Help needed on Plaintiff request to revise

[move forward]

Hi- Hope some attorneys or anyone with experience with this--might help me with a plaintiff request to revise. The requests that I-(defendant) revise the answer and special (affirmative) defenses. Now in their paperwork- the revision requested and reasons only refer to my special defenses, NOT to my Answer to their complaint. So first, I am thinking, I don't have to rewrite my actual answer to their complaint (I denied all the allegations in the complaint.) The complaint is on a credit card balance and the plaintiff (Discover Bank) is using an "Account Stated" theory in their complaint. When plaintiff answered my Discovery, the ONLY document provided was the last copy of the credit card statement ending with the last four digits of the account number. So, when I answer their discovery, since the FULL ACCOUNT NUMBER WAS NOT PROVIDED. MAY I STLL DENY THEIR ADMISSIONS REQUESTS SINCE THEY ONLY HAVE THE LAST FOUR DIGITS OF THE CARD ACCOUNT NUMBER ??

As for my defenses, they asked for deletions and gave their reasons. Here is a summary of the defenses and what they asked for and why:

Here are the defenses:

1) St of Frauds- I stated attorneys have not proven they were retained by Discover Bank as its representative in this matter. Law firm is well known as a

debt collector. Plaintiff reply: I have not properly alleged facts to support a St of Frauds defense. Special defenses in Ct are factual allegations that are consistent with the plaintiff's allegations, but show that the plaintiff has no cause of action. Plaintiff does not have to show proof of retainer to defendant; plaintiff is bringing this action in its own right. This defense as alleged by defendant is frivolous and must be deleted.

2) Lack of legal standing. I stated- Attys have not proven that Discover

Bank is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of Discover Bank with all of the original creditor's rights and privileges intact. Full account number was not provided to defendant, leaving the defendant to guess as to whether the account was his. Plaintiff reply: defendant has failed to allege a special defense recognized under Ct Law. Refer me to the Sec. of Practice Book 10-50. Then, If defendant believes palintiff lacks standing in this action, he should have filed a motion to dismiss the action. Therefore, this defense is frivolous and must be deleted.

3) Unjust enrichment. Plaintiff has failed to provide payment and charge summary to verify the amount of damages requested. Plaintiff reply: Defendant has failed to allege any facts in support of this alleged defense.

Also, plaintiff stated, defendant is attempting to obtain discovery through the use of the "special defense." Therefore, plaintiff requests that this "special defense" be deleted.

4) Lack of privity- Plaintiff has not produced a copy of any credit card agreement establishing an obligation by the defendant. Plaintiff reply:

Defendant has alleged no facts in support of this alleged claim.Therefore, they are merely bald conclusions without any factual support, and defective.

Defendant had a credit card issued by the plaintiff which he used, the use of the credit card created an agreement each and every time. Additionally, defendant is attempting to use this "special defense" as a mechanism to obtain discovery. Therefore, plaintiff requests that this "special defense" be deleted.

5) Unclean Hands- Plaintiff has concealed defendant's legal arbitration right to waive plaintiff from this court venue by not producing a signed copy of the

alleged credit card agreement.

Plaintiff reply: Defendant has not attempted to file before the arbitration board. Defendant has not properly alleged facts to support this so called

"special defense" but instead has made a statement which is no more than a

bald conclusion. This is not a properly alleged "special defense" recognized under Ct law. Therefore, this defense must be deleted.

Furthermore, defendant is seeking information which is more readily obtained through the discovery process. Plaintiff is not required to provide a copy of the credit agreement with the complaint. Therefore, plaintiff requests that this "special defense" be deleted.

6) Plaintiff failed to state a claim upon which relief can be granted. Plaintiff reply: Ther eis no such defense here, and no facts alleged to support it. Defendant should file a motion to strike if there has indeed been a failure to state a claim. Therefore, plaintiff request that this "defense" be deleted.

7) Plaintiff or its predecessors violated the fair Debt Collection Practices Act.

Plaintiff reply: The FDCPA is not a valid "defense" to a collection action. See

Credit One v. Head, 117 Conn. App. 92, 101 n.8 (2009), cert denied 294 Conn. 907 (2009). Therefore, this defense must be deleted.

8) Defendant reserves the right to amend and/or add additional answers, defenses and/or counterclaims at a later date. Plaintiff reply: Defendant has failed to allege a special defense recognized under Ct law. See Conn practice Book 10-50. There is no such defense here. Therefore, plaintiff request that this defense be deleted.

9) Defendant reserves the right to trial by jury. Plaintiff reply: Def. failed to allege a special defense recognized under Ct law. See Conn Practice Book 10-50. There is no such defense here. Therefore, plaintiff request that this defense be deleted.

My question is: Might it be possible to save any defenses ?

In particular, my third , fourth and fifth defenses, is there a way to save them

? I am partial to saving the unclean hands defense about concealing my right to arbitration. Must I show that I requested arbitration earlier by letter or is it possible for me to request or at least SAVE, arbitration now, as a defense, even though suit has started ? What about defense number 3-unjust enrichment and number four lack of privity ? Any help would be appreciated.

Also- no documentation was submitted by the plaintiff with their complaint.

For the Privity defense I stated: Plaintiff has not produced a copy of any credit card agreement ESTABLISHING an Obligation by the defendant. Plaintiff replied that I alleged no facts to support this claim and by using the card,created an agreement each and every time. So, is it IMPOSSIBLE to save this defense ??? Also-- the Unjust Enrichment defense - I stated:

Plaintiff has failed to provide payment and charge summary to verify the amount of damages requested. Plaintiff answer: Defendant has failed to allege any facts in support of this defense.They aslo stated, defendant is attempting to obtain discovery through the use of the "special defense".

Plaintiff requests that this defense be deleted.

*** Any help WOULD BE DEEPLY APPRECIATED. I am also unsure about what they mean about my answer as Plaintiff has not specified that I revise my answer to their complaint BUT ONLY the DEFENSES. The request states however "Requests that the defendant revise the Answer and Special Defenses filed with this court on Dec. 15, 2010. Defendant has 30 days to to file a revised pleading.,absent an Objection from the defendant.

Edited January 17, 2011 by move forward
Revise and Need Input- TIMING URGENT

[BV80]

#1. They explained that a Statute of Frauds is against a Plaintiff not the attorney for the Plaintiff.

#2. This defense is normally used against a JDB who purchased the account from the OC. You are not being sued by a JDB. You're being sued by the OC. Therefore, Defense #2 would not apply.

#3. I'm not sure unjust enrichment would apply to an OC unless you're claiming the OC charged you for things you didn't authorize and disputed.

#4. Credit card agreements usually state that use of the card implies agreement with the terms and conditions of the cardmember agreement. The cardmember agreement outlines payment terms and by using the card, the cardholder agrees to those terms.

#5. They stated the Plaintiff is not required to supply an agreement with the Complaint. That's why you couldn't claim they hid the arbitration clause from you. You would request the cardmember agreement in dicovery.

#6. The think they did state a claim upon which relief can be granted.

#7. OCs are not liable under the FDCPA.

#8 & #9. I don't know about these.

So, when I answer their discovery, since the FULL ACCOUNT NUMBER WAS NOT PROVIDED. MAY I STLL DENY THEIR ADMISSIONS REQUESTS SINCE THEY ONLY HAVE THE LAST FOUR DIGITS OF THE CARD ACCOUNT NUMBER ??

I would only deny what I could truly deny. For instance if they haven't provided statements but want you to admit you owe a certain balance you could answer with something like:

Defendant does not have sufficient information to admit or deny. (If you don't have statements you can't make sure your payments were applied to the balance.)

I'll be honest with you. Fighting an OC can be tough. I don't know enough about arbitration to give advice. You can go to Discover's website and read the arbitration section in the cardmember agreement. If you feel comfortable with arbitration go for it. If you feel your case is not strong you might want to consider settling.

Please forgive my lack of commas. My comma key has gone on strike.

[rikkivs]

It is hard to fight an OC but not impossible. You have to make certain that you understand your local rules of court and local rules of civil procedure in order to prevail in a matter like this. Bottom line is that they will need to show how they calculated these alleged balances etc. Have you requested discovery from them yet?

[BV80]

Bottom line is that they will need to show how they calculated these alleged balances etc.

I believe they should show how they calculated balances etc. but it depends on what the judge believes that process entails. Some judges might believe a copy of every statement is necessary and others may believe only a few statements are required.