Let's have a discussion on affirmative defenses

[MehtaMar]

Originally Posted by legaleagle

As and for an Thirteenth Defense
Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

Unclean Hands is a good defense, depending on whom sued you. For some, like Midland, FIA Card Services, CACV, LVNV, and any bank that used the National Arbitration Forum though early 2010, it's going to be fairly easy for someone to show Unclean Hands.

In particular, if your plaintiff is FIA, there's a very good chance somewhere in your summons, they have an "arbitration award" from the National Arbitration Forum. The Minnesota Consent Decree can be offered as Exhibit A. In California, there's a great form complete with explanation of the affirmative defense of Unclean Hands in guides Pleading and Practice.

Basically if your plaintiff references an arbitration award, then payed the arbitrator to decide in their favor, this is a classic example of Unclean Hands. In some states, this may also be covered by the state statutes regarding fraud.

CACV, LVNV, Midland Funding is another one with similar issues. Midland, I think, was also covered by the Minnesota Consent decree.

If you've got the evidence to back it up, it's an excellent defense.

[Seadragon]

is good authority for this.

Originally Posted by MehtaMar

Unclean Hands is a good defense, depending on whom sued you. For some, like Midland, FIA Card Services, CACV, LVNV, and any bank that used the National Arbitration Forum though early 2010, it's going to be fairly easy for someone to show Unclean Hands.

In particular, if your plaintiff is FIA, there's a very good chance somewhere in your summons, they have an "arbitration award" from the National Arbitration Forum. The Minnesota Consent Decree can be offered as Exhibit A. In California, there's a great form complete with explanation of the affirmative defense of Unclean Hands in guides Pleading and Practice.

Basically if your plaintiff references an arbitration award, then payed the arbitrator to decide in their favor, this is a classic example of Unclean Hands. In some states, this may also be covered by the state statutes regarding fraud.

CACV, LVNV, Midland Funding is another one with similar issues. Midland, I think, was also covered by the Minnesota Consent decree.

If you've got the evidence to back it up, it's an excellent defense.

[MamaCaldo]

I don't know if I am "that dense" or if I just didn't understand what truly constituted an affirmative defense. Until I read this: (don't remember where I found this on the net, or else I would attach a linky)

"Affirmative defenses, which are grounded in Substantive Law, state that an allegation may or may not be true, but that even if it is true, the law provides a legal defense that defeats the plaintiff's claim. The defendant must determine if the law allows an affirmative defense to a charge, and must allege sufficient facts to support the defense."

Then it hit me-- in the answers you give admitting, denying, or "other" IS how you tell them your defenses!!! The "Affirmative Defenses" section is more like a "Other Defenses" section, where if there was another defense you wanted to raise (or use) and if answering the complaint didn't bring them up, then that is what this "Affirmative Defenses/Other Defenses" subheading comes in.

Am I correct? Or am I wrong? I was really under the impression that I had to state ALL my potential defenses under the "Affirmative Defenses" subheading until I read this paragraph. And now, if I am correct, then the discussion on affirmative defenses makes so much more sense!

EDITED TO ADD:

WHOOPS!!! My computer has the "hiccups" and I thought I posted this already but didn't see it...now I see it! It's in the "Affirmative Answers in Michigan" thread.... MY BAD!!! If admin wants to delete this post, go ahead....

[RememberMe]

Originally Posted by usagi555

For #1, I'd say that the part in the chard holder agreement that allows the account to be assigned to another entity will shoot down lack of privity right off of the bat. Failure of consideration could be a valid defense if they are suing you for unjust enrichment or some other doctrine that is retarded when applied to a CC case, but you wouldn't need to use it as an affirmative defense. They need to show that you were enriched at their expense for that claim anyway.

For #2, why make it so that you have to prove they don't have standing? Shoot down all of their bogus evidence. That they own the debt will or should be one of their allegations. Deny that and deny it hard.

Isn't it better to put in every reasonable defense - because you can't go back and add it later - if it doesn't work, no big deal?

Or is there a problem with that I'm not aware of?

[RememberMe]

Originally Posted by nascar

Lack of privity necessarily implies that there is a contract. But, the third party seeking to enforce the contract is not entitled to do so.

In that regard, lack of privity is an affirmative defense if it is your position that you (1) had a contract with the creditor, and (2) the party seeking to enforce the terms of the contract is not the creditor, but some other third party not entitled to the benefit of the bargain.

Is that not shooting yourself in the foot then? Because suppose they don't come up with the contract, no big deal right because you already admitted there was one.

Isn't this playing right into their hands? One less thing they have to prove. One of those robo affidavits that the judge in ohio were 100 percent legal and okeedokee (yeah right) ought to tie up the lose ends for them or a lot of them.

That decision is still being appealed, the one in Ohio Midland v Brent. I know someone working on it and he and others will more than likely be appealing. I think somebody got a nice little prize somewhere along the way for that because I have one of those okeedokee affidavits of Midland that they say they have cleaned up in the time frame I got mine and it is not cleaned up. But I guess that's immaterial to the judge?