Need help filing additional affirmative defense

[S&K]

I filed my answer and affirmative defenses. I was trying to make sure I was not including defenses that did not apply to my case. I did not include SOL affirmative defense. I am in IN and SOL here is 6 yrs. (The alleged debt is just over 5 yrs since any activity). The Exhibit "A" that the plaintiff sent states that the contract is governed by the state of Delaware. Now I need to use the SOL affirmative defense. I did include the affirmative defense: Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date. How do I go about filing the additional SOL affirmative defense?

BTW: In plaintiff's responses to my request, they sent another Exhibit "A", this time showing the state of Arizona as the state governing the contract.

Edited September 11, 2010 by S&K

[kinglsy]

I would recommend putting all affirmative defenses.

As the case progresses you never know what angles your going to use.

I hear that a lot of lawyers put all of them.

[chuckygee]

Always include them all. I had a CA use SOL as an affirmative defense to an FDCPA violation that happened less than three months before I filed. Look at the work of the professionals as a guide.

As far as your filing, file an amended answer.

[BTO429]

Nunc Pro Tunc

Latin for "now for then," this refers to changing back to an earlier date of an order, judgment or filing of a document. Such a retroactive re-dating requires a court order which can be obtained by a showing that the earlier date would have been legal, and there was error, accidental omission or neglect which has caused a problem or inconvenience which can be cured.

[calawyer]

You need to check your code of civil procedure and local rules. Probably, what you will need to do is amend your answer to assert additional affirmative defenses. THe question is whether you may do so as a matter of right or whether you need the Court's permission. Even if you need permission, it is no big deal as your cirumstances easily justify relief. You have learned of facts that you didn't know before (i.e. either Del or AZ law may well apply and bar the plaintiff's claims.) The motion for leave to amend will be simple and you will probably find an exemplar by googling.

Good luck.

[RebelLady]

2010 Ind. App. LEXIS 4,*;919 N.E.2d 1153

JASON SMITHER, Appellant, vs. ASSET ACCEPTANCE, LLC, Appellee.

No. 55A04-0902-CV-70

COURT OF APPEALS OF INDIANA

919 N.E.2d 1153; 2010 Ind. App. LEXIS 4

January 12, 2010, Decided

January 12, 2010, Filed

It is well-settled, however, that contractual choice of law provisions govern only the substantive law of any claims arising out of the contract; the law of the forum state where the suit is filed still governs procedure. See Homer v. Guzulaitis, 567 N.E.2d 153, 156 (Ind. Ct. App. 1991), trans. denied. A statute [*9] of limitation is a procedural constraint on when suit may be filed. See Kissel v. Rosenbaum, 579 N.E.2d 1322, 1326-27 (Ind. Ct. App. 1991). Additionally, "the prevailing authority indicates that, unless the parties expressly agree to apply the statute of limitations of another state, general choice of law provisions in contracts incorporate only substantive law and do not displace the procedural law of the forum state." Western Video Collectors, L.P. v. Mercantile Bank of Kansas, 23 Kan. App. 2d 703, 935 P.2d 237, 239 (Kan. Ct. App. 1997). Thus, Indiana law, not New Hampshire law, provides the appropriate statute of limitations time period here.

I found this recently while browsing through some court cases. I didn't like hearing it either...lol

RL

[calawyer]

I found this recently while browsing through some court cases. I didn't like hearing it either...lol

RL

This is actually a very confusing area of law. States are split as to whether they will "borrow" another state's SOL. Here is a previous post on the subject:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297133&highlight=limitations+procedural

[RebelLady]

This is actually a very confusing area of law. States are split as to whether they will "borrow" another state's SOL. Here is a previous post on the subject:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297133&highlight=limitations+procedural

I quite agree calawyer...but this is the second time this year that a judge has disallowed the 'borrowing' of another state's SOL in favor of using the 6-year SOL in Indiana.

RL