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Affirmative Defenses?


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I was in a time crunch and filed my answer with affirmative defenses (with the help of a friend with a legal background) but I'm having second thoughts...can someone reassure me or should I file a leave of court to amend my answer?

Affirmative answers:

Defendant is informed and believes, and thereon alleges, that Plaintiff's action is barred by the Statute of Limitations.

Defendant is informed and believes, and thereon alleges, that Plaintiff is barred from recovery by the doctrine of lathes.

Defendant is informed and believes, and thereon alleges, that Plaintiff's action is barred by reason of his failure to perform his obligations under the contract.

Defendant is informed and believes, and thereon alleges, that Plaintiff's alleged debt should be offset against monies owed by the Plaintiff to this answering Defendant.

Defendant is informed and believes, and thereon alleges, that the alleged contract lacked consideration.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void as a result of Defendant's lack of capacity to contract.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because of Plaintiff's undue influence upon this answering Defendant.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because of Plaintiff's misrepresentations to this answering Defendant.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because of duress.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because it violates the public policy of the State of California.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unconscionable and therefore unenforceable.

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It could hurt that you don't know what some of them mean. It may not. Regardless, you need to start learning what they mean NOW. That way, if you're challenged on any of them, you can know whether to fight like hell or to focus your time and energy elsewhere.

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Thanks...I'll start looking those up now.

I'm just wondering if it gets to trial, I show all their "evidence" is hearsay and they really have nothing, but I lose because I don't have the right affirmative defense. Is that how it works?

I mean, I had to fill out the answer and list affirmative defenses with no information attached to the complaint, just that I was being sued for an amount allegedly defaulted on.

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I'd use:

Lack of Standing. Plaintiff has failed to prove ownership of the alleged account with standing to sue.

Lack of Privity. There is no contract or agreement between Plaintiff and Defendant.

Statute of Limitations. Plaintiff has failed to provide evidence that the alleged debt is within the statute of limitations for collection.

In my opinion, most of your defenses are iffy. For instance, how is the contract unconscionable?

"Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void as a result of Defendant's lack of capacity to contract." That defense means you, the Defendant, do not have the ability to be a party to a contract.

"Defendant is informed and believes, and thereon alleges, that Plaintiff's alleged debt should be offset against monies owed by the Plaintiff to this answering Defendant." Money owed to the Defendant? What money do they owe you?

Also, when you claim an affirmative defense, you have to be able to back it up in some way. Can you back up any of the defenses you listed?

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How would I back them up? What if the plaintiff doesn't motion to strike them? Would I have to back them up during trial?

What about those who just submit a general denail with no affirmative defenses?

Assuming, like many on this forum, the platiff produces some BS bill of sale and assignment and a few random statements, would my affirmative defenses hurt my case if I didn't list the "correct" ones?

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How would I back them up? What if the plaintiff doesn't motion to strike them? Would I have to back them up during trial?

What about those who just submit a general denail with no affirmative defenses?

Assuming, like many on this forum, the platiff produces some BS bill of sale and assignment and a few random statements, would my affirmative defenses hurt my case if I didn't list the "correct" ones?

If a judge asked you to explain them, you'd have to be able to do so. Read your court's rules of civil procedure regarding answers and pleadings. Some court rules state that if you don't claim a defense in your answer, you can't use it later. Your court rules may not state that, so it wouldn't be a problem to use other defenses later.

Look for posts by calawyer. They're very informative, and some of them include links to CA court forms.

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Remember, affirmative defenses are ones that you will have to prove.

If you don't know what they mean, you're probably not going to be able to prove they are valid.

I'm personally not a big fan of throwing every affirmative defense under the sun out there, but that's just me...

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Prove? Isn't the burdon of proof on the plaintiff? How does one "prove" the debt/credit card isn't theirs?

By the way, I've learned what each means, only took 15 minutes.

The biggest problem with asserting affirmative defenses that do not apply is getting discovery from the plaintiff on them. "State all facts supporting your defense that the contract is unconscionable." "State all facts relating to your defense that Defendant lacked the requisite capacity to contract." You will end up objecting and providing little or no facts and the plaintiff may move to compel. Then you have to explain why you made the allegation in the first place.

You don't need a long list. Assert the defenses you think apply. If you later discover there is a defense that you want to assert but didn't, you can ask the Court to permit you to amend the answer to allege a new affirmative defense.

Good luck.

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thanks calawyer, I guess I'll cross that bridge when it comes.

Is having the "right" affermative defense that important? Would I lose my case if the plaintiff only offers hearsay evidence and I didn't list whatever affrimative defense that would apply? Is there a deadline to when I can ask for a leave of court to amend my answer?

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Amended pleadings in California « California Freelance Paralegal

Good info here. Part of it says:

Note that while an answer can be amended without leave of Court if a demurrer has been filed, if no demurrer has been filed, the answer can be amended as a matter of right only during the time that a demurrer could have been interposed (i.e., within 10 days after the answer was filed). See Code of Civil Procedure § 430.40(B).

Looks like you have ten days to amend the answer.

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Defendant is informed and believes, and thereon alleges, that Plaintiff's action is barred by the Statute of Limitations.

You will have to prove this, it should be easy if it is true. Not sure when the clock starts, probably the date the last payment was made.

Defendant is informed and believes, and thereon alleges, that Plaintiff is barred from recovery by the doctrine of lathes.

It's laches. This one doesn't work well in credit card cases. If the case was filed within the SOL, laches usually does not apply. You would have to show that there was an unreasonable delay in filing suit, and you were prejudiced by that delay somehow. (documents, witnesses, etc not available any longer for your defense)

Defendant is informed and believes, and thereon alleges, that Plaintiff's action is barred by reason of his failure to perform his obligations under the contract.

Throw this out, it's vague and probably doesn't even qualify as a defense. It would more properly be used as a counterclaim for breach of contract. I don't see the plaintiff here....is it the OC or a JDB? If it is a JDB you have no contract with them to enforce.

Defendant is informed and believes, and thereon alleges, that Plaintiff's alleged debt should be offset against monies owed by the Plaintiff to this answering Defendant.

This is called offset, but I think it requires a counterclaim for damages. Otherwise, there is nothing to offset. How does the plaintiff owe you monies?

Defendant is informed and believes, and thereon alleges, that the alleged contract lacked consideration.

Again, if it is a JDB, no contract exists, if an OC, I wouldn't use this one. They will argue that consideration occurred when you used their money to make purchases, etc. or that this is not a breach of contract case, etc.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void as a result of Defendant's lack of capacity to contract.

Vague and poorly written. Again, no mention of who the plaintiff is. If they are suing for breach of contract, which I doubt, they should have attached a copy to the complaint and summons. I see no grounds for lack of capacity to enter into a contract, that is usually reserved for minors. Contracts can be void ab initio for fraud, but that won't apply here.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because of Plaintiff's undue influence upon this answering Defendant.

Throw this out. Undue influence is something you use against professionals you hired and relied upon, like a lawyer who may have been a bit less than truthful with you and got you into a mess you otherwise wouldn't have gotten into. A credit card company has no fiduciary obligation toward you. They act in their own interest, not yours.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because of Plaintiff's misrepresentations to this answering Defendant.

What is the nature of the misrep? You will have to prove that one. This sounds in fraud, which usually must be specially pleaded. That means you have to show the elements of fraud and prove each one. They lied, you relied upon the lie, and damages resulted.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because of duress.

Throw this out. Duress is either physical or economic. Did they threaten you with violence to make you sign up for a Mastercard? Come on. Economic duress occurs when you enter into a deal you ordinarily would not enter into because you had no other reasonable alternative. This does not apply either.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unenforceable and/or void because it violates the public policy of the State of California.

Very unlikely to fly. This sounds in a counterclaim for an unfair trade practice, not a defense. You should look up the statute that applies in your state Titles. I doubt that it will cite policy as a reason to void a contract, especially a credit card.

Defendant is informed and believes, and thereon alleges, that the alleged contract is unconscionable and therefore unenforceable.

Unconscionability so shocks the conscience of a normal consumer that he would otherwise not enter into the contract, and it affords terms that are so one sided as to provide an unfair advantage to one side. Again, this is a basis for an unfair trade practice. Usury is a good grounds for this, but usury does not apply to credit card companies generally, as they are exempt under the National Bank Act.

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Gabbie,

All have offered great insight, as you move forward, you should refrain from submitting to the court information that you don't understand or know what it means.

As far as amending, this being a JDB, I would not be concerned. The burden of proof is really on them to prove the case. They have not planned for a full scale battle that takes this to trial. Their first plan was default judgment because you failed to answer.

In most cases they will send you discovery and try to get you to answer in a way that proves their case, for them by admitting in some way to the debt. Or by not answering in a timely manner. I would be very suprised if they challenged your affirmative defenses, because this would mean they actually read your answer.

If they are true JDB, they are filing 100's of lawsuits each and every month knowing that less than 5% are going to file an answer. You start doing some math and you will see that a real attorney will not reviewing your case up and until you force this to the Summary Judgment stage.

So if you have an answer filed, stick with it. In the meantime start reading and trying to get your arms around how the process works. Justice moves very slow in California, if you review your summons you should find that your trial date is around a year away in most counties.

To stay ahead of the process, begin looking at how folks answer discovery questions to become familiar, also begin to look at posts related to "Bill of Particulars". CALawyer has done a great job in helping us here on how to use this Civil Procedure as part of discovery for us defendants.

Best of Luck

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Thanks all for the help!

I was running out of time to file an answer and sought the help of my friends father who is an attorney, he had his assistant help with the answer and affirmative defenses. Count this as a lesson learned to do things myself (if there's a next time).

I've already sent out the BOP, so we'll see what the JDB comes up with.

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Remember, affirmative defenses are ones that you will have to prove.

BINGO

If you don't know what they mean, you're probably not going to be able to prove they are valid.

Not just affirmative defenses, but pleading anything you don't know what it means is not a good idea. It can and will damage your credibility that you will need further down the road. It can also cost your checkbook if the court deems your arguments frivilous.

I'm personally not a big fan of throwing every affirmative defense under the sun out there, but that's just me.

No, it's not just you.

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Not just affirmative defenses, but pleading anything you don't know what it means is not a good idea. It can and will damage your credibility that you will need further down the road. It can also cost your checkbook if the court deems your arguments frivilous.

This.

I would expect a judge to cut you more slack if you had looked into it and had a mistaken understanding than if you had no understanding at all. I would also expect a judge to cut you more slack if you did what you did, but were rapidly learning how to handle yourself and what those defenses mean.

Take your laches defense, for example. It's traditionally considered an equitable defense. In order to make that work, you're going to have to convince the court why the statute of limitations isn't good enough, why it applies to your case, and why the line crossing over into equitable defenses is blurred enough to allow it in a credit card case. Laches is a lot like a statute of limitations, but you would have a much more uphill battle to get a judge to consider it. It simply isn't going to apply to 99.9% of credit card cases and those few that it may apply to, the defendant is going to have a lot of work to do.

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But isn't this assuming the plaintiff PROVES this debt is mine and they legitimately own it?? Isn't it, then, that I would have to "prove" my defenses? If they have no case at all, then why would I need a defense?? :confused:

Correct. They have to prove that they have a case. The burden of proof is on them to do that. If they can't prove they have a case, you win (if you do everything right).

Remember though, in small claims and courts of limited jurisdiction, the judge is likely to cut them an awful lot of slack.

If they do prove it, the burden of proof is on you to prove your affirmative defenses are valid. And more than likely, they are not, which doesn't help your credibility any.

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If they have no case at all, then why would I need a defense?? :confused:

You got it, Exactly :!::!::!::!::!::!::!:

If they have a witness from the creditor in court and a witness that can establish they own the debt, what really is your defense. Your toast at that point. You don't have a defense, but like you said, if they have no case (with admissible evidence), then you lack of a defense does not matter.

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Every situation is different, but it appears to me that most that are successful on this forum are because they were able to pick apart the plaintiff's evidence/case and not because they had a good affirmative defenses....think that's a fair assumption?

That is 100% correct, at least my personal experience and the cases of others I have followed.

It's like a criminal court case. The jury does not find the Defendant innocent, they find them not guilty. Read some interviews with the Casey Anthony jurors. None of them thought she was innocent, they said the prosecution just not meet their burden of proof.

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