free_Advice View Post
    Well, even a default judgment at this stage can be opened so don't rush to the point you are filing something just to get it filed.
    This is incorrect

    How would a default judgment be "opened" at this stage, as you suggest, if an answer has been filed?
    Last edited by Tex78704; 06-12-2011 at 08:08 AM.
  9. #9
    maximmaximus is offline Junior Member
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    Quote Originally Posted by Tex78704 View Post
    below that make a title "Answer to (name of complaint)"
    below that state "Defendant enters a general denial of all claims"
    below that state "Defendant prays that all of Plaintiffs claims for relief be denied"
    below that sign it. Include under your signature printed name, address, phone #
    Not quite the best advice. I will try to improve it.

    You should perhaps do this...
    "Defendant admits that ..... [fill in, word for word, any statement in the Complaint that is technically and irrefutably true...]]"

    "Defendant enters a general denial of all other claims."

    For example, if your name and address appear as numbered claims, you might say:
    "Defendant admits that her name is Sally Sue Smothers and that she resides at 121 Defendant Avenue. Defendant enters a general denial of all other claims."

    However, there is another reason why this is bad advice... When you make an answer to a complaint, you will also need to predict, as best as you can, which affirmative defenses you would think are going to help you defend this case. There is not enough room to tell you about these here, but if you want a quick list, try researching "affirmative defenses" on Google. You might should list anywhere from 4 to 10 of them. You will be essentially reserving your rights to counter the potential problems in the Complaint. If, at a later date, you need to defend against the plaintiff and you don't mention it here, then you will be barred from using the defense later.
  10. #10
    Tex78704 is offline Member
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    Quote Originally Posted by maximmaximus View Post
    Not quite the best advice. I will try to improve it.

    However, there is another reason why this is bad advice...
    maximmaximus, you should refrain from giving or critiquing others advice when you are asking advice to questions that are nonsense, and which you were able to marginally figure out before your they were even answered.

    My advice illustrates a minimalist approach that is "legally sufficient to prevent a default judgment from being entered". And for a pro se who cannot afford an attorney and is running short on time to file an Answer, this will suffice to prevent default.

    Many pro se litigants do not have the skillsets to come up the learning curve quickly enough to frame a more thorough answer to include answering specific allegations pleading affirmative defenses and such.

    Nevertheless, once an answer has been filed, the legal wheels turn slowly pending discovery actions and scheduling hearings. And within this time frame there are opportunities to file an amended answer. If the pro se is able to hire an attorney, or later able to determine on their own there may actually be an applicable affirmative defense, the court will normally allow an amended answer prior to any trial settings.
  11. #11
    Free_Advice is offline Member
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    Quote Originally Posted by Tex78704 View Post
    the court will normally allow an amended answer prior to any trial settings.
    It should be pointed out that an amended answer filing may be objected to by the opposing party..so if an affirmative defense is not contained within the answer then the OP may lose these defenses if the court decides to deny the filing of an amended answer after an original answer is filed.

    The OP, if still wanting to go pro se, should read other court files to see how to proceed when a complaint has been lodged.

    The OP may also wish to file a counterclaim in addition to an answer and affirmative defense (any request for monies filed with the answer should be contained within a counterclaim). This could include a request for attorneys fees etc.

    So a response could include an answer, affirmative defenses, and a counterclaim.

    But to file something just to get it on file and avoid a default may not be wise; it may be wiser to prepare a proper response even if it allows the plaintiff to file a motion for default judgment. As long as a filing is made before the court rules on the default motion the defendant should be fine & the motion for default denied.
  12. #12
    Tex78704 is offline Member
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    Quote Originally Posted by Free_Advice View Post
    It should be pointed out that an amended answer filing may be objected to by the opposing party..so if an affirmative defense is not contained within the answer then the OP may lose these defenses if the court decides to deny the filing of an amended answer after an original answer is filed...
    Doesn't matter if plaintiff objects to defendant filing an amended answer. A defendant is entitled to one amendment as a matter of course if filed on time, and SCRCP 15 further encourages the courts to be lenient with granting leave to file.

    South Carolina Rules of Civil Procedure
    RULE 15
    AMENDED AND SUPPLEMENTAL PLEADINGS

    (a) Amendments. A party may amend his pleading once as a matter of course at any time before or within 30 days after a responsive pleading is served or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial roster, he may so amend it at any time within 30 days after it is served.

    Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires and does not prejudice any other party...
    Quote Originally Posted by Free_Advice View Post
    ...But to file something just to get it on file and avoid a default may not be wise; it may be wiser to prepare a proper response even if it allows the plaintiff to file a motion for default judgment. As long as a filing is made before the court rules on the default motion the defendant should be fine & the motion for default denied.
    Suggesting it would be "wiser" for a defendant to file a "better answer" LATE rather than a marginal but "legally adequate answer" ON TIME is nonsense. Betting the farm that a judge won't sign a default judgment without additional notice against a party who did not respond to or answer a duly served complaint and citation is reckless.
    Last edited by Tex78704; 06-13-2011 at 08:05 PM.
  13. #13
    maximmaximus is offline Junior Member
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    Quick and Right

    Do it timely (before the deadline) and do it right. Don't answer without including affirmative defenses, Tex. And definitely don't answer slow, Free_Advice. Neither a short denial reply nor a late reply will protect the Defendant against the suit.

    Tex is right. Answer within the time. But it is foolish to answer so abruptly with no affirmative defenses. If you want to properly defend this, you should not be blind to the fact that Courts in this land generally need to see more than a form letter denial. Otherwise, lawyers would have standardized a magic bullet, and nowadays websites that produce legal documents would offer a "magic bullet form" for defending any lawsuit.

    So Tex, you are wrong on the principle that bad advice is less helpful than good advice. It's like Tex, you are arguing that the original poster should stop their ears or ignore affirmative defenses. That is plain bad advice. Defendants need more than a magic bullet "Denial form" for a case. They need to think about the case, determine where the plaintiff might be weak, and mention to the court IN THE ANSWER that the Defendant intends to consider a number of defenses which may help their case. We also should reiterate that the Defendant LOSES the chance to list affirmative defenses once the original answer is submitted. We should also mention that the Defendant LOSES the chance once the time (usually 20 days) expires from the date of service.

    As for the ad hominem attack against me for giving some "better advice," you should be ashamed of that, Tex. Sorry OP for this messy off-topic dispute. I hope Tex will reply to me directly if Tex has more to say about me.
  14. #14
    Tex78704 is offline Member
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    Quote Originally Posted by maximmaximus View Post
    ...We also should reiterate that the Defendant LOSES the chance to list affirmative defenses once the original answer is submitted. We should also mention that the Defendant LOSES the chance once the time (usually 20 days) expires from the date of service....
    maximmaximus, do you even bother to read through posts before shooting from the hip with your responses? As shown below (and two posts above ), South Carolina is pretty liberal with amending an answer, which invalidates your contention above.

    While one can hardly argue that getting it right the first time is always best, when a pro se who may have procrastinated and lacks the time and skillsets to prepare a proper answer in a matter of days, which is not uncommon, they should at least file a legally adequate response before the deadline.

    South Carolina Rules of Civil Procedure
    RULE 15
    AMENDED AND SUPPLEMENTAL PLEADINGS

    (a) Amendments. A party may amend his pleading once as a matter of course at any time before or within 30 days after a responsive pleading is served or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial roster, he may so amend it at any time within 30 days after it is served.

    Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires and does not prejudice any other party...

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