Affirmative Defenses being struck in Florida !!!

[FLORIDA666]

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 .

[hopefulscambeater.]

they raise some new matter which defeats an otherwise apparently valid claim.

LOL - well that IS the point after all

[nascar]

Unfortunate, but that's the peril of using internet templates.

Setting aside for a moment your blanket denial, why is is that you actually feel that you don't owe this plaintiff any money?

Once you've honestly answered that question, you can formulate your real, viable defenses around that.

You may wish to consider filing a Motion for Leave to File an Amended Answer. You can allege that, being a pro se litigant, you were initially unfamiliar with the defenses available to you and since filing your answer, have become more aware and need to amend your answer to in order to properly defend yourself against the plaintiff's claims.

[BV80]

-Citi is not the OC (Citi bought the account from the previous creditor in good standing) i defaulted later on.

CC companies buy other CC companies. It's not the same as a JDB buying a defaulted account. If you used the card under Citibank, they will be considered the OC.

[FLORIDA666]

Unfortunate, but that's the peril of using internet templates.

Unfortunately, doing this thing pro-se is really hard because of the window that i was given and usually they sucker punch you when you least expected, meaning that they serve you with the summon when you are the least prepared, so i had to grab what i could and respond to the complaint, (20 days).

Setting aside for a moment your blanket denial, why is is that you actually feel that you don't owe this plaintiff any money?

Where do i start...... i dont feel that i owe money to this bastards because of the way of them to conduct business, they use and abuse the costumers, jacking the interest rates up and up , all the way to 30%, and if you deny the rate increase they threaten you to close your account that spent 12 years building and paying them on the spot, at the very end when i was making my last payments i felt i was going backwards, i was making $300 payments and and almost all went to the principal and that's when you start to feel frustrated when you see other people taking advantage of you and your family, you kind of want to take your Gloves off, so no i do not owe this pigs anything, i have pay them 10 fold from outrageously high interest rates that drove me to default so they can collect on the Spread Yield Premium Derivatives (Side bets) from the Pool that my account was placed in.

Even if i loose i will take this fight to them, even if i dont know how to plea my case i will take the fight to them , even if they laugh me out of court i will fight back and they will see me every time they show up in court.

Once you've honestly answered that question, you can formulate your real, viable defenses around that.

If i go by what the facts are , i have no defenses, i might as well admit to everything and let them eat me alive, truth and honesty is a rare commodity that i only share with those that shows me the same courtesy. And the Banks ain't it.

You may wish to consider filing a Motion for Leave to File an Amended Answer. You can allege that, being a pro se litigant, you were initially unfamiliar with the defenses available to you and since filing your answer, have become more aware and need to amend your answer to in order to properly defend yourself against the plaintiff's claims.

I know my Defenses are base on the false pretense that they did not extended credit to me but im denying everything ,the burden of proof is on them, Technically can you tell me what mistakes in the Affirmative Defenses i did , because i don't really know . All my Defenses seem to be "correct" , what i said in those defenses apply (not that are true but apply) i have never signed a contract with them, , im not the first one that hasn't stretch the truth before on these forums. Anyways the Banks, JDB and Debt collectors do it all the time, so i think we are covered.

Thanks for everything, and please dont take any of my comments as disrespectful or arrogant im just being honest with you.

[FLORIDA666]

CC companies buy other CC companies. It's not the same as a JDB buying a defaulted account. If you used the card under Citibank, they will be considered the OC.

Is that how it goes? just because i use the card with them they are consider the Original Creditor ?, how about the Original Contract with all the terms that i signed with Associates Visa 12 years ago establishing a contractual obligation to them not citi. I have been told in this forums that if it happened like that, Citi can not be the Original Creditor. I'm confused.

Thanks for your help

[BV80]

Is that how it goes? just because i use the card with them they are consider the Original Creditor ?, how about the Original Contract with all the terms that i signed with Associates Visa 12 years ago establishing a contractual obligation to them not citi. I have been told in this forums that if it happened like that, Citi can not be the Original Creditor. I'm confused.

Thanks for your help

Are you sure you signed a contract? You probably signed an application. Then they sent you a cardmember agreement. Most cardmember agreements state that use of the card indicates acceptance of the terms in the agreement.

Perhaps Citi may not be the bank who originally issued the account, but usually when a bank buys another bank's accounts, the rights of the original bank supposedly transfer to the new bank. If you used the credit card when it was under Citi, then that means they provided a service and funds to you, and they would be the party in interest.

You're right, it's confusing. Perhaps you should contact an attorney, explain the situation about Citibank buying the account, and see what he/she says.

[Guest usctrojanalum]

i have never signed a contract with them,

Did you use the card under Citibank to make purchases? It is well established that use of the card is acceptance of its terms and agreements and that an implied contractual relationship exists between the parties.

What is your ultimate goal in this? Is it to not pay anything back? Cut a deal to get some interest and late penalties waived? Are you interested in settling at all?

[Downto0]

Is that how it goes? just because i use the card with them they are consider the Original Creditor ?,

No, there can only be one "Original" creditor. This is the place where you first establish a business relationship where the creditor extends credit to you. After that, everyone else is just "creditor". Quite often the OC is actually the OC but sometimes, as in your case, the owner of the account is just a creditor.

In the debt collection arena, OC is commonly and erroneously used for a creditor who is not a debt collector. This makes it easier to figure out if the FDCPA applies, or not.

The imminent problem is that your affirmative defenses are being struck. The attorney for Citi is attempting to pressure you into settlement on his terms.

Technically can you tell me what mistakes in the Affirmative Defenses i did , because i don't really know .

I think the attorney for Citi has already done this:

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.

It seems that the defenses should be worded in such a way that they do not directly rebut the claims of the plaintiff and that you actually need to argue your points as if you were in front of the judge.

This is probably what I would do:

You may wish to consider filing a Motion for Leave to File an Amended Answer. You can allege that, being a pro se litigant, you were initially unfamiliar with the defenses available to you and since filing your answer, have become more aware and need to amend your answer to in order to properly defend yourself against the plaintiff's claims.

Go back over your affirmative defenses and argue your points and put that on paper and see what you get. In the meantime, I'd also look at your Rules to see how you would amend. Generally, most states allow a certain amount of time where a litigant can amend without leave of court. After that, leave of court is necessary.

Edited December 16, 2010 by Downto0

[Downto0]

By the way, have you checked your courts online? This may be your best help as Citi's attorney certainly has done this type of thing before. You may even find where he has been countersued and the plaintiff won. Check it out.

[admin]

Whwever you use the same answer over and over, you're in trouble.

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.

If they claimed account stated, this A.D. is not valid. I didn't see the complaint so tough to say. If they claimed a contract, then yes, this would be valid.

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence of Rule.

What's the reasoning for this?

[FLORIDA666]

Did you use the card under Citibank to make purchases? It is well established that use of the card is acceptance of its terms and agreements and that an implied contractual relationship exists between the parties.

What is your ultimate goal in this? Is it to not pay anything back? Cut a deal to get some interest and late penalties waived? Are you interested in settling at all?

At this point Im not interested in settling , im going to dispute this and take them to trial if i have to.

Thanks for your time.

[FLORIDA666]

Are you sure you signed a contract? You probably signed an application. Then they sent you a cardmember agreement. Most cardmember agreements state that use of the card indicates acceptance of the terms in the agreement.

Thank you

Edited December 19, 2010 by FLORIDA666

[FLORIDA666]

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.

If they claimed account stated' date=' this A.D. is not valid. I didn't see the complaint so tough to say. If they claimed a contract, then yes, this would be valid.[/i']

I Agree with you , there was no mentioning of a Contract, that defense is totally irrelevant. You are right!

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.

What's the reasoning for this?

.

Well, the same Admin ...... i should not bringing up any defenses against contract when they did not mentioned anything of the sort in the complaint ............ only account stated,money lent, and open account. ( Account stated is a statement between a creditor and a debtor).No contract was ever mentioned.

1st & 5th Affirmative Defenses Wrong!

Got it, thanks. I will check for the rest of the remaining defenses to see if the even apply or are relevant.

[FLORIDA666]

By the way, have you checked your courts online? This may be your best help as Citi's attorney certainly has done this type of thing before. You may even find where he has been countersued and the plaintiff won. Check it out.

Yes, i have searched but nothing so far i have not being able to find anything.

thanks

[FLORIDA666]

Just so everybody knows what are we discussing about , this is the Original Complaint that i responded with the affirmative defenses above at the begining of the this Thread.

IN THE COUNTY COURT, CIVIL DIVISION, XXXX COUNTY, FLORIDA

CITIBANK (SOUTH DAKOTA), N.A

Plaintiff

Vs.

Mike Tyson

1234 Ne 1st

Cocoa Beach, FL xxxxx

___Defendant_____/

COMPLAINT

Plaintiff sues Defendant and alleges:

1. This is an action for damages in the amount of $10k

2. The court has jurisdiction over the subject matter. The defendant's transactions, which are the subject matter of this lawsuit, occurred in said county and/or defendant is a resident of said county.

COUNT I (ACCOUNT STATED)

3. Plaintiff re-alleges and reincorporates into this Count paragraphs one and two above.

4. Before the institution of this action Plaintiff and Defendant had business transactions between them and agree to the resulting balance of $10k.

5. Plaintiff rendered billing statements to Defendant seeking reimbursement for those payments; a copy of the final statement showing the balance due is attached as Exhibit "A"; Defendant did not object to the statement.

6. Defendant owes Plaintiff $10k which is the balance due on the account.

WHEREFORE, Plaintiff demands Judgment

against the Defendant in the sum of $10k, together with costs, interest, and such other relief as the Court may deem just and proper. This is a communication from a debt collector.

COUNT II (MONEY LENT)

7. Plaintiff re-alleges and reincorporates into this Count paragraphs one and two.

8. Defendant owes Plaintiff $10k, that is due with interest for money lent during Defendant's use of the credit account issued by Plaintiff to Defendant.

WHEREFORE, Plaintiff demands Judment against the Defendant in the sum of $10k, together with costs, interest, and such other relief as the Court may deem just and proper.

COUNT III (OPEN ACCOUNT)

9. Plaintiff re-alleges and reincorporates into this Count paragraphs one and two.

10. Defendant owes Plaintiff $10k that is due with interest, according to the attached account.

WHEREFORE, Plaintiff demands Judgment against the Defendant in the sum of $10k, together with cost, interest, and such other relief as the Court may deem just and proper.

COUNT IV (ACCOUNT STATED)

9. This is an action for damages in the amount of $5k.

10. Plaintiff re-alleges and reincorporates into this Count paragraph two.

11. Before the institution of this action Plaintiff and Defendant had business transactions between them and agreed to the resulting balance of $5k.

12. Plaintiff rendered billing statement to Defendant seeking reimbursement for those payments; a copy of the final statement showing the balance due is attached as Exhibit "B"; Defendant did not object to the statement.

13. Defendant owes Plaintiff $5k which is the balance due on the account.

WHEREFORE, Plaintiff demands Judgment against the Defendant in the sum of $5k, together with costs, interest, and such other relief as the Court may deem just and proper. This is a communication from a debt collector.

COUNT V (MONEY LENT)

14. Plaintiff re-alleges and reincorporates into this Count paragraphs two and nine.

15. Defendant owes Plaintiff $5k, that is due with interest for money lent during Defendant's use of the credit account issued by plaintiff to Defendant.

WHEREFORE, Plaintiff demands Judgment against the Defendant in the sum of $5k, together with costs, interest, and such other relief as the Court may deem just and proper.

COUNT VI (OPEN ACCOUNT)

11. Plaintiff re-alleges and reincorporates into this Court paragraph two and nine.

12. Defendant owes Plaintiff, 5k that is due with interest, according to the attached account.

WHEREFORE, Plaintiff demands Judgment against the Defendant in the sum of $5k, together with cost, interest, and such other relief as the Court may deem just and proper.

The Prick Attorney, P.A

address of the attorney

city for the attorney

tel for the attorney

[beatcapital1&lrlo]

Something sounds fishy here. I've never seen an attorney strike an answer to a collections lawsuit-sounds like they have something to hide-which will come out in discovery.

Citi is never an assignee. Also, a lot of debt buyers have been getting exposed by stating they represent Citi, Cap1, etc. and they don't. Essentially, they are pro per, representing themselves-which opens up a whole can of worms, i.e. attorney fees and FDCPA counter suits.

There are some easy defenses like failure to mitigate damages. I mean that is your word vs their's.

Not an attorney. Not advice. For legal advice, seek an attorney.

Give blood. Sue a junk debt buyer.

[FLORIDA666]

Something sounds fishy here. I've never seen an attorney strike an answer to a collections lawsuit-sounds like they have something to hide-which will come out in discovery.

Citi is never an assignee. Also, a lot of debt buyers have been getting exposed by stating they represent Citi, Cap1, etc. and they don't. Essentially, they are pro per, representing themselves-which opens up a whole can of worms, i.e. attorney fees and FDCPA counter suits.

There are some easy defenses like failure to mitigate damages. I mean that is your word vs their's.

I hope the judge lets me do my Discovery,in due time everything will come out, some of the lawyers what are doing is that they represent the banks and after litigating the case "if they win they split the profits 50/50, some of them are just buying the debt and denying that they are representing themselves , i see many good reasons for that , they dont need to provided assignment , change of custody, transfers, basically they can get away with a lot of nastiness hiding behind the Skirt of the banks.

[rikkivs]

Something sounds fishy here. I've never seen an attorney strike an answer to a collections lawsuit-sounds like they have something to hide-which will come out in discovery.

In our case last year, the Plaintiff attorneys did not show up to the settlement conference and so the judge calendered a dismissal hearing and set up an order to show cause hearing for the Plaintiff's a month out. In the meantime we received a very nasty copy of a motion attorney at the law firm who was supposed to be their bulldog. His declaration accompanied the motion to strike our answer as being a 'non answer' and he had cited all of these cases and variant law textbooks to justify why our answer was inadequate. Thank goodness they didn't show up to the order to show cause hearing either because if they pursued the motion, it actually had merit and Debtor's Husband warned me about the lack of substance to our answer, but after I had already submitted it. One saving grace was that we asked for a Bill of Particulars with our answer and they had not provided a verified one, which we brought to the judges attention.

From that experience, we realize that you have to use a whole lot more affirmative defenses then 'failure to state a claim'! Ultimately the suit was dismissed for lack of prosecution. They sent us that so called motion but it was all smoke and mirrors to get us to cave!

Edited December 22, 2010 by rikkivs

[skippy1960]

Have you determined why the complaint is split and they aren't suing you for the full amount, they have it listed as 10K and 5K, why are they doing this?

Are there 2 accounts?

As disputes don't necessarily have to have been send CMRR, are you sure you didn't dispute the accounts fairly easy to find a dispute letter on your computer from back in the day.

[FLORIDA666]

Have you determined why the complaint is split and they aren't suing you for the full amount, they have it listed as 10K and 5K, why are they doing this?

Are there 2 accounts?

As disputes don't necessarily have to have been send CMRR, are you sure you didn't dispute the accounts fairly easy to find a dispute letter on your computer from back in the day.

yes there are 2 different accounts, here is the original link, the thread was getting to long so Downto0 gave me the idea to start a new one , a link to the original thread http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=304759&highlight=citibank+summon

[Downto0]

Yes, i have searched but nothing so far i have not being able to find anything.

If this attorney hires out to Citi on a regular basis then there has to be something. Flalawyer seems to be on vacation so you are going to have to take a look at something which can shed some light on the subject.

I've heard that some of the online sites for some of the states' court systems are either hard to manipulate or that some states just are not up to speed. If this is the case in your area then a trip down to the clerk's office should be on your things to do.

I would then ask the clerk how to search for what you want. This is well within their job description.

You need to take a look at what the attorney has been doing in the past to understand how to counter his moves.

[Guest usctrojanalum]

Something sounds fishy here. I've never seen an attorney strike an answer to a collections lawsuit

it's actually quite common, especially if discovery demands are not answered timely or the answer is frivolous on it's face.

[FLORIDA666]

-In Florida , a Defensive answer is not required when responding to the initial complaint (summon), meaning that Affirmative Defenses are optional, but is not uncommon if you file it, although attorneys for the defendant avoid doing it.

For now , i will file a Motion for Leave to File an Amended Answer (im taking NASCAR non legal advice on this one ).

All i will do is to try to exclude my affirmative defenses (if there is any chance of that) which is what is being strike.

Also in the allegations in the complaint stating that .........i owe this amount ,and that amount etc i will simply state that there is not enough compelling evidence or definite proof ,( im open to other suggestions).

I dont want to put the chariot before the horses, i will wait until pretrial and see what is it that the opposing council has and i will draft my affirmative defenses around that.

Although the above is what i have in mind , im open to any suggestions and to tear apart my arguments and way of thinking , dont be shy if you have to call me out , i rather you be calling me stupid now , than the lawyers for the plaintiff in Court.

thanks for your input (all of you)

[FLORIDA666]

Ok , After much reading and help from people in this forum, i have my amended affirmative defenses ready to be file , read them and let me know what you guys think.

IN THE COUNTY COURT, CIVIL DIVISION, XXXXXXXX COUNTY, FLORIDA

CITIBANK ( SOUTH DAKOTA ), N.A.

Plaintiff CASE NO. : XXXXXXXXXX

Vs.

JOHN DOE

1234 NW 12TH ST

BONITA BEACH, FL 33432

Defendant /

MOTION FOR LEAVE TO FILE AMENDED ANSWER

Defendant, JOHN DOE, respectfully requests leave to file the attached Amended Answer pursuant to Fla. R. Civ. P. 1.190(a) and (e). The defendant states that

as a pro-se litigant, it has taken him additional time to become familiar with his legal

defenses, and is only now aware of his legal defenses, and now wishes to assert the same. Leave to amend should be liberally granted; it should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.Torrey v. Leesburg Reg’l Med. Ctr., 769 So.2d 1040 (2000), quoting North Am. Specialty Ins. Co. v. Bergeron Land Dev., Inc., 745 So. 2d 359, 362 (Fla. 4th DCA 1999) Here, the Defendant respectfully submits he has not abused this privilege, becoming aware of his defenses only upon new legal research, the plaintiff would not be unduly prejudiced by the amendment, and the amendment would provide defendant substantive defenses, and therefore not be futile.

WHEREFORE, Defendant respectfully request leave from this Court to file his Amended Answer

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing was sent on May _____, 2011 via

U.S. Mail to:

JOE RIPOFF

Scum Bag Law Group, P.L.

P.O. Box 25018

Miami, Florida 33333

____________________________________

JOHN DOE

123 Main Street

Anytown , FL 32145

(555) 234-0438

AFFIRMATIVE DEFENSES

1- Plaintiff, as the Defendant is informed and believes, lacks the legal standing to bring and maintain this action.

2. Attorney for Plaintiff has not proven they were retained by Plaintiff as its representative in this matter. Attorney’s firm is a debt collection agency.

3. Plaintiff’s attorney has not proven that Plaintiff is the real party of interest. Defense demands proof of ownership, specifically that the alleged account is still the legal property of the Plaintiff with all of the original creditor’s rights and privileges intact.

4. 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.

5. The action is barred by 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 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.

6. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

7. 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.

8. The Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The Plaintiff must prove that the principal, interest, collection costs, and attorneys’ fees are all correct, agreed to in its contract, and lawfully charged. Defendant also insists that the Plaintiff produce the signed contract, account statements and purchase receipts to prove the amount of the debt. No such evidence has been attached to this Summons, nor has it been provided to the Defendant to date.

9. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

10. Plaintiff has submitted no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

11. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

Edited January 12, 2011 by FLORIDA666