caramia1225

Zwicker files Motion to Strike my Affirmative Defenses

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Hi Everyone,

Zwicker and Associates has filed a Motion to Strike my Affirmative Defenses here in Florida.

Hearing on this is Sept 30th.

Since they filed the original complaint they have come up with the CC agreement and all my CC statements.

I am filing a MTC arbitration tomorrow, but not sure it will be on time to be heard on the 30th.

Meanwhile, I have to defend myself at this hearing. Here are my affirmative defenses... Any ideas? Maybe posting this can help someone else in Florida too.

First Affirmative Defense

Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since the Plaintiff has failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted, including the date of the alleged contract, dates and amounts of alleged charges, fees or other debts incurred under the contract, and the date of the alleged payment default.

Second Affirmative Defense

Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since the Plaintiff has the burden of proof to show all elements of account stated, including rendition, mutual agreement of the balance, and the existence of prior transactions or creditor-debtor relationship between the parties. Fla R. Civ. Pro Form 1.933 states that an Account Stated claim must include “A copy of the account showing items, time of accrual of each, and amount of each must be attached.” In addition, see H & H Design Builders v. Travelers' Indemnity Company, 639 So.2d 697, "to state a valid claim on open account, claimant must attached 'itemized' copy of account."

a. Plaintiff has failed to attach a copy of the account showing items, time of accrual of each, and amount of each.

b. Plaintiff has failed to show that there was a mutual agreement of the alleged balance. See Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975) “Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.”

c. Plaintiff has failed to show existence of prior transactions or creditor-debtor relationship between the parties. See South Motor Co. of Dade County v. Accountable Const. Co., 707 So.2d 909 (Fla. App. 3 Dist. 1998) “Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.”

Third Affirmative Defense

Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since the Plaintiff has failed to attach a credit card application, request or agreement that bears the signature of the alleged Defendant wherein she agreed to pay the original creditor. See Recreation Corp. of America v. Jack Drury & Associates, Inc. 235 So.2d 49 (Fla. App. 4 Dist. 1970) “There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”

Fourth Affirmative Defense

Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since an accurate balance of the alleged account cannot be determined as the Plaintiff has not provided a bona fide accounting of the alleged original debt from the date of issuance, $0 account balance, to date of alleged default. See Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967) “Basic premise of an account stated action, which presupposes some indebtedness, is that the statement fixing the various sums that constitute the debt is correct and not the existence of the debt itself”.

Fifth Affirmative Defense

Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since the Claimant has not proven that AMERICAN EXPRESS CENTURION BANK is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of AMERICAN EXPRESS CENTURION BANK with all of the original creditor’s rights and privileges intact.

Six Affirmative Defense

Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since the Claimant has not provided a sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

Seventh Affirmative Defense

Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that the Plaintiff is not entitled to obtain any of the relief requested in Complaint since Plaintiff has concealed Defendant's legal arbitration right to waive Plaintiff from this court venue by not producing a signed copy of the agreement to be in breach.

Eighth Affirmative Defense

Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that the Plaintiff is not entitled to obtain any of the relief requested in Complaint, because if Defendant had been properly notified of her contractual arbitration rights, this case never would have proceeded in this Venue, therefore this action is premature.

Ninth Affirmative Defense

Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant states that Plaintiff is not entitled to obtain any of the relief requested in Complaint since Plaintiff’s exhibit A fails to meet the definition of a written instrument under Florida Law. Exhibit A is an anonymous account opening disclosure document which cannot be connected to the alleged account since there is no evidence as to when alleged account was opened. It clearly has no probative value as to the liability of any party and controverts on its face any allegation of its relevancy to the alleged account.

Tenth Affirmative Defense

Without otherwise admitting the validity of the allegations set forth in the Complaint, Defendant reserves the right to amend her affirmative defenses as discovery progresses in this lawsuit.

WHEREFORE, Defendant, caramia, respectfully requests that this court enter an Order dismissing the Complaint filed herein by Plaintiff, AMERICAN EXPRESS CENTURION BANK.

This is Zwicker's argument to Strike these Defenses....

Zwicker states in their Motion to Strike.....

1. Defendant filed an answer stating 10 separate conclusions which Defendant claims are affirmative Defenses.

2. Defendant states no facts on the responsive pleadings to support such conclusions.

3. A defense which is a mere conclusion, unsupported by any specific allegation of facts is properly stricken by the court. ( Christ Craft Industries, Inc v. Van Valkenberg )

4. Because Defendant has failed to allege any facts to support any of its defenses, said defenses are insufficiently plead as a matter of law and subject to being stricken by the court.

Edited by caramia1225
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You do realize that an affirmative defense is YOURS to prove? Did you just throw in the laundry list of defenses and leave it at that or do you prove or at least start the process with discovery to prove YOUR defenses.

Generally speaking, and I get grief for this, but stand by it 100%, 95% of affirmative defenses, in a credit card case, are garbage. They have no legal basis and some have been ruled by the U.S. Supreme Court in favor of the creditor.

I see some good arguments, but why in the world you would list them as an affirmative defense and switch the burden from them to you, I simply can't even comprehend, just makes no sense.

It's like a criminal defendant that is guilty as sin and on tape committing the crime deciding to take the stand to "prove their side."

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You do realize that an affirmative defense is YOURS to prove? Did you just throw in the laundry list of defenses and leave it at that or do you prove or at least start the process with discovery to prove YOUR defenses.

Generally speaking, and I get grief for this, but stand by it 100%, 95% of affirmative defenses, in a credit card case, are garbage. They have no legal basis and some have been ruled by the U.S. Supreme Court in favor of the creditor.

I see some good arguments, but why in the world you would list them as an affirmative defense and switch the burden from them to you, I simply can't even comprehend, just makes no sense.

It's like a criminal defendant that is guilty as sin and on tape committing the crime deciding to take the stand to "prove their side."

Colt, would you at least reserve the right to add affirmative defenses as needed? If so, what's the best way to word it?

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Colt, would you at least reserve the right to add affirmative defenses as needed? If so, what's the best way to word it?

Read your rules regarding defenses that can be waived. If those defenses don't apply to your case, don't worry about them. In most states, standing to sue, for instance, is a defense that cannot be waived. If that's the case in your state, you can claim it later on in the process, but before an appeal.

Edited by BV80
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The best defense is the one you raise at trial. Special defenses are contingent upon certain provable facts which would vitiate the plaintiff's claim even if it were true. Your defense will be that they cannot prove their case by admissible evidence. You will call into question all their robo signed garbage affidavits and unsupported paperwork. What else do you need?

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Me personally? No, because lack of standing can't be waved (in my state and how it is in just about every court). Statute of Limitations would lead to a dismissal so would have already gotten the case dismissed if that applied.

So no, I would not resevere my right for anything. Keep in mind, the rules dictate what can and can't be done. For example, if I say I reserve the right to file arbitration on this case, then two months into the case file for arbitration, it's getting denied. My "reserving the right" means/meant jack crap. The rules of procedure dictate what can and can't be done.

However, to your original questions, no, I would reserve nothing because in 99% of these cases lack of standing, which I can't be waved, is all that is relevant. All other affirmative defenses are just losing arguments.

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