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Did I Shoot Myself In The Foot???


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Well, before I found this wonderful site, I answered my Summons and listed 7 Affirmative Defenses. Now reading the thread "Lack of Standing" I'm a little fearful that I might have to prove these defenses. Is that the case? Did I shoot myself in the foot???

Here are the defenses I listed in my Answer, I'm in California.

1. Defendant claims Lack of Privity as Defendant has never requested nor applied for nor entered into any contractual, written, oral or implied credit or other agreements or arrangements with Plaintiff.

2. Plaintiff’s Complaint violates the Statute of Frauds as the alleged agreement or contract rests within a class of contracts or agreements that are required to be in writing. Plaintiff has failed to produce such documentation to support their allegation.

3. Plaintiff is not the real party in interest. Plaintiff has not provided a bill of sale or valid assignment of debt to prove ownership of alleged debt.

4. Failure of Consideration: No exchange of money or goods or services occurred between the plaintiff and the defendant.

5. Plaintiff is barred under the Fair Debt Collection Practices Act from collecting attorney fees, interest, penalties and other assorted collection fees, and any amount not specifically provided for by alleged agreement that Plaintiff has not provided.

6. Defendant claims Accord and Satisfaction as Defendant alleges that the alleged original creditor accepted a form of payment or credit from Plaintiff for the alleged debt.

7. Defendant asserts that Plaintiff’s alleged damages are limited to actual or real damages only. Plaintiff voluntarily made an assumption of risk and is not entitled to judgment. Plaintiff’s alleged damages are limited to real or actual damages of actual cost paid or exchanged to alleged Original Creditor for the alleged debt.

8. Defendant reserves the right to plead other affirmative defenses that may become applicable at a later date.

Some please answer so I can sleep tonight or I'm gonna make a run to the liquor store... :confused:

Thanks.

rt

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for instance , how would YOU have to prove that there's no written contract between you and the other party ... that's not on you , that's on them ..

Exactly !!! That is why you don't list it as an affirmative defense.

An affirmative defense means, basically, you admit everything they are alleging in the complaint is true, but legally and as a matter of law the other side still should lose.

So you are basically saying, by pleading it as an affirmative defense, that if they come up with a contract you lose. It's like pleading self defense in a murder case. Your whole argument is not you did not kill the other person, it's you had a legal justification to do so. If the jury does not buy your claim of self defense, you can't then say, well okay I did not really kill the person, I did not do it. You've already pleaded affirmatively you did it but you have a legal reason you should still be found not guilty.

Obviously!! not near as important of cases, but what do you do if they defeat the affirmative defense or they are stricken, change and say well I was wrong, I really don't agree with the allegations now.

For example, this one. The FDCPA does not bar the collection of the fees the OP is talking about, but for the sake of argument let's use the OP'S #5

5. Plaintiff is barred under the Fair Debt Collection Practices Act from collecting attorney fees, interest, penalties and other assorted collection fees, and any amount not specifically provided for by alleged agreement that Plaintiff has not provided.

You are saying, provide me the agreement and if it's in the agreement, okay you win. Whatever is in the agreement is right and I owe what you say because you have now shown me with the agreement. What happens to the defense of defects in the contract/agreement. You've already jumped out and said if it's in the agreement then okay.

Here is another example. The OP'S #3

3. Plaintiff is not the real party in interest. Plaintiff has not provided a bill of sale or valid assignment of debt to prove ownership of alleged debt.

Okay if I'm the junk debt buyer, I provide the bill of sale or valid assignment. Then I say okay, by your own admission that is what you wanted so that is what you got.

What happens to your defense of hearsay to those documents. Now, I'll be the first to admit you can still argue hearsay but why put yourself in a position to make it appear you have just said I just need the bill of sale so I know you are now the owner. It makes it appear you are saying just show me the bill of sale for the account, I agree I owe the money and I wave hearsay. Once again, you can still bring hearsay into it, but just putting yourself at a disadvantage I don't think is necessary.

#1 fails due to the right to assign or sale the account without the account holders approval.

#2 fails as a matter of law as the courts have already ruled statute of frauds does not apply to credit cards.

#4 fails for the same as #1

#6 fails unless the complete account was allegedly paid.

#7 fails basically for same as #1, the JDB steps into the OC shoes.

So where does that leave the OP? Now back tracking and saying well now I'll just go with denying the account all together and making them prove the account. The OP has basically conceded the account in the affirmative defenses.

And again, the debtor can still make arguments to win, but in my opinion, they are already behind the eight ball and start from behind by pleading losing arguments on the front end. Your playing catch up, your saying okay they gave me everything I wanted in my affirmative defenses arguments or the court made rulings throwing them out, so now let's regroup and go down another defense road.

I watched your deposition. You did great. You argued against certain terms in the credit card agreement but first made sure it was clear that agreement was in dispute.

However, even disputing the account, but for the sake of argument, if they can prove an account, here is the problem with the agreement. You did not close the door on making them prove there is even an account. In my opinion, you argued it great. You left them with the burden to prove the account while still saying the contract still has all these issues, BUT it was after they provided you the contract you raised those issues.

OP,

You may have done it, but if not, I would amend my answer to the complaint and make sure it is filled with a ton of general denials also.

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Since I've listed these defenses in my answer, am I now obligated to argue them?

Your rules of procedure would answer that question, but I would assume you can amend your answer. Generally speaking, you can cure your defects if you do so before there is any prejudice to the other side.

I amend a response in one of my cases. The other side moved to strike what I amended. The judge looked in disgust and almost yelled at them, "He has every right to amend in an effort to cure any defects, not all can be cured simply by amending, but he has the right to amend," motion to strike denied.

The only problem I see for you is, like I posted above, your responses basically has you conceding the account.

I'd try to amend. I'd do a general denial or if required go line by line and deny everything but my name.

Hope you don't have a hangover today. 8-)

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Thanks for the help and guidances. Now to fix this corner I've managed to back myself in to. More help please!

1. If I am not obligated to argue them, why would I need to amend my answers to remove them?

2. Am I conceding all that Coltfan1972 talked about simply because I've listed those defenses in my answer?

3. If I need to amend, do I file the amendment with the court?

4. I assume I also will send it to the Plaintiff, correct?

5. Do I put it on pleading paper?

6. Do I say something like "Defendant hereby amends answers to case number XXXXXX as they relate to answer number 4, Affirmative Defenses, to read 1. NONE 2. Defendant reserves the right to plead other affirmative defenses that may become applicable at a later date."

Signed XXXX Is that good or do I need a more formal approach?

Thanks again for all the help, you people are just plain Awesome!

The hangover was minimal xbeer) LOL!

Edited by Rivertime
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The thing about Calif is that you can answer with just the general denial (since this is a 3rd party)...which is more than sufficient to avoid a default.

From a plaintiff's POV, it makes you look weak - I say no. General denial and a BOP can tie up a JDB since you've then shifted the burden back onto them...

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