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Let's have a discussion on affirmative defenses

95 posts in this topic

(newbie here)

@ ASTMedic: whats's the latest? I.e. result of your PLD-050 filing?

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Thank you. WHAT a READ. I really appreciate your responses. I filed a general denial and included a small handful of affirmative defenses.

However, even after so much research now I'm wondering if I made a mistake including any affirmative defenses at all.

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@the brat

Don't worry about the affirmative defenses or second guess yourself there. Any affirmative defense you cannot prove will have the same effect as if you did not assert it in the first place. You should understand what they mean and how to argue them; but you have more important things to be concerned about.

The judge will usually not even inquire about an affirmative defense until you have already lost the case; so if you can't prove one it will be moot anyway.

Good Luck..

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@Anon Amos:

 

thank you so much for your response. This forum helped me change my course of action in how to respond and what to/not include. I then whittled down to the most relevant/able to prove that would lead to dismissal.

 

I didn't want to load the deck just to see what would stick. 

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Filed my Answer and related docs w/the Court (Notice of Appearance, Proof of mailing, etc.) w/fully copy to Attorney (Cert/RRR of course). Filings were posted on the Court site.

 

Now I wait? Send RFP of supporting docs? Nothing was sent w/my S&C.

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I'm not sure the courts would buy all these abstract "laches", "unclean hands" and "lack of privity" ....

 

Three years ago I met a Judge pro-tempore on my pre-trial who asked me: "What facts do you have ?"

 

Judges usually want real and BIG facts, otherwise they are happy to railroad Pro Se ...

 

In my case with Sallie Mae I'm trying to be more specific (I'm still in the middle of my Answer writing):

 

1. According to the NOTICE

(in your response you don't need to quote it...)

 

"ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER."

 

 

on the 3rd page of Promissory Note (“Note”)
(Defendants’ “Exhibit A”) made pursuant 16 C.F.R. § 433.2 “Preservation of consumers’ claims and defenses” (“FTC Holder Rule”) and A.R.S. § 47-3302(G) the Plaintiff’s rights as the Holder in Due Course are limited.

...... 

3. In the Loan Application, the YYY school's employee John Doe (who induced the Defendant to submit his Loan Application to Sallie Mae) falsely altered  “Employer name” from "None" to "SELF" committing forgery as it defined in A.R.S. 13-2001(5) and ARS 13-2002(1) (Defendant was unemployed that time and had no co-signer which Sallie Mae usually requires from unemployed applicants) .... to circumvent "no co-signer" problem ....

 

4. In the same Loan Application and "Repayment Schedule and TILA Disclosure" the Loan Disbursement Date is stated
as ... 3 days earlier that Date of Sign (when Defendant had seen them the first time) that violates
12 CFR 226.46(d)(2) "Special disclosure requirements for private education loans":

"Approval disclosures. 
The creditor shall provide the disclosures required by § 226.47.... before consummation on or with any notice of approval provided to the consumer."

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edited by GDayMateAZ

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What about "Wrong Defendants" ?

 

This Complaint is misplaced because it names the Wrong Defendants.

 

The school (for-profit) XXXX and its employee YYY must be named as Real Defendants

whose material misrepresentation caused this Complaint.

 

The whole Promissory Note (“Note”) and this Complaint became possible exclusively due to material misrepresentation (as it is defined by A.R.S. §§ 13-1801(8) and 13-1802(A)(3)) of the school's employee Mr. YYY
 who under false pretensions (that moneys were disbursed by Plaintiff to the school as early as Date1)
obtained the Defendant’s signatures by deception (as its defined by ARS 13-2005) on Date2 three days later.

Such misrepresentation had effect of Undue Influence and made the Defendant to believe that he became contractually obligated to Plaintiff even before signing the Contract and
so Defendant had no choice other than to sign Contract even in spite of such Contract that would not benefit the Defendant who:
i) was Unemployed with money running out;
ii)  was looking for full-time position with possibility to relocate to other state where this school was not presented.

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Can we talk about Accord and Satisfaction under Affirmative Defenses?

 

I recently "won" a debt suit brought against me by MCM. I won... I mean they didn't show at court date and case was dismissed as Plaintiff failed to pursue litigation. Statute of Limitations expired and no further litigation will occur.

 

My question is: the originator of the credit card was paid 80% of alleged default account. This, I assume, was an insurance policy issued by a commercial insurance carrier. Most, if not all, insurance companies have what is called a subrogation clause. Once payment (80%) paid by the insurance carrier they become subrogated to rights, claims of the credit card company to which a claim has been paid. This infers the credit card company has no right to sell, assign debt amount that has been subrogated to the insurance company. That right now belongs to the insurance company which, to my knowledge, has never pursued those potential claims.

 

I have not seen any forums that discuss this topic. It would be nice to see an actual insurance policy that the credit card companies have to protect them vs. default.

 

Is my reasoning on the right page, i.e., an affirmation defense of Accord and Satisfaction would come into play (the 80%)? And, the junk debt dealer has no legal standing for the 80%.

 

Incidentally, the other 20% was probably an IRS write-off.....another topic.

 

Wes   

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My question is: the originator of the credit card was paid 80% of alleged default account. This, I assume, was an insurance policy issued by a commercial insurance carrier. Most, if not all, insurance companies have what is called a subrogation clause. 

Wes,

     Where did you get the information about 80% of the default being paid?

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From this site.

 

The question is: if in fact there is an insurance policy that covers 80% of defaulted account, is there in fact a subrogation clause? only A COPY OF A POLICY would show that....

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@wesley brown  The only insurance that I am aware of would be a death or disability type plan taken out in case the borrower wasn't able to complete the terms of the account.  I don't know of any other...not to say there isn't.  

 

@BV80   @Clydesmom   Ever heard of anything like this??

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I'm not talking about insurance on the borrower.....I'm talking about commercial insurance the credit card company takes out to protect them against default by the borrower.

 

Is there any commercial insurance agents/underwriters out there that know what coverage creditors take out to protect themselves vs. default?

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You can buy insurance that will make your payments for xx number of months for things like hospitalization, short term disability. My parents have it, and have used it, but it isn't for any long term solutions.

The poster was referring to the crap that guy on hubpages says. His stance is you don't owe the credit card debt if the OC charged it off because they receive a payout from insurance. I do not believe the insurance the big banks buy pays for defaulted debt.

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That is what is known as a credit default swap. It is not an insurance company but another lender who covers the debt for pennies on the dollar and proceeds to sell the accounts. That is my understanding of what happens.

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Improper forum is an affirmative defense to use when arbitration is in play. but instead of an answer you would have to motion to quash the complaint.

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Good to be back. My wife gnarfled the Garthug and won. She kicked the "C" words azz.

 

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