jenawade

factual basis that supports your affirmative defenses?

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How in the world do you answer this?:

Interrogatories:

4. If you filed affirmative defenses to Plaintiff’s Complaint, separately for each defense, please:

a. State the factual basis that supports your defense;

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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 admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

As and for a Third 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 Fourth Defense

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

As and for an Fifth Defense

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

As and for a Sixth 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 Seventh Defense

Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff for this account. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

As and for an Eight Defense

The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

As and for a Ninth Defense

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.

As and for a Tenth 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.

As and for a Eleventh 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 Twelve Defense

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

As and for a Thirteenth Defense

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

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I would copy and paste the same response as I did with the affirmative defense. Did you do a general objections?

General objections? I guess not, don't know what that is. I have no clue what they mean by state the factual basis that supports your defense. Do I have to research each one to find their legal basis and put something like:

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.

*Per FRCP Rule 12(B)(6)

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Guest usctrojanalum

I think they mean, why has no claim been stated. Why is there no assignment, what proof or facts can are you going to bring up to establish that.

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I think they mean, why has no claim been stated. Why is there no assignment, what proof or facts can are you going to bring up to establish that.

I'm confused, so bear with me. The Plaintiff is asking the Defendant to state the factual basis for the defenses. What would that have to do with no claim being stated or no assignment?

I'm editing now. :oops:

Nevermind...I just got it.

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I try a few of them:

1st Defense:

I'm sure they probably stated a claim on which relief can be granted...breach of contract, account stated, etc. You may not be able to explain this one.

2nd Defense:

If your state has a statute concerning self injury, include the statute.

3rd Defense:

Self explanatory

4th Defense:

Same as 3rd

5th Defense:

Plaintiff has not shown a chain of ownership, proof of purchase, the amount paid for the alleged account, and has not proven standing to sue.

6th Defense:

Plaintiff has not proven that any assignment or purchase was legitimate.

7th Defense:

Self explanatory

8th Defense:

Self explanatory

9th Defense:

No idea how to reply to that one without inferring the Plaintiff purchased the account.

10th Defense, 11th, and 12th

Self explanatory

I'm sure some others will chime in to help tweak the responses.

If I may, just a little advice for all of us who are not as experienced as the admin and others. We have to be really careful with our defenses. For instance, "Plaintiff has failed to state a claim upon which relief can be granted." Breach of Contract or account stated is a valid claim. It doesn't mean the Plaintiff can prove it, but it is a valid cause of action.

We must be careful how we word our defenses. Unjust enrichment for example. It's a valid defense, but if you say "the Plaintiff would receive more money than plaintiff is entitled to receive" are you implying the JDB paid for the account and is entitled to at least what he paid for it? How about "Plaintiff has not proven that money was paid for any account allegedly owed by the Defendant."

I've learned that I must be able to understand and explain any defense I use.

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Guest usctrojanalum

To start, Unjust Enrichment needs to be scrapped from everyones defenses. It does not fit in CC cases/JDB cases.

First, unjust enrichment is an equitable defense. So if you are being sued for breach of contract - this defense does not work. Moderator Nascar once described this as trying to fit a square peg into a round hole. Equitable defenses can only apply to equitable causes of action.

Secondly, when an unjust enrichment defense is used - you are stating as the defendant you are entitled to restitution because the plaintiff has already been unjustly enriched and that you want your money or property back.

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Guest usctrojanalum

Unjust enrichment is not, "oh they are going to get money from me and that would be unjust." I know that's how those two words put together make it sound, but that is not the basis of the defense.

When you use the unjust enrichment defense you are stating that the plaintiff has already been unjustly enriched and that you should be getting something back.

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To start, Unjust Enrichment needs to be scrapped from everyones defenses. It does not fit in CC cases/JDB cases.

First, unjust enrichment is an equitable defense. So if you are being sued for breach of contract - this defense does not work. Moderator Nascar once described this as trying to fit a square peg into a round hole. Equitable defenses can only apply to equitable causes of action.

Secondly, when an unjust enrichment defense is used - you are stating as the defendant you are entitled to restitution because the plaintiff has already been unjustly enriched and that you want your money or property back.

That makes sense. I can honestly say I've never used "unjust enrichment". It just didn't sound right.

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Thank you very much!

I try a few of them:

1st Defense:

I'm sure they probably stated a claim on which relief can be granted...breach of contract, account stated, etc. You may not be able to explain this one.

2nd Defense:

If your state has a statute concerning self injury, include the statute.

3rd Defense:

Self explanatory

4th Defense:

Same as 3rd

5th Defense:

Plaintiff has not shown a chain of ownership, proof of purchase, the amount paid for the alleged account, and has not proven standing to sue.

6th Defense:

Plaintiff has not proven that any assignment or purchase was legitimate.

7th Defense:

Self explanatory

8th Defense:

Self explanatory

9th Defense:

No idea how to reply to that one without inferring the Plaintiff purchased the account.

10th Defense, 11th, and 12th

Self explanatory

I'm sure some others will chime in to help tweak the responses.

If I may, just a little advice for all of us who are not as experienced as the admin and others. We have to be really careful with our defenses. For instance, "Plaintiff has failed to state a claim upon which relief can be granted." Breach of Contract or account stated is a valid claim. It doesn't mean the Plaintiff can prove it, but it is a valid cause of action.

We must be careful how we word our defenses. Unjust enrichment for example. It's a valid defense, but if you say "the Plaintiff would receive more money than plaintiff is entitled to receive" are you implying the JDB paid for the account and is entitled to at least what he paid for it? How about "Plaintiff has not proven that money was paid for any account allegedly owed by the Defendant."

I've learned that I must be able to understand and explain any defense I use.

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Do you really have to give them all that information in an interrogatory request on the first asking?

if you asked them for the same they would probably tell you it was a burden and not likely to lead to admissable evidence or some other such garbage.

Its a burden alright, they're probably hoping we'll just go away. Just before this part was this:

1. Separately, for each of your answers to Requests for Admission 1 through 9 above where your answer is anything other than an unqualified admit, please:

a. State each fact known to you upon which you rely to support your denial or qualified answer;

b. If your response if that you do not have sufficient information or knowledge to admit or deny, then describe each effort you have made to acquire the information you feel would be necessary to admit or deny the request;

c. Identify each document known to you which you believe contains information relevant to your answer; and

d. Identify each witness known to you who may have knowledge with respect to the information upon which you rely for your denial or qualified answer and as to each witness, state the information you believe is known to them with respect to your answer.

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Its a burden alright, they're probably hoping we'll just go away. Just before this part was this:

1. Separately, for each of your answers to Requests for Admission 1 through 9 above where your answer is anything other than an unqualified admit, please:

a. State each fact known to you upon which you rely to support your denial or qualified answer;

b. If your response if that you do not have sufficient information or knowledge to admit or deny, then describe each effort you have made to acquire the information you feel would be necessary to admit or deny the request;

c. Identify each document known to you which you believe contains information relevant to your answer; and

d. Identify each witness known to you who may have knowledge with respect to the information upon which you rely for your denial or qualified answer and as to each witness, state the information you believe is known to them with respect to your answer.

If it were me, I might answer:

a. Objection. Defendant's answers to Plaintiff's admissions are self-explanatory.

b. (Have you requested discovery? If so, then "Defendant has submitted discovery requests to Plaintiff.

c. Objection. Since Defendant has denied recollection of the account and Plaintiff has provided no documentation, there would be no documentation in Defendant's possession. (They haven't provided any documentation, have they?)

d. None at this time.

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If it were me, I might answer:

a. Objection. Defendant's answers to Plaintiff's admissions are self-explanatory.

b. (Have you requested discovery? If so, then "Defendant has submitted discovery requests to Plaintiff.

c. Objection. Since Defendant has denied recollection of the account and Plaintiff has provided no documentation, there would be no documentation in Defendant's possession. (They haven't provided any documentation, have they?)

d. None at this time.

Thanks, I'll use it!

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Unjust enrichment? I heard it also explained this way - The plaintiff did not pay fair and adequate consideration for the alleged debt and plaintiff would be unjustly enriched if plaintiff were to receive the relief requested.

Wouldn't that work? You know those rascals didn't pay near what they are asking . . . :rolleyes:

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UNJUST ENRICHMENT

Collecting on an account that you don't owe?

Collecting more than they can prove is owed?

Adding more fees and interest than allowed by law or agreement?

Plaintiff's deceptive practices = an act of fraud?

Paying 20.00 to buy a debt for the purpose of litigation to get 1000% profit?

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Guest usctrojanalum
Unjust enrichment? I heard it also explained this way - The plaintiff did not pay fair and adequate consideration for the alleged debt and plaintiff would be unjustly enriched if plaintiff were to receive the relief requested.

Yeah, this is wrong. I don't know who made this up one day and then a ton of other people agreed with him - but in all legal definitions of unjust enrichment that I have ever read/studied this has never been apart of them.

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Guest usctrojanalum

From Black's Law Dictionary

"Unjust enrichment is a legal term denoting a particular type of causative event in which one party is unjustly enriched at the expense of another, and an obligation to make restitution arises, regardless of liability for wrongdoing"

"Unjust enrichment has three elements. First, the plaintiff must have provided the defendant with something of value while expecting compensation in return. Second, the defendant must have acknowledged, accepted, and benefited from whatever the plaintiff provided. Third, the plaintiff must show that it would be inequitable or Unconscionable for the defendant to enjoy the benefit of the plaintiff's actions without paying for it."

And there you have it. This obviously does not apply to JDB cases.

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Yeah, this is wrong. I don't know who made this up one day and then a ton of other people agreed with him - but in all legal definitions of unjust enrichment that I have ever read/studied this has never been apart of them.

I understand what you are saying and it makes perfect sense. But, what is the wordage for what we are trying to come up with when a JDB pays a small amount and shouldn't be allowed to try and collect a high amount or an OC hides for years without any statements and then suddenly appears with a statement saying that you owe an enormous bill as all the while they were quiet, they were adding interest/fees, etc. That somehow has to be some sort of a defense as it is deceitful and should be illegal.

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General objections? I guess not, don't know what that is.

GENERAL OBJECTIONS

1. Defendant generally objects to Plaintiff’s discovery request to the extent

they request information protected by any privilege of the Defendant. To

the extent Defendant in these Responses agrees to provide information, such

provision will not include information protected by any applicable privilege or

protection.

2. Defendant objects to the discovery request to the extent that they seek

irrelevant information not likely to lead to the discovery of admissible

evidence and to the extent that they are over broad, vague and ambiguous.

3. The inadvertent production of documents or information otherwise

privileged or protected from discovery shall not constitute a waiver of the

privilege or protection.

4. Defendant objects to the discovery request to the extent they seek

information which is readily available to the Plaintiff or already in the

Plaintiff’s possession or control.

5. Defendant’s effort to respond to discovery is an ongoing process and to

the extent that additional information is developed which requires

amendments to the written replies to the discovery request, Defendant will

proceed in accordance with XXXStateXXX Rules of Civil Procedure.

6. The general objections set forth above are made without prejudice to, or

waiver of, Defendant’s right to object on all appropriate grounds to the

providing of information or production of documents or things hereafter,

either prior to, at the time of, or after the dates of these Responses.

7. Each of these general statements and objections are incorporated into and

asserted in each of the specific objections and replies below as if set forth in

full.

Of course these can be added to or deleted from based upon your jurisdiction and circumstances.

Edited by debtfighter
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