Let's have a discussion on affirmative defenses

[Seadragon]

Way, alternate theories if the court finds for the plaintiff standing, and the defendant is a party then the affirmative defenses would kick in.

The courts to my knowledge have never sanctioned a pro per for inclusion of affirmative defenses. Please any member, tell us if the court sanctioned a pro per for putting them in.

We cannot forego a potential defense at all. How do we know that other judges who have ruled for defendants were swayed by the affirmative defenses and their application to the case to tip the scales in defendants favor?

How do we know that a plaintiff leaning judge wasn't stopped by any affirmative defenses from ruling for the plaintiff's.

Most of the common law claims have a low threshold for defense. If the low threshold is not their the court would rule for plaintiff.

In my case during the motion to quash hearing the plaintiff stated that Mr. Seadragon has plead 12 standard affirmative defenses.

when I was allowed to speak I said "It is true I have plead standard affirmative defenses but it is the boilerplate nature of the complaint that makes them standard." the judge nodded her head so I have to think that they were relevant.

While it is true I received a bad ruling because the same judge was absent and had a "substitute" I believe with the original judge I would have won.

[nascar]

The courts to my knowledge have never sanctioned a pro per for inclusion of affirmative defenses. Please any member, tell us if the court sanctioned a pro per for putting them in.

Depends on what you mean by "sanctioned."

Look at it this way. If a defendant wants to offer a defense which includes a laundry list of affirmative defenses, and if the suit is one where the prevailing party is entitled to attorney fees, then I would fully expect opposing counsel to file a 12(f) motion to strike the improper defenses. If successful, and you lose the case, you've just cost yourself a few grand in attorney fees attributable to the motion to strike.

[Seadragon]

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

that ruled the day and provided the impetus to deny them federal standing.

You can plainly see that they spent alot of coin to try to get affirmative defenses stricken. If they weren't so valuable as a defense or offense would citibank have wasted so much money to fight it? It provides relevant authority here in california because the debt collection caselaw is lacking.

While Coltfan wanted a case on point, the law is going to be lacking as a pro per is not going to run the football across the goaline in the appellate to get a published opinion.

which leads us back to the arguement at hand. Does inclusion of affirmative defenses prejudice a pro per defendant now or in the past?

and If so how would a pro per defend the case if all the non common law claims were struck leaving a plaintiff's alternative theory to defend after the pleading is finished?

[Coltfan1972]

Whatever happended to the good ole, you sued me so prove it with admissible evidence.

Like my failure to appear example. I never said I did not, not show up. I just said prove I did not show up if I sit here and keep my mouth shut and don't try to "help" my chances.

Then when the rebuttal was okay we will do that with inadmissible evidence, that is when I spoke up and drew attention to the fact that would not work.

It's a great thread and discussion. I think we have all pretty much argued it every which way there is. I'm not changing my opinion and way of doing things, that's for sure, and I don't see you doing so either.

At least people will have all the arguments and then they can make the decision for themselves with eyes wide open.

[DonqIII]

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.

No but can you post even one case where no affirmative defenses were offered that

won a case based strictly on an answer? Especially one of denials.

If your state tells you in the Rules of Civil Procedure that defendant should...

("Additionally, the defendant should state any counterclaims or affirmative defenses in her answer under a separate heading titled new matter")

where would you go with this.... ?

If you state expects them and you offer none.... ??????

[Coltfan1972]

No but can you post even one case where no affirmative defenses were offered that

won a case based strictly on an answer? Especially one of denials.

Sure can. If you want to PM your email I'll send you one I'm very familiar with, my own case.

I'll send you the PDF of the arguments I used including bringing up the issue of standing, three days prior to trial when I had not said a word about it the past six months. That will include my answer where it was a general denial with zero affirmative defenses, the judge's written order striking all their evidence which I admitted was correct but they had no standing to introduce it, and I'll send you the court site link.

That work? Lack of standing is not an affirmative defense, period, It's an element for a contract case and the judge gladly let me argue it at the last minute.

[Coltfan1972]

where would you go with this.... ?

I went to Regions Bank and cashed their settlement check.

If your state expects them and you offer none.... ??????

I don't offer losing arguments. However, I did forget to add that yes my state does have the mandatory pleading rule for affirmative defenses and the compulosry counterclaims rule.

[nascar]

Lack of standing is not an affirmative defense, period

The law is very seldom that black and white.

There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver." Kissman v. Panizzi, 891 So. 2d 1147, 1150 (Fla. 4th DCA 2005).

Under Illinois law, lack of standing is an affirmative defense, which is a defendant's burden to plead and prove

Lebron v. Gottlieb Mem. Hosp., 237 Ill. 2d 217 (Ill. 2010).

[Plaintiff] is correct that a "challenge to standing is an affirmative defense."

Beason-Strange-Claussen v. City of Hammond, 701 N.E.2d 1288, 1290 (Ind. Ct. App. 1998)

Generally, a lack of standing is an affirmative defense that can be waived through the failure to raise it in an answer or motion to dismiss. Matter of Renee XX. v. John ZZ., 2008 NY Slip Op 4018 (N.Y. App. Div. 3d Dep't 2008)

[Coltfan1972]

Yes, using a slam dunk period was in error. Even the Supreme Court seldom rules 9-0 so I do stand corrected on that.

[BV80]

I think this discussion has been very useful and informative. Personally, I believe that when one is sued by a JDB, unless the debt is outside the SOL, the only defense needed is Lack of Standing. Considering JDBs can rarely prove ownership, that defense is easy for the defendant to prove.

As uu2sing once stated:

"The proof is in the puddin'" and they haven't provided the "Puddin'!!!"

[IndiraMehta]

As and for an Thirteenth Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

Unclean Hands is a good defense, depending on whom sued you. For some, like Midland, FIA Card Services, CACV, LVNV, and any bank that used the National Arbitration Forum though early 2010, it's going to be fairly easy for someone to show Unclean Hands.

In particular, if your plaintiff is FIA, there's a very good chance somewhere in your summons, they have an "arbitration award" from the National Arbitration Forum. The Minnesota Consent Decree can be offered as Exhibit A. In California, there's a great form complete with explanation of the affirmative defense of Unclean Hands in guides Pleading and Practice.

Basically if your plaintiff references an arbitration award, then payed the arbitrator to decide in their favor, this is a classic example of Unclean Hands. In some states, this may also be covered by the state statutes regarding fraud.

CACV, LVNV, Midland Funding is another one with similar issues. Midland, I think, was also covered by the Minnesota Consent decree.

If you've got the evidence to back it up, it's an excellent defense.

[Seadragon]

is good authority for this.

Unclean Hands is a good defense, depending on whom sued you. For some, like Midland, FIA Card Services, CACV, LVNV, and any bank that used the National Arbitration Forum though early 2010, it's going to be fairly easy for someone to show Unclean Hands.

In particular, if your plaintiff is FIA, there's a very good chance somewhere in your summons, they have an "arbitration award" from the National Arbitration Forum. The Minnesota Consent Decree can be offered as Exhibit A. In California, there's a great form complete with explanation of the affirmative defense of Unclean Hands in guides Pleading and Practice.

Basically if your plaintiff references an arbitration award, then payed the arbitrator to decide in their favor, this is a classic example of Unclean Hands. In some states, this may also be covered by the state statutes regarding fraud.

CACV, LVNV, Midland Funding is another one with similar issues. Midland, I think, was also covered by the Minnesota Consent decree.

If you've got the evidence to back it up, it's an excellent defense.

[MamaCaldo]

I don't know if I am "that dense" or if I just didn't understand what truly constituted an affirmative defense. Until I read this: (don't remember where I found this on the net, or else I would attach a linky)

"Affirmative defenses, which are grounded in Substantive Law, state that an allegation may or may not be true, but that even if it is true, the law provides a legal defense that defeats the plaintiff's claim. The defendant must determine if the law allows an affirmative defense to a charge, and must allege sufficient facts to support the defense."

Then it hit me-- in the answers you give admitting, denying, or "other" IS how you tell them your defenses!!! The "Affirmative Defenses" section is more like a "Other Defenses" section, where if there was another defense you wanted to raise (or use) and if answering the complaint didn't bring them up, then that is what this "Affirmative Defenses/Other Defenses" subheading comes in.

Am I correct? Or am I wrong? I was really under the impression that I had to state ALL my potential defenses under the "Affirmative Defenses" subheading until I read this paragraph. And now, if I am correct, then the discussion on affirmative defenses makes so much more sense!

EDITED TO ADD:

WHOOPS!!! My computer has the "hiccups" and I thought I posted this already but didn't see it...now I see it! It's in the "Affirmative Answers in Michigan" thread.... MY BAD!!! If admin wants to delete this post, go ahead....

Edited November 28, 2011 by MamaCaldo

[RememberMe]

For #1, I'd say that the part in the chard holder agreement that allows the account to be assigned to another entity will shoot down lack of privity right off of the bat. Failure of consideration could be a valid defense if they are suing you for unjust enrichment or some other doctrine that is retarded when applied to a CC case, but you wouldn't need to use it as an affirmative defense. They need to show that you were enriched at their expense for that claim anyway.

For #2, why make it so that you have to prove they don't have standing? Shoot down all of their bogus evidence. That they own the debt will or should be one of their allegations. Deny that and deny it hard.

Isn't it better to put in every reasonable defense - because you can't go back and add it later - if it doesn't work, no big deal?

Or is there a problem with that I'm not aware of?

[RememberMe]

Lack of privity necessarily implies that there is a contract. But, the third party seeking to enforce the contract is not entitled to do so.

In that regard, lack of privity is an affirmative defense if it is your position that you (1) had a contract with the creditor, and (2) the party seeking to enforce the terms of the contract is not the creditor, but some other third party not entitled to the benefit of the bargain.

Is that not shooting yourself in the foot then? Because suppose they don't come up with the contract, no big deal right because you already admitted there was one.

Isn't this playing right into their hands? One less thing they have to prove. One of those robo affidavits that the judge in ohio were 100 percent legal and okeedokee (yeah right) ought to tie up the lose ends for them or a lot of them.

That decision is still being appealed, the one in Ohio Midland v Brent. I know someone working on it and he and others will more than likely be appealing. I think somebody got a nice little prize somewhere along the way for that because I have one of those okeedokee affidavits of Midland that they say they have cleaned up in the time frame I got mine and it is not cleaned up. But I guess that's immaterial to the judge?

[Seadragon]

So I am checking for some closure on this topic:

 

Posters who put affirmative defenses in the answer and won because of even 1 of them reply whup in the thread

Posters who put affirmative defenses in the answer and lost because of even 1 of them reply No joy in the thread

Posters who didn't put affirmative defenses in the answer and who lost because a defense was not pleaded or lost due to summary judgment reply Ouch to the thread

Posters who didn't put affirmative defense in the answer and who won without them reply Yeah! to the thread.

 

Just seeing nearly two years later whether adding affirmative defenses makes summary judgment impossible or not.

[admin]

Yes, I've seen most attorneys here recommend affirmative defenses.  I would also like to know the win/loss ratio.  @ASTMedic, for instance?

[ASTMedic]

Yes, I've seen most attorneys here recommend affirmative defenses.  I would also like to know the win/loss ratio.  @ASTMedic, for instance?

What's up?? I'm lost here?

[Anon Amos]

What's up?? I'm lost here?

This is regarding Seadragon's post # 66

[ASTMedic]

Right but I still don't get what Admin wants to know.

No I didn't use afrimative defenses. I just stated that they didn't have standing and that I reserved the right to amend at a later date if needed.

[admin]

No I didn't use afrimative defenses. I just stated that they didn't have standing and that I reserved the right to amend at a later date if needed.

@ASTMedic - where did you state this?

[ASTMedic]

@ASTMedic - where did you state this?

On the PLD-050 general denial, under number 2 where it asks the defendant to list afrimative defenses. However with the PLD-050 its not necessary to list them if defendant so chooses.

[ASTMedic]

I misspoke.

 

This is the direct quote from my answer:

 

1. Defendant denies every allegations made by the Plaintiff in the Complaint.

2. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later time.

[eyoung27]

So, anything you put as an affirmative defense you are legally required to prove (like you are suing them)? Whereas, if you just deny the allegations in the complaint you are leaving it to the JDB to prove everything—correct?

[nascar]

So, anything you put as an affirmative defense you are legally required to prove (like you are suing them)? Whereas, if you just deny the allegations in the complaint you are leaving it to the JDB to prove everything—correct?

 

Not quite. You need to persuade the fact finder that you're the one entitled to judgment in your favor, and not the other side. The evidence in your favor needs to outweigh the evidence in the other side's favor

 

As for affirmative defenses, the burden is on you but, quite often, once you meet your initial burden of production, it sometimes becomes a question of law whether the defense bars plaintiff's recovery.

 

As for "reserving" the right to amend, etc., keep in mind that you cannot reserve a right you may not have. Don't make the mistake of believing that "reserving your rights" gives you a free pass to circumvent procedural rules and deadlines. You'll be sorely disappointed.