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Affirmative defenses . . . questions


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I would like to get any and all feedback on the affirmative defenses below. This would be for a suit that was filed on "other/contract" and only has a JDB affidavit, an assignment of accounts and one credit card statement showing nothing but a previous balance and a current balance for the same amount. xdancex

AFFIRMATIVE DEFENSES

1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff has brought suit against Defendant as "other/contract", but has not provided the contract.

2. Lack of Standing. Plaintiff has failed to prove ownership of the alleged debt and, therefore, has failed to prove the legal standing to sue.

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

4. The action is barred by the Statute of Frauds. 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.

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

6. Unclean Hands; Plaintiff has brought this suit "other/contract" without producing a signed copy of the credit card agreement. In so doing, Plaintiff has concealed Defendant's legal arbitration right to waive Plaintiff from this court venue. Or should I take this out as we are not going to MTC arbitration or is this a viable defense since not supplying the agreement did take away the defendant's option to arbitrate if he wanted to . . . I just don't know.

7. The court would unjustly enrich the plaintiff by granting the relief sought herein.

8. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. Defendant insists that the plaintiff provide the original contract bearing defendant's signature, account statements, purchase receipts and complete chain of custody for these documents to prove the validity of the alleged debt.

9. Plaintiff is not the real party in interest and Plaintiff has failed to name all necessary parties.

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

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1 and 4 are not really affirmative defenses that carry any weight or, for that matter a true affirmative defense.

2 and 3 are virtually the same thing just restated.

6 Instead of unclean hands, failure to pursue alternative dispute resolution. Unclean hands, though often stated as an affirmative defense, is more of Dirty Hands in trying to collect a debt they are not entitle too or using a false, deceptive or misleading affidavit or documents to collect an alleged debt.

8. You are challenging the original contract. However, there is a step before the original contract, the application for credit. It is Federal Law that an application for credit be completed before the issuance of a credit card. Since this is apparantly an account stated attempt it is a just defense to attack the application of credit.

Edited by debtfighter
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2. Lack of Standing. Plaintiff has failed to prove ownership of the alleged debt and, therefore, has failed to prove the legal standing to sue.

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

I actually stated these separately as not only is there a lack of standing, but indeed the plaintiff has shown on the summons they are an assignee for a creditor, but they can't be.

Also, the complaint is not for an account stated, but for a contract.

1 and 4 I know can be argued either way, but they seem to be pretty standard for affirmative defenses.

The unclean hands, I was thinking about taking out anyway.

Please everybody, I need a lot more critiquing!! :)++

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I am curious, why would you move for arbitration before you had a chance to defeat the complaint? To me, it seems arbitration is a last resort. You never wave the right to arbitration if it is in the agreement, but acknowledging arbitration may indicate the agreement actually exist.

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Okay. Let me clarify, because I cratiqued your affirmative defenses doesn't mean i wouldn't keep them in. Personally, I think you list as many affirmative defenses as possible.

Yes, I did list as many as possible, but I'm trying to get some positive critiques as to whether to take some out, combine some, state it differently, etc. I'm a little confused with your responses. Maybe some of the others will be along to add their input.

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This would be for a suit that was filed on "other/contract" and only has a JDB affidavit, an assignment of accounts and one credit card statement showing nothing but a previous balance and a current balance for the same amount. xdancex

With this type of evidence in support that normally indicates an account stated claim. Other/contract led me to believe on the face that other would mean an account stated claim.

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I am curious, why would you move for arbitration before you had a chance to defeat the complaint? To me, it seems arbitration is a last resort. You never wave the right to arbitration if it is in the agreement, but acknowledging arbitration may indicate the agreement actually exist.

I missed this post, so I'll respond now.

First of all, on a lot of agreements - you need to elect arbitration pronto. The earlier the better. However, in this situation - I did "not" say that I wanted to arbitrate. I only pointed out that by concealing the agreement, it did waive the rights of the consumer to elect arbitration . . . if they wanted to arbitrate.

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6. Unclean Hands; Plaintiff has brought this suit "other/contract" without producing a signed copy of the credit card agreement. In so doing, Plaintiff has concealed Defendant's legal arbitration right to waive Plaintiff from this court venue. Or should I take this out as we are not going to MTC arbitration or is this a viable defense since not supplying the agreement did take away the defendant's option to arbitrate if he wanted to . . . I just don't know.

Linda,

Be it right or be it wrong. For myself I prefer to list as many defenses

as I can possibly do. Provided I could stand in court and reasonably

argue the reason why said defense is a defense.

I always list around 15, give or take.

Now... About your statement on your defense #5.

You are not going to MTC for arb?

That certainly is your choice, but I would leave it in as you

may wish to down the road.

It gets it out there..... It gets it mentioned.

Although, I suppose it could be argued, and probably correctly, that

they do not need to provide you with an agreement in order for you

to elect Arb. Any that you Google for the OC would suffice. Legally....

Given the right date on it.

I might try a re-wording of it to say something like...

Unclean Hands; Plaintiff has brought this suit "other/contract" without producing a copy of the credit card agreement. In so doing, Plaintiff has

concealed Defendant's rights under said agreement and also has concealed Defendant's legal arbitration right to waive Plaintiff from this court venue.

Also.... check you state for signed original contracts. In mine, on a breach of contract they require a signed original.... Based on the complaint you have,

I would argue the same....

So check your state for that and it could be another defense.

As to the rest. I would keep them in.

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Also.... check you state for signed original contracts. In mine, on a breach of contract they require a signed original.... Based on the complaint you have,

I would argue the same....

So check your state for that and it could be another defense.

Need a little help with this. It would be for the State of Georgia. Where would I find the answer to if they need a signed original, etc. - to be bringing a suit for "other/contract"? Is there an argument we need to bring up? xdancex

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Okay, thanks to DongII, I changed the wording in #6 - how do you all think it looks now? Should anything be taken out or anything else added? TIA! :)++

AFFIRMATIVE DEFENSES

1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff has brought suit against Defendant as "other/contract", but has not provided the contract.

2. Lack of Standing. Plaintiff has failed to prove ownership of the alleged debt and, therefore, has failed to prove the legal standing to sue.

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

4. The action is barred by the Statute of Frauds. 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.

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

6. Unclean Hands; Plaintiff has brought this suit "other/contract" without producing a copy of the credit card agreement. In so doing, Plaintiff has concealed Defendant's rights under said agreement and also has concealed Defendant's legal arbitration right to waive Plaintiff from this court venue.

7. The court would unjustly enrich the plaintiff by granting the relief sought herein.

8. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. Defendant insists that the plaintiff provide the original contract bearing defendant's signature, account statements, purchase receipts and complete chain of custody for these documents to prove the validity of the alleged debt.

9. Plaintiff is not the real party in interest and Plaintiff has failed to name all necessary parties.

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

Edited by Linda7
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Hey Linda,

I don't think #7 is really a defense of any kind. Unjust enrichment is more of a consequence of improper judgment which doesn't really take place before their claim is granted, IMO.

Also, I emailed you some of the defenses I used. You may want to pick few of them to add to your list too.

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