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Opinions of meanings of statutes, please...
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Posted by Here we go again....Being sued by an lawyer
(12.64.108.232) on August 15, 2004 at 02:03:17:
My husband is going to court 9/22 on a cc debt.
SOL ran out just days after they filed. We are in Montana. I doubt they have much information regarding proof of claim...it's Unifund and one of their "lawyers". These statutes are regarding the plaintiff's requirement to provide a statement of the damages they seek. Here are the statutes: 25-4-302. Pleading an account. It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within 5 days or such further time as the court may allow or may be agreed to by the parties, after a demand thereof in writing, a copy of the account or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general or is defective in any particular. 25-4-313. Notice to defendant when no request for statement. If no request is made for such a statement setting forth the nature and amount of damages being sought, the claimant shall give notice to the defendant of the amount of special and general damages sought to be recovered:
(1) before a default may be taken; or
(2) in the event an answer is filed, at least 45 days prior to the date set for the trial. 25-4-314. Permissive delivery of statement with summons. A copy of the statement setting forth the nature and amount of damages being sought may be delivered to the defendant at the time of service of the summons and complaint but may not be filed for 20 days after the complaint is filed. There was no accounting at all on the summons and we filed an answer last week. Nor has a statement been sent and it's been long past 20 days since the filing of the summons. But am I reading 25-4-313 right that if we don't request a statement setting forth the nature and amount of damages being sought, the plaintiff has to provide to the defendant the amount of special and general damages sought to be recovered, they must give such notice to us or a default can't be taken and that they have 45 days prior to the trial to provide the statement of damages.
Question: Should we request the accounting now or spring this on them at trial, assuming they don't have it at trial? It seems they must provide such accounting within 5 days or our asking, so if they have to scramble like rats in order to find the records, would that be the best way, instead of giving them until the trial to provide the accounting? Does it seem to you that the plaintiff is supposed to provide the statement in any case? Are our pleadings for the accounting supposed to be filed with the court as well? Your opinions would be greatly appreciated....Thanks!!
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