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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 me? I understand and believe I can defend the jdb's claims of breach of contract, money lent, account stated, money had rec'd, and open book account with the help of this site but do we do that first? Then if needed move to my affirmative defenses at trial? My thanks as always to all of you!
  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 have told me that there was a fee or we could have had a discussion. I am not happy.
  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. Citizens Ins Co of America v Juno Lighting, Inc, 247 Mich App 236,241 (2001), citing Campbell v St John Hosp, 434 Mich 608, 616 (1990). The party asserting an affirmative defense has the burden of presenting evidence to support it. Palenkas v Beaumont Hosp, 432 Mich 527, 548, 550 (1989). It goes on to say that: “An affirmative defense must be stated in a party’s responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, or the defense is waived.” Citizens Ins Co, 247 Mich App at 241, citing MCR 2.111(F)(3) and Chmielewski v Xermac, Inc, 216 Mich App 707, 712 (1996), aff’d 457 Mich 593 (1998). “[D]espite the language in MCR 2.111(F)(3) that affirmative defenses should be part of the responsive pleadings, affirmative defenses do not amount to a pleading by themselves nor do affirmative defenses demanding a reply count as a pleading requiring a response.” McCracken v City of Detroit, ___ Mich App ___, ___ (2011). If a defense is based on a written instrument, a copy of the instrument must be attached to the pleading as an exhibit, subject to exceptions listed in the court rule. MCR 2.113(F)(1). Additionally, affirmative defenses must be listed under a separate heading and must include the facts constituting such defense. MCR 2.111(F)(3). - all underlining is mine
  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 of his failure to perform his obligations under the contract. Defendant is informed and believes, and thereon alleges, that Plaintiff's alleged debt should be offset against monies owed by the Plaintiff to this answering Defendant. Defendant is informed and believes, and thereon alleges, that the alleged contract lacked consideration. Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void as a result of Defendant's lack of capacity to contract. Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because of Plaintiff's undue influence upon this answering Defendant. Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because of Plaintiff's misrepresentations to this answering Defendant. Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because of duress. Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because it violates the public policy of the State of California. Defendant is informed and believes, and thereon alleges, that the alleged contract is unconscionable and therefore unenforceable.
  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 will not having filed affirmative defenses come back to bite me? Anything I can do to counteract that mistake? How bad is it that I screwed that up? Plaintiff never went for MSJ and I think its too late to push that through as the trial date is approaching. Good or bad sign? Thanks-
  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 PACER or a law library and wonder if any of the great legal minds have copies I could see. I am scared but want to fight these jerks. They haven't provided ANY proof that they own the debt and my complaint had NOTHING attached. I am straying my focus and could use some advice. Thanks in advance.
  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 contract, yet are suing for "other/contract". 3) Plaintiff has failed to state a valid claim for Attorney fees and is barred from collecting Attorney fees and any amounts not specifically provided for by purported agreement. (Because they have not provided the agreement). 4) Plaintiff's counsel did not afford Defendant due process of law. (Could this be used as a defense because the Defendant never received any notice of the debt - until they were served with a summons? Or could this be an argument because of Plaintiff's failure to even attach the alleged agreement - the Defendant's right to elect arbitration is gone out the window? 5) And I also wrestle with SOL. Can you use this as an affirmative defense for the simple reason that the Plaintiff has not supplied anything to validate a date of default?
  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 mitigate its damages, if any it had. 3. Plaintiff's claim is barred by the statute of frauds. 4. Plaintiff's claim is barred by lack of privity as defendant has no signed contract with plaintiff. 5. Defendant claims a Failure of Consideration, as there was no money nor items of value had or received by this defendant from plaintiff as alleged in the unverified complaint. Also, does California allow for this....?: 6. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date. One I found, and wonder if I can use: Another question: Can we claim "assumption of risk" as an affirmative defense, in a credit card case w/a jdb? I would be inclined to think that if the debt is valid, and the defendant has defaulted with the original creditor, the plaintiff is presuming a certain amount of risk in purchasing this debt. Is this totally flawed and reaching on my part? In the NOLO Win your Lawsuit in California Guide, I noticed affirmative defenses are stated the way I did #3 and citing the California civil code and section. Should the affirmative defenses be written this formally? Mailing BOP tommorow. Filing paperwork tomorrow or Tuesday (at latest). Looking forward to responses and thanks! tigger
  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, has failed to prove the legal standing to sue. 3. Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions. 4. The action is barred by the Statute of Frauds. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person. 5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff. 6. Unclean Hands; Plaintiff has brought this suit "other/contract" without producing a signed copy of the credit card agreement. In so doing, Plaintiff has concealed Defendant's legal arbitration right to waive Plaintiff from this court venue. Or should I take this out as we are not going to MTC arbitration or is this a viable defense since not supplying the agreement did take away the defendant's option to arbitrate if he wanted to . . . I just don't know. 7. The court would unjustly enrich the plaintiff by granting the relief sought herein. 8. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. Defendant insists that the plaintiff provide the original contract bearing defendant's signature, account statements, purchase receipts and complete chain of custody for these documents to prove the validity of the alleged debt. 9. Plaintiff is not the real party in interest and Plaintiff has failed to name all necessary parties. 10. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
  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. The court would unjustly enrich the plaintiff by granting the relief sought herein. 3. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. Defendant insists that the plaintiff provide account statements from a zero balance up to the amount due. 4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person. 5. Plaintiff’s alleged damages are limited to real or actual damages only. 6. Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws. 7. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive. 8. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
  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 admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages. As and for a Third Defense Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant. As and for a Fourth Defense Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. As and for an Fifth Defense Plaintiff’s Complaint fails to allege a valid assignment for this account and there are no averments as to the nature of the purported assignment or evidence of valuable consideration. As and for a Sixth Defense Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide. As and for a Seventh Defense Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff for this account. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. As and for an Eight Defense The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions. As and for a Ninth Defense Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits. As and for a Tenth Defense Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them. As and for a Eleventh Defense Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive. As and for a Twelve Defense Plaintiff's alleged damages are limited to real or actual damages only. As and for a Thirteenth Defense Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
  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 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 lacks standing. As and for a Third defense Defendant was not notified of any assignment of the debt that is the subject of the Complaint. As and for a Fourth defense Plaintiff’s claims are barred by the statute of frauds, O.C.G.A. § 13-5-30 as the purported contract or agreement falls within a class of contracts or agreements that are required to be in writing. The purported contract alleged in the Complaint was not in writing and not signed by Defendant or by some another person authorized by Defendant and who was to answer to the alleged debt, default, or miscarriage of the other person. As and for a Fifth defense Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff. As and for a Sixth defense Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed. As and for a Seventh defense Plaintiff’s claims are barred by the statute of frauds, O.C.G.A. § 13-5-30 as the purported contract or agreement falls within a class of contracts or agreements that are required to be in writing. The purported contract alleged in the Complaint was not in writing and not signed by Defendant or by some another person authorized by Defendant and who was to answer to the alleged debt, default, or miscarriage of the other person. As and for an Eighth defense Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration. As and for a Ninth defense Plaintiff has failed to show a chain of custody from original creditor to the Plaintiff. Therefore, Plaintiff has failed to show that they are the real party in interest. As and for a Tenth defense Plaintiff's Complaint fails to allege that the Assignor/Original Creditor even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. As and for an Eleventh defense Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff. As and for a Twelfth defense Plaintiff’s claims are based on a contract that is illusory and therefore unenforceable. As and for a Thirteenth defense Plaintiff’s calculation of interest is usurious or based on a rate that is greater than allowed by law. As and for a Fourteenth defense Plaintiff has failed to state a valid claim for attorney fees, and is barred from collecting Attorney fees under the Fair Debt Collection Practices Act. As and for a Fifteenth defense Plaintiff is barred under the Fair Debt Collection Practices Act, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by purported agreement. As and for a Sixteenth defense Plaintiff's damages are limited to real or actual damages only. As and for a Seventeenth defense Plaintiff’s claims are based on a contract that is an adhesion contract, and as such, all or portions of it are unenforceable. As and for an Eighteenth defense Plaintiff is barred under the Fair Debt Collection Practices Act, for failure to send the defendant a 30-day Validation Notice. As and for a Nineteenth defense Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant. As and for a Twentieth defense Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule. As and for a Twenty-first defense Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide. As and for a Twenty-second 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. As and for a Twenty-third defense Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais. As and for a Twenty-fourth defense Plaintiff has no Fiduciary Duty. As and for a Twenty-fifth defense Plaintiffs alleged damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control. As and for a Twenty-sixth defense Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive. As and for a Twenty-seventh defense Defendant invokes the doctrines of Scienti et volenti non fit injuria and Damnum absque injuria. As and for a Twenty-eighth defense Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
  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). This is not my debt(s). I did not sign a contract to be responsible for this debt(s). I did not sign a contract with this plaintiff. If I am responsible for this debt(s), the amount sued for are incorrect. Then i filed Answer to the complaint and Affirmative Defense in the same motion (see Below) ANSWER AND DEFENSES Comes the Defendant, ( My name ), and files this his Answers and Defenses and would state unto the court the following, towit: The Defendant denies the allegations of paragraph 1 of the Complaint. The Defendant denies the allegations of paragraph 2 of the Complaint The Defendant denies the allegations of paragraph 3 in Count ( I ) of the Complaint. The Defendant denies the allegations of paragraph 4 in Count ( I ) of the Complaint. The Defendant denies the allegations of paragraph 5 in Count ( I ) of the Complaint The Defendant denies the allegations of paragraph 6 in Count ( I ) of the Complaint. The Defendant denies the allegations of paragraph 7 in Count ( II ) of the Complaint. The Defendant denies the allegations of paragraph 8 in Count ( II ) of the Complaint The Defendant denies the allegations of paragraph 9 in Count ( III ) of the Complaint. The Defendant denies the allegations of paragraph 10 in Count ( III ) of the Complaint The Defendant denies the allegations of paragraph 9 in Count ( IV ) of the Complaint. The Defendant denies the allegations of paragraph 10 in Count ( IV ) of the Complaint The Defendant denies the allegations of paragraph 11 in Count ( IV ) of the Complaint. The Defendant denies the allegations of paragraph 12 in Count ( IV ) of the Complaint The Defendant denies the allegations of paragraph 13 in Count ( IV ) of the Complaint. The Defendant denies the allegations of paragraph 14 in Count ( V ) of the Complaint The Defendant denies the allegations of paragraph 15 in Count ( V ) of the Complaint The Defendant denies the allegations of paragraph 11 in Count ( VI ) of the Complaint The Defendant denies the allegations of paragraph 12 in Count ( VI ) of the Complaint. _______________________ Defendant ( my name ) First Defense Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. Second Defense Plaintiff's Complaint violates the statute of frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person. Third Defense Defendant claims a failure of Consideration, as there has never been any exchange of money or item of value between the Plaintiff and the Defendant. Fourth Defense Defendant claims lack of Privity as Defendant has never enter into any contractual or debtor/creditor arrangements with the Plaintiff. Fifth Defense Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence of Rule. Sixth Defense Plaintiff's Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration. Seventh Defense Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or the Assignor has conveyed all rights and control to the Plaintiff. The record does not discloses this information and it cannot be assumed without creating an unfair prejudice against the Defendant Eighth Defense Plaintiff 's alleged damages are limited to real or actual damages only. Eighth Defense Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorney's fees because the alleged contract did not include such a provision, if it did, it was limited to reasonable attorney's fees and there is no law that otherwise allows them. After that the Plaintiff Filed Motion to Strike Affirmative Defenses) (See Below) MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES Plaintiff , by and through undersigned counsel , hereby files it’s motion to strike Defendant’s Affirmative Defenses, and states: 1. The affirmative defenses fail to comply with the specificity and particularity requirements of FRCP 1.110 (d) . 2. The affirmative defenses are conclusory, do not set forth any valid affirmative defenses, and were not plead with the same degree of specificity and certainty that is required of any other pleading. 3. Affirmative defenses do not simply deny the facts of opposing party’s claim, they raise some new matter which defeats an otherwise apparently valid claim. Wherefore, Plaintiff moves this Court for the entry of an Order striking the Defendant’s affirmative Defenses. ================================================================================================================== What could be the best course of action , i got some great input from people in this forum that are giving their best to help me out , i would like to invite FLALAWYER or anyone with the expertise to post their comments about this Discussion. Thanks for everything .
  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 helpful IN THE STATE COURT OF FULTON COUNTY STATE OF GEORGIA American Express Centurion Bank, Plaintiff, vs. Mr Nice Guy Defendant ) ) ) ) ) ) ) ) ) ) Civil Action File # xxxxx Answer To Complaint Defendant Mr Nice Guy herby answers Plaintiffs’ Complaint as follows: 1 Defendant is without knowledge of information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1 of Plaintiffs’ Complaint, therefore they are denied. 2 The Defendant admits to the allegations of Paragraph 2 of Plaintiffs’ Complaint. 3 Defendant is without knowledge of information sufficient to form a belief as to the truth of the allegations contained in Paragraph 3 of Plaintiffs’ Complaint, therefore they are denied. 4 Defendant is without knowledge of information sufficient to form a belief as to the truth of the allegations contained in Paragraph 4 of Plaintiffs’ Complaint, therefore they are denied. 5 Defendant is without knowledge of information sufficient to form a belief as to the truth of the allegations contained in Paragraph 5 of Plaintiffs’ Complaint, therefore they are denied. 6 Defendant is without knowledge of information sufficient to form a belief as to the truth of the allegations contained in Paragraph 6 of Plaintiffs’ Complaint, therefore they are denied. 7 Defendant is without knowledge of information sufficient to form a belief as to the truth of the allegations contained in Paragraph 7 of Plaintiffs’ Complaint, therefore they are denied. 8 Defendant is without knowledge of information sufficient to form a belief as to the truth of the allegations contained in Paragraph 8 of Plaintiffs’ Complaint, therefore they are denied. 9 Defendant is without knowledge of information sufficient to form a belief as to the truth of the allegations contained in Paragraph 9 of Plaintiffs’ Complaint, therefore they are denied. FURTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted. Dated this 25thrd day of October,2010 ____________________ Mr Nice guy 1234 Happy Lane Atlanta Georgia 800-555-1212
  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 that defendant had a credit account with plaintiff and plaintiff mailed,delivered, sent or otherwise transmitted periodic statements to defendant setting forth all charges and credits that applied as well as the balance due. Next paragraph states -"upon information and belief defendant received and held these statements for an unreasonable time with no known protest or known notice of defects to the plaintiff as to the charges and amounts due." Then they state " The final statement transmitted to the defendant,indicating a balance due and owing, was accepted and held by the defendant for an unreasonable time without protest or notice of defect." Then they state "Plaintiff seeks damages for the account stated balance." Please let me know the best way to list affirmative defenses to this--particularly to the account stated portion. Also, if this complaint is this vague, would it be advisable to list any counterclaims and if so, do you simply list a counterclaims section at the end (Below) the affirmative defenses that I list ??? Help would be appreciated. Also as a point of strategy--according to court rules-practice book in my state- in a civil suit- you have up to 30 days from the return date to file an answer. Is it very "RISKY" to file the appearance by the return date and then wait to file my answer for some time -if the rules allow up to 30 days after the return date ??? Or if I did this can the plaintiff simply file a summary judgment motion since I would only have filed my appearance notice by the return date ?? Any advice on that --on the filing time and whether it is ok to file the answer beyond the return date or isthat simply going to get me a summary judgment motion filed by the plaintiff once the return date comes and goes ?? Thanks very much for any help and input.
  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 court or looking it up online (many states have this information posted daily). Waiting on my answer and have a scheduled case management conference later in the year 10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no 11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. no 12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? yes 13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? They attached nothing 14. What is the SOL on the debt? To find out: Don't know cause not enough info for me to know what this is about. no CC# or anything else. My question is what legitimate Affirmative Defenses do I have when all they have stated is: CC-1. became indebted to Plaintiff: (a) within the past 4 years; [1] on an open book account for money due [2] because an account was stated in writing by and between plaintiff and defendant in with it was agreed that defendant was indebted to plaintiff. ( withing the past 4 years; [4] for money lent by plaintiff to defendant at defedant's request. [5] for money paid, laid out, and expended to or for defendant at defendant's special instance and request. [6] Unjust enrichment. CC-2. $X amount, which is the reasonable value, is due and unpaid despite plaintiff's demand. This is all that i've gotten. No other attached documents. No account numbers or anything showing what this is about. I'd rather not do the everything including kitchen sink type of affirmative defense tactic.
  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 be appreciated!
  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 -Possibly my requests for admission and paperwork for Discovery I'll be posting my draft of my answer shortly and would appreciate help and feedback, particularly with what Affirmative Defenses to use or leave out! I apologize for the long post but I thought I'd go ahead and post all my info regarding my case so everyone can simply refer to this first post for the info. A summary of the details of my case is shown below: Of course I've changed some minor details and James isn't even my real name for obvious reasons! (I'm sure attorneys follow some of these threads) _______________________________________________________________ 1. Who is suing you? MIDLAND FUNDING LLC as Successor in Inerest of Capital One Bank 2. For how much? <$1,500 3. Who is the original creditor? Capital One Bank for a Capital One Master Card Credit Card 4. How do you know you are being sued? Received summons and complaint. 5. How were you served? Were you served? In person by process server. 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? Michigan 8. When is the last time you paid on this account? Don't recall and it's an alleged account that MAY be reffering to a Capital One CC I had about 3-4 years ago. If so I don't believe SOL applies 9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). I received official summons on court paperwork. Getting ready to file my answer tomorrow. 10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. I MAY have disputed and requested validation on my credit report from the OC a few years ago but I'm not 100% on that. I never requested validation from Midland or disputed with them. 11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No 12. Does your summons require a response in writing? Yes Did you receive an interrogatory (questionnaire) regarding the lawsuit? No 13. What evidence did they send with the summons? Only an affidavit from a Legal "spe******t" that "has access to pertinent account records for Midland." Midland and their Affidavit came from out of state but the attorney is in MI. 14. What is the SOL on the debt? 6 Years We need to know what the "charges" are. Please post what they are claiming Here are the details in their complaint: 1. This cause of action arose within the jurisdiction of this Court in the County of BLANK. 2. Plantiff MIDLAND FUNDING LLC predecessor in interest is CAPITAL ONE BANK 3. Plaintiff assignor allowed Defendant to charge goods and or services onan open account, and upon Defendant's promise to pay for same. 4. Plaintiff's Assignor sent statements on account Number XXXXXX to the Defendant who did not dispute the charges or object within a reasonable time. 5. Defendant has not paid the balance owing on the account, despite Plaintiff and Plaintiff's Assignor demands for payment. 6. Defendant's failure to pay has resulted in default on the account. 7. Plaintiff's assignor has completed performance and rendered an account stated; Affidavit attached. 8. Defendant is now justly indebted to Plaintiff over and above all legal counterclaims, in the amount of (under $1500) Plaintiff requests that this court enter judgment against Defendant in the amount of ______ plus interest, costs and attorney fees. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The only evidence supplied with the claim was an Affidavit which I've summarized below. The affidavit was signed and notarized about 50 days before the summons and complaint were filed. AFFIDAVIT OF (NAME WITHHELD) Mrs. BLANK BLANK whose address is WITHHELD, certifies and says: 1. I am employed as a Legal Spe******t and have access to pertinent account records for Midland, servicer of this account on behalf of plaintiff. I am a competent person over 18 years of age, and make the statements herein based upon personal knowledge of those account records maintained on plaintiff's behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendants' Capital One Bank account xxxxx (MCM #XXXXXX) (hereinafter "the account"). I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on the plaintiff's behalf. 2. The account shows that the defendant owed a balance of $xxxxx; and I am advised that such balance will continue to accrue interest at the rate set forth in the cardholder agreement/original contract and/or as required by law, until suit is filed, after which interest on the unpaid balance shall accrue as required by law and as set forth withing the terms of the statute.
  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.
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