mommamia3

Can affirmative defenses cause you to lose?

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Thank you Coltfan for your excellent post on affirmative defenses. Sometimes I do so much research I get a little fuzzier before I get clearer so...

Before I found this site last year I had done my answer to the complaint with info that I found by googling 'answering a complaint'. I therefore filed every affirmative defense that I thought might stick as suggested by the googled site as the ones that didn't stick would just fall by the wayside. Now that I have about 22 affirmative defenses on my answser and my trial is coming up in June my question is this...

Can my affirmative defenses sink me? I understand and believe I can defend the jdb's claims of breach of contract, money lent, account stated, money had rec'd, and open book account with the help of this site but do we do that first? Then if needed move to my affirmative defenses at trial?

My thanks as always to all of you!

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Yes, they can doom you. Read this thread. This lady in Tenn had the perfect defense, but tried to argue lack of privity as an affirmative defense and lost because of that.

http://www.creditinfocenter.com/forums/there-lawyer-house/312720-bad-tn-case-law.html

Personally, I would amend my answer (might be too late) or disclose via discovery to the other side you are dropping the defenses. In other words do what you can to show you are not arguing affirmative defenses.

You don't want the trial to start with you taking the position the claims in the other sides are correct, and then prove why they are still not legally liable to you (that is what you do with an affirmative defense).

The lady in Tenn, if she would have just challenged the records as hearsay would have won, but she wanted to argue a JDB could not collect because she never entered into a contract with the JDB.

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Thanks and just to ensure I understand...

First, JDB must try to make their case. Then, even if they fail to make their cases on each cause, I still have to argue each and every one of mhy affirmative defense? It is sort of like I counter-sued and now have to make my case too except if I don't then they can still win even though they failed to make theirs??

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In this case, her whole defense was lack of privity - she didn't lose just because she gave affirmative defenses. You should always have more than one angle up your sleeve.

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Defenses are yours to prove in court, the jury gets to decide if you did a good job. I didn't read your thread that I recall, but 22 defenses? I guarantee 21 of them are no good. You're going to have to stand in front of a jury and argue every one of these and tell the jury how they apply. Most of them don't, I don't even have to see them to tell you that. If they didn't object or motion to strike them, when you go to court just tell the judge that you waive them. The only defenses that really work against a jdb are lack of standing to sue and SOL.

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If you're dealing with a JDB, I think your best bet would be to poke holes in their case instead of worrying about your defenses. Besides SOL, or having proof you paid off the account, it would be difficult to prove any affirmative defense, as in my case, how do you prove the account was actually not mine?

I'd guess that 99% of those who informed themselves well from this forum (and actually go to trial) and win, win because they showed that the plaintiff had nothing but hearsay evidence.

I think you'll be fine.

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I am by no means an expert, but as I understand it, even though you've listed all those affirmative defenses, you are not required to argue them if you choose not to. I'm sure someone more familiar with California law can confirm this, but I think you'll be just fine.

I do know, however, that in California, if you do NOT raise affirmative defenses in your answer, you loose the ability to bring them up later without permission from the court.

rt

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Affirmative defenses work like this. I'm way over simplifying it, but this is the bottom line basically.

Judge- Do you owe the money to them.

You- Yes, but here is why I'm not legally liable to them.

a. I owe it but it's past the statute of limitations, so while I owe it, I'm not legally liable to them. Here is the law on the statute of limitations, this is why my case falls under the law I just gave you, therefore, the case should be dismissed even though I don't dispute owing the money.

b. Yes I owe the money, but I never entered into a contract with them so I don't owe them. Here is the contract, you can see they are not listed on the contract. Here is case law supporting my position.

c. Yes I owe the money, but they acted with unclean hands and this is what they did......... So I'm not legally liable to them. Here is my argument and case law that support my position.

d. Yes I owe the money, but the contract was not a written contract (statute of frauds) so while I owe it, I'm not legally liable to them because there was no written contract. Here is the case law that supports my position.

You get the point. An affirmative defense means (generally speaking) the facts are not in dispute. You just have a reason why you're not legally liable to them.

A criminal court example might help.

A person goes on a shooting spree and kills five people. The defense argues their client is insane. The trial does not focus on if the defendant killed five people. The defense has already stipulated to that by arguing the affirmative defense of insanity. The case simply turns into a trial if the defendant is insane or not. If it is determined they are insane, they probably get life or the needle. The facts are not in dispute.

A guy beats another person outside a bar and puts him in the hospital. A trial he argues self-defense. He admits beating the other person up. However, he claims he was acting in self-defense. The trial turns into if the person was acting in self-defense, not if the person put the other guy in the hospital. The facts are not in dispute. He beat another guy up, he is just saying he has a legally justifiable reason he should go free.

That is how affirmative defenses work (generally speaking).

I've used the statute of limitations before. I never argued for a second the amount of the claim or if I owed the money. I simply argued it was past the statute of limitations. I argued a three year statute, they argued a five year statute.

So we had the whole hearing on if their claim fell under the three year or five year statute of limitations. Nothing else. All other facts were stipulated. So when the judge ruled a three year statute applied, I won automatically, even though I owed the money. The judge ruled I was not legally liable to the other side.

Of course I promptly sued them for suing me on a debt past the statute of limitations, but that is another subject.

ADMIN is right. You want to have multiple arguments. The only problem with that is if you argue a lot of (not all of them) affirmative defenses, they conflict other arguments.

For example, you can't really tell the judge you are the victim of ID theft and did not open the account so you are not legally liable, at the same time you are arguing that you entered into a contract with Citibank, but did not enter into a contract with Midland, so the case should be dismissed for lack of privity.

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So if they fail to prove their case do I still have to argue my affirmative defenses?

With affirmative defenses, they don't have to prove their case. You've already done that for them. You've already stipulated to the facts (generally speaking), and flipped the burden to yourself (a horrible move just about all the time).

It's like in insurance cases I would go to trial over. At the first of the case the both parties would stipulate that whoever won, the damages were a certain amount. I then would get to immediately leave. I was not a party to the accident. I was just there to testify about how much our company had to pay out on the claim. Once that was stipulated to, I was saved from a day of the most boring courtroom (other than a land dispute maybe) type case there is.

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I appreciate everyone weighing in. Rivertime is correct that I raised all of these affirmative defenses because the info previous to this site I saw in my panic of being served said raise everything but the kitchen sink in your answer because you won't be able to do it later. I didn't quite do that but...I think there are 22 of them and quite honestly I had no idea if they applied or not, I figured I would figure that out later. You know, the 'gotta-get-my-answer-in-on-time-at-all-costs-even-though-I-have-no-idea-what-I-am-doing' panic.

So...I still plan to go to court and hopefully see actual cases being heard prior to mine but in the interest of sleeping tonight will the plaintiff first present their case and then regardless of anything else will I have to present my affirmative defenses? And if so can I waive them as suggested?

I thought I wanted to be prepared in case by some miracle they prove that the alleged debt was mine and then I argue affirmative defenses.

HELP :)!

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I appreciate everyone weighing in. Rivertime is correct that I raised all of these affirmative defenses because the info previous to this site I saw in my panic of being served said raise everything but the kitchen sink in your answer because you won't be able to do it later. I didn't quite do that but...I think there are 22 of them and quite honestly I had no idea if they applied or not, I figured I would figure that out later. You know, the 'gotta-get-my-answer-in-on-time-at-all-costs-even-though-I-have-no-idea-what-I-am-doing' panic.

So...I still plan to go to court and hopefully see actual cases being heard prior to mine but in the interest of sleeping tonight will the plaintiff first present their case and then regardless of anything else will I have to present my affirmative defenses? And if so can I waive them as suggested?

I thought I wanted to be prepared in case by some miracle they prove that the alleged debt was mine and then I argue affirmative defenses.

HELP :)!

There is a lot of misinformation and contradictory statements in this thread that I don't have time to discuss. But the bottom line is: don't worry. Your affirmative defenses won't "sink" you at trial.

First plaintiff must prove its case. Your main defense is that it can't do so (no proof of assignment, no admissible evidence of amount owed, etc). After the plaintiff rests its case, you will probably ask that judgment be entered in your favor due to a lack of proof on plaintiff's part.

If the Court denies your request (or most likely defers it), the Judge will ask if you wish to put on evidence of your own. If you wish to introduce evidence on one of your defenses (i.e. statute of limitations), you will do so. Or if you wish to get up and testify that you never received a single statement (thus defeating an element of one of plaintiff's claims), you can do that too. If you think you are ahead and plaintiff can't win, you will simply tell the Court that you "rest" and do not wish to put on any affirmative evidence because plaintiff has not proven its claim.

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Thank you Calawyer as now I can sleep tonight :)! After doing more research of course :)!!

Look at 1111girl's posts. She was concerned about this too. As I recall, she had planned to put on a bunch of evidence in one of her trials and simply rested it when it was clear that the Judge wasn't buying what CACH had to offer.

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Affirmative defenses are useful in the state of California, as another poster pointed out because if you don't use them you lose them! Better to throw a whole bunch at the wall to see which ones stick, just like they do, rather than admit to the alleged debt. Also not all affirmative defenses are an admission of guilt. For example, failure of condition precedent means that you guys entered into a contract but they didn't do what they were supposed to do, rendering the contract invalid. There is no admission of owing anything when one uses that defense. The Satisfaction and accord affirmative defense does not assume that you owe any money either.

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I learned a long time ago, from this board, California courts are just a ton different. To be honest, I did not even take note you were in California. However, I still think it is unwise to throw out affirmative defenses, that are sure fire losers, just so you don't lose the right to use them.

Why would you care about losing the right to use something that is a loser. In other words, you want to preserve your right to "lose" at a later time?

Just my opinion, I highly respect CALAWYER opinion, and hard to argue with somebody that is an attorney in a state you've never even stepped foot in.

However, while "dooming" your case might have been a little extreme. I still think you're setting yourself up for problems if you have pleaded 22 affirmative defenses in a defaulted credit card case.

In federal court it would actually be a violation of the rules to use the throw it all out there and see what sticks, if you did not have a good faith basis to argue the defense.

Accord and satisfaction was brought up by another poster. I don't care if it is California or not, I don't see how you can get around that argument (assuming you made it, can't imagine you didn't if you used 22 defenses). That argument is basically saying (major cutting right to the meat of the argument) you have paid the account in full under an agreement for what would be accepted to "pay in full."

Good luck though, I hope you destroy them in court no matter what argument you use. Just win !!!! I'll gladly eat crow if you can come in here and just report a victory. A junk debt buyer loser no matter how it is done is good in my book !!!

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I actually agree that it does not make sense to throw tons of affirmative defenses against the wall to see what sticks. It is true that you must assert an affirmative defense or you will lose it, however you can ask for permission to amend your answer to assert an affirmative defense just about any time. And the Court should liberally grant the request unless there is some prejudice to the other side.

But the main reason I think it is a bad idea to assert tons of defenses you probably don’t even understand, is a pesky form interrogatory that the plaintiff can send you by simply checking a box. Then, for each affirmative defense, you must state all facts supporting it, give all witness, identify every document, etc. And when you have nothing to say, you don’t look so great if the plaintiff files a motion to compel.

Here, the OP was worried that she was going to be forced to put on evidence on each of the many affirmative defenses at trial. My comments were meant only to allay those concerns.

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But the main reason I think it is a bad idea to assert tons of defenses you probably don’t even understand, is a pesky form interrogatory that the plaintiff can send you by simply checking a box. Then, for each affirmative defense, you must state all facts supporting it, give all witness, identify every document, etc. And when you have nothing to say, you don’t look so great if the plaintiff files a motion to compel

While I don't know the form you speak of, the reason and interrogatory I am familiar with, and agree with your analysis of the reason.

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