Coltfan1972

Detailed Discussion on Affirmative Defenses, Including Standing

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I've gone back and read how many times I posted in different threads regarding affirmative defenses. This is very long, but I figured I could triple the time I've spent posting on affirmative defenses and would not even come close to the two hours I spent on this thread.

I'm going to link it in my signature line. I say numerous times, but I'm not an attorney and this is my take on affirmative defenses.

When pleading an affirmative defense, one should be aware, generally speaking, the one asserting the affirmative defense carriers the burden of proving the defense(s).

In other words you use the defense, you prove the defense. The other side, generally speaking, does not have to prove the affirmative defense is wrong, not applicable to the case at hand or why the defense fails.

When one is sued the party suing has the burden of proof. The party suing must prove all parts of their case, called elements, in order to win. The burden is not near as high as in a criminal case, however, the party still has to tip the scales in their favor, preponderance of the evidence or argument.

When one uses an affirmative defense, the one asserting the defense, generally speaking, “flips”and shifts that burden to themselves. That is usually a very unattractive option for most. Forcing the other party to prove their case and their specific arguments is a common way one can win a lawsuit when they would most likely lose if they were forced to prove why the other party's claim is not valid or what the defects in the other party's are.

While a criminal charge affirmative defense, it is one most have heard of with a criminal court case, self defense. A person on trial for murder, using the affirmative defense of self defense, first states, yes, I killed the other person, I admit to that. However, it was self defense. The trial then turns to, not if the Defendant killed somebody, the Defendant has already admitted that, but was it self defense or not. If the jury finds no self defense, the defendant is pretty much in a no win situation, they have already admitted to killing somebody.

Some of the more common affirmative defenses, which are sometimes recommended and commonly listed when a poster asks for advice, are, starting with, in my opinion, commentary on why the defense does or does not hold water. Most, in my opinion do not hold water and are a bad idea to include. Please keep in mind I am not an attorney, have never stepped foot in a law school and while some of my opinions are backed by case law, and the definition(s) being used have been taken from case law or certain courts definitions of such defense(s), they are just that, my personal opinion(s). One should always seek the advice of an attorney before blindly using what I am posting as applicable to their specific case.

Again, most of these definitions are not mine, I did not just come up with them, they are taken from court cases or definitions the courts have given such defenses.

Arbitration and Award- If a party pleads the affirmative defense of arbitration and award, the court will consider a motion to compel arbitration, which will effectively dismiss the judicial action and send the dispute to arbitration. When considering a motion to compel arbitration, the court will look to “(1) whether a valid arbitration agreement exists, and (2) whether the dispute falls within the scope of the arbitration agreement.

A very legitimate defense if one want to use the “arbitration strategy.” This defense is commonly used against junk debt buyers (JDB) in an effort to cost the JDB more in legal fees and arbitration costs than it is worth. This defense has become popular when dealing with lawsuits which are considered minor (less than $3,000.00). I'm not a huge fan but I can't dispute it's success when used by somebody that fully understands how the private contractual arbitration process works. Do not confuse this defense with court ordered arbitration, this is defense is for private contractual arbitration. Many courts have mandatory arbitration or mediation but are non binding, they just want the parties to try and resolve first.

The main hurdle one has to overcome when using this defense is to be sure they have not conceded jurisdiction to the court by participating too far in the court litigation process.

Accord & Satisfaction- For a party to successfully claim the affirmative defense of accord and satisfaction to a breach of contract claim, the party must prove “(1) the party, in good faith, tendered an instrument to the claimant as full satisfaction of the claim; (2) the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim;(3) the amount of the claim was liquidated or subject to a bona fide dispute; and (4) the claimant obtained payment of the instrument.”

This defense is not applicable in credit card disputes. Note the bold, full satisfaction of the claim. Unless one has entered into an agreement with the other party, in writing, (you can't change a written contract with a verbal contract), for a payment as settlement in full, accord and satisfaction is a frivolous argument in most credit card cases, as credit card cases are contract disputes.

In short, this argument, is basically the, “I have already paid the amount of dispute.”

Assumption of Risk- Assumption of risk is “the principle that one who takes on the risk of loss, injury, or damage cannot maintain an action against a party that causes the loss, injury, or damage.” Black’s Law Dictionary, 143 (9th Ed. 2009).

A common example of a party voluntarily encountering a known or appreciated danger is when parents sign their children up for youth sports and sign a waiver contract. In insurance claims we used to argue in offsetting a guest passengers injury award, in the event of a wreck, while driving with somebody intoxicated, the passenger assumed the risk of a wreck and injury when they rode in the vehicle of somebody that was drunk.

If arguing this against an original creditor, one would basically need to make the argument that the bank was stupid for loaning you money. Crazy arguments have worked, but it would be a huge roll of the dice and the longest of shots to argue the bank was stupid in loaning money to somebody such as yourself.

This would require one to fully admit to the account and the account being in default. Then one would have to roll the dice they could get a judge to rule the bank should have never loaned you money.

Since a JDB steps in the shoes of the OC, using this argument against a JDB is just as long of a shot when dealing with a JDB.

In closing, a very weak defense that won't work in 99.9% of debt or credit card collection cases. A popular assumption of risk that most can relate with is, being hit by a foul ball at a baseball game. When you walk in the park and take your seat, you assume the risk a foul ball might be hit your way, and if hit by that foul ball, injury could occur. If one does not want to be hit by a foul ball, one can 100% guarantee that not happening, simply by not going to the baseball game.

Usery- This is one that drives me crazy. Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp. (439 U.S. 299), is a unanimous 1978 U.S. Supreme Court decision holding that state anti-usury laws regulating interest rates cannot be enforced against nationally-chartered banks based in other states.

Does there really need to be a discussion on this one. U.S. Supreme Court, being unanimous, has buried this defense. However, do keep in mind it only applies to nationally chartered banks. You can't use this against Citibank, Chase, Cap One, and the creditors we talk about on this board pretty much all the time.

Edited by Coltfan1972
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Contributory negligence- Contributory negligence is a claim by a defendant that the “plaintiff’s own negligence played a part in causing the plaintiff’s injury and that is significant enough to bar the plaintiff form recovering damages.”Black’s Law Dictionary, 1134 (9th Ed. 2009). The defendant is shifting the blame from himself to the plaintiff.

This argument fails for the same reason assumption of risk fails. I used contributory negligence many times in auto accident claims. A person being hit while turning left would allege the car that struck them was speeding. Therefore, even though they turned illegally in front of the other party, the other party was partially responsible since they were speeding.

Discharge in Bankruptcy- Okay this one is pretty simple and very legit if one is being sued on a debt that was discharged in bankruptcy. If a debt is discharged and one is being sued for that debt, one should seek an attorney. This would be a gift to get sued on such a debt. This defense speaks for itself.

Duress- This is another one that is pretty simple and does not need much explaining. Unless a gun was held to your head when applying for a credit card or signing a contract, this dispute fails miserably. A contract is void for duress when the police guarantee somebody that has taken hostages they won't be prosecuted if they just let the hostages go. When the person is then charged, the so called contract is void as it was made “in duress.”

Failure of Consideration- This defense is also pretty simple. It basically means that one party did not perform. One legitimate argument I have seen a lot of is with online schools. The school sues the student and the student argues they stopped paying as they were not getting what the school had promised.

If one is being sued for such debt, this defense might be useful. If the dispute one is being sued for is for property or a certain service and that property was not received or service not preformed, this might be a good defense. Unfortuantley, in a credit card dispute, the terms a quite simply. A party charges on the card for certain items, the items are then given to the party charging those items and the bank sends a bill for repayment.

This is a frivilous argument in a credit card or similar such dispute, but could be useful for other type of disputes. However, generally speaking, one can already dispute with the credit card company if the product they purchase is defective or they don't receive the product. This defense, in my opinion, should not be used for a simple credit card contract case.

Fraud- This is also another one that is pretty simple. One should clearly keep in mind that alleging fraud, the party making the allegation has the burden of proof. Fraud is not a party getting a bad deal or getting ripped off. If a party pays $50,000.00 for a 10,000.00 car, that is not fraud. That is one party being stupid. If that same car was alleged to be one of a kind used in a James Bond movie and forged documents were presented to show the car was rare and as described, and it turned out to be false, that contract would be based on fraud. Fraud is very, very hard to prove in a contract case. Many confuse fraud with a bad or one sided deal. Fraud does not cover stupidity or lack of due diligence by the parties prior to signing or entering into the contract.

Illegality- This one is another simple one. A contract for an illegal act or purpose is not enforceable. I'm sure you've all watched an episode of Cops where a drug dealer calls the police because they got ripped off during a drug deal. Another example would be a john ripping off a prostitute. The prostitute can't sue just as the drug dealer can't sue. The contracts they entered into were illegal.

As with fraud, a bad contract or a bad deal is not, on it's face, illegal. Illegality and fraud defenses are similar. The also both, have the longest of odds in working for a credit card dispute.

Laches- Seems to be a fairly popular one that in my opinion, generally speaking, is frivilous. Laches is an “equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed in asserting the claim, when that delay has prejudiced the party against whom relief is sought.”Black’s Law Dictionary, 953 (9th Ed. 2009).

Credit card cases already have a time in which the courts have ruled is considered waiting too long. It's called statute of limitations. Each state sets it's own statute of limitations for certain actions. Generally speaking, that time frame is between three and seven years (some more, some less, just an average).

In a credit card case it actually helps the debtor the longer the case lingers. The bank records are more likely to be destroyed and witnesses are much more likely to have moved on to other jobs. While I'm sure there could be a case out there, I've never heard of or read of a credit card case that was won by a party claiming the affirmative defense of latches. The party claiming latches must show they were prejudiced.

Once again, the courts and lawmakers, in credit card cases, have already addressed latches, it's called statute of limitations.

Res Judicata- This is somewhat the civil court's double jeopardy provision. This is a very legitimate defense if one has already won a case by judge or jury or there is a dismissal with predudice in place.

Res judicata, also known as claim preclusion, is defined as “an affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been – but was not – raised in the first suit.”Black’s Law Dictionary,

Res Judicata should always be raised if the same dispute already has had a ruling. A common phrase one probably hears is, “You don't get a second bite at the apple.” A party that sues you and loses can't keep trying until they “finally get it right.” Note however in the definition where it states, on the same claim and could have been raised but were not, key words, could have.

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Statute of Limitations- Okay this is the big one and by far, hands down, the most legit The statute of limitations are set by state law. They also vary by type of contract. For example, many states have different statute of limitations for an open book, account stated, oral, or written contract.

The statute of limitations start when you miss your first payment. If the creditor or JDB sues you after the statute of limitations have expired, if you raise the affirmative defense of statute of limitations, the case must be dismissed. The key is you must raise the defense.

A debt being outside the statute of limitations can still have a lawsuit filed. It simply means the claim can be defeated by asserting the suit is "time barred." When that happens the facts of the case are irrelevant. One can owe every dime and have no defense other than statute of limitations. If the statute of limitations have run, the case must be dismissed.

Statute of limitations affirmative defense should be raised if there is any chance the debt is outside the statute of limitations.

I've used this defense and have won with it. The main hurdle is the other side will be arguing a longer statute and most likely will try to find reason that the statute should be tolled (temporairly stopped).

A statute of limitations defense is not always as cut and dry as it appears. There are many things and actions that can toll the statute of limitations For example, if you leave the country, generally speaking the statute of limitations is tolled. If you file for BK and a few months later you have the BK dismissed or don't follow though, the time the debt was tied up in BK is tolled, that time is added back to the statute of limitations.

statute of limitations is a very legit and powerful affirmative defense. It should be the first defense somebody explores when sued.

Failure to state a claim- This is one that is often used. This defense does have it's place in a complaint that is not properly pleaded. For example, if you read the complaint and assume all the facts are correct in the complaint and still the allegations do not prove an allegation, one has not stated a claim.

If I sue a debt collector and I allege the debt collector violated my rights, I have emotional distress and I want one million dollars, my case will be dismissed if the other side files a motion to dismiss and alleges I did not state a claim.

I have to state what the collector did, not just violated my rights. If a lawsuit must have certain documents attached and they don't, one might be able to argue failure to state a claim.

The claim has to be laid out where the party defending knows enough to defend themselves. If I just say you violated my rights, that is unfair for me to expect you to defend that suit. There are hundreds of rights that can be violated.

While this is a very legit defense, it seldom is applicable with the type of lawsuits we deal with mostly on this board. Also, the problem with using this defense is the other side, generally speaking, can just amend the complaint and "cure" their defects with the complaint.

Lack of Privity- This is another favorite. It basically means one is arguing they did not enter into a contract with the party that is suing them, therefore, they have no realtionship with that other party.

In theory, when arguing this against a JDB, it seems to make sense. However, the credit card contracts clearly state that the bank may transfer, sell, or assign the contract to another party, without your permission or even without your knowledge.

Lack of Privity fails as the original contract address this defense. When the account is sold the purchasing party steps into the shoes of the original party and that right is laid out clearly in the credit card contract.

While it will be true that you never had an agreement with a JDB that might have bought your account, the lack of privity affirmative defense fails.

Edited by Coltfan1972
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And of course we can't forget the good ole lack of standing. Why do I not list it as an affirmative efense? Because I don't see it as an affirmative defense and most courts don't either.

I've won by arguing lack of standing, but not as an affirmative defense. It's the perfect defense against a JDB. In fact, used correctly, is almost a guarantee way to win. It's the ultimate weapon against a JDB buyer, however it's not an affirmative defense (except in rare cases).

Standing is an element in a contract case the other side must prove. It's part of their burden of proof. An element of the case does not need to be argued affirmatively. (I am aware there are some limited cases out there that address the need for standing to be listed as an affirmative defense, however, those are very few).

My take on standing when I was having a very good discussion with one of my favorite posters, BV80.

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.

Once again, if there was any confusion, I am not an attorney and above is my opinion, my interpertation of the law, and my strategy.

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I believe that the discussion you've highlighted here was from one of my first threads on this forum....You convinced me to not use the affirmative defenses on my answers, even though everything I had read (for two weeks straight, up until that point had said to use them all, throw in the kitchen sink.

The problem, or issue, as I see it is that there is a lot of misleading information out there on the internet. Of course with due diligence one can find a good site ,like this one :)%. Seeing a situation from many different angles and in different lights can help make a more informed decision.

As always Your thoughts and input are always well thought out and appreciated coltfan!!

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The problem, or issue, as I see it is that there is a lot of misleading information out there on the internet.

Agree, just because something is said or written over and over again, does not make it right. That's why I tried to use as much case law and legal definitions when posting about the different defenses.

My opinion is just that, opinion, but hard to argue with case law.

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Does there really need to be a discussion on this one. U.S. Supreme Court, being unanimous, has buried this defense. However, do keep in mind it only applies to nationally chartered banks. You can't use this against Citibank, Chase, Cap One, and the creditors we talk about on this board pretty much all the time.

You can if the OC's (Citi) lawyer had a dog brain and was stupid enough to admit there was no written agreement given. That's why I advise people to ask for the written agreement in discovery, in hopes they'll get the same dumb answer I got. SD law requires one in order to charge more than Schedule F interest of 15%. They try to weasel out of that by use and acceptance of the card, but that is contract law, not interest law. Only interest law is exportable under 12 USC 85. By the way, I posted a (wanna say FDIC or FTC) letter that makes it mandatory that they use their home state's interest laws.

I didn't spend any time on other state interest laws, but there may be similar weknesses.

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You can if the OC's (Citi) lawyer had a dog brain and was stupid

LOL, okay there is always the chance of the dog brain stupid lawyer. I should have known you would find a loophole that would be based on the stupidity of an attorney. :D

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Does there really need to be a discussion on this one. U.S. Supreme Court, being unanimous, has buried this defense. However, do keep in mind it only applies to nationally chartered banks. You can't use this against Citibank, Chase, Cap One, and the creditors we talk about on this board pretty much all the time.

You can if the OC's (Citi) lawyer had a dog brain and was stupid enough to admit there was no written agreement given. That's why I advise people to ask for the written agreement in discovery, in hopes they'll get the same dumb answer I got. SD law requires one in order to charge more than Schedule F interest of 15%. They try to weasel out of that by use and acceptance of the card, but that is contract law, not interest law. Only interest law is exportable under 12 USC 85. By the way, I posted a (wanna say FDIC or FTC) letter that makes it mandatory that they use their home state's interest laws.

I didn't spend any time on other state interest laws, but there may be similar weknesses.

But a baboon brained attorney could point to SD law and state that it specifically defines a CC contract as falling into the category of a written agreement, and thus according SD law, there is no limit on the interest rate even if they don't provide the written agreement.

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LOL, okay there is always the chance of the dog brain stupid lawyer. I should have known you would find a loophole that would be based on the stupidity of an attorney

You just can't resist, can you. You have to bait me with Citibank. It's like A League of Their Own....."High fastballs. can't hit them, can't lay off them." Waving Citi in front of me is always fun, I love it! keep trying. I'll answer the guy's post next and straighten him out.

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But a baboon brained attorney could point to SD law and state that it specifically defines a CC contract as falling into the category of a written agreement, and thus according SD law, there is no limit on the interest rate even if they don't provide the written agreement.

The first thing you have to understand is that Citibank is under the authority of 12 USC 85, the National Banking Act of 1864. This law (see Marquette) clearly says any national bank can export their home state interest law. There is no language that suggests that they can export their death penalty, their motor vehicle laws, or any other statutes that do not pertain to interest. (see Citbank v. Wilson, MO.)

SDCL 54-3-1.1 specifically states that a written agreement is required in order for them to charge more than the Schedule F interest rate of 15%. This has been upheld by the SD Supreme Court.

The statute you refer to is not an interest rate statute, it is contract law. It is in a different section and makes no mention of interest rates. Therefore, it cannot be exported. This is the statute they rely upon after they fold and admit that they never executed an agreement with you. It is called use and acceptance. It states that use of the card constitutes acceptance of the terms we never sent you. Sure. And I'm John Jingleheimer F----ing Jones. How do you bind people to the terms or laws of another state by dint of a contract / agreement you just admitted you never sent? The only way they can possibly invoke this statute is if they can prove you agreed to be bound by SD law, none of which was explained in the cardholder agreement. What if they can lock you up for life in SD if you are 30 days late? How would you know? dDd they tell you? No. Did you have a chance to study this before agreeing to it? What, you have to go to law school in SD before getting a stupid credit card? Completely unfair and highly prejudicial.

There, Coltfan, let's see you get me on this one. (he'll think of something, I'm sure)

Pursue discovery and the idiots Citi hires will probably invoke this. get them to admit they never sent a contract, or that contracts are not executed. They'll do it, guaranteed. Just give them the chance, they'll swallow their foot right up to the ankle.

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Nascar posted recent case law from Missouri - CACH, LLC, v. Askew, Mo: Supreme Court 2012. The following is from that case:

"As previously noted, standing cannot be waived." Farmer, 89 S.W.3d at 451(cited in CACH, LLC, v. Askew, Mo: Supreme Court 2012).

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Pleading an affirmative defense does mean you have the burden at trial or a dispositive motion, but it also means the other side has to overcome those in a msj. If you are afraid to plead a defense for fear you don't know what to do next, nothing on the internet will help you. Get thee to a lawyer.

If you have a JDB, ALWAYS plead lack of standing. If you don't you will likely lose that. Dump the lack of privity claim. you are generally meaning standing.

If the usury rate in the statements are above your state's limit, plead usury. You'd be surprised at the local case law out there that doesn't quote Marquette.

I always plead statute of limitations, particularly with a jdb, since thedates they put in complaints often mean nothing.

Don't forget lack of legal capacity. is the plaintiff authorized to do bunsiness in your state? Do they need a license and haven't pled it?

If they plead account stated, make sure you deny that allegation and put in a defense that you never agreed to any amount with them.

Do plead that " the subject matter is covered by an extrajudicial arbitration agreement at the election of either party." It is not an automatic send off; you must move the court to compel arbitration. It can be useful.

Failure of consideration, assumption of the risk, contributory negligence, accord - stay away.

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If you have a JDB, ALWAYS plead lack of standing. If you don't you will likely lose that.

Disagree, I only know of one court that considers lack of standing as an affirmative defense that if not pleaded you wave the right to argue lack of standing.

Wells Fargo Bank Minnesota, Nat. a$$'n v. Mastropaolo, 42 A.D.3d 239, 244, 837 N.Y.S.2d 247, 251 (2d Dep't 2007)

It's in some New York courts and the lawmakers are already in the process of getting that changed and surprise, surprise creditors are against it. xheadscratchx

Also another court in New York that has already gone against above precedent.

urora Loan Services, LLC v. Thomas, 70 A.D.3d 986, 897 N.Y.S.2d 140 (2d Dep't 2010)

Lack of standing, except in that one court (there obviously could be some others) is the exception, not the rule.

In fact there are numerous court case and appeals precedent stating you "can't" wave lack of standing.

Obviously using one case in one state does not make it applicable everywhere, either way. However, the trial started in my case and it was the first time the word standing had come out of my mind in nine months and four rounds of discovery.

The other side just stood there dumbfounded that I was challenging they even owned (had standing) the alleged debt. I argued it was a key and the most basic element of any lawsuit and the judge agreed without even blinking. In fact, even the other side did not argue I had waved the defense.

I respectfully disagree with you on the issue of pleading standing on the front end. It tips off your opponent as to a defense that will simply wreck their case, even if one admits 100% to owing "somebody, just not them" as I argued.

You can challenge standing in discovery by your requests for production of documents such as the chain of custody, prior alleged owners, ect.. without ever officially challenging the standing, and therefore possibly tipping off the other side.

If one has an attorney it would not work, I assume, but if one is pro-se the other side will just see the pro-se Defendant as copying and pasting discovery requests and won't take them serious. Then they can find out the unfortunate assumption they just made when the trial starts and they leave the courtroom humiliated due to getting their tail kicked by a pro-se using the most basic element to any lawsuit, standing. :twisted:

However, if one is not for sure, can't or won't (probably don't need to be representing themselves anyway if they won't or can't) research the rules of the court to a point where there is no question, then I would agree you should error on the side of caution and pleaded it on the front end.

In my case it was won before the trial even started. I had discovery with them objecting to a ton of my requests that involved standing (thanks losers for the blanket objections assuming I had no idea what I was doing and just copying and pasting from the internet :)%, )

A witness list with no witness from the original creditor (:)%), a break in the chain for what they did provided because "objection as irrelevant who the prior owners were (:)%), and a full accounting of how the amount became what they alleged as objected overly burdlesome (:)%)

The other side waved their right to prove their case with their responses, I did not wave my right to force them to meet the elements of each and every one of their claims. My rights were not to be violated simply due to the other side being sloppy and I was/am not required to draw their attention to that fact pre-trial. They are the ones with "Attorney at Law" behind their name.

I coupled that with strong appeals precedent, that was never even remotely needed, and non appeals precedent and arguments and then just grabbed my popcorn and watched.................... Nothing like finally revealing you were holding the straight flush the whole time the other side was betting everything they owned into a hand they thought was a complete bluff. xpopcornx

:trainwreck:

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If the usury rate in the statements are above your state's limit, plead usury.

I completely disagree with this. 12 USC 85 (National Bank Act of 1864) clearly establishes that national banks may use the interest rate of their home state. The OCC opinion letter of 1981 states that it is MANDATORY. Every state banking statute I have ever read EXEMPTS national banks from state usury laws. It matters not a whit that state cases do not cite Marquette, states have no regulatory authority over national banks. I have studied over 2,000 credit card cases, I deny anyone to show me one case where a state imposed its usury law on a national bank and prevailed.

If they plead account stated, make sure you deny that allegation and put in a defense that you never agreed to any amount with them.

Again, I disagree in part. Account stated is not an allegation, it is a well accepted cause of action, although I really hate it. The elements may not be well pleaded, but that leads to a more definite statement. You can deny acceptance, but that is only one element.

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The first thing you have to understand is that Citibank is under the authority of 12 USC 85, the National Banking Act of 1864. This law (see Marquette) clearly says any national bank can export their home state interest law. There is no language that suggests that they can export their death penalty, their motor vehicle laws, or any other statutes that do not pertain to interest. (see Citbank v. Wilson, MO.)

SDCL 54-3-1.1 specifically states that a written agreement is required in order for them to charge more than the Schedule F interest rate of 15%. This has been upheld by the SD Supreme Court.

The statute you refer to is not an interest rate statute, it is contract law. It is in a different section and makes no mention of interest rates. Therefore, it cannot be exported. This is the statute they rely upon after they fold and admit that they never executed an agreement with you. It is called use and acceptance. It states that use of the card constitutes acceptance of the terms we never sent you. Sure. And I'm John Jingleheimer F----ing Jones. How do you bind people to the terms or laws of another state by dint of a contract / agreement you just admitted you never sent? The only way they can possibly invoke this statute is if they can prove you agreed to be bound by SD law, none of which was explained in the cardholder agreement. What if they can lock you up for life in SD if you are 30 days late? How would you know? dDd they tell you? No. Did you have a chance to study this before agreeing to it? What, you have to go to law school in SD before getting a stupid credit card? Completely unfair and highly prejudicial.

There, Coltfan, let's see you get me on this one. (he'll think of something, I'm sure)

Pursue discovery and the idiots Citi hires will probably invoke this. get them to admit they never sent a contract, or that contracts are not executed. They'll do it, guaranteed. Just give them the chance, they'll swallow their foot right up to the ankle.

Define "exporting interest law" or "exporting interest rates" for purposes of the federal courts. If I were a bank attorney, I would be arguing that if SD residents with a Citicard could be charged unlimited interest, anybody with a Citicard could be charged unlimited interest.

From 12 USC 85: Any association may take, receive, reserve, and charge on any

loan or discount made, or upon any notes, bills of exchange, or

other evidences of debt, interest at the rate allowed by the laws

of the State, Territory, or District where the bank is located...

In other words, the SD contract law is intertwined with the allowable interest rates, and therefore, for the purposes of superseding usury laws only, may be exported.

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And of course we can't forget the good ole lack of standing. Why do I not list it as an affirmative efense? Because I don't see it as an affirmative defense and most courts don't either.

I've won by arguing lack of standing, but not as an affirmative defense. It's the perfect defense against a JDB. In fact, used correctly, is almost a guarantee way to win. It's the ultimate weapon against a JDB buyer, however it's not an affirmative defense (except in rare cases).

Standing is an element in a contract case the other side must prove. It's part of their burden of proof. An element of the case does not need to be argued affirmatively. (I am aware there are some limited cases out there that address the need for standing to be listed as an affirmative defense, however, those are very few).

This tidbit is important for Illinois posters:

Under Illinois law, lack of standing is an affirmative defense, which is the defendant’s burden to plead and prove. Wexler, 211 Ill. 2d at 22-23; In re Estate of Schlenker, 209 Ill. 2d 456, 461, 464 (2004); Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 494 (1988). While a lack of subject matter jurisdiction cannot be forfeited (M.W., 232 Ill. 2d at 417), a lack of standing will be forfeited if not raised in a timely manner in the trial court (Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 237 (2000); Greer, 122 Ill. 2d at 508; Lyons v. Ryan, 324 Ill. App. 3d 1094, 1101 n.5 (2001)).

Ripeness, like standing, is also subject to forfeiture if not raised in the

trial court. In the Interest of General Order of October 11, 1990, 256

Ill. App. 3d 693, 696 (1993).

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Define "exporting interest law" or "exporting interest rates" for purposes of the federal courts.

National Banks are actually required to use their home state interest rate. This is an OCC ruling, I have it here somewhere in my pile of stuff. What they cannot do is use the cardholder's home state interest rate; not that they'd even want to, after all, they moved to SD because of the interest rate law. When they apply their home state rate in other states, it is being "exported." What they cannot "export" is other types of law from their home state. The only way they can bind a consumer to SD law is by the cardholder agreement. That is arguable depending how they respond to discovery, etc.

True, anybody they issue a card to is subject to SD interest law. Unfortunately, so is Citibank. The statute is pretty clear, without a written agreement, they cannot charge more than Schedule F interest which is 15%. The "rate allowed" is determined by the SD statute I posted, not a separate statute in a separate section which proclaims the manner in which a credit card can be used and the consequences of that usage. That particular statute makes no mention of interest. I don't think the level of court makes any difference.

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Interesting thread. In most, if not all jurisdictions, some type of affirmative defense is required. Usually, it is also spelled out which ones are acceptable. While I agree with some of this post I disagree with some as well. The most important element of any affirmative defense is not the stating of the defense in its proper terms, but the argument you make in supporting it.

To defeat a MSJ you must have a point in law or in fact that becomes an issue of material fact. If anyone believes that affirmative defenses are uselss, other than standing (which isn't an affirmative defense), then they might as well concede. They lost, no defense.

My guess is, the majority of the people that come here really do owe the debt. They can't afford an attorney and they do not know how to defend the summons. So they come here in search of knowledge. This site has a wealth of good and some bad information. Affirmative defenses is the only hope they have.

Let's look at arbitration. The OP stated earlier of the unanimous decision of the Supreme Court regarding usery laws. Ah, but then I find it stated over and over again that someone may waive arbitration if they did not invoke the right soon enough. These two issues are so similar. Because they are both controlled by federal law.

If a National Bank has issued you a credit card with a mandatory arbitration clause in it, the States Courts are powerless to over rule it. Depending on the language of the clause, State courts have no jurisdiction. Does that mean they will not rule aginst you and for the Plaintiff, no. They do it all the time. You just have to keep appealing it.

Which leads to the critical part of affirmative defenses. Unless pled, they are waived. When answering a summons you have not been afforded discovery and/or what discovery may unvail. To not plead an affirmative defense at this point only strenghtens the Plaintiff against you. Certainly, you may ask for leave of the Court to amend your responsive pleading after discovery, but it is at the discretion of the judge and usually after the Plaintiff has filed a MSJ because you failed to respond with a proper affirmative defense to the summons and they are entitled to judgment as a matter of law.

Lack of standing is normally ruled on as a MSJ. It should always be included in your prayer for relief at the end of your response. Yet, in this thread among the many intelligent people no one has stated the proper way to claim a legitimate affirmative defense or the proper way to state it in your response.

Without some type of affirmative defense you lose automatically.

Edited by debtfighter
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