About to file answer....need advise on affirmative defenses

[wantitover]

Quick recap...being sued by JDB from a cc account that was charged off in 2005. I have never been contacted or received any documents from this company until the summons. They didn't even have my real address, although somehow the people at the sheriff's department didn't have any problems.

I have my drafted list of affirmative defenses, but at first glance it seems like total overkill. I have listed all that I believe to be relevant to my case.

Please take a look and any comments or advise is greatly appreciated!!

Affirmative Defenses

As and 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 fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Second defense

Plaintiff lacks standing.

As and for a Third defense

Defendant was not notified of any assignment of the debt that is the subject of the Complaint.

As and for a Fourth defense

Plaintiff’s claims are barred by the statute of frauds, O.C.G.A. § 13-5-30 as the purported contract or agreement falls within a class of contracts or agreements that are required to be in writing. The purported contract alleged in the Complaint was not in writing and not signed by Defendant or by some another person authorized by Defendant and who was to answer to the alleged debt, default, or miscarriage of the other person.

As and for a Fifth defense

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

As and for a Sixth defense

Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

As and for a Seventh defense

Plaintiff’s claims are barred by the statute of frauds, O.C.G.A. § 13-5-30 as the purported contract or agreement falls within a class of contracts or agreements that are required to be in writing. The purported contract alleged in the Complaint was not in writing and not signed by Defendant or by some another person authorized by Defendant and who was to answer to the alleged debt, default, or miscarriage of the other person.

As and for an Eighth defense

Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

As and for a Ninth defense

Plaintiff has failed to show a chain of custody from original creditor to the Plaintiff. Therefore, Plaintiff has failed to show that they are the real party in interest.

As and for a Tenth defense

Plaintiff's Complaint fails to allege that the Assignor/Original Creditor even has knowledge of this action or that the Assignor 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.

As and for an Eleventh defense

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff.

As and for a Twelfth defense

Plaintiff’s claims are based on a contract that is illusory and therefore unenforceable.

As and for a Thirteenth defense

Plaintiff’s calculation of interest is usurious or based on a rate that is greater than allowed by law.

As and for a Fourteenth defense

Plaintiff has failed to state a valid claim for attorney fees, and is barred from collecting Attorney fees under the Fair Debt Collection Practices Act.

As and for a Fifteenth defense

Plaintiff is barred under the Fair Debt Collection Practices Act, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by purported agreement.

As and for a Sixteenth defense

Plaintiff's damages are limited to real or actual damages only.

As and for a Seventeenth defense

Plaintiff’s claims are based on a contract that is an adhesion contract, and as such, all or portions of it are unenforceable.

As and for an Eighteenth defense

Plaintiff is barred under the Fair Debt Collection Practices Act, for failure to send the defendant a 30-day Validation Notice.

As and for a Nineteenth 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 Twentieth defense

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

As and for a Twenty-first defense

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.

As and for a Twenty-second defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

As and for a Twenty-third defense

Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais.

As and for a Twenty-fourth defense

Plaintiff has no Fiduciary Duty.

As and for a Twenty-fifth defense

Plaintiffs alleged damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control.

As and for a Twenty-sixth defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

As and for a Twenty-seventh defense

Defendant invokes the doctrines of Scienti et volenti non fit injuria and Damnum absque injuria.

As and for a Twenty-eighth defense

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

[fightemdontfold]

I would like to review my AD's in my case to see if I added anything different, but I don't have them with me at the moment.

You really covered all the bases though it seems, I only listed 12 and added another one about a month later. I would be interested to see if other posters might view 28 of them as too many or overkill,lol,but better to be safe than sorry.

You can always, should always actually, preface your AD's by noting that you reserve the right to submit additional AD's during the course of the case relative to information that comes about during the discovery phase,etc.

They are definatly going to have to step up and provide proper documentation against you, again I have never heard of that JDB suing you so I can't comment on the likelyhood of whether they will be able to provide anything.

[workingpoor]

I would like to review my AD's in my case to see if I added anything different, but I don't have them with me at the moment.

You really covered all the bases though it seems, I only listed 12 and added another one about a month later. I would be interested to see if other posters might view 28 of them as too many or overkill,lol,but better to be safe than sorry.

You can always, should always actually, preface your AD's by noting that you reserve the right to submit additional AD's during the course of the case relative to information that comes about during the discovery phase,etc.

They are definatly going to have to step up and provide proper documentation against you, again I have never heard of that JDB suing you so I can't comment on the likelyhood of whether they will be able to provide anything.

Too many. Did you just copy and paste all of the ADs on this site? #4 and #7 are the same thing. I would stick with what applies appropriately and try not to pi$$ off the judge...

[fightemdontfold]

Yeah 28 is the most I have ever seen. You should save the extensive questioning for discovery, it is to your advantage to bury them in paperwork, but remember sometimes there is a limit to how many intoggs,production of docs, and admissions of facts, you can submit.

Limit your AD's to about 15, maybe more if you think one or two are important, and just note that you reserve the right to submit more as the case develops.

[wantitover]

Thanks for the advise! I did feel like it was probably too much, but I did go through each one and felt that they were relevant. {forgot to cut the #7, as I had realized it was put down twice)

I will go back and weed through....certainly not trying to upset the judge!!

One important thing that I am not sure of at this point is about filing my answer within the time, which for me is 30 days. Do I have to make sure that the Plantiffs lawyer has it in their hands before 30 days also, or is that just for the court filing? I know that I need to mail it CMRRR, but not sure if I can send it on the same day as court filing or if that needs to be done a few days before....

Should there be a phone number on my answer & if so, do I talk to the plantiffs lawyer if they call me or only with the courts?

[workingpoor]

Should there be a phone number on my answer & if so, do I talk to the plantiffs lawyer if they call me or only with the courts?

I've never heard of puttin a phone number on an answer to a summons. I would think the chances are pretty good the folks suing you already have it. As far as talking to the plaintiffs lawyer, that is entirely up to you. I wouldn't, and I think most folks on here wouldn't either. The only good reason the plaintiffs attorney would want to talk is to discuss a settlement, and that I would definately do in writing.

[antiquedave]

A summons as first contact wouldn't that be an FDCPA violation?

[wantitover]

That 's what I think after reading the FDCPA rules:

30 Day Validation Notice

§ 1692 g Failure to send the consumer a 30-day validation notice within five days of the initial communication

§ 1692 g(a)(1) Must state Amount of Debt

§ 1692 g(a)(2) Must state Name of Creditor to Whom Debt Owed

§ 1692 g(a)(3) Must state Right to Dispute within 30 Days

§ 1692 g(a)(4) Must state Right to Have Verification/Judgment Mailed to Consumer

§ 1692 g(a)(5) Must state Will Provide Name and Address of original Creditor if Different from Current Creditor

§ 1692 g( Collector must cease collection efforts until debt is validated

Just not sure how to handle it. Should I list this as an affirmative defense or save it until later? Would they be required to send a 30 day validation notice by certified mail? I'm sure they are going to say that they sent it to my old address that appears on the summon, but I haven't lived there for 5 years!

[Linda7]

Can you say who is the JDB and who was the OC of the alleged debt? Also, what ballpark amount are they trying to collect?

[wantitover]

The JDB is RAB Performance Recoveries and HSBC/Orchard as OC. They claim just under $700 plus $120 interest and of course court fees.

[wantitover]

Also, I scaled down my affirmative defenses and now I only have 16 listed. I feel much better about that part. Just hope I didn't take out anything that is really important.

[antiquedave]

If your counter claims are worth more than they are suing for I'd think it would give them pause, personally I'd rather have a consumer attorney deal with that part of it, I actually sued the CA before they sued me, its still outstanding but so far I've won one,

Its too much to take in at one time for me, to try and defend myself in a lawsuit and think about trying to sue for FDCPA violations on my own. with the amount of the suit so small you might get it extinguished and get the 1000 too.

[wantitover]

Would I include the counter claim in my answer or is this a separate issue?

[Linda7]

Does your card agreement have an arbitration provision?

[wantitover]

Not sure about the card agreement. I don't have anything regarding this account and not convinced that it was really mine.

The dates listed for when the account was opened and then charged off were during a divorce. Pretty sure that the ex opened it, but no proof.

Would the plaintiffs attorney have to provide this?

[wantitover]

Does your card agreement have an arbitration provision?

.....and if I could get my hands on it and it does have the provision....then what exactly does that mean?

[Linda7]

.....and if I could get my hands on it and it does have the provision....then what exactly does that mean?

For the amount they are trying to collect, they would probably want to walk away instead of pay arbitration fees.

I know you aren't sure if this is your debt, but have you looked at your credit report and if so, is it showing on there? And is anything showing from the OC on there in regard to the debt? If so, when was the account opened and when is the date of default listed?

Also, Georgia is not a community property state meaning that if your spouse opened it in their name, then the debt is solely theirs, not yours - even if you were listed as being able to use the card.

Edited March 18, 2011 by Linda7

[Linda7]

Also, if your spouse opened the account solely in their name - that will be your defense as it is "not" your debt in the state of Georgia and that is completely without using arbitration!