Let's have a discussion on affirmative defenses

[nobk4me]

My concern is that if an affirmative defense is not pleaded, that issue cannot be raised on appeal.

Look at Asset Acceptance v. Proctor, an Ohio case:

http://www.sconet.state.oh.us/rod/docs/pdf/4/2004/2004-ohio-623.pdf

This is the issue Proctor raised on appeal:

Proctor appeals and asserts one assignment of error: “The trial court erred in granting

the motion for summary judgment in that there was not sufficient proof by the appellee of its damages.”

And that's something Asset should have the burden of proof on, right? Even if the defendant raised no affirmative defenses?

But read further:

Asset next contends that Proctor claims that he made payments. It maintains that

payment is an affirmative defense that Proctor did not assert. We disagree. “Payment is an affirmative defense and must be proved by the defendant.” [citations omitted] However, Proctor did assert in his answer the defense of “accord and

satisfaction,” which involves payment. Hence, we find that he did not waive this affirmative defense.

and here:

Proctor never admitted that he received periodic statements. In the request for admissions, he stated that “I received some statements, but not since 1994.”

Hence, we find that there is a genuine issue of material fact on whether Proctor waived the right to challenge the balance due. We further note that Proctor raised the affirmative defense of laches.

It looks to me as if the appellate court would have ruled for Asset had the defendant not raised those affirmative defenses.

[Coltfan1972]

In regards to the statement that I have put in bold, how would I find out if this applies to my state? Is this something that would be found in case law?

Kentucky is the only state I know of that might have this. However, I've never really studied KY law on the matter.

[Coltfan1972]

Nice discussion going and very informative. In my opinion, people have solid arguments but then plead them as an affirmative defense. Standing is a perfect example, I'll try to dig up an old post that was about two pages worth of reasons not to plead it as an affirmative defense.

The cliff notes version, it's a key element the other party must prove in their case. It's understood a person suing must have standing. The party being sued can't conceed standing. They don't have the info and are not privy to the info to even concede standing. Therefore you can't wave the right to argue standing because you don't plead it as an affirmative defense.

It's an element that must be proven by the other party. Your not required to raise the issue of the other party not proving an element via an affirmative defense. It's contract law. The party suing must have standing.

You attack it to death ! However, you don't plead it as an affirmative defense. You don't have to prove they don't have standing. They have to prove they do have standing. It's the key element for their case. It must be proven for them to win. Your under no requirement to prove they don't have standing. You never prove they don't have standing, you just aruge they did not prove they did have standing.

It's like being not guilty. It does not mean innoncent. Same thing. It does not mean they don't have standing if they can't prove their standing. It means they can't prove it with admissible evidence. So why filp the burden to yourself. Let them not meet their burden and then the issue if they ever had standing or not is moot. Don't offer to disprove something they most likely can't prove anyway. It's not good strategy and it is not required to be pled or you loose the right to argue it.

[DonqIII]

If you do not use affirmative defenses then would that not say

you have nothing to counter the complaint to the court and a judgment of some type should be granted to the plaintiff if asked for?

In addition, if you have no defenses for a court, then you also would have no defenses

to a claim or counter claim if it makes it into arbitration, is that not correct?

I will grant you all who are against the affirmative defense angle that

no all "affirmative defenses" are appropriate for all cases.

But if you feel comfortable enough that you could stand in front of a judge and argue whatever and have a full discussion, what is wrong with this?

The following information came from a site that I was checking out for the state of TE regarding a credit card lawsuit and it came under the heading Pro se and how to answer.

While this is an answer... not defenses.... this was done by an attorney...

Would any of you answer like this?

ANSWER

Comes the Defendant and answers the Complaint of Plaintiff as follows:

1. The Defendant acknowledges that she has an account with Plaintiff; however, Defendant disputes that the amount she owes Plaintiff equals the relief sought in the complaint. In particular, the amount sought by Plaintiff appears to include excessive interest charges (the effective annual rate of interest is NOT readily apparent from the documents filed by Plaintiff) and attorney fees designed to exploit profits at the expense of unsuspecting members of the general public.

2. Defendant has rights under the Fair Debt Collections Practices Act, 15 U.S.C. 1692(g) (2002), that must be respected by this court. In particular, Defendant hereby demands verification of the debt, and a strict accounting of all interest and fees charged by Plaintiff expressed in an effective annual percentage rate, so that she can determine whether the Plaintiff is charging usurious and unenforceable amounts of interest and fees.

3. The Defendant is suffering severe financial hardship but does not wish to file bankruptcy. She has engaged the services of a for-profit consumer advocate organization, Knockout, which is authorized to attempt settlements of Defendant’s debts on behalf of the Defendant. Defendant is trying to save up enough through Knockout to settle this claim out of court.

4. Defendant has set aside funds each and every month in a fund with Knockout debt resolution company, but she has insufficient funds as of today to settle this account. If the plaintiff does not cease its collection action, Defendant will be forced to file for bankruptcy, and Plaintiff will receive far less from a bankruptcy trustee than what Knockout would offer as settlement.

5. Plaintiff, being fully aware of Defendant’s financial situation, could and should have granted Defendant more time to accumulate funds for settlement, as they have been doing business for many years. Instead, Plaintiff refused to work with the Defendant or her representative and proceeded to charge the Defendant more than what she was legally obligated to the Plaintiff.

6. Defendant was hit with unfair surprise by the demand for the bank’s attorney fees of more than $5,000. Any contract provision calling for the transfer of attorney fees was buried deep within the legalese of the credit card agreement. Tennessee law requires a prominent display of such terms in boldface to alert consumers to this potential fee transfer, before it can be enforceable in a court of law.

WHEREFORE, Defendant prays that judgment for Plaintiff be denied at this time, so that Defendant may have additional time in a sincere attempt to settle this matter and avoid the necessity of filing for bankruptcy. Respectfully submitted this ___ day of May, 2005.

OR LIKE THIS?

ANSWER

Comes the Defendant and answers the Complaint of Plaintiff as follows:

1. The Defendant acknowledges that she has an account with Plaintiff; however, Defendant disputes that the amount she owes Plaintiff equals the relief sought in the complaint. In particular, the amount sought by Plaintiff appears to include excessive interest charges (the effective annual rate of interest is NOT readily apparent from the documents filed by Plaintiff and the 19.8% annual interest is not the effective annual interest rate with monthly compounding of interest), $2,524.25 in attorney fees, and additional fees designed to exploit profits at the expense of unsuspecting members of the general public. In particular, Defendant was not aware of any contract terms that required her to pay the bank’s attorney fees. Any contractual terms calling for Defendant to Plaintiff’s attorney fees were buried within the legalese of the credit card application and were not prominently displayed in boldface type. Tennessee law requires a much higher standard of disclosure to consumers before discretionary costs, such as attorney fees, are passed on to the opposing side.

2. Defendant has rights under the Fair Debt Collections Practices Act, 15 U.S.C. 1692(g) (2002), that must be respected by the General Sessions Court of Davidson County. In particular, Defendant hereby demands verification of the debt, and a strict accounting of all interest and fees charged by Plaintiff expressed in an effective annual percentage rate, so that she can determine whether the Plaintiff is charging usurious and unenforceable amounts of interest and fees.

3. The Defendant is suffering severe financial hardship but does not wish to file bankruptcy. She has engaged the services of a non-profit consumer advocate organization, which is authorized to attempt settlements of Defendant’s debts on behalf of the Defendant.

4. Defendant suffers financial hardship because she was laid off from two jobs within the last year and could not find one for two months. She began working in January, and was laid off again in July. Again, she was out of work for four months and was receiving unemployment. She did temp work, but it was not enough to pay all of her bills. Through no fault of her own and due to expenses and limited income associated with economic conditions beyond her control, Defendant fell behind on her payments to Plaintiff.

5. Defendant has set aside funds each and every month in a fund with this non-profit consumer advocacy organization, but there are not sufficient funds at present to settle this case. Plaintiff, being fully aware of her financial situation, could and should have worked with defendant to set up a payment plan, as they have been doing business for many years. Instead, Plaintiff refused to work with the Defendant or her representative and proceeded to file suit against the Defendant.

WHEREFORE, Defendant prays that judgment for Plaintiff be denied at this time, so that Defendant may be given her statutorily guaranteed right to a strict accounting of all charges and fees on this account, including the effective annual interest rate.

I would not and I doubt anyone here would either.

But I also think there need to be affirmative defenses if for no other reason

then to let the other side know that you are not going to lay down and roll over.

[nascar]

The purpose of affirmative defenses is to conserve judicial resources by requiring parties to raise them early in the proceedings. That's all, nothing more.

[Seadragon]

these have to be plead against using common law defenses ie affirmative defenses. The court in my case did not even address the affirmative defenses

even though the court was ruling on common counts they didn't address any of my affirmative defenses.

BUT I was glad to put them in their because they helped me to flesh out a better defense.

So what, if we don't know what they are? without them and they should have been there we will be shafted.

For the record I am gonna put them in I recommend you do as well.

[Seadragon]

My concern is that if an affirmative defense is not pleaded, that issue cannot be raised on appeal.

Look at Asset Acceptance v. Proctor, an Ohio case:

http://www.sconet.state.oh.us/rod/docs/pdf/4/2004/2004-ohio-623.pdf

This is the issue Proctor raised on appeal:

Proctor appeals and asserts one assignment of error: “The trial court erred in granting

the motion for summary judgment in that there was not sufficient proof by the appellee of its damages.”

And that's something Asset should have the burden of proof on, right? Even if the defendant raised no affirmative defenses?

But read further:

Asset next contends that Proctor claims that he made payments. It maintains that

payment is an affirmative defense that Proctor did not assert. We disagree. “Payment is an affirmative defense and must be proved by the defendant.” [citations omitted] However, Proctor did assert in his answer the defense of “accord and

satisfaction,” which involves payment. Hence, we find that he did not waive this affirmative defense.

and here:

Proctor never admitted that he received periodic statements. In the request for admissions, he stated that “I received some statements, but not since 1994.”

Hence, we find that there is a genuine issue of material fact on whether Proctor waived the right to challenge the balance due. We further note that Proctor raised the affirmative defense of laches.

It looks to me as if the appellate court would have ruled for Asset had the defendant not raised those affirmative defenses.

Excellent example for inclusion the affirmative defenses. And why did the trial court not come to the same conclusion? They don't care to spend the time to allow it.

[Coltfan1972]

If you do not use affirmative defenses then would that not say

you have nothing to counter the complaint to the court and a judgment of some type should be granted to the plaintiff if asked for?

Heck NO. It would say, hey you sued me so get your crap together and try to prove it because I'm not helping you one single bit. I don't have to have a defense. My defense is you have no case. My defense is you can't meet your burden.

If you tell me today is Tuesday, guess what, I'm not pulling out a calender and showing you it's Monday. I'm telling you to prove it's Tuesday since you made the allegation. I could easily prove it's not Tuesday but why should I, your the one claiming it's Tuesday not Monday.

You want to sue me, fine, take your best shot but you better be coming with more than some written allegations and hearsay. If you think your going to force me to prove your not right, your crazy. I don't even care if your right. If you can't prove it, you lose. I'll sure as hell lead you down and assist in letting you hang yourself and lose, however, I'm not about to assist you in defeating me.

[BV80]

Excellent example for inclusion the affirmative defenses. And why did the trial court not come to the same conclusion? They don't care to spend the time to allow it.

Whether or not certain defenses are waived if not raised in the answer could be a matter of each state's court rules. There's case law that states the issue must be raised "at trial" in order for it to be addressed in appeal. "At trial" doesn't necessarily mean in the answer to the complaint. However, I'll concede that, just in case, it is better to state "Lack of Standing" as an affirmative defense. If a defendant knows for sure that the account is outside the SOL, then including that defense goes without saying.

I'm not convinced about the other defenses however. If the JDB can't prove ownership of the debt, then they've failed to prove standing, and that's all that's needed.

[Coltfan1972]

You better not be filing a laundry list of affirmative defenses if your in Federal Court. The court will hit you with sanctions and atty fees if you don't have a good faith basis to plead them. Wanting perserve them for appeal is not a good faith basis.

[Coltfan1972]

I found my older post on lack of standing. It's my two cents so give it whatever weight you so choose. It's the arguments and legal strategy I use. It works for me.

Originally Posted by BV80 View Post

If a Defendant doesn't include affirmative defenses in his answer, would that motivate the JDB to go ahead a file a MSJ?

In my opinion, the complete opposite. I would be much more inclined to file for SJ if a ton of defenses that had no merit were argued. I'd ask in discovery for the legal basis of the defenses. There would be none. Get the defense(s) struck, knock out your defense(s) with that motion and then move right to summary judgement.

I'd attach my discovery to the motion. I would argue, per the other sides own lack of being able to meet their burden, since they volunteered to flip the burden, they have no defense and I should win by summary judgement.

An argument that could still be defeated but why in the world put yourself in that position.

Originally Posted by BV80 View Post

Also, if the defense of standing is not pleaded, does the Defendant waive the right to claim it?

No way. As I posted above, standing is a fundamental key element to any contract case. You don't have to raise the issue in the initial pleadings. It's part of a contract case, every contract case. You don't concede standing unless you make a procedural or discovery answer error.

In a criminal case the Defendant pleads not guilty. It is then understood the elements of the crime must be proven. After the prosecutor finishes the case if they have not met all the elements (by prima facie evidence) the defense can then move to dismiss.

You do that in a civil case also. You move to dismiss at the end of the Plaintiff's case if they did not meet prima facie evidence for all the elements of the case they must prove. Standing is the key element.

If you attack it via objections as hearsay, assuming you did not wave that objection by not attacking it prior, based on how the other side handled discovery, your knocking out even the low standard of prima facie evidence of standing.

It is the reason at a trial I told the Judge to speed this up let me admit 100% to liability of the debt. Let's just have this trial based on the the issue of standing.

That is when they pulled out all the hearsay and bogus business records to hearsay arguments. I never had an affirmative defense of standing. To be honest, as highly ticked at me as the other side was, even they did not argue to the judge I was springing the issue of standing at the last min. Even they had to concede it is something unspoken they must prove. It's just part of the case.

It's true my strategy is see you in court and keep my mouth shut and let you think your winning but really just putting the rope around your neck. Let me say 100% on the record there is nothing wrong with the buy them the rope strategy. It's strategy and everybody has there way and what works or they thing works for them. I'd just rather kick your a$$ in court.

However, if required I simply raise a pre-trial objection. That will be if the rules require such objection or the evidence is deemed undisputed. That is a huge difference from initially pleading an issue and then not being able to raise an objection. I'll raise the objection when the issue is ripe to be raised. The issue is not ripe to be attacked until the party with the burden presents an argument. Then it's time to seek, destroy, and unload a nuke on their case and argument.

I'll have my finger on the nuke button. I'll push it when needed. It's a defense as needed strategy until court. Then it's bomb them back to the stone ages.

I've also attacked standing without offically stated I'm attacking standing. I do it in discovery. I'll ask for any document, contract, invoice, bill of sale, or any other thing or things the other side will or attempt to introduce at trial.

Once again, standing being a key element of the case, there has to be some document or bill of sale to establish that standing. So I did raise the issue in discovery. I'm not required to say, please provide me the assignment of this debt so I can determine if you have the legal standing to be suing me.

Bottom line, in my opinion, there is a huge difference in pleading lack of standing and attacking lack of standing. I stand by the statement it does not need to be initially pleaded, but yes does have to be attacked, but when the time is ripe.

Originally Posted by BV80 View Post

I've read case law in which Defendants appealed a judgment raising a defense they didn't claim in the first trial. The appeals courts stated that they could not raise a defense in appeals that they didn't raise originally. Does that apply to standing?

Yes !!! However, not raising a defense is totally different from not raising the issue in the initial pleading. You dang sure better raise the issue at a pre-trail, when necessary, in objection pleadings, or at the trial. You just don't have to raise the issue on the front end.

For example, the JDB custodian of the records is on the stand and testifies they own the debt. If you don't hammer them on cross and object as hearsay to any documents, then hell yes, if you raise that issue on appeal your going to lose and lose badly.

What the other side can't do is, when your crossing the witnesses, say Your Honor this is the first we have been made aware the Defendant would be attacking standing (assuming there was no need pre-trial). We object to them disputing standing at this point.

No way, it's a key element. The Defendant has no way to know the true standing until they explore the issue, at trial, unless they deposed witnesses. The Defendant does not have the records and is not a party to the alleged sale of the alleged account. How could the Defendant even concede standing without a proper inquiry, they aren't privy to the records and any records produced in discovery can't be cross examined, there pieces of paper. The time to attack is at trial (keeping in mind all rules of evidence pre-trial have been properly done).

You can't concede they have standing when you were not a party to the alleged sale of the account. What that letter the JDB writes that says we now own this account is good enough. Nope, I already wrote about my you owe me one million dollars Your Honor stunt.

Originally Posted by BV80 View Post

I see your point and agree with it. I had never looked at it that way before.

I'm not an atty, but I've never had anybody present a single case, where the Defendant complied with the rules of procedure and evidence, be denied the right to attack standing if it was not specifically pleaded in the initial answer.

It's just as important to a contract case as somebody being killed is to a murder case. It's understood the prosecutor is going to have to prove somebody was killed to get a murder conviction. The prosecutor can't argue the Defendant did not raise the issue somebody was not killed, but only said they were not guilty. Pleading not guilty or denying a civil lawsuit claim, throws the burden to the other side. Part of that burden is key elements, depending on what the case is about.

Originally Posted by BV80 View Post

But we know that not all judges are fair.

Maybe, but I've never had even a remote issue. Go by the rules of procedure and evidence and I would bet 99% of the time it works out. Not works out where you win, but the judge makes the right decision.

Originally Posted by BV80 View Post

It just makes me wonder leaving out such a defense could end up hurting the Defendant if, heaven forbid, he had to appeal.

Like I said, I've never seen a single case where this happened. That is assuming the rules were followed and the issue was raised when the issue was ripe to be raised. As I stated above, I agree 100% you can't raise new defenses and issues that were not raised at the lower court level.

All the appeal court case rulings against standing for the JDB, involve the overturning of a raised objection at the lower court level. I've never seen an appeal not granted or even a JDB argue to the appeal court, the Defendant did not properly raise the issue of standing by not pleading it affirmatively or including the specific defense of standing in the answer to the lawsuit.

By answering the lawsuit and conducting discovery, your addressing the issue of standing. Your not just addressing standing, your addressing all the elements of the case they must meet.

With all that being said, other than a huge tip off to the other side, it's not wrong to specifically deny standing. However, in my opinion, it's a huge error to plead it as an affirmative defense. You just flipped the burden of proof and told the court you will prove something the other side must prove and usually can't prove. That is a huge, huge, error in my opinion.

[nascar]

I think "Lack of Standing" is the Achilles heal of JDB cases.

In federal court and a substantial number of states, "lack of standing" is not recognized as an "affirmative defense." A few states, Illinois for example, recognize standing as an affirmative defense. Similarly, "failure to state a claim is not an affirmative defense in North Carolina, where, in Ohio, it is.

In any event, lack of standing doesn't really deserve the attention or concern it's being given here. If you refer back to my post at #10 in this thread, you'll see the "required elements" in establishing standing, or lack thereof.

First, the plaintiff must have suffered an injury. Second, the defendant must have a causal connection to the injury. Third, the court must be in position to grant the requested relief. An issue over and above that will likely relate to jurisdiction and venue. (dealt with under Rule 12)

When the complaint alleges the defendant obtained goods and services from the defendant, did not pay for them, and is entitled to a judgment in its favor, the plaintiff is, for all practical purposes, alleging the elements of "standing."

When you properly deny the allegations in the complaint, you are not only denying the plaintiff is entitled to the relief sought, you are also denying "standing."

[nascar]

Pleading not guilty or denying a civil lawsuit claim, throws the burden to the other side.

Not necessarily. Of course, in criminal proceedings, the burden is always on the state. The defendant need not say a word.

In civil proceedings, simply denying a claim does not always "shift" the burden to the other side. Recall, the threshold of "proof" in a civil action is preponderance of evidence. That amounts to nothing more than one party offering enough facts to convince a fact-finder that his story is more likely true than his opponent.

If a plaintiff offers up statements, cancelled checks, etc., and all the defendant does is "deny" the account was his, a reasonable fact-finder is not going to fall on the side fo the defendant just because he "denied" the plaintiff's claims.

[DonqIII]

This is a copy and paste from the PA rules of civil procedure.

Answering a Complaint

Once the defendant is served with the complaint, she has 20 days to file her answer with the court. (Pa.R.Civ.P. 1026). The defendant's answer must admit or deny each paragraph in the original complaint. If a defendant fails to deny a claim or averment of fact in her answer, the claim will be considered admitted by the defendant. (Pa.R.Civ.P. 1029(. Additionally, the defendant should state any counterclaims or affirmative defenses in her answer under a separate heading titled new matter. (Pa.Civ.P.R. 1030(a), 1031).

So. My question is.... if I do not use any of the affirmative defenses

that have been used by so many all these past couple of decades, what should I use?

How about this possibility....

Rather then word it as an affirmative defense, could each point be slightly re-worded and states as a counterclaim.

Example...

Rather then say for example...

Statute of Fraud

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

This could be reworded as a counter complaint saying something like

Plaintiff is guilty of Statute of Frauds,

because under PA Rule 1002. Requirement of Original.

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, by other rules prescribed by the Supreme Court, or by statute.

Every statement that is common as a defense certainly could be restated as a counter claim.

Then the title could be changed to read not Affirmative Defenses.... but Defenses and Counterclaims.

[nascar]

Every statement that is common as a defense certainly could be restated as a counter claim

I don't think that is the case. A counterclaim alleges facts, which if true, entitle you to legal or equitable relief.

Just as the a violation of the FDCPA is not a defense to the underlying suit, it can, however, be the basis for a counterclaim.

[Coltfan1972]

When you properly deny the allegations in the complaint, you are not only denying the plaintiff is entitled to the relief sought, you are also denying "standing."

EXACTLY !! That one sentence is what I've been trying to drive home in the novel I had been writing on this issue. It's the law and a key element of the Plaintiff's case, to prove standing. One does not have to then turn around and argue standing as a defense. You have already done that with your answer to the lawsuit.

[Coltfan1972]

So. My question is.... if I do not use any of the affirmative defenses that have been used by so many all these past couple of decades, what should I use?

Care to post even one case, from any court in the country, over the last decade, where a Defendant used an affirmative defense, in a credit card case, that was not a statute of limitations defense and won solely based on that affirmative defense.

[Coltfan1972]

If a plaintiff offers up statements, cancelled checks, etc., and all the defendant does is "deny" the account was his, a reasonable fact-finder is not going to fall on the side fo the defendant just because he "denied" the plaintiff's claims.

What I mean is from the very start of the case the burden is on the other side. With what you just posted that is the other side starting down the road of proving their burden. Yes, a lot low threshold to prove, but still their burden to prove.

I agree with the above quote. However, my point is the Plaintiff offered up statement, cancelled checks, ect. Not the Defendant offered up proof or a defense on the front end. Yes, agree 100%, after the Plaintiff offers up their proof then and only then does the burden shift to the Defendant.

Even in criminal court, unless your O.J., at some point you better put up a defense if the State has met their burden. However, unless your pleading your insane, you let the State go first, then if they meet their burden you jump into the game.

Same with civil, at least make the Plaintiff meet their burden before you jump into the game. If they don't meet their burden just sit on the side lines and decline to participate. If you argue an affirmative defense on the front end, your in the game from the start, no matter how weak the other sides cases might be.

[usagi555]

I think it's worth reiterating that you should be able to articulate why you included the defense and how you plan on using it before you include it with your response. You might just have to explain why you included the defense to the court. Just imagine what a judge would think if your eyes glazed over when you were asked to defend placing the defense in your response.

[Coltfan1972]

So. My question is.... if I do not use any of the affirmative defenses that have been used by so many all these past couple of decades, what should I use?

It's not exactly apples to apples, but pretty darn close. See if this makes sense. In college me and several friends got some type of loitering or disturbing the peace tickets at a party. It was many years ago, don't remember. It was something you get a 100.00 fine for or be good for six months and it goes away. A minor step up from a parking ticket.

Being the smart college kids we missed the court date. I believe we had more important matters going on, such as, sleeping off a hangover, playing poker, or going to Waffle House.

So of course a failure to appear. So we all started coming up with our excuses. Even as dumb as we were at the time, we figured we had no excuse that would work (an affirmative defense), such as, hospital, we were kidnapped, in a car wreck, ect (courts are funny, they want a real excuses).

So I came up with the bright idea to plead not guilty, offer up no excuse, and keep my mouth shut. No problem, everybody pleads not guilty, then 99.9% change their plea at the trial date. I mean who goes to trial on a failure to appear when you were not even in the courthouse and were sleeping off a hangover?

So trial date comes along about three months later. I show up and everybody is waiting in line to talk to the prosecutor and work out their deals. I just stay seated.

About two min before the judge comes out the prosecutor calls my name. I go up there and he was real nice and says, I'll just make this a 100.00 fine or 10 hrs of community service and then drop it after your pay the fine or do the community service. I say no thank you. Talk about shock. He was like well why were you not here when you were supposed to be. I said, who said I was not here. He then said so you were here when your name was called. I said, I'm not saying I was here or I was not here. I just asked who said I was not here.

Anyway, judge calls the case, prosecutor asks for a few minutes and to recall the case later. At the break the prosecutor again starts talking to me. I tell him I'm taking the fifth and I don't have to prove anything or have an excuse (affirmative defense) he has to prove I was not there. Then he gets mad and says the judge calls the cases so she will know.

I said so your calling the judge that is hearing the case against me as a witness to testify against me? Then he says the judge will take judicial notice. I said, judicial notice of what, I filed discovery and you provided me with nothing the judge can take judicial notice of. The rules are I must be put on notice if you plan to ask the court to take judicial notice (oh that pain in the rear discovery). See where this is going back and forth.

Anyway Judge recalls the case and prosecutor just says Your Honor we are going to nolle pross (fancy for drop the case). Not exactly the same as civil because there is a higher burden in criminal, but I keep my mouth shut and did not offer excuses (affirmative defenses). Same thing here. Why start offering a laundry list of losing arguments just because there was a claim made against you. It's human nature when somebody makes an allegation to start offering excuses.

Now keep in mind we were talking about a college town, a court where the judge sat behind a folding table, and it was shorts and tee shirts in the court other than the judge, cops, and other staff. It was also like a parking ticket I was fighting. They could have gotten their crap together if it was a real case and easily proved I was not in court.

However, it worked for what I was facing. I knew my audience, knew the system, and knew what they would or would not want to put into this case. It was not worth it. I was risking an additional 125.00 in court costs if I lost. The prosecutor had a million other cases and was probably working 60 hours a week. Does that sound familiar to maybe a junk debt buyer (except the working 60 hours a week).

They can usually prove their case if they wanted, (sometimes not since the original creditor will not help) but do they want to dish out 20K to win 3K on something they paid 50.00 bucks for? Do they want to go to all that effort when the other 99% are not going to put out the effort? Money talks and you don't even need a buck in your pocket to start talking their language.

P.S. all my friends got a Saturday of raking leaves at the courthouse and behind the police station. Oh and they all had brilliant excuses (affirmative defenses) they had come up with.

I'm not advocating missing court. Once again, my plan would not have worked if they wanted to push the matter, spend the time, money, and resources to prosecute an unclassified infraction. Please take my example in the context it was meant to be. That is you can fight and it does not require coming up with elebroate sounding legal theories and fancy sounding, but losing, affirmative defenses.

[Coltfan1972]

Just imagine what a judge would think if your eyes glazed over when you were asked to defend placing the defense in your response.

Just imagine your bank account balance getting smaller if the judge did not take too kindly to your eyes glazing over.

[MamaCaldo]

So where does that leave us ProSe's with our affirmative defenses? "Raking leaves" if we don't plead the fifth?

[BV80]

It appears that in NY, Lack of Standing must be raised in the Answer or a pre-answer motion to dismiss a complaint, or that defense is waived.

Wells Fargo v. Mastropaolo, 42 AD 3d 239 - NY: Appellate Div., 2nd Dept. 2007 - Google Scholar

"The issue presented on this appeal is whether a party's alleged lack of standing to commence the action is a defense that is waived if not raised in an answer or in a pre-answer motion to dismiss the complaint. We hold that lack of standing is such a defense, and that it was waived in this case, where the defendant raised the standing issue for the first time in an attorney's affirmation submitted in opposition to the plaintiff's motion for summary judgment."

The following is a NY article related to the subject:

New York Legal Update: Lack Of Standing Must Be Raised In Answer Or Pre-Answer Motion To Dismiss

Edited November 22, 2011 by BV80

[Seadragon]

Care to post even one case, from any court in the country, over the last decade, where a Defendant used an affirmative defense, in a credit card case, that was not a statute of limitations defense and won solely based on that affirmative defense.

Smiley v. Citibank (s.D.), N.A., 11 Cal. 4th 138 (Cal. 1995)

LexisNexis® Custom Solution: California Courts Research Tool

That was literally the first case in the queue.

[BV80]

Smiley v. Citibank (s.D.), N.A., 11 Cal. 4th 138 (Cal. 1995)

LexisNexis® Custom Solution: California Courts Research Tool

That was literally the first case in the queue.

I think Coltfan was referring to a Debtor's affirmative defense in a credit card case.