skippy1960

Affirmative Defenses Use in Answers

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I am seeking some clarification related to the use of Affirmative Defenses in answering a complaint. I have been around here since 2009. When a new person shows up and says "I have been sued, what do I do".

The general answer they recieve is-

1. Be sure to file an answer to the complaint, Deny each allegation or General Denial, include Affirmative Defenses.

2. Make sure you file it in a timely fashion, so as not to have a Default Judgement entered against you.

3. Check your rules of civil procedure for your jurisdiction.(We miss this one quite often)

I realize that Affirmative Defenses are technical by nature to the law and an individuals case circumstances. I have also notice that a number of members, whose litigation experience is strong, seem to frown on the every affirmative defense including the kitchen sink approach.

As I understand the use of affirmative defenses in my jurisdiction, is if you don't plead or raise a defense in your answer to the complaint. You may loose the right to address that issue later in the proceedings.

Is this accurate?

In most credit card debt cases that I have read or seen posted about here a defendant's Affirmative Defenses are generally challenged via Discovery requests, or not at all. As CA's/JDB are more interested in proffering the least amount of evidence to prove their claim, as they carry the burden, they don't tend to be challenging affirmativie defenses that the defendant listed. This leads me to my next question.

If the Plaintiff (OC/CA?JDB) carries the burden of proof in a complaint they bring, and fail to meet that burden, then it really doesn't matter what affirmative defenses the defendant listed. correct?

I bring this up because I have seen posts related to the use of affirmative defenses where newer folks did what I did the first time I was sued. I listed 15, of which none applied, because I owed the money. The reality in most complaints a real high percentage owe the money, so there are no or very limited affirmative defenses that one could use, legitimately.

Finally, my goal was to see if we could find a common ground of how to direct new folks on how best to use Affrimative Defenses, or do they need to bother at all in the first pleading? It is difficult to see a new poster, give information related to affirmative defenses they used, likely by our direction, gained from this website, and then tell them how those AD's could make it difficult for them to win or could cost them their case. While I don't think anyone says this, a new poster is always concerned about making these mistakes..

Thanks for any feedback, no it is a long post

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The reason I used all the affirmative defenses in my case is because a lawsite that I went to online with an attorney from California stated just what you did. If you didn't list your defenses on your answer you would not be able to add them later. He said to list everything and the kitchen sink in case they applied to you.

There does appear to be a disparity in what different people think here. I had a wonderful person from this forum help me write a trial brief and we used everyone of those defenses against the law firm that sued me. I thought it was very convincing and I believe they didn't want to fight all that in court. If nothing else it gave them alot of work to do arguing against all the defenses I had used. And it turned out they were all true. I used whatever I felt could possibly be true. As you stated, the CA never questioned any of them in any of their briefs to the court. I can't see that it hurts your case at all to use them.

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I was also advised on stating every defense that I could possible construe to do the complaint as well... Good discussion.

The main thing is;

1) I don't want to come off as burdensome to the judge.

2) I don't want to come off as someone who just whips out the playbook, and tries to unjustly defeat a lawsuit, therefore increasing my damages.

3) I want to be able to assert the best defense and not waste time on learning about minor trivial imperfections in the case, as I am going to rely on the judge to give me some leeway being a pro se; in fairness sake I expect it to be returned.

600.2591 Frivolous civil action or defense to civil action; awarding costs and fees to prevailing party; definitions.

Sec. 2591.

(1) Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.

(2) The amount of costs and fees awarded under this section shall include all reasonable costs actually incurred by the prevailing party and any costs allowed by law or by court rule, including court costs and reasonable attorney fees.

(3) As used in this section:

(a) “Frivolous” means that at least 1 of the following conditions is met:

(i) The party's primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party.

(ii) The party had no reasonable basis to believe that the facts underlying that party's legal position were in fact true.

(iii) The party's legal position was devoid of arguable legal merit.

(B) “Prevailing party” means a party who wins on the entire record.

While I am sure they wont just rule frivolous against a pro se that can reasonably state why he thinks that defense is valid... if you cant... bammo.

But I am very sure that if the main intention is to "Injure or harass" bet you'll get the book.

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Thanks for this discussion, I'm new and the information is helpful.

rt

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He said to list everything and the kitchen sink

How about the toilet while we're at it? And this guy is a lawyer? Where is he? I want to make sure I never hire him. This sounds like JDB lawyer. Check out this dude.....he's been sanctioned so many times I don't know how he's still in business. He defends credit card cases.

ANDREW F. CAPOCCIA LAW CENTERS, L. L. C.,

sanction credit card "citibank" - Google Scholar

While I am sure they wont just rule frivolous against a pro se that can reasonably state why he thinks that defense is valid

Don't bet on it. When you walk through those doors, you are under the same rules as any lawyer and subject to the court's jurisdiction and enforcement. Stupidity is not an excuse for filing frivolous claims / motions etc. How are you going to reasonably state that an invalid defense is valid? Film this, I want to see it. You and Scorcese Jr. can make videos together.

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The best defense against any creditor, OC or JDB, is the Statute of Limitations, if the defense is valid. When it comes to a JDB, Lack of Standing is the next best defense. An affirmative defense is yours to prove, but that's not difficult to do when it comes to a JDB and standing.

The JDB may be able to prove you had an account. They may be able to prove the account had an outstanding balance and was charged off. However, most of the time they cannot prove that the OC sold your specific account. Nor can they prove they purchased your specific account. As a result, they can't prove that you owe that outstanding balance to them. Therefore, they haven't shown they have standing to sue for that balance.

The best way to find out if certain defenses are waived if not raised in the Answer to the Complaint is to read your court's Rules of Civil Procedure. Those rules will tell you if a defense must be raised in the Answer, or if the defense can be raised at another time...such as in a motion or, perhaps, in a response to a motion. For instance, if the Plaintiff makes a Motion for Summary Judgment, you would respond with a written objection to that motion. If your rules state that a defense can be raised in a response to a motion, you could raise the defense at that time.

Carefully read your rules.

If the rules are not specific regarding this issue, research case law from your state regarding affirmative defense. However, I read a case from New York in which the court ruled that Lack of Standing was NOT waived if not raised the Answer to the Complaint. In another case in New York, the court ruled Lack of Standing WAS waived if not raised in the Answer.

If you're still unsure when a defense must be raised, I would go ahead and raise it in the Answer to the Complaint. It's better to be safe than sorry.

Regarding original creditors, I know OC's can be defeated, but it's more difficult. Defendants who have won those cases have usually done so because of extenuating circumstances. Perhaps the OC had inadequate records. Perhaps the Defendant was able to cast doubt upon the balance of the account due to a dispute of the fees, interest, or application of payments.

The Defendants who have defeated OCs have usually done an incredible amount of research and were able to point out flaws in the OCs' claims.

Finally, why raise affirmative defenses that don't apply to your case? I've seen people use the Statute of Frauds as a defense. Unless your state requires that a credit card account be evidenced by a written, signed contract, that defense does not apply.

If a judge were to ask you to explain the defenses you raised in your Answer, could you do so? Or would your response be "Well, Your Honor, I, uh...you see, um...it's like this, uh...well, I read, um..." You get the idea.

Bottom line: If you don't understand the defense and can't adequately explain and prove how it applies to your case, don't raise it.

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If you don't understand the defense and can't adequately explain and prove how it applies to your case, don't raise it.

Good point.

Going further, if you're being "advised" to use or not use a certain defense or form of discovery, ask that individual why. Don't be afraid to ask someone to cite some authority for their position. If they cannot do it, I strongly advise you to disregard.

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Just as an aside, sometimes or most times, you doin't know what the case is all about, whether it is past SOL or any other defense you may use. I didn't know anything about my case. If its true you can't raise a defense later that you should have put in your answer then I say its better to put it in the answer if it could apply to your case. How will you know til you do some discovery and find out?

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here is some little insight to the affirmative defense question;

In seeking leave in August 1966 to amend his answer by pleading this counterclaim, petitioner offered no excuse for his failure to plead the facts constituting his alleged counterclaim when he filed his original answer or for his complete lack of diligence in seeking leave to amend. (Cf. Moss Estate Co. v. Adler, 41 Cal.2d 581 [261 P.2d 732]; Hayutin v. Weintraub, 207 Cal.App.2d 497 [2 Cal.Rptr. 761].)

Waxman v. Superior Court of Los Angeles County, 246 Cal. App. 2d 668 (Cal. App. 2d Dist. 1966)

the case was about a man who waited till later to plead affirmative defenses. When he was denied he appealed.

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In seeking leave in August 1966 to amend his answer by pleading this counterclaim, petitioner offered no excuse for his failure to plead the facts constituting his alleged counterclaim when he filed his original answer or for his complete lack of diligence in seeking leave to amend. (Cf. Moss Estate Co. v. Adler, 41 Cal.2d 581 [261 P.2d 732]; Hayutin v. Weintraub, 207 Cal.App.2d 497 [2 Cal.Rptr. 761].)

Waxman v. Superior Court of Los Angeles County, 246 Cal. App. 2d 668 (Cal. App. 2d Dist. 1966)

the case was about a man who waited till later to plead affirmative defenses. When he was denied he appealed.

I must be missing something. This says nothing about defenses.

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I think people put too much stock into the if they are not pleaded on the front end you can't use them. That's true, if you know about them. However, during discovery if you "discover" something new, I've never heard of a court not granting leave to amend.

It's the whole reason for discovery. If the courts did not allow you to amend after discovery then there would not be a federal rule against including all defenses on the front end. It would make no sense to not include on the front end.

Discovery is to discover and if you discover something truly new, no court is going to restrict you because you did not speculate on the front end. In my opinion, the argument that you need to plead them on the front end just to make sure, is not valid.

Even in Seadragon's posted case, the court clearly states the party gave no reason for the delay or why they did not plead the counterclaim on the front end, not they could not because they did not plead it on the front end.

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In my opinion, the argument that you need to plead them on the front end just to make sure, is not valid.

I think, once again, the varying opinions on this subject result from a limited understanding of Fed. R. Civ. P. 8© (and the corresponding state rules), what constitutes an affirmative defense, and when they apply.

8© Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;

• arbitration and award;

• assumption of risk;

• contributory negligence;

• duress;

• estoppel;

• failure of consideration;

• fraud;

• illegality;

• injury by fellow servant;

• laches;

• license;

• payment;

• release;

• res judicata;

• statute of frauds;

• statute of limitations; and

• waiver.

In terms of statutory constuction, must means must. If you do not assert them, you waive them.

If you have an affirmative defense, you should not require discovery before you know it. The facts necessary to plead an affirmative defense should already be in your possession. After all, they're your defenses. You know if you've already been sued; you know if statute of limitations applies; you know if there was an accord and satisfaction, etc. You don't need discovery from the Plaintiff to tell you these things.

As you correctly point out, Coltfan, additional defenses may arise during the course of litigation, but they should not arise in the form of affirmative defenses. Instead, they're more likely to arise as defenses to Plaintiff's factual claims; facts that tend to disprove Plaintiff's allegations. Those "defenses," however, do not normally require an Amended Answer in order to assert them.

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I think, once again, the varying opinions on this subject result from a limited understanding of Fed. R. Civ. P. 8© (and the corresponding state rules), what constitutes an affirmative defense, and when they apply.

In terms of statutory constuction, must means must. If you do not assert them, you waive them.

If you have an affirmative defense, you should not require discovery before you know it. The facts necessary to plead an affirmative defense should already be in your possession. After all, they're your defenses. You know if you've already been sued; you know if statute of limitations applies; you know if there was an accord and satisfaction, etc. You don't need discovery from the Plaintiff to tell you these things.

As you correctly point out, Coltfan, additional defenses may arise during the course of litigation, but they should not arise in the form of affirmative defenses. Instead, they're more likely to arise as defenses to Plaintiff's factual claims; facts that tend to disprove Plaintiff's allegations. Those "defenses," however, do not normally require an Amended Answer in order to assert them.

How would Lack of Standing fit in here?

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If you have an affirmative defense, you should not require discovery before you know it

Exactly! This goes toward what most of say here. Many people just want to throw up a bunch of defenses because they look good. The don't realize they have to prove them.

That brings us to this..... why assert a defense which is unsupportable or grounded in law just so you can preserve it for trial so the judge or opposing counsel can make you look like an idiot in front of a jury? How about this, Nascar..... I'll plead the defense of injury by fellow servant in a credit card case. And I'll throw in accord and satisfaction and assumption of risk. What would you, as opposing counsel, do to those defenses? We all know.

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Your credibility is already at issue since one is pro se. Any chance you have to build credibility, one needs to use. The quickest way to lose or build no credibility is pleading a bunch of frivilous defenses or making frivilous motions.

I highly doubt the judge in my case, after numerous oral arguments that I had made, would have been inclined to go back, research the law, and on his motion, reconsider and overrule himself on his granting of partial summary judgement to the Defendant.

I like to think the reason he had a second thought when I said with all due respect your honor, you're wrong, was because all my arguments had been dead on with the law. I have to think if I had been usury and statute of frauds or unclean hands for a credit card he would have just said, yeah right whatever Coltfan, why don't you go argue against the Supreme Court again and leave the judging to me.

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How would Lack of Standing fit in here?

Standing requires, (1) injury in fact, (2) causation, and (3) redressability.

1. Plaintiff must allege that he has suffered an injury;

2. Plaintiff must allege that defendant caused the injury;

3. Plaintiff must allege that the court can grant the desired relief.

If the Plaintiff fails to allege each of these elements, he has failed to state a claim for which relief can be granted. He has also failed to establish "standing." If you believe the Plaintiff has not done this, the proper response is a Rule 12(B)(6) motion to dismiss. There are isolated jurisdictions that recognize "standing" as an affirmative defense, and in those limited circumstances you must assert it or lose it. The same, however, applies to stating a claim. Fed. R. Civ. P. 12 gives instructions on how to proceed when you belief the plaintiff has not stated a claim.

The important distinction you have to make is that "standing" goes to the elements of the complaint, not the merits of the plainitiff's case. Just because the plaintiff has not "proven" his case, he still has standing, at least initially, if he makes the allegations.

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Disclaimer-

I know it's for TV drama/comedy !!!

However, I thought about standing and not arguing it affirmatively (which I recommend anytime I get the chance).

I'm watching my third season Boston Legal and this atty is defending this obviously guilty guy on a theft charge. The prosecutor finishes with the witness and the atty says no questions your honor. The client basically makes a death threat to her and then when the prosecutor says state resets and she says we also reset your honor, her client goes crazy. He accuses her of not trying and setting him up. To which she says, shut up and just sit there you idiot, you're getting ready to walk.

Then she points out to the court how the prosecutor did not prove the element of criminal intent at the time of the crime and the criminal intent he did prove was after the fact when her client learned the watch was stolen. However, he did not charge her client that way, therefore, not proving the element of criminal intent at the time of the crime.

She conceded everything else and never called a witness or put up a defense. The client walked and the prosecutor was like oh crap. Once again made for TV drama, but it is what I argue about standing not being an affirmative defense. It's an element the other side must prove. If they don't prove it, at the end you can concede everything and then point out they did not meet the burden of proof for the element of the case, standing.

Just like in the criminal case, the defense atty did not question the witness to prove the prosecutor did not meet the burden on that element. The defense atty did not call witnesses to establish the mindset of no criminal intent at the time of the crime. Why? Because it was not her duty it was not her burden. It was the prosecutors job to prove every element of their case before they rested. The defense only had to point out how the prosecutor did not meet their burden to that certain element.

Except where required (very limited from my research) standing is not an affirmative defense. It's a basic element of the case the other side has to prove. If they don't prove it, you win. It's why in my case I told the judge, fine, I owe it, who cares tell me the amount they claim and I'll stipulate. They had not proven standing so I could care less if they alleged I owe one cent or one million dollars. I'm stipulating because they can't prove I owe them after they finish with their arguments. I'd have been a fool to argue it on the front end.

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I think people put too much stock into the if they are not pleaded on the front end you can't use them. That's true, if you know about them. However, during discovery if you "discover" something new, I've never heard of a court not granting leave to amend.

Coltfan, While you make some very valid points on your view of affirmative defenses, this comes from PA RCP.

Rule 1032 provides that “[a] party waives all

defenses and objections which are not presented either by preliminary

objection, answer or reply [with certain exceptions].” Pa. R.C.P.

1032(a). Applying these rules, the Pennsylvania Superior Court has held that “affi rmative defenses (with exceptions not applicable

ere) not raised in new matter in accordance with Pa.R.C.P. 1030

are waived pursuant to Pa.R.C.P. 1032.” Iorfi da v. Mary Robert Realty

Co., Inc., 539 A.2d 383, 386 (Pa. Super.1988), appeal denied 549

A.2d 136 (Pa. 1988).

There is quite an article here about this subject for PA.

http://www.pabar.org/public/sections/civlitco/pubs/newsletters/clwinter2010.pdf

and a quote from this article...

"In other words, any affi rmative defenses not raised in the New

Matter may be lost forever. Under these circumstances, defense

attorneys will raise anything that could conceivably be a viable

defense."

So with this in mind, it is imperative for any PA pro se to

list affirmative defenses if they understand what they are listing, and how it would apply to their suit.

And to know how to argue in court each and every they list.

What I find to be damaging is that when someone is first sued and

then decides to handle things Pro se... Each and every e book on the subject states virtually the same explanation for each affirm defense.

That is a clear heads up that all newsboys to this game are desperate and

just copy and pasting what they do not know.

IMHO everyone needs to tailor their affir, def. to suit their specific

cases.

I have seen many post things here for feedback and there usually is that feedback that allows the defendant to rework things so they sound like they know what they are talking about....

It is most important to not list each and every defense, no matter what state you are from.

If you do then you can be certain that the opposition is going to motion to strike your defenses.

Again, IMHO, you need to learn what each possible affirm. def., is, and how it might apply to your case. Then work it to your advantage....

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Again, IMHO, you need to learn what each possible affirm. def., is, and how it might apply to your case. Then work it to your advantage.

I agree, by all means, if one has a legit defense, then use it !!

My biggest issue is the ones that have been ruled on, even by the Supreme Court, and then advice is still given to use that defense. That is borderline mean spirited in my opinion. It makes it look like somebody just enjoys a good train wreck.

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This was exactly what I was hoping for when I created the post. I am grateful that Colt, Legaleage, Sea, Nascar and others have chimed in, with opinions that are thoughtful, meaningful and based in some legal reasoning.

Given that I was hoping to come to a list of Affirmative Defenses that at minumum should never/rarely be used in a Debt Collection case. These would be Affirmative Defense that might apply in only 1-2% of the cases that show up here.

If we could at least eliminate with reasonable certainty the Affirmative Defenses as described above, that should be left out of a Newbie's, pleading, then they will be able to spend greater time researching and determining if others might fit there circumstances in some fashion......

Example- I would think the Affirmative Defense of "Duress" would fit the example above. We should all be able to agree that Duress would likely, not come into play in less than 1% or never in a Credit Card or Debt Collection case.

Unless of coarse you lost 10$k from the local loan shark and he decided to sue after he broke your legs......

Any help would be great I will keep track of any posts and consider how best to have everyone take a look after a few days, to see where we end up.....

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This was exactly what I was hoping for when I created the post. I am grateful that Colt, Legaleage, Sea, Nascar and others have chimed in, with opinions that are thoughtful, meaningful and based in some legal reasoning.

Given that I was hoping to come to a list of Affirmative Defenses that at minumum should never/rarely be used in a Debt Collection case. These would be Affirmative Defense that might apply in only 1-2% of the cases that show up here.

If we could at least eliminate with reasonable certainty the Affirmative Defenses as described above, that should be left out of a Newbie's, pleading, then they will be able to spend greater time researching and determining if others might fit there circumstances in some fashion......

Example- I would think the Affirmative Defense of "Duress" would fit the example above. We should all be able to agree that Duress would likely, not come into play in less than 1% or never in a Credit Card or Debt Collection case.

Unless of coarse you lost 10$k from the local loan shark and he decided to sue after he broke your legs......

Any help would be great I will keep track of any posts and consider how best to have everyone take a look after a few days, to see where we end up.....

Absolutely agree with you.

And to further your idea would be to incorporate exactly what each

defense means. In layman's terms, so there can be no misunderstanding.

I would not think it a bad idea to do all possible defenses with a thumbs up or down for possible use, with an understanding of each.

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In seeking leave in August 1966 to amend his answer by pleading this counterclaim, petitioner offered no excuse for his failure to plead the facts constituting his alleged counterclaim when he filed his original answer or for his complete lack of diligence in seeking leave to amend. (Cf. Moss Estate Co. v. Adler, 41 Cal.2d 581 [261 P.2d 732]; Hayutin v. Weintraub, 207 Cal.App.2d 497 [2 Cal.Rptr. 761].)

Waxman v. Superior Court of Los Angeles County, 246 Cal. App. 2d 668 (Cal. App. 2d Dist. 1966)

the case was about a man who waited till later to plead affirmative defenses. When he was denied he appealed.

I must be missing something. This says nothing about defenses.

The case shows all his defenses which were plead late in the case (he tried to obtain leave to amend) which were denied by the trial court.

so the appellate affirmed the decision.

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This a great topic!  I have been reading a lot of the information posted in this forum the past couple of days since I have just been served in a debt collection suit against a junk debt buyer.  I am preparing my answer and firmly believe the jdb will not be able to prove standing - especially since the jdb who is suing me purchased the debt from the previous jdb who originally purchased the debt from the original creditor. 

 

If I understand correctly, in California and just about every other state, just because I do not list lack of standing as an affirmative defense in my answer does not mean I have waived that defense, correct?  As with most of these types of cases, lack of standing appears to be the only way to win, aside from applicable statute of limitations (darn it, I was 3 months away from the 4 year SOL).

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