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  1. Thank you Coltfan for your excellent post on affirmative defenses. Sometimes I do so much research I get a little fuzzier before I get clearer so... Before I found this site last year I had done my answer to the complaint with info that I found by googling 'answering a complaint'. I therefore filed every affirmative defense that I thought might stick as suggested by the googled site as the ones that didn't stick would just fall by the wayside. Now that I have about 22 affirmative defenses on my answser and my trial is coming up in June my question is this... Can my affirmative defenses sink
  2. So in the mail today was my Motion for leave to Amend my Answer, Affirmative Defenses and to file a counterclaim. The form they attached stated that I have to pay $295 to file a counterclaim. I was told that there was no filing fee if the counterclaim was under $2500 which it is. Anyone know anything about FL law????????????????????? I will call the clerk tomorrow and ask, but it was really weird the day I went to file my papers. The woman seemed like she was having a bad day and to say she was rude is being kind. She took my stuff and basically chucked it into her "in" basket. She could
  3. This pretty much backs up what Coltfan1972 has been saying all along; it's quoted directly from the Michigan Circuit Court Benchbook - Civil Proceedings (revised edition): An affirmative defense is any defense that seeks to foreclose relief for reasons unrelated to the plaintiff’s prima facie case. Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 312(1993). In other words, an affirmative defense accepts the plaintiff’s allegations, but would deny relief for a reason not disclosed in the pleadings. Stanke, supra at 312. The list of affirmative defenses in MCR 2.111(F)(3) is not exclusive.
  4. There is a great discussion about not using standing as an affirmative defense. http://www.creditinfocenter.com/forums/there-lawyer-house/311242-lack-standing.html I'm more of the use what I understand and focus rather than throw up alot of chaff. I'm searching through the site as best as possible but sometimes I dont know how to ask what I'm looking for to get the best results. so that being the case If you know of a discussion talking about why not to use one of the "common" affirmative defenses can you post a link to it or give a synopsis of it here? Thanks.
  5. I was in a time crunch and filed my answer with affirmative defenses (with the help of a friend with a legal background) but I'm having second thoughts...can someone reassure me or should I file a leave of court to amend my answer? Affirmative answers: Defendant is informed and believes, and thereon alleges, that Plaintiff's action is barred by the Statute of Limitations. Defendant is informed and believes, and thereon alleges, that Plaintiff is barred from recovery by the doctrine of lathes. Defendant is informed and believes, and thereon alleges, that Plaintiff's action is barred by reason o
  6. All About Civil Claims (Defenses In Civil Court) i think like the first 4 minutes, after that its a bit moot
  7. In answering the summons I was in a panic, didn't understand what "answering" meant and was advised to write a letter stating I disputed and was not acknowledging the debt as mine; which I did and filed with the court as an answer. Pretty pathetic. Found this forum and realized how behind I was and what a huge mistake was made. Have had 2 pretrials, did discovery, denied all their addmission questions, have a hearing on MTS affidavit, bill of sale coming up; trial date set shortly after that. Nothing offered from them during discovery, they are suing on account stated. My question is when wi
  8. I answered my complaint two weeks ago and today I received a Motion to Strike "my" Affirmative Defenses. Midland's attorney is different than the one who signed the complaint and in a different location (1 hour from the court vs. 3 hours) What do I do next? They are claiming that a portion of my answer contains Affirmative Defenses that: don't fully comly with the FL RCP or aren't Affirmative defenses recognized by law. They cited 2 cases: Cady vs. Chevy Chase Savings & Loan, 528 so.2d 136 (Fla 4th DCA 1988 and Gatt vs Keyes Corp, 446 So.2d 211 (Fla 3d DCA 1984). I don't have access to PA
  9. I have some affirmative defenses that I'd like to discuss and would appreciate any and all feedback! 1) Calculation of interest is usurious. My reasoning on this is to try and bring out the fact that I don't even understand what they claim. They show one statement with zero interest - yet, on the claim they have an amount of money listed for interest charges. Also, the fact that without seeing how they came to this amount - how would the Defendant know if the amount is correct? 2) Contract that is illusory and therefore unenforceable. I'm thinking this might be good as they did not supply a
  10. Here's what we're considering, based on the case (i.e. open book account, no affadivit or attached contract provided, etc.) --for full info. on actual summons see here: http://www.creditinfocenter.com/forums/there-lawyer-house/307819-advice-response-relatives-summons-ca.html apologies on the new thread. the prior is too long, and I doubt others will see the additions I was seeking assistance with (now that it's buried--lol). Is the following appropriate? 1. Plaintiff failed to state facts sufficient to constitute a cause of action as against this defendant 2. Plaintiff has failed to mitigat
  11. I would like to get any and all feedback on the affirmative defenses below. This would be for a suit that was filed on "other/contract" and only has a JDB affidavit, an assignment of accounts and one credit card statement showing nothing but a previous balance and a current balance for the same amount. AFFIRMATIVE DEFENSES 1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff has brought suit against Defendant as "other/contract", but has not provided the contract. 2. Lack of Standing. Plaintiff has failed to prove ownership of the alleged debt and, therefore
  12. Let's critique! (Please read through entire thread as others have been added throughout the thread.) Please feel free to add or take away any that are here. What are some good affirmative defenses against an OC? And would anybody like to elaborate on the meaning of the defenses that have been collected below? BTW, this would be for an OC that sued and only attached a cardmember agreement. However, further in the thread we are going to talk about other affirmative defenses and how they might apply to other situations. 1. Plaintiff fails to state a cause of action against the defendant. 2
  13. How in the world do you answer this?: Interrogatories: 4. If you filed affirmative defenses to Plaintiff’s Complaint, separately for each defense, please: a. State the factual basis that supports your defense; ------------------------------------------------------------ AFFIRMATIVE DEFENSES As and for a First Defense Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. As and for a Second Defense Plaintiff a
  14. Quick recap...being sued by JDB from a cc account that was charged off in 2005. I have never been contacted or received any documents from this company until the summons. They didn't even have my real address, although somehow the people at the sheriff's department didn't have any problems. I have my drafted list of affirmative defenses, but at first glance it seems like total overkill. I have listed all that I believe to be relevant to my case. Please take a look and any comments or advise is greatly appreciated!! Affirmative Defenses As and for a First defense Plaintiff failed to state a cl
  15. Hi All: I'm being sued by Discover Bank. You can find more about it here. creditinfocenter.com/forums/showthread.php?t=306835 I'm formulating my answer and looking for affirmative defenses on this site. But so far the only ones I found are for fighting suits brought on by JDB's. Please help. Thanks!
  16. To make the story short .... -This happened in the state of Florida -A lawyer for Citi is Suing me for $14k -Citi is not the OC (Citi bought the account from the previous creditor in good standing) i defaulted later on. -in the complaint they show only a final statement (not authenticated) I Filed a Sworn Denial (Below) SWORN DENIAL ON ACCOUNT Comes the Defendant, after being duly sworn according to law, and says that he does not owe the account(s) on which the Plaintiff has sued him and that the same are not true, just, nor correct for the following reason(s): This is not a valid debt(s)
  17. The following is my answer to the lawsuit from Amex/Zwicker. My question is do I add all the affirmative defenses to this filing, or is that a separate one? Do I also ask for the case to be dismissed here. I'm a little unsure of how the documents should flow. Also, I read somewhere on this site although it had to do with Washington State (I'm in Georgia) that you should file a Notice Of Appearance. Any thoughts would be appreciated, and if anybody could take a look at the other posts I have under sued by Zwicker & Amex, I would appreciate any comments or docs that you think might be helpfu
  18. I have been sued by Discover Bank C/O DFS Services LLC. There are two counts -one for Default an credit account and one for Account stated. the counts are pretty vague with no identifying info on the credit card account name or number. IT lists an amount due $6,362.56 but there are no original documents attached to the complaint showing how the amount was calculated or anything about how atty fees or contractual interest are calculated. I am looking for some help on which affirmative defenses are "BEST" to list in response to this- particularly the "Account Stated" count. That basically states
  19. So the Plantiff has replied to my Affirmative defenses and provided 12 months of generic credit card statements and an affidavit of account. I read in the Florida Civil Rules of procedure that you can Motion to Strike at any time. Should I motion to strike now or should I wait until pre-trial hearing to see what happens and motion to strike after pre-trial? Also when I get to the pre-trial hearing I am assuming that when I deny the debt is mine and ask for proof we will be sent into the discovery phase and at that point that is when I will send in my request for discovery, Correct?
  20. 1. Who is suing you? Hunt and Henriques 2. For how much? edit: this isn't a small claims court case so over $10,000 3. Who is the original creditor? Citibank 4. How do you know you are being sued? Received Summon 5. How were you served? Were you served? Personally 6. What was your correspondence (if any) with the people suing you before you think you were being sued? None 7. Where do you live? Cali 8. When is the last time you paid on this account? no account # was attached so i don't know 9. What is the status of your case (if anything has been opened)? You can find this by a) calling the c
  21. Hello - I filed suit in small claims, and just received a response to my complaint with Affirmative Defenses and every paragraph in my complaint says something like: Or it says: It says that in response to pretty much each and every paragraph in my complaint. And then the Affirmative Defenses are: Did they even read my complaint? I am not sure what to do next - any advice? Can I respond in some kind of way and file for a motion for summary judgment? Or is it better to wait for a court date? I am just stuck in not know what the next step is so any keywords that can lead my research would
  22. EXCELLENT PRESENTMENTS HERE REGARDING CASE LAW ! JUST GOOGLE : "DEFENSE OF DEBT BUYER AND OTHER COLLECTION CASES" SEVERAL PAGES LONG...SO BE PREPARED TO READ AND STUDY !
  23. Hi everyone. I'm very new to the forum but I've already learned an amazing amount of information in the last couple days! Thanks in advance. I need some urgent help preparing my answer for the case I've outlined below. I have to submit my answer and serve my paperwork tomorrow. I'd also like to file the following along with my answer tomorrow in order of importance: -My affidavit denying their affidavit -A motion to strike the affidavit as hearsay and due to the fact that the individual giving the affidavit was never an employee of the OC. -Motion to waive filing fees for the indigent -Possib
  24. For example, Like in the statute of frauds defense. Statute of Frauds: the Statute of Frauds bars the enforcement of oral contracts that cannot be performed within one year. See Smith v. Royal Automotive Group, Inc., 675 So. 2d 144, 154-155 (Fla. 5th DCA 1996) (discussing Florida’s statute of frauds); see also §§ 678.319 (sale of securities), 680.201 (leasing), 672.201, 206 (Florida U.C.C.), 725.201 (payment of another’s debt), Fla. Stat.; Restatement (Second) of Contracts §§ 110, 130 (1981); Fla. R. Civ. P. 1.110(d), discussed in (1), above.