da6cents

Need Help With Affirmative Defenses Against OC.

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Hi All:

I'm being sued by Discover Bank. You can find more about it here.

creditinfocenter.com/forums/showthread.php?t=306835

I'm formulating my answer and looking for affirmative defenses on this site. But so far the only ones I found are for fighting suits brought on by JDB's. Please help. Thanks!

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The affirmative defenses in many threads are applicable to most causes of action by jdbs and original creditors. I'll look at the thread you cited above to get a little more information. Ok I've looked at your thread with details of the case and feel as though they haven't given you much to work with. What I need to know is if you typed out the complaint or paraphrased anything. If you typed out the complaint verbatim there are many defenses at your disposal. I will leave you to do a bit more reading but consider the following points:

1.Unjust enrichment and account stated seem to be the theories that they're suing you under. Therefore you need to research how to defend those causes of action and there are many threads on those topics here. BTW unjust enrichment can also be used as an affirmative defense in these types of suits;)

2.Failure to state a claim upon which relief can be granted seems to be another applicable affirmative defense because they haven't provided an account number for this alleged account or anything else that would provide information that you can reconcile in some way against your own records.

3.Essentially they are telling the courts that you owe them money and haven't provided a shred of proof. Thus you need to explicitly deny and say that you deny and require strict proof of the alleged account, provided it exists.

4.BV below is correct, you need to look at your state and local rules of civil procedure and local rules of court for lists of affirmative defenses.

Edited by rikkivs
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Thanks Rikkivs and BV.

I'm not sure that the affirmative defense "Failure to state a claim upon which relief can be granted" can be used since they did indeed post an account number on the complaint. I just 'x' it out for posting.

I will certainly look up the unjust enrichment defense, thanks.

Where in the complaint do I make my demand for discovery (cashed checks, contract, etc.)?

This is what I have:

Defendant: Da6cents

Located at Da6cents

Da6cents

Answering to Plaintiff’s complaint(s) , say(s):

All allegations of the Complaint are denied unless expressly admitted herein.

1. As to the first paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

2.. As to the second paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

3. As to the third paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

WHEREFORE the defendant demands judgment dismissing the complaint with costs.

AFFIRMATIVE DEFENSES

As For a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As For a Second Defense

Plaintiff failed to produce a copy of credit card, line of credit account or promissory note or loan that was alleged in Plaintiff’s complaint.

As For a Third Defense

Plaintiff failed to produce a copy of alleged contract with Defendant’s signature agreeing to terms alleged by Plaintiff.

As and for a Fourth 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 some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Fifth Defense

Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

As and for a Sixth Defense

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

As and for a Seventh Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

WHEREFORE, Defendant demands a copy of the aforementioned credit card, line of credit, promissory note or loan. Defendant also demands an accounting of all charges, fees , interest and costs alleged by Plaintiff as well as a copy of contract alleged by Plaintiff as having been given to Defendant. Defendant also demands a copy of all amendments related to said contract.

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