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Found 71 results

  1. SC454e 108118101516020.pdfSC454e 108118101516020.pdf
  2. Hello thanks in advance for any help.. from what I have read 'account stated' sounds like it is going to be a little more difficult to deal with as it sort of does not require as much evidence and I am struggling to find much info on it. 1. Who is the named plaintiff in the suit? Midland Funding 2. What is the name of the law firm handling the suit? not sure just has a bunch of lawyers listed.. a google search seems to point to Encore Capital Group.. idk 3. How much are you being sued for? about $2800 4. Who is the original creditor? Synchrony 5. How do you know you are being sued? served 6. How were you served? In person 7. Was the service legal as required by your state? yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? They may have sent mail and called. Probably never responded because I may have thought it was junk mail/scam calls. 9. What state and county do you live in? California, Orange County 10. When is the last time you paid on this account? Oct 2014 11. When did you open the account ? Sept 2013 12. What is the SOL on the debt? 4 years 13. What is the status of your case? suit served 14. Have you disputed the debt with the credit bureaus? I disputed collection agency twice through credit karma (on Apr 2017 and Dec 2017). 15. Did you request debt validation before the suit was filed? No 16. How long do you have to respond to the suit? Case Management Conference set for Sept 2018. I have filed a general denial. The only cause of action is ‘accounts stated’. No interrogatory questionnaire received. 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Exhibit A - Bill of Sale, Purchase Price Reconciliation/Funding Instructions, Affidavit of Sale of Account by Original Creditor, Blanket Certificate of Conformity for Notary, Certificate of a Federal Savings Association Title Change, then a page with the electronic record with the basic account info (name, address, phone #, Charge off amount, current balance, Last payment date, etc) Exhibit B - copy of welcome letter from MCM letting them know my account had a ‘new home’ and a statement with payment options dated Nov 2016 Exhibit C - Credit Card statement from OC showing last payment Exhibit D - Credit Card statement from OC showing final balance Exhibit E - Notice of Legal Placement from MCM I am thinking I need to amend my answer.. I had done some research prior to responding but for some reason was under the impression I was sued for breach of contract so I filed my answer accordingly thinking that the burden of proof would be on the plaintiff to prove it was my debt with some sort of signed contract but after filing I re-read the complaint and saw that the cause of action was 'accounts stated'.. I dont believe the affirmative defenses I listed apply.. and I am not sure which ones would apply to my situation. so the question # 1 - How would I amend my answer? is there a certain form? What are possible affirmative defenses for 'account stated' ? I h/ave previously disputed this debt through credit karma a few months after they had allegedly sent the statement (exhibit B.) and then again a few months later. without a contract bearing my signature where is the proof I even owed the OC let alone the JDB.. question # 2 - how do you fight this particular cause of action? how do I legally argue that my silence does not mean acceptance of the debt or imply that I agreed to anything really? how I do I shift the burden back onto them and make them prove that I owe them anything? . question # 3 - This was a joint account but I am the only one listed as defendant to this case.. does that matter in any way, shape, or form? any info, good defenses, etc is much appreciated. thank you
  3. Sued (breach of contract - common counts) by a third party debt collector in civil limited jurisdiction for the principal amount of $724.00. Assuming I can just file a General Denial (PLD-050), what are some good affirmative defenses I can use? I'd rather not attach 39 affirmative defenses in the rare event plaintiff decides to want to try to strike them.
  4. There's been lots of discussion on affirmative defenses recently. Let's talk about a couple. #1 Let's say it's a JDB suing and you have no idea who these people are, you never entered into a contract with an OC who sold to this JDB. Aren't Lack of Privity and Failure of Consideration valid defenses in this case? #2 Let's say you have a JDB who has no documentation proving they purchased the debt. Isn't Lack of Standing a valid defense? (You can't prove a negative, in the case of the Defendant).
  5. Hi everyone I'm helping a friend who is being sued by CACH, LLC for a credit card debt in California. I've been lurking around here weeks, reading and learning, and I feel I'm on the verge of starting to understand this stuff a teeny, tiny bit But I do have some questions I hope you guys can help me with. ok, here's the info: 1. Who is the named plaintiff in the suit? CACH, LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) 3. How much are you being sued for? $5,000+ Limited Civil 4. Who is the original creditor? (if not the Plaintiff) Wells Fargo Bank, N.A. or its predecessor-in-interest 5. How do you know you are being sued? (You were served, right?) Served 6. How were you served? (Mail, In person, Notice on door) Substitute service. Papers were left with person at work, another copy mailed to work address. 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None. This was the first communication. 9. What state and county do you live in? California 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) It is not outside SOL 11. What is the SOL on the debt? To find out: 4 years 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Proof of Service filed by Plaintiff 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No 15. How long do you have to respond to the suit? (This should be in your paperwork). 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? 40 days from date of service to respond (approximately 3 weeks from now). 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No evidence was sent. Just a Summons, a Complaint, a Civil Case Cover Sheet, a Notice of Case Assignment, and a Verification. The first part of the Complaint is General Allegations and there are 10 paragraphs. Right after that there are three Causes of Action: 1. Complaint For Money Due on Breach of Contract 2. Account Stated 3. Money Lent Paid or Expended The Verification was written by the attorney for the Plaintiff, but it seems to just be a verification of the venue. It says, in part, "[...] I have read the foregoing documents and know the contents thereof. Based on the business records of the Plaintiff and my review of available factual information, venue lies properly with this court because [...]" I think this means that the Complaint is not verified, so I can just do a general denial. Is that right? I'm using form PLD-C-010 and checking box (3a) Defendant generally denies each statement of the complaint or cross-complaint. I'm kind of stuck on Affirmative Defenses. So far I'm using Lack of Standing and Failure to State a Cause of Action. Of course, everything can be changed if necessary. This is just where I'm at right now. My (tentative) plan at this point is to file the Answer right before the 40 days is up, and then right away send a Demand for BOP. Am I on the right track so far? So I guess my main questions right now are (1) am I right in thinking that the Complaint is not verified, (2) what the heck do I do about Account Stated, and (3) are my Affirmative Defenses reasonable or ridiculous? Are there others I should use? Thanks in advance for any help with this. And please feel free to add any info I might have forgotten to ask about ~ my mind is about scrambled at this point
  6. I was served a complaint from Midland (utah) They listed my maiden name instead of my legal name ( not that it means anything but their lack of detail) I had no prior contact with them prior to summons. verified with court on day 13 that they did file, and have been trying to figure out a response since. they state 1) defendant resides in county 2) defendant entered into a contract with capital one account ending in ####, which contract was subsequently assigned to plantiff 3) defendent has defaulted on obligation under contract 4) the amount charge off on the account was $1,xxx.xx There is now due and owing to the pantiff the amount $1xxx.xx In addition, plantiff is entitled to recover interest from the date of judgement at legal rate 5) further equity requires defendent to pay the value of the benefits received DEMAND A damages to be paid in the amount of $1,xxx.xx less payments made B interest from the date of judgement at legal rate. C for costs of court both pre and post judgement D any other relief as the court deems equitable. That is all they sent. a cover letter with the court address and explination that i have 20 days to respond. I only have 3 days left,needing something out today. i do not have any records of this account to verify. my credit report does reflect a charge off from capital one, no amount given, opened in 2007 and last UPDATED in 2009. the last 4 digits on account are not listed so it does not confirm it is the account midland is referring to. no idea when last payment was, but my bank account records that i currently have don't show any paayment for at least 5 1/2 years. would have to really dig to go longer, but my assumption is if i had made a payment within 6 year mark, it is by a matter of possibly weeks, if not over the 6 years. Utah law is 4 years SOL on open-ended accounts which should include credit cards. utah code 78B-2-307 Some judges opt to validate the 6 year statute code 78B-2-309 citing that it is considered a written contract, and gets 6 years. there is other informarion that it shouldn't be a SOL of 6 years, but i have read all jdb in the state fight the 6 years and despite legal definitions by the state, judges often side with 6 years so it seems to be luck of the draw over letter of law. So my main concern in my general denial is wht to put in my affirmitive defenses? I know i am cleared for the 4 year, and is very possible i am even cleared for the 6 year, but it would take time i no longer have to find out for sure. Should I list SOL in my affirmative defenses now, or should i wait for discovery? Best template for response appreciated. if i wait for discovery, how should i word my response now to allow that to be brought up during discovery? Some say if you dont bring it up in your response, then you cant bring it up later.... Also, anything else you would list in affirmarive defences? Would love input ASAP as i have about 24 hours Thank you in advance! Only idea i have so far is the general denial to paragraph items 2-5
  7. I received lawsuit for jdb the day I was due to respond. I panicked and answered response simply that the debt was not valid, with no affirmative defenses whatsoever. Now it is time to answer their interrogs and productions of documents etc. I see that they want to know my defenses in the interrogs, which I understand I must answer. So it appears, after much post- study to my "answer" in court, that because I did not include any affirmative defenses, I may not use them ever without the plaintiff claiming prejudice. 1 What I wanted to know is if anybody knows how to word a request to the court to ammend my answer and include affirmative defenses? Anything that can be utilized for the sake of pro se defendants who did not have time to prepare answer? 2 If the court denies the opportunity to amend and includeaffirmative defenses, what grounds do I have to stand on ---or am I dead in the water? 3 The interrogs and documents are due within just a couple of days. Is it possible to simply include my affirmative defenses where I am asked to, or do I need to wait for the court approval? 4 Where my answer was simply that the debt is not valid, is it possible that this covers more ground than I now suppose? Thanks to any help. I wanted to force arbitration, but it appears I have not even a right to defend. So sad Just got four phonecalls from the jerks today.
  8. I am seeking some clarification related to the use of Affirmative Defenses in answering a complaint. I have been around here since 2009. When a new person shows up and says "I have been sued, what do I do". The general answer they recieve is- 1. Be sure to file an answer to the complaint, Deny each allegation or General Denial, include Affirmative Defenses. 2. Make sure you file it in a timely fashion, so as not to have a Default Judgement entered against you. 3. Check your rules of civil procedure for your jurisdiction.(We miss this one quite often) I realize that Affirmative Defenses are technical by nature to the law and an individuals case circumstances. I have also notice that a number of members, whose litigation experience is strong, seem to frown on the every affirmative defense including the kitchen sink approach. As I understand the use of affirmative defenses in my jurisdiction, is if you don't plead or raise a defense in your answer to the complaint. You may loose the right to address that issue later in the proceedings. Is this accurate? In most credit card debt cases that I have read or seen posted about here a defendant's Affirmative Defenses are generally challenged via Discovery requests, or not at all. As CA's/JDB are more interested in proffering the least amount of evidence to prove their claim, as they carry the burden, they don't tend to be challenging affirmativie defenses that the defendant listed. This leads me to my next question. If the Plaintiff (OC/CA?JDB) carries the burden of proof in a complaint they bring, and fail to meet that burden, then it really doesn't matter what affirmative defenses the defendant listed. correct? I bring this up because I have seen posts related to the use of affirmative defenses where newer folks did what I did the first time I was sued. I listed 15, of which none applied, because I owed the money. The reality in most complaints a real high percentage owe the money, so there are no or very limited affirmative defenses that one could use, legitimately. Finally, my goal was to see if we could find a common ground of how to direct new folks on how best to use Affrimative Defenses, or do they need to bother at all in the first pleading? It is difficult to see a new poster, give information related to affirmative defenses they used, likely by our direction, gained from this website, and then tell them how those AD's could make it difficult for them to win or could cost them their case. While I don't think anyone says this, a new poster is always concerned about making these mistakes.. Thanks for any feedback, no it is a long post
  9. Update: I am trying to put together meet and confer letter but don't know what do put. Any help from you knowledgeable ones is appreciated. They did not include all statements and payments, only couples prior to the date that lrlo claimed defendant stop or failed to pay; 11/2010 to 8/2011. Payment stopped on around march 2011. The date they claimed that defendant failed to pay was incorrect also. I demanded the contract in my BoP but still no contract attached. I found couple exemplars of meet and confer, but most of the cases lrlo did not respond. How should I put together a meet and confer letter in this case? I found this but in this case lrlo did not respond: "On September XX, 2012, Defendant sent to Plaintiff a request for a Bill of Particulars pursuant to CCP 454. On September XX, 2012, Plaintiff responded to Defendant’s demand for Bill of Particulars by contending that a Bill of particulars is inapplicable to plaintiff’s causes of action: Account Stated. As a preliminary matter, plaintiff’s objection to Defendant’s Bill of Particulars is not well taken. Plaintiff has also alleged a cause of action for breach of contract. A Bill of Particulars is appropriate under this legal theory . See, Distefano v. Hall (1963) 218 Cal. App. 2d 657, 677 (“Section 454 has received a fairly broad interpretation and has been construed to cover almost any kind of contract action for a money claim made up of more than one item.”) The information requested consists of the most basic documents that will be required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit. As the Distefano court noted, “The penalty for failure to furnish a bill of particulars, when one has been demanded, is that no evidence will be allowed in support of the cause of action pleaded.” Please provide a complete response within 10 days or defendant will move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial. " ---------------------------------------------------------------------------------------------------------------------------------- Update: lrlo responded I learned some and still learning, thanks to the knowledgeable ones . LRLO responded the BoP. This is what it says: 1. I am an attorney duly license.. 2. attached hereto is a Statement of Account showing the current amounts owed 3. In addition to the principal and interest amounts stated within the Statement of Account, the plaintiff may also be entitled to costs and attorney fees per statute and/ or the parties written agreement. 4. Platintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or the parties' agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at trial. They only attached the customer agreement info but still no written contract or any contract attached. They also attached final statements where it actually controvert itself with the date they claimed defendant failed to pay ( on or about sept 21 2011). by the way, I checked on my credit report but there are no reports from cap 1. what should I do at this point? Thanks again, knowledgeable ones. Just by discussing questions here lowers my blood pressure. ---------------------------------------------------------------------------------------------------------------------------------- Original thread: I am being sued by cap 1 through lrlo in cali and I am in the process of filing my general denial since the complaints are not verified. But I don't know how to put a good affirmative defense together, I urgently need help please! "Factual allegations common to all cause of action" 1. Defendant(s) are over the age of 18 and indebted to plaintiff.. 2. Defendant agreed to pay... 3. Plaintiff has duly performed all conditions on its/their part, except the conditions and covenants it was/they were excused or prevented from performing. Despite Plaintiff’s demand, Defendant(s) have not repaid Plaintiff for the charges made and/or the monies loaned, in the amount of $3K 4. Billing staments were mailed.. 5. Within the past four years, on or about SEPT 21 2011, the defendant breached the agreement by failing to pay the plaintiff. 6.Plaintiff has made a demand.. 7. No part of the above balance owed has been paid to date.. First cause of action: breach of written contract 1. plaintiff set forth by reference.. 2. The plaintiff and defendant entered into written contract... 3. The plaintiff sent to defendant bills reflecting, inter alia, all charges incurred withi the accounts, the payment due.. 4. Between the date of the aforementioned contract to the present, defendant breached said contract, by ceasing or failing to make the payment due on the Account. 5. No part of the principle sum $3K has been paid 6. As a direct and proximate result of Defendant’s breach of said written contract, Plaintiff has been damaged in the aboved stated sum. Second cause of action: account stated 7. The account was stated in writing by and between the plaintiff and defendant.. 8. There is now due, owing... 9. plaintiff alleges that there is an account stated by operation of law wherein the Plaintiff billed defendant for the credit balance and received no objection to it 10. No part of the above balance owed has been paid... They did not attached any contract for their claim. What should I put for my affirmative defense in general denial?
  10. Hi, This is a case update and request for assistance. I posted in July about this lawsuit, where my company and I were sued for Breach of Contract over an alleged Business Line of Credit and alleged personal guarantee. I filed my Answer and Affirmative Defenses, and the Plaintiff moved to Strike all of them. Here is the original thread, and my Affirmative Defenses: http://www.creditinfocenter.com/forums/there-lawyer-house/315383-plaintiffs-motion-strike-my-affirmative-defenses-how-respond.html We had our hearing on the Plaintiff's Motion to Strike my Affirmative Defenses. The anti-pro se nature of courtrooms today is disturbing to say the least. The Judge started it off by saying to the Plaintiff's lawyer with a smirk "Is this about Affirmative Defenses? What do we have, the usual?" The Judge then gave the Plaintiff's attorney 10 minutes to state why each Affirmative Defense should be stricken, and then turned to me and said, "Defendant, you have 2 minutes, as this hearing was only scheduled for 15 minutes." I said "Your Honor, I wont be given equal time?" The Judge said, "You have 2 minutes - go." Recognizing I did not have enough time to review and defend each of my Affirmative Defenses, or present my Opposition Motion which the Judge quite obviously ignored, all I could do was speak in general terms about Florida rules of procedure and Florida's requirement to state in "short and plain terms its Answer" - and that I had far surpassed this requirement by providing detail to a boiler plate lawsuit that in three years the Plaintiff had failed to provide a single bank statement or any proof of any debt, or proof of any default. In addition, I had provided corroboration through two class actions of the Plaintiff's misconduct as outlined in my Affirmative Defenses, with copies of these lawsuits attached to my Answer. The Judge cut me off, said bring up the next case, struck with prejudice 6 of my affirmative defenses, but gave me leave to amend the other 8. So, that being said, despite what I felt was unequal treatment, was this a victory in disguise? For argument's sake, let's say I amend - they move to strike again, and I'm left with 4 of 8 Affirmative Defenses - how many do I have to prove to win? I could use some help with strategy going forward. If I detail every last aspect of the dispute in my Affirmative Defenses, I partially prove what they have yet failed to prove, the full nature of the account and portions of the debt. My concern is this Judge has a history of giving bank Judgments on the total debt claimed, and then reducing it using offsets for errant transactions. In my case, I never denied the agreement per se (a signed contract is attached to the complaint), but I stated honestly facts that I can fully back up - that the Plaintiff breached the Agreement, not I. These also were not errant transactions, but rather falsified transactions made by the Plaintiff to create the false appearance of default. Unfortunately, one of the Affirmative Defenses struck with Prejudice was Breach of Contract by the Plaintiff. I stated my objection as the Judge was moving on to the next case, and the Judge quickly said, "If you can prove it, I'll let you bring it back up with a Motion for Reconsideration." However, i think we all know difficult than will be. So here's what I'm left with, and can now Amend: Breach of Florida’s Covenant of Good Faith and Fair Dealing Unconscionability Unconscionable Contract Impossibility of Performance Complaint fails to state a claim upon which relief can be granted. Equitable Estoppel Estoppel by Laches Unclean Hands Please note that she also said she wants to hear more about my claims about attorney misconduct, and to detail that under Unclean Hands. I assume I could also add Affirmative Defenses that I did not make use of before. Two positive things came out of the hearing. The Plaintiff's attorney said they don't plan any discovery. I think they plan to obtain new Affidavits stating the debt owed and will move again for Summary Judgment (they lost at their first attempt here) or trial. When the Plaintiff's attorney wrote up the Order, I felt he made an error, so I asked that he wait until the next Hearing was over so the Judge could verify it. During this new exchange, the Judge looked at us both and said, "have you tried to settle this?" I said I have tried but they wont enter into a discussion (I did try - both before it was a lawsuit and after). The Judge said to the Plaintiff's attorney, just know I will require you to go through Arbitration before any trial. Since the contract has no arbitration clause, I assume she means either a courthouse mediation, or outside arbitration which I most certainly wont pay for, but will be glad to attend. So the battle ensues - and any thoughts are most welcome and appreciated!
  11. I've gone back and read how many times I posted in different threads regarding affirmative defenses. This is very long, but I figured I could triple the time I've spent posting on affirmative defenses and would not even come close to the two hours I spent on this thread. I'm going to link it in my signature line. I say numerous times, but I'm not an attorney and this is my take on affirmative defenses. When pleading an affirmative defense, one should be aware, generally speaking, the one asserting the affirmative defense carriers the burden of proving the defense(s). In other words you use the defense, you prove the defense. The other side, generally speaking, does not have to prove the affirmative defense is wrong, not applicable to the case at hand or why the defense fails. When one is sued the party suing has the burden of proof. The party suing must prove all parts of their case, called elements, in order to win. The burden is not near as high as in a criminal case, however, the party still has to tip the scales in their favor, preponderance of the evidence or argument. When one uses an affirmative defense, the one asserting the defense, generally speaking, “flips”and shifts that burden to themselves. That is usually a very unattractive option for most. Forcing the other party to prove their case and their specific arguments is a common way one can win a lawsuit when they would most likely lose if they were forced to prove why the other party's claim is not valid or what the defects in the other party's are. While a criminal charge affirmative defense, it is one most have heard of with a criminal court case, self defense. A person on trial for murder, using the affirmative defense of self defense, first states, yes, I killed the other person, I admit to that. However, it was self defense. The trial then turns to, not if the Defendant killed somebody, the Defendant has already admitted that, but was it self defense or not. If the jury finds no self defense, the defendant is pretty much in a no win situation, they have already admitted to killing somebody. Some of the more common affirmative defenses, which are sometimes recommended and commonly listed when a poster asks for advice, are, starting with, in my opinion, commentary on why the defense does or does not hold water. Most, in my opinion do not hold water and are a bad idea to include. Please keep in mind I am not an attorney, have never stepped foot in a law school and while some of my opinions are backed by case law, and the definition(s) being used have been taken from case law or certain courts definitions of such defense(s), they are just that, my personal opinion(s). One should always seek the advice of an attorney before blindly using what I am posting as applicable to their specific case. Again, most of these definitions are not mine, I did not just come up with them, they are taken from court cases or definitions the courts have given such defenses. Arbitration and Award- If a party pleads the affirmative defense of arbitration and award, the court will consider a motion to compel arbitration, which will effectively dismiss the judicial action and send the dispute to arbitration. When considering a motion to compel arbitration, the court will look to “(1) whether a valid arbitration agreement exists, and (2) whether the dispute falls within the scope of the arbitration agreement. A very legitimate defense if one want to use the “arbitration strategy.” This defense is commonly used against junk debt buyers (JDB) in an effort to cost the JDB more in legal fees and arbitration costs than it is worth. This defense has become popular when dealing with lawsuits which are considered minor (less than $3,000.00). I'm not a huge fan but I can't dispute it's success when used by somebody that fully understands how the private contractual arbitration process works. Do not confuse this defense with court ordered arbitration, this is defense is for private contractual arbitration. Many courts have mandatory arbitration or mediation but are non binding, they just want the parties to try and resolve first. The main hurdle one has to overcome when using this defense is to be sure they have not conceded jurisdiction to the court by participating too far in the court litigation process. Accord & Satisfaction- For a party to successfully claim the affirmative defense of accord and satisfaction to a breach of contract claim, the party must prove “(1) the party, in good faith, tendered an instrument to the claimant as full satisfaction of the claim; (2) the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim;(3) the amount of the claim was liquidated or subject to a bona fide dispute; and (4) the claimant obtained payment of the instrument.” This defense is not applicable in credit card disputes. Note the bold, full satisfaction of the claim. Unless one has entered into an agreement with the other party, in writing, (you can't change a written contract with a verbal contract), for a payment as settlement in full, accord and satisfaction is a frivolous argument in most credit card cases, as credit card cases are contract disputes. In short, this argument, is basically the, “I have already paid the amount of dispute.” Assumption of Risk- Assumption of risk is “the principle that one who takes on the risk of loss, injury, or damage cannot maintain an action against a party that causes the loss, injury, or damage.” Black’s Law Dictionary, 143 (9th Ed. 2009). A common example of a party voluntarily encountering a known or appreciated danger is when parents sign their children up for youth sports and sign a waiver contract. In insurance claims we used to argue in offsetting a guest passengers injury award, in the event of a wreck, while driving with somebody intoxicated, the passenger assumed the risk of a wreck and injury when they rode in the vehicle of somebody that was drunk. If arguing this against an original creditor, one would basically need to make the argument that the bank was stupid for loaning you money. Crazy arguments have worked, but it would be a huge roll of the dice and the longest of shots to argue the bank was stupid in loaning money to somebody such as yourself. This would require one to fully admit to the account and the account being in default. Then one would have to roll the dice they could get a judge to rule the bank should have never loaned you money. Since a JDB steps in the shoes of the OC, using this argument against a JDB is just as long of a shot when dealing with a JDB. In closing, a very weak defense that won't work in 99.9% of debt or credit card collection cases. A popular assumption of risk that most can relate with is, being hit by a foul ball at a baseball game. When you walk in the park and take your seat, you assume the risk a foul ball might be hit your way, and if hit by that foul ball, injury could occur. If one does not want to be hit by a foul ball, one can 100% guarantee that not happening, simply by not going to the baseball game. Usery- This is one that drives me crazy. Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp. (439 U.S. 299), is a unanimous 1978 U.S. Supreme Court decision holding that state anti-usury laws regulating interest rates cannot be enforced against nationally-chartered banks based in other states. Does there really need to be a discussion on this one. U.S. Supreme Court, being unanimous, has buried this defense. However, do keep in mind it only applies to nationally chartered banks. You can't use this against Citibank, Chase, Cap One, and the creditors we talk about on this board pretty much all the time.
  12. Hi, I am looking to file an Opposition Memorandum to Plaintiff's Motion to Strike Affirmative Defenses in a Florida Circuit Civil court case. I can't seem to find the rule regarding time frame in which I have to file and serve my opposing motion. I've found the Federal Rule, but not the rule for State Court. If I serve and file it on Monday, that will be 12 days prior to the Hearing set by the Plaintiff for their Motion to Strike my Affirmative Defenses. Is this sufficient time for my Opposition Motion to be considered? Any assistance is greatly appreciated!
  13. First of all, Thanks to all of you for great advice and support to those of us being hounded by JDB's. I have a pending answer due to the court (for our friends Ass3t Acc3ptance) and, through the great advice on this board, I have a well crafted response. My question is: In Michigan there is a fillable PDF for a defendant answer. I have to go to a second page to include affirmative defenses, should i use the Standard pdf Form supplied by the State for the second page or are the subsequent pages to be put on "blank sheets"? I realize this may be splitting hairs but I am not familiar with procedure and want to be sure not to screw up my answer due in a few days. Thanks in advance
  14. I listed none can I or should I raise the affirmative defense that plaintiff lacks standing during discovery?
  15. Hi, I could really use the assistance of fellow board members on how to approach a Plaintiff's Motion to Strike my Affirmative Defenses in a rather large lawsuit. My main questions are: Do we just argue our respective positions at a hearing or does the Judge rule on what's been filed, or should I respond with an Objection clarifying my position, and how much time do I have to respond. Here's some background: I've been fighting a lawsuit in Florida since 2009. The case was filed by a large bank against my company, and myself, for what they claim was a breach of contract over a business line of credit and a personal guarantee. The amount in dispute is approximately $20,000. The original lawsuit was filed in 2009, and I replied with a General Denial due to their improper service and failure to attach a complete contract, among other defects. Their attempt at a default judgement was denied. The next 15 months passed and they did nothing, no motions, no hearings, etc. While my state declares lack of prosecution occurs after 10 months, the courts generally allow a party who has not prosecuted a case to pick up where they left off and continue the suit. I was handling this matter Pro Se, as my company had been dissolved, but I was speaking to a law firm about potential representation. Because my case had very similar elements to two class actions already against the same bank, both filed in Florida, I felt had a strong defense and possibly a new class action to pursue. My case mirrors the consumer class actions, but this would be for a new class action for business customers. I spent 4 months speaking with a law firm and its attorneys that represented themselves as experts in bank class actions, and gave them my entire file, the issues in dispute, and a great deal of privileged information. One day I received an email from one of this law firm's senior partners (small law firm, 5 attorneys) that they can't help me further and the attorney I was speaking to the most was no longer with the firm. A few days later I receive a Motion for Summary Judgement filed by the bank (after no action for 15 months), with a sworn Affidavit attesting to legal fees and costs for the Plaintiff's pursuit of the lawsuit as an Exhibit to their Motion for Summary Judgement. The Affidavit was signed by the senior partner of the law firm I was consulting with for 4 months. The lawyers I was consulting with for my defense took my info and not only handed it off to the Plaintiff's lawyers, but also used it to file an Affidavit against me! To say I was shocked and upset would be an understatement. This law firm was not representing the Plaintiff in my case, but it turns out they represented them in other similar cases and never revealed this to me, or told me there was a conflict of interest. I called the Florida Bar, and have registered a verbal complaint at this point, but have not yet formalized it in writing (but intend to). I then went about defending the Motion for Summary Judgement, and thanks to feedback from board members and a lot of research, I successfully defeated their Motion for Summary Judgement. During the hearing, I also made issue of the fact that the Plaintiff improperly identified my company (they spelled the name improperly, which effected their lien rights). The Plaintiff then requested leave to amend their complaint to fix the company name errors, which was granted. This created the odd situation where they had to re-serve the lawsuit against my company. I was in the process of moving and they failed to serve the corporation (which no longer exists). They filed a notice with the Court of failed service for the corporation. If they were to do this right, I believe they were supposed to serve the Secretary of State in Florida for dissolved companies, and I'm not sure how that effects this lawsuit and their ability to win against me as the alleged guarantor. However, they properly handled service against me as an individual, so I answered. I filed an Answer and Affirmative Defenses to their Amended Complaint as an individual, and they did nothing for another 6 months. Today I learned they filed a Motion to Strike my Affirmative Defenses, claiming they all "fail as a matter of law" and "lacked the facts to establish the legal elements of a defense." This isn't the first time this Plaintiff took this approach - it was their claim against my first Answer in their Motion for Summary Judgement - they were wrong then (and lost) and I think they're wrong now, but need to know how to properly go about disputing their Motion to Strike my Affirmative Defenses. I am also still considering a countersuit, a class action, and pursuit of the bar complaint against the attorney who took my privileged info and used it against me in this case. I'm grateful for any feedback and thoughts on how to proceed.
  16. In a RFA they say I have no valid affirmative defenses. Can I admit this? If I deny it doesn't a burden of proof fall on me to prove a defense? Even if I admit it don't they still need to prove they own the debt and can sue me?
  17. As most know, except for a very few I can't stand affirmative defenses. Of course my opinion does not matter, but it's a message board so everybody's got an opinion. I invite you to read this Federal Judge's absolute beat down in granting a FDCPA Plaintiff's motion to strike about 90% of the Defendant's affirmative defenses. And I thought I could be a little rough around the edges when somebody posts about asserting a ton of affirmative defenses. This one is my favorite. "It is hard to conceive of a more ridiculous defense to an action under the Fair Debt Collection Practices Act." With this as a very close 2nd "The eleventh defense is a waste of ink and will be stricken." :ROFLMAO2: http://www.warnerlawllc.com/uploads/07-cv-648.pdf
  18. In my original answer to the plaintiff, I put I "reserve the right to claim additional affirmative defensives that may become applicable and/or available at a later time. " Given that I did my first admissions based on a 39 dollar "how to answer credit card summons" type of thing off of the internet before I found this site! Damn.... Anyways...is this possible? I was wondering if I should put up my original responses and see if I need to cover my rump any more with anything better or tighter???
  19. We are being sued by Discover (OC) through Zwicker. We answered the complaint in a timely manner, although I don't think it was the best answer but doing the best we can. This forum has been incredible, but it's still overwhelming. It was the typical Zwicker complaint, verbatim of others on this board; and we answered with "no knowledge" on all except one that Plaintiff is a Delaware State Bank. There were two Exhibits attached; one being the credit card agreement (Exhibit A)and one statement (Exhibit which was not referenced otherwise in the complaint. We then added one Affirmative Defense, and two Defenses, which we thought was the right thing to do. Zwicker came back with the typical response that we have "three unsupported defenses". The defenses are: 1. There is an arbitration agreement 2. The Plaintiff did not produce any validation of debt when requested and 3. The Plaintiff did not act in good faith nor in a timely manner. We reserved the right to amend and add and our "WHEREFORE" we asked the complaint be dismissed with prejudice. Amount being sued for is <$8K. Quick background: We had worked out a settlement agreement and were sent papers, but they said they would advise their client and negotiate with them once payment was rec'd... and we were not comfortable with that. We asked them to review and then rec'd an offer for a totally different amount, higher, to which we again responded and again requested validation. Then came the summons. After reading the "rules" for procedure, I believe we can elect arbitration at any time; but now I'm wondering. Since answering their complaint, they have made a motion to strike our affirmative defenses. I've read and re-read the threads, but I'm just not sure on this next step, and especially if we've stepped on our own toes. It appears that what we should do first, at this point, is to send them a notice to elect arbitration. However, do we, at the same time, make a MTC Arbitration? Again, this is all so overwhelming but wow, what a great forum. It's helped a great deal toward being able to sleep at night! Thank you for any information you can contribute.
  20. Case Number: 11K17326 Hearing Date: June 06, 2012 Dept: 77 EQUABLE ASCENT FINANCIAL LLC V. SANTILLANA, ESTELA P’s Motion for Judgment on the Pleadings is GRANTED. CCP 438 © (1) (A). The Complaint states a claim against D, and D has failed to state facts sufficient to state any defense to the complaint. No opposition to this motion was filed. Judgment may be entered as follows: Principal: $11,625.11 Atty fees: $350.00 Costs: $479.50 Interest: 0 Total Judgment: $ 12,454.61 P to give notice. -------------------------------------------------------------------------------- Case Number: 11K17764 Hearing Date: June 06, 2012 Dept: 77 PERSOLVE LLC V. GONZALEZ, MARTHA P’s Motion for Judgment on the Pleadings is GRANTED. CCP 438 © (1) (A). The Complaint states a claim against D, and D has failed to state facts sufficient to state any defense to the complaint. No opposition to this motion was filed. Judgment may be entered as follows: Principal: $2674.32 Atty fees: $ 668.58 Costs: $315.00 Interest: 0 Total Judgment: $ 3,657.90 P to give notice. -------------------------------------------------------------------------------- Case Number: 11K18918 Hearing Date: June 06, 2012 Dept: 77 CAPITAL ONE BANK (USA) N A V. HERNANDEZ, ESTHER P’s Motion for Judgment on the Pleadings is GRANTED. CCP 438 © (1) (A). The Complaint states a claim against D, and D has failed to state facts sufficient to state any defense to the complaint. No opposition to this motion was filed. Judgment may be entered as follows: Principal: $7824.69 Atty fees: $ 0 Costs: $324.00 Interest: 0 Total Judgment: $ 8148.69 P to give notice. -------------------------------------------------------------------------------- Case Number: 11K18963 Hearing Date: June 06, 2012 Dept: 77 MIDLAND FUNDING LLC V. PEREZ, ROSENDO P’s Motion for Judgment on the Pleadings is GRANTED. CCP 438 © (1) (A). The Complaint states a claim against D, and D has failed to state facts sufficient to state any defense to the complaint. No opposition to this motion was filed. Judgment may be entered as follows: Principal: $4323.92 Atty fees: $ 0 Costs: $369.00 Interest: 0 Total Judgment: $ 4692.92 P to give notice. -------------------------------------------------------------------------------- Case Number: 11K19172 Hearing Date: June 06, 2012 Dept: 77 CAPITAL ONE BANK (USA) N AN V. MUNOZ, ADRIANO P’s Motion for Judgment on the Pleadings is GRANTED. CCP 438 © (1) (A). The Complaint states a claim against D, and D has failed to state facts sufficient to state any defense to the complaint. No opposition to this motion was filed. Judgment may be entered as follows: Principal: $1,228.70 Atty fees: $ 0 Costs: $324.00 Interest: 0 Total Judgment: $ 1,552.70 P to give notice. -------------------------------------------------------------------------------- Case Number: 11K19226 Hearing Date: June 06, 2012 Dept: 77 DEPARTMENT STORES NATIONAL BANK V. GRIJALVA, MARLENE P’s Motion for Judgment on the Pleadings is GRANTED. CCP 438 © (1) (A). The Complaint states a claim against D, and D has failed to state facts sufficient to state any defense to the complaint. No opposition to this motion was filed. Judgment may be entered as follows: Principal: $4,714.08 Atty fees: $ 0 Costs: $324.00 Interest: 0 Total Judgment: $ 5,038.08 P to give notice. -------------------------------------------------------------------------------- Case Number: 12K01607 Hearing Date: June 06, 2012 Dept: 77 PORTFOLIO RECOVERY ASSOC. LLC. V. GONZALEZ, VERONICA P’s Motion for Judgment on the Pleadings is GRANTED. CCP 438 © (1) (A). The Complaint states a claim against D, and D has failed to state facts sufficient to state any defense to the complaint. No opposition to this motion was filed. Judgment may be entered as follows: Principal: $2739.13 Atty fees: $ 0 Costs: $324.00 Interest: 0 Total Judgment: $ 3063.13 P to give notice. -------------------------------------------------------------------------------- Case Number: 12K02066 Hearing Date: June 06, 2012 Dept: 77 PORTFOLIO RECOVERY ASSOCIATES LLC V. CORDOVA, ANA G. P’s Motion for Judgment on the Pleadings is GRANTED. CCP 438 © (1) (A). The Complaint states a claim against D, and D has failed to state facts sufficient to state any defense to the complaint. No opposition to this motion was filed. Judgment may be entered as follows: Principal: $15,062.83 Atty fees: 0 Costs: $514.00 Interest: 0 Total Judgment: $ 15,531.83 P to give notice I think this is a radical shift in court processing of collections cases. the attorneys all filed judgment on the pleadings this is a new shift that could only come because of lawyers seminars are now teaching this to CA's The issue of standing would be one way to orally argue at the hearings opposing judgment on the pleadings. This is disturbing.
  21. *** I listed a bunch of affirmative in my answers and was hit with this interrogatory: INTERROGATORY NUMBER 15 State all facts upon which your base each affirmative defense to the complaint in this action. RESPONSE TO INTERROGATORY NUMBER 15 Responding party asserted a number of affirmative defenses on information and belief in order to preserve the defenses should discovery and investigation reveal circumstances supporting the affirmative defense. However, Defendant withdraws the following affirmative defenses and has no objection to it being precluded from being argued: a. 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. b. 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. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. c. 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. d. Plaintiff has failed to name all necessary parties. e. Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions. f. 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.
  22. It would appear not. Recently I found a case and the banks motion to strike affirmative TILA and RESPA affirmative defenses was granted. I thought time was tolled for affirmative defenses and/or counter claims. Evidently they are, if fraudulently concealed or when you become aware of it. So must we be cognizant of not only does SOL apply to COA filed against us, but to defenses and counterclaims? Can facts arguing conditions precedent were not met be argued generally in the answer if not as a Affirmative defense? What else can be argued and how? Thanx in advance for any insight for entertainment purposes! dUsty
  23. Hi Everyone, Zwicker and Associates has filed a Motion to Strike my Affirmative Defenses here in Florida. Hearing on this is Sept 30th. Since they filed the original complaint they have come up with the CC agreement and all my CC statements. I am filing a MTC arbitration tomorrow, but not sure it will be on time to be heard on the 30th. Meanwhile, I have to defend myself at this hearing. Here are my affirmative defenses... Any ideas? Maybe posting this can help someone else in Florida too. First Affirmative Defense Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since the Plaintiff has 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, including the date of the alleged contract, dates and amounts of alleged charges, fees or other debts incurred under the contract, and the date of the alleged payment default. Second Affirmative Defense Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since the Plaintiff has the burden of proof to show all elements of account stated, including rendition, mutual agreement of the balance, and the existence of prior transactions or creditor-debtor relationship between the parties. Fla R. Civ. Pro Form 1.933 states that an Account Stated claim must include “A copy of the account showing items, time of accrual of each, and amount of each must be attached.” In addition, see H & H Design Builders v. Travelers' Indemnity Company, 639 So.2d 697, "to state a valid claim on open account, claimant must attached 'itemized' copy of account." a. Plaintiff has failed to attach a copy of the account showing items, time of accrual of each, and amount of each. b. Plaintiff has failed to show that there was a mutual agreement of the alleged balance. See Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975) “Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.” c. Plaintiff has failed to show existence of prior transactions or creditor-debtor relationship between the parties. See South Motor Co. of Dade County v. Accountable Const. Co., 707 So.2d 909 (Fla. App. 3 Dist. 1998) “Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” Third Affirmative Defense Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since the Plaintiff has failed to attach a credit card application, request or agreement that bears the signature of the alleged Defendant wherein she agreed to pay the original creditor. See Recreation Corp. of America v. Jack Drury & Associates, Inc. 235 So.2d 49 (Fla. App. 4 Dist. 1970) “There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.” Fourth Affirmative Defense Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since an accurate balance of the alleged account cannot be determined as the Plaintiff has not provided a bona fide accounting of the alleged original debt from the date of issuance, $0 account balance, to date of alleged default. See Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967) “Basic premise of an account stated action, which presupposes some indebtedness, is that the statement fixing the various sums that constitute the debt is correct and not the existence of the debt itself”. Fifth Affirmative Defense Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since the Claimant has not proven that AMERICAN EXPRESS CENTURION BANK is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of AMERICAN EXPRESS CENTURION BANK with all of the original creditor’s rights and privileges intact. Six Affirmative Defense Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since the Claimant has not provided a sworn statement testifying to the accuracy or validity of their recollection of the alleged account. Seventh Affirmative Defense Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that the Plaintiff is not entitled to obtain any of the relief requested in Complaint since Plaintiff has concealed Defendant's legal arbitration right to waive Plaintiff from this court venue by not producing a signed copy of the agreement to be in breach. Eighth Affirmative Defense Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that the Plaintiff is not entitled to obtain any of the relief requested in Complaint, because if Defendant had been properly notified of her contractual arbitration rights, this case never would have proceeded in this Venue, therefore this action is premature. Ninth Affirmative Defense Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since Plaintiff’s exhibit A fails to meet the definition of a written instrument under Florida Law. Exhibit A is an anonymous account opening disclosure document which cannot be connected to the alleged account since there is no evidence as to when alleged account was opened. It clearly has no probative value as to the liability of any party and controverts on its face any allegation of its relevancy to the alleged account. Tenth Affirmative Defense Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant reserves the right to amend her affirmative defenses as discovery progresses in this lawsuit. WHEREFORE, Defendant, caramia, respectfully requests that this court enter an Order dismissing the Complaint filed herein by Plaintiff, AMERICAN EXPRESS CENTURION BANK. This is Zwicker's argument to Strike these Defenses.... Zwicker states in their Motion to Strike..... 1. Defendant filed an answer stating 10 separate conclusions which Defendant claims are affirmative Defenses. 2. Defendant states no facts on the responsive pleadings to support such conclusions. 3. A defense which is a mere conclusion, unsupported by any specific allegation of facts is properly stricken by the court. ( Christ Craft Industries, Inc v. Van Valkenberg ) 4. Because Defendant has failed to allege any facts to support any of its defenses, said defenses are insufficiently plead as a matter of law and subject to being stricken by the court.
  24. 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!
  25. 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.