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Filing a Motion to Amend

 

An Answer to a Petition doesn't have to be perfect, but it must be timely. What do you do if you made some mistakes in what you filed? This article tells you how and why to amend your petition and provides a (simple) sample motion.

Amending Your Answer

As I've said before, your Answer to a Petition doesn't have to be perfect, but it must be on time, so it's important to get it done even if you aren't sure you've got it 100% right. You don't want to make either admissions or incorrect factual assertions in your initial answer, as these could complicate matters down the road, but if you remember something differently or think of a new defense or counterclaim, you should strongly consider amending your petition. And even if you did admit things in your initial Answer that you now want to take back it's usually far better to amend than leave them in there where they can kill your case.

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Courts Are "Liberal" in Permitting Amendment of Answers or Other Pleadings

You do have to get permission in order to amend an answer once you file it, but because the courts have a strong policy of hearing cases “on the merits” (based on the actual facts and law rather than “technicalities” or oversights), courts are required to be very liberal in allowing amendments. Practically speaking, they will always allow you to amend a petition within a month or two of filing an answer, and they will usually do so for a long way into the case. If you come up with something new, you should definitely try it.

So how do you Amend Your Answer?

First of all, you write your amended answer (or petition if you are the plaintiff). Remember that usually the amended answer does not simply add to the original answer. It completely replaces it. That means that you must not forget to deny the paragraphs you had already denied, and you must re-plead everything you still want in the case. So much of the amended answer will be exactly the same as the original answer. The title of your new answer will be “Amended Answer.” Change whatever needs to be changed, add or subtract whatever needs to be added or subtracted.

Second, you write a “Motion to Amend Answer.” In this motion, you formally request “leave” (permission) to file the amended Answer and tell the court why you want to do it. You might also, very briefly remind the court of the policy to permit amendments very liberally. You do that by looking up a case that states that policy and citing it, quoting the relevant statement by the other court. You attach your Amended Answer to this motion, and (in most courts) you need to schedule an oral argument in which you ask the court for leave to amend. This argument is normally not a big deal. Then you attach the answer you want to file as a "Proposed Amended Answer (and Counterclaim if applicable).

The proper way to oppose the amended petition - say, if you want to dismiss the case - is by opposing the amendment.

Sample Motion
 

Court
 

Debt Collector,                 )

Plaintiff                             )   .

 vs.                                   )

Joe Consumer,                 )

Defendant                        )

Motion for Leave to Amend Answer

Comes now defendant Joe consumer and for his motion to amend states as follows.

1.Plaintiff Debt Collector filed its petition against defendant on March 1, 2011, and it was served upon Joe Consumer on March 16, 2011. The date for first appearance in court was set for March 29, 2011. 2.Defendant filed his answer and appeared in court in timely fashion. 3.Defendant is representing himself pro se in this matter and had little time to research the law or his Answer before needing to file his Answer. 4.Defendant has since learned that he has remedies for the wrongs alleged against Debt Collector in his proposed Amended Answer. 5.This matter has not been set for trial, and plaintiff would not be prejudiced by permitting amendment to defendant's Answer. 6.Justice requires that defendant be permitted to amend his petition to allege his claims under the Fair Debt Collection Practices Act and State X's common law. See, Joe Schmoe vs. Heartless Debt Collector, 123 State Law Digest 321, 323 (Your state, 2002)(where a defendant seeks amendment within a reasonable time, the interests of justice require the court to permit that amendment). 7.Defendant does not seek this amendment for improper motives and is not unduly seeking to delay trial in this matter.

Wherefore, Defendant requests that this court permit the filing of the attached proposed Amended Answer.*

Respectfully,

Joe Consumer

 

*And note: you need to attach a "Proposed" Amended Answer that is what you want to make your Answer.

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Check out our Guide to Legal Research and Analysis for a guide to researching and laws and cases in the most effective way. But legal research is more about what you do with what you find, and so this is a primer on legal thinking and analysis as well.

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