tigger

Californians--pls. check affirmative defenses...

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Here's what we're considering, based on the case (i.e. open book account, no affadivit or attached contract provided, etc.) --for full info. on actual summons see here:

http://www.creditinfocenter.com/forums/there-lawyer-house/307819-advice-response-relatives-summons-ca.html

apologies on the new thread. the prior is too long, and I doubt others will see the additions I was seeking assistance with (now that it's buried--lol).

Is the following appropriate?

1. Plaintiff failed to state facts sufficient to constitute a cause of action as against this defendant

2. Plaintiff has failed to mitigate its damages, if any it had.

3. Plaintiff's claim is barred by the statute of frauds.

4. Plaintiff's claim is barred by lack of privity as defendant has no signed contract with plaintiff.

5. Defendant claims a Failure of Consideration, as there was no money nor items of value had or received by this defendant from plaintiff as alleged in the unverified complaint.

Also, does California allow for this....?:

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

One I found, and wonder if I can use:

Another question:

Can we claim "assumption of risk" as an affirmative defense, in a credit card case w/a jdb? I would be inclined to think that if the debt is valid, and the defendant has defaulted with the original creditor, the plaintiff is presuming a certain amount of risk in purchasing this debt. Is this totally flawed and reaching on my part?

In the NOLO Win your Lawsuit in California Guide, I noticed affirmative defenses are stated the way I did #3 and citing the California civil code and section. Should the affirmative defenses be written this formally?

Mailing BOP tommorow.

Filing paperwork tomorrow or Tuesday (at latest).

Looking forward to responses and thanks!

:)++

tigger

Edited by tigger
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I would add something regarding SOL such as: Defendant alleges that this action is time-barred under §<insert the law which states SOL> of the laws of <name of your state>.

This will go in my next answer if it gets that far. From what I have seen on this board you should ALWAYS use this.

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I would add something regarding SOL such as: Defendant alleges that this action is time-barred under §<insert the law which states SOL> of the laws of <name of your state>.

This will go in my next answer if it gets that far. From what I have seen on this board you should ALWAYS use this.

I was wondering about this, phoneczar.

I just read about a member's case (eventually dismissed)--who claimed SOL (despite it being w/in SOL)...they couldn't produce evidence of ownership of debt, etc....as such, could not prove it was in SOL. So I guess, why not? lol.

Thanks for the tip, I'll be adding that one!

:)++

Bumping for additional critiques, preferrably from those that have knowledge of CA laws.

Thanks in advance! ;)

Edited by tigger
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Bumping for assistance...

Also, would my prior Affirmative Defenses be more appropriate (including phrasing, etc.):

Affirmative Defenses

As and for a First Defense

Plaintiff admits to purchase of 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 Second Defense

Plaintiff's Complaint violates the statute of Frauds as alleged contract or agreement falls within a class of contracts or agreements required to be in writing. The alleged contract or agreement 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.

(NOTE--Question regarding Second Defense stated: Should this be removed but possibly added at a later date, based whether or not they produce any actual contracts per service of BoP?)

As and for a Third Defense

Defendant claims a Failure of Consideration, as there was never an exchange of money or items 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 a Fifth Defense

Defendant alleges that plaintiff's action is time barred under statute of limitations.

As and for a Sixth Defense

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

(Still having trouble finding if the sixth above is allowed in CA courts....:confused:)

Apologies to repeat this request--this is all brand new to me (as it is to so many others here) and I just want to be sure this is appropriate and done correctly.

Thanks so much...

Edited by tigger
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