Jump to content

Let's talk about these affirmative defenses


Recommended Posts

I have some affirmative defenses that I'd like to discuss and would appreciate any and all feedback! xdancex

1) Calculation of interest is usurious. My reasoning on this is to try and bring out the fact that I don't even understand what they claim. They show one statement with zero interest - yet, on the claim they have an amount of money listed for interest charges. Also, the fact that without seeing how they came to this amount - how would the Defendant know if the amount is correct?

2) Contract that is illusory and therefore unenforceable. I'm thinking this might be good as they did not supply a contract, yet are suing for "other/contract".

3) Plaintiff has failed to state a valid claim for Attorney fees and is barred from collecting Attorney fees and any amounts not specifically provided for by purported agreement. (Because they have not provided the agreement).

4) Plaintiff's counsel did not afford Defendant due process of law. (Could this be used as a defense because the Defendant never received any notice of the debt - until they were served with a summons? Or could this be an argument because of Plaintiff's failure to even attach the alleged agreement - the Defendant's right to elect arbitration is gone out the window?

5) And I also wrestle with SOL. Can you use this as an affirmative defense for the simple reason that the Plaintiff has not supplied anything to validate a date of default?

Edited by Linda7
Link to comment
Share on other sites

Linda,

Unfortunately most of these are useless.

1. If it was a National Bank that originated the account, usury does not apply.

2. Illusory is claiming they did nothing to deserve payment. Since they loaned you money that you benefited from, this also does not apply.

3. May stand a chance is the damages they are asking for includes att. fees. But this would cover the fees only, not the damages of the claim.

4. The lawsuit is due process. This does not apply.

5. SOL is always available if you believe the debt is old enough. It would not help if the age of the account is less than SOL.

Not knowing more about the claim, this is the best I can provide.

Link to comment
Share on other sites

Linda,

Unfortunately most of these are useless.

1. If it was a National Bank that originated the account, usury does not apply.

2. Illusory is claiming they did nothing to deserve payment. Since they loaned you money that you benefited from, this also does not apply.

3. May stand a chance is the damages they are asking for includes att. fees. But this would cover the fees only, not the damages of the claim.

4. The lawsuit is due process. This does not apply.

5. SOL is always available if you believe the debt is old enough. It would not help if the age of the account is less than SOL.

Not knowing more about the claim, this is the best I can provide.

Thank you so much for the reply and your response confirms pretty much what I feared. BTW, I'm sending you a pm in a few minutes! :)++

Link to comment
Share on other sites

Definition: Illusory

adj.

Produced by, based on, or having the nature of an illusion: deceptive.

1. illusory - based on or having the nature of an illusion; "illusive hopes of finding a better job"; "Secret activities offer presidents the alluring but often illusory promise that they can achieve foreign policy goals without the bothersome debate and open decision that are staples of democracy"

It is possible for the courts to find that the contract was illusory because credit card companies frequently have the power to unilaterally change the contract whenever they want to do so. This of course is unfair to contract holders and is deceptive as one can sign it and then they can change it to whatever suits their needs. It depends on the judge but this is a good reason to eliminate the credit card agreement in a law suit. Also depends on the agreement read the full terms to see if this is true of the one attached to your summons. Not saying this will work because I truly don't know if it will or not, its hard to tell with our legal system as it is not perfect; but it is completely reasonable and hard to deny the logic behind it.

Edited by Justicewanted
Link to comment
Share on other sites

Logic and law are not the same. That is why lady justice wears a blindfold. CC contracts have been fought everyday known to man. Courts have consistently ruled that they are legal and binding. Your recourse when they change the rules is to cease using the account and return the card to the issuer. That is how they defeat they illusory issue.

Link to comment
Share on other sites

Definition of Usurious:

exorbitant: greatly exceeding bounds of reason or moderation; "exorbitant rent"; "extortionate prices"; "spends an outrageous amount on entertainment"; "usurious interest rate".

For example most credit cards charge highly ridiculous amounts of interest rates that go beyond making a nice profit to getting as much as they can squeeze out of you whether it is right or not. Thanks to the Credit Card Act of 2009 this is slowly changing, not soon enough for most families, but better late than never.

Link to comment
Share on other sites

Logic and law are not the same. That is why lady justice wears a blindfold. CC contracts have been fought everyday known to man. Courts have consistently ruled that they are legal and binding. Your recourse when they change the rules is to cease using the account and return the card to the issuer. That is how they defeat they illusory issue.

As I said above you will notice it may not work as our legal system is far from perfect. Logic should always apply but too often doesn't as I said above.

The credit card contracts that most of these companies are submitting are generic form agreements they do not attach all amendments made to the contract, nor are they even the original that was presented to the card holder. In these circumstances there is no contract. If a actual contract is presented then I would have to agree with at least a portion of this as it should be binding in some cases. When large amounts of money have been charged at will by the credit card company after original contract has been signed then only original contract charges should apply.Credit card lawsuits are generally full of huge gaping holes.There are not many attorneys that can see these things only the best ones can,this is why typically in the courts these arguments aren't won because they are generally not challenged in the right way if at all, as most attorneys don't see the holes, so to speak. I could argue all day with every point but it would take too long ,there are too many variables to consider.

Edited by Justicewanted
Link to comment
Share on other sites

As I said above you will notice it may not work as our legal system is far from perfect. Logic should always apply but too often doesn't as I said above.

The credit card contracts that most of these companies are submitting are generic form agreements they do not attach all amendments made to the contract, nor are they even the original that was presented to the card holder. In these circumstances there is no contract. If a actual contract is presented then I would have to agree with at least a portion of this as it should be binding in some cases. When large amounts of money have been charged at will by the credit card company after original contract has been signed then only original contract charges should apply.Credit card lawsuits are generally full of huge gaping holes.There are not many attorneys that can see these things only the best ones can,this is why typically in the courts these arguments aren't won because they are generally not challenged in the right way if at all, as most attorneys don't see the holes, so to speak. I could argue all day with every point but it would take too long ,there are too many variables to consider.

There is no signed contract with a cc company. We don't sign cardmember agreements. In some cases, there's a signed application, but sometimes there's not even that.

As far as the original agreement is concerned, cardmember agreements are amended just as any contract can be amended. A cc company can argue that the original agreement does not apply in a lawsuit because of amendments. Therefore, the agreement that was in effect at the time of default would then apply to the account.

Link to comment
Share on other sites

Most CC cases are lost because the attorney that "can see these things" cost more than the person being sued has because they have no money can afford. They then allow the claim to default or argue "I owe, but I can't pay"

That is the purpose of this board is for us Pro Se to help each other. Claiming some great insight but not sharing is not helpful. And quoting definitions does not help either.

Illusory and Usurious are well defined within the law and case law. There is nothing to glean by trying to redefine it for the court.

As far as the contracts, the courts have already determined that they are binding. They do not need to produce the original signed contract since these are "revolving accounts". Each time you make a new purchase, you are agreeing to the amended terms.

Trying to fight the legitimacy of the contract and whether a Federalized bank's rates are usury is the wrong focus.

The focus is on making the banks prove that they advised you of the new terms. Make them prove the amounts that are claiming are due. Make them prove that they have ownership (OC as well as Debt Buyer). Make them present a witness to the business records or deem them hearsay.

Yes there are lots of holes, but usury and illusory are not two of them. IMHO.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...