John Stokes

1618 Manhattan St.

Bolingbrook, IL 60490

Phone | Fax

jcstokes0508@gmail.com

Defendant in pro per

in the 12th judicial circuit court

for will county, illinois

citibank, N.A.,Plaintiff,vs.JOHN C. STOKES,Defendant Case No.: 2021AR001054OPPOSITION TO MOTION TO STRIKE DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES

NOW COMES John C. Stokes, Defendant, and files this Opposition to Motion to Strike Defendant’s Answer and Affirmative Defenses, and for cause would show this Honorable Court as follows:

  1. In the Motion to Strike Defendant’s Answer and Affirmative Defenses, Plaintiff wrongly alleges that Defendant has not stated any facts. Defendant’s facts begin with the procedural history of this case when he was served with the Summons and the Complaint. This is because prior to the filing of the Summons and Complaint, Defendant had no contact whatsoever with Plaintiff.
  2. Defendant has no knowledge of such debt alleged by Plaintiff. Throughout the Complaint, Plaintiff has failed to prove that Defendant owes the alleged debt.
  3. All that Plaintiff has presented as evidence so far include a credit card or debt buyer collection affidavit sworn by a C. Nordmeyer, a purported June Statement on a Citi Diamond Preferred Card, a purported account summary, an affidavit as to military service sworn by Plaintiff’s attorney, and an affidavit of service sworn by a Samantha Carpenter.
  4. The above documents do not prove in any way that Plaintiff owes the alleged debt.
  5. At Paragraph 11 of the Motion to Strike Defendant’s Answer and Affirmative Defenses, Plaintiff confirms that this suit is strictly a breach of contract action seeking monetary damages. Defendant avers that Plaintiff is not entitled to monetary damages for breach of contract. This is because Plaintiff has not, and cannot prove a breach of contract claim against Defendant.
  6. The essential elements of a breach of contract claim are: (1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) resultant injury. Pepper Construction Company v. Palmolive Tower Condos, 59 N.E. 3d 41 (2016), citing Coghlan v. Beck, 2013 IL App. (1st) 27, 368 Ill. Dec. 407, 984 N.E. 2d 132.
  7. The requirements of a valid contract are offer and acceptance, consideration, competent parties, legal purpose, and, if agreed to by the parties, a written agreement. Lal v. Naffah, 149 Ill.App.3d 245, 500 N.E.2d 699, 792; 102 Ill.Dec. 806 (1st Dist.1986). There was no offer, acceptance, consideration, competent parties or legal purpose for the contract alleged by Plaintiff. In fact, there is no written agreement since Defendant who is alleged by Plaintiff to be a party to the purported contract did not sign any contract to legally bind himself to the terms of such contract.
  8. Express contracts are those in which the terms of the contract are disclosed in the words or writings of the parties. Bull v. Mitchell, 114 Ill.App.3d 177, 448 N.E.2d 1016, 1023; 70 Ill.Dec. 138 (3d Dist.1983); Lampe v. Swan Corp., 212 Ill.App.3d 414, 415; 571 N.E.2d 245, 246; 156 Ill.Dec. 658, 659 (5th Dist.1991).
  9. Certain contracts are required by the Statute of Frauds to be in writing. [740 ILCS 80/1, 80/2-formerly Ill.Rev.Stat.1991, ch. 59, §0.01–which references: an agreement to pay the debt of Section 700, Page 2 of 78 another; an agreement to sell an interest in land; an agreement made by the executor/administrator of an estate; an agreement to marry, plus an agreement that cannot be performed within one year from it’s making; and cf. 810 ILCS 5/2-201- that references an agreement for sale of goods for $500.00 or more under the Uniform Commercial Code.] The purported contract to pay the debt alleged by Plaintiff should be in writing, signed by Defendant and an agent/representative of Plaintiff.
  10. The burden of proving the existence of a contract rests on the party who seeks enforcement of the contract. C. Iber & Sons, Inc. v. Grimmett, 108 Ill.App.2d 443, 248 N.E.2d 131, 133 (3d Dist.1969). The plaintiff in a breach of contract action also has the burden of proving all of the material terms of the contract. Vandevier v. Mulay Plastics, Inc., 135 Ill.App.3d 787, 482 N.E.2d 377, 380, 90 Ill.Dec. 558 (1st Dist.1985); DeHeer-Liss v. Friedman, 227 Ill.App.3d 422, 427; 592 N.E.2d 13, 17; 169 Ill.Dec. 526, 530 (1st Dist.1991).
  11. Plaintiff bears the burden of proving the existence of a contract between it and Defendant as well as all material terms of the contract. Plaintiff cannot discharge that burden because the contract does not exist as Defendant did not sign any contract with Plaintiff. Subsequently, Plaintiff cannot discharge the burden of proving all the material terms of the contract as the purported contract does not exist.
  12. Since Plaintiff has failed to prove the existence of the purported contract, it has failed to prove all other elements of a breach of contract claim in the State of Illinois. It is untenable for Plaintiff to allege that Defendant owes a debt while Defendant did not receive such debt or commit himself to pay such debt. Therefore, Plaintiff’s breach of contract claim against Defendant fails.

REASONS WHEREFORE, Defendant respectfully requests this Honorable Court to DENY Plaintiff’s Motion to Strike Defendant’s Answer and Affirmative Defenses and GRANT judgment in favor of Defendant.

Dated this ____ day of March, 2022.

Respectfully Submitted,

___________________________________

John Stokes,

Defendant in pro per

VERIFICATION

I, John Stokes, being duly sworn depose and say that I have read the foregoing Opposition to Motion to Strike Defendant’s Answer and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this ___ day of March, 2022.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

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