The Affirmative Defense

[deadbeat00]

Lots has been written here on subject of the Affirmative Defense.

However, somewhere I have read that if a defendant uses Affirmative Defense the burden of proof shifts to him and if he fails to prove it he may lose his case regardless of plaintiffs claim factually.

I am complainant in FDCPA Arbitration and respondents answered with about 45 Affirmative Defenses which many cant even qualify as such.

I would like to turn table against them.

How should I go about it if possible?

[Coltfan1972]

If you argue an affirmative defense, it's yours to prove. If you sued somebody and they argued 45 affirmative defenses, they they have to prove them. If they don't prove them, it does equal an automatic win for the other side.

However, obviously, the party with the burden of proof has a little tougher job in a case. There is a time and place for affirmative defenses. In fact, there are times if you don't use them it's foolish and can cost you a victory. Generally speaking, for most of the cases we discuss on this board, affirmative defenses are not relevant and should not be pleaded, except for a very few that sometimes have relevance (statute of limitations, for example).

45 affirmative defenses? Wow, I'd like to see those. What I would do is hit them with discovery and ask them the factual basis for each defense, and other questions that force them to disclose. I'd ask via production of documents for anything that will be produced at trial to support those defenses. They have to disclose them to you.

I'd have the time of my life with discovery is somebody argued 45 affirmative defenses. However, at the end of the day, it's not an automatic win if they can't prove them, but it will sure put you close to a victory.

[usagi555]

If you argue an affirmative defense, it's yours to prove. If you sued somebody and they argued 45 affirmative defenses, they they have to prove them. If they don't prove them, it does equal an automatic win for the other side.

However, obviously, the party with the burden of proof has a little tougher job in a case. There is a time and place for affirmative defenses. In fact, there are times if you don't use them it's foolish and can cost you a victory. Generally speaking, for most of the cases we discuss on this board, affirmative defenses are not relevant and should not be pleaded, except for a very few that sometimes have relevance (statute of limitations, for example).

45 affirmative defenses? Wow, I'd like to see those. What I would do is hit them with discovery and ask them the factual basis for each defense, and other questions that force them to disclose. I'd ask via production of documents for anything that will be produced at trial to support those defenses. They have to disclose them to you.

I'd have the time of my life with discovery is somebody argued 45 affirmative defenses. However, at the end of the day, it's not an automatic win if they can't prove them, but it will sure put you close to a victory.

IMO, it also depends on the affirmative defense too. Is the nature of the affirmative defense one that requires you to admit to the allegations? SOL typically is, unless they're claiming that the last date of payment was more than 4 years (or whatever your SOL is) ago for you. Res Judicata is not. You're claiming that you've already been through the ringer over the issues and the outcome was favorable for you. However, if you have a valid Res Judicata defense, you're probably going to have an easy time proving it.

Edited March 25, 2012 by usagi555

[deadbeat00]

I'd have the time of my life with discovery is somebody argued 45 affirmative defenses. However, at the end of the day, it's not an automatic win if they can't prove them, but it will sure put you close to a victory.

I will post them soon just for a kick of it.

But the main question still remains, lets say they can prove some and not others, does it make any difference?

Can they withdraw some without losing their defenses.

It is all relating to my FDCPA claims and damages.

35 here

http://ocsatire.com/JAMS/Affirmative Defences C.pdf

and 25 here

http://ocsatire.com/JAMS/Affirmative Defences G.pdf

I think some are good.

Edited March 26, 2012 by deadbeat00

[usagi555]

[...]lets say they can prove some and not others, does it make any difference?

A defendant claims SOL and Res Judicata as affirmative defenses. This defendant produces a certified copy of the dismissal with prejudice from the previous court case, but totally fails to prove the SOL defense. Case dismissed. Alternatively, a defendant uses the same affirmative defenses, but provides billing statements showing that the last payment puts the debt beyond the SOL, but fails to provide any proof that there was a court case that was decided in his favor. He still wins.

Affirmative defenses have two basic forms:

It doesn't matter if the plaintiff's claims are true, here's why the court should find in my favor.

100% of the plaintiff's claims are true, and the court should still rule in my favor.

Prove an affirmative defense and you win.

IMO, an attorney using 45 of them is nothing more gamemanship. I'd run their legal bills through the roof making them try to prove every single last one of them, and I'd find a reason to drag their asses into court to argue them every chance I had. One valid affirmative defense is going to beat 45 friviolous ones every single time.

Edit: Holy Hell, I just read the first 25 or so. Violates due process? I was under the impression that they could argue their case in court And violates the 8th amendment because you asked for punitive damages? The SCOTUS has already ruled on those matters

Edited March 26, 2012 by usagi555

[PC1978]

Did you sue Capital One for FDCPA violations? If so, I think their 31st defense is valid, they aren't considered a debt collector.

Edited March 26, 2012 by PC1978

[deadbeat00]

Did you sue Capital One for FDCPA violations? If so, I think their 31st defense is valid, they aren't considered a debt collector.

Yes they are in the California under the Rosenthal FDCPA ("RFDCPA")

Well, they will claim it anyway.

[deadbeat00]

It appears that the bar of proof has been raised to "plausibility standard" not only to the complaint but to the affirmative defenses too in the FEDERAL COURT.

So that should be good news for me as Plaintiff (Claimant)

Alston & Bird Labor & Employment Blog | DON

The following cases have held that the Twombly plausibility standard does apply to affirmative defenses:

Home Mgmt. Solutions, Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412843 (S.D. Fla. Aug. 21, 2007);

United States v. Quadrini, No. 2:07-CV-13227, 2007 WL 4303213 (E.D. Mich. Dec. 6, 2007);

Holtzman v. B/E Aerospace, Inc., No. 07-80551- CIV, 2008 WL 2225668 (S.D. Fla. May 29, 2008);

Safeco Ins. Co. of America v. O’Hara Corp., No. 08-CV-10545, 2008 WL 2558015 (E.D. Mich. June 25, 2008);

Stoffels v. SBC Communications, Inc., No. 05-CV-0233-WWJ, 2008 WL 4391396 (W.D. Tex. Sept. 22, 2008);

Greenheck Fan Corp. v. Loren Cook Co., No. 08-cv-355-jps, 2008 WL 4443805 (W.D. Wis. Sept. 25, 2008);

Teirstein v. AGA Medical Corp., Civil Action No. 6:08cv14, 2009 WL 704138 (E.D. Tex. Mar. 16, 2009);

Shinew v. Wszola, Civil Action No. 08-14256, 2009 WL 1076279 (E.D. Mich. Apr. 21, 2009);

FDIC v. Bristol Home Mortgage Lending, LLC, No. 08-81536-CIV, 2009 WL 2488302 (S.D. Fla. Aug. 13, 2009);

In re Mission Bay Ski & Bike, Inc., Nos. 07 B 20870, 08 A 55, 2009 WL 2913438 (Bkrtcy. N.D. Ill. Sept. 9, 2009);

Tracy v. NVR, Inc., No. C 09-02429 WHA, 2009 WL 3153150 (W.D.N.Y. Sept. 30, 2009);

CTF Development, Inc. v. Penta Hospitality, LLC, No. C 09-02429 WHA, 2009 WL 3517617 (N.D. Cal. Oct. 26, 2009);

Bank of Montreal v. SK Foods, LLC, No. 09 C 3479, 2009 WL 3824668 (N.D. Ill. Nov. 13, 2009);

Hayne v. Green Ford Sales, Inc., --- F.Supp.2d ----, 2009 WL 5171779 (D. Kan. Dec. 22, 2009).

[Coltfan1972]

I'm sure they are allowed to argue multiple theories for their defense. In other words, go down the list and if one sticks, they win. Don't get alarmed with the sheer number of the defenses.

[deadbeat00]

I'm sure they are allowed to argue multiple theories for their defense. In other words, go down the list and if one sticks, they win. Don't get alarmed with the sheer number of the defenses.

At which point it is argued?

If the burden of proof is on them should I file any motion?

"and if one sticks" ..... It is virtually impossible to win.

There is no judge who will rule against the bank on 35 ADs one will stick.

So I may be the first case in your challenge.

[Coltfan1972]

Post there defenses. I'm sure most of them are not even affirmative defenses. To answer your questions, they will argue their case most likely by summary judgment, then if they lose that it will be argued at trial.

You don't file a motion, you serve discovery on them, and ask all about their defenses.

Don't worry, the JDB I sued made the following arguments/affirmative defenses

They were not a collection agency (loser)

There were not bound by the FDCPA (loser)

I entered into a seperate agreement to pay the debt (loser)

venue was improper as they did no business in Arkansas (loser, guess they never heard of long arm jurisdiction).

They did not have minimum contacts in the AR (loser)

Failed to state a claim (loser)

no subject matter jurisdiction (loser)

they properly validated (loser, matter for trial)

summary judgement for emotional distress (loser)

account stated so 5 years statute of limitations and not the 3 for open account I argued (loser)

OC records are now their business records (loser)

Motion to strike my amended complaint (loser)

Motion to compel me to be more responsive to admissions (loser)

Motion to strike second amended complaint (loser)

motion to strike my motion in liminie as I did not sign it (loser), judge told me to go sign it.

An open account means an account that is not closed by the creditor and this account was a closed account (loser, yes not lying).

They are a bank (loser, not lying again)

They are not required to be licensed in Arkansas because they are not a collection agency, but a debt buyer (loser)

Arkansas has no statute of limitations for defaulted debt (loser, example of multiple theories, as they argued a five year statute) since AR allows for an offset at anytime. (loser)

Asked the judge for me to produce medical records (loser, I signed a med release so they could get. The doctor would have given to me free, but I knew they would charge them)

They properly answered the interrogatory on how long they have been collecting debts in Arkansas, and my motion to compel should be denied (loser)

I could go on and on, as some of those are not affirmative defenses and just trial and hearing arguments. My point is they are going to argue everything.

[deadbeat00]

Post there defenses. I'm sure most of them are not even affirmative defenses.

I did.

35 here

http://ocsatire.com/JAMS/Affirmative Defences C.pdf

and 25 here

http://ocsatire.com/JAMS/Affirmative Defences G.pdf

My point is they are going to argue everything.

Unfortunately I am in JAMS arbitration so the discovery is handled differently by arbitrator allowing what can be discovered. So if I want discovery I must file a motion for a conference first.

[Coltfan1972]

Oh, I see, sorry I missed this was in arbitration. I'll have to yield to others. I've never participated in arbitration or even researched it.

Good luck !! I'm sure B.S. is the same B.S. in court or arbitration, but I don't know the procedures for arb.

[Coltfan1972]

Good grief, what in the world did you sue them for. What are you alleging they did. Where does Cap One play into this? Are you suing them for vicarous liability? You sue them for slander or liable? They have all this defense of the truth?

[deadbeat00]

Good grief, what in the world did you sue them for. What are you alleging they did. Where does Cap One play into this? Are you suing them for vicarous liability? You sue them for slander or liable? They have all this defense of the truth?

Essentially yes!

They are trying to convert consumer debt into the business debt based on fraudulent affidavit.

Here is the Arbitration part.

http://www.creditinfocenter.com/forums/arbitration/310892-business-credit-card.html

[Josiah]

Anyone out there have any experience with NH Law and creditor lawsuits?

Have just rec'd a summons with Pride Acquisitions as the Plaintiff. I did send a validation letter to attorney acting as agent for Pride and the day after they whipped a stack of Chase documents right back at me. A sheet that showed a bundled sale of debt with amounts of purchase price blacked out. No specific affadavit that our debt was included.

There was a stack of Chase statements. The debt the statements showed was 20K less than amount alleged by PA. Lot more stuff in mix, but I'll start with that. I'll give more info if someone has specific questions.

Thanks for all the good stuff you are posting here.

[deadbeat00]

Anyone out there have any experience with NH Law and creditor lawsuits?

Have just rec'd a summons with Pride Acquisitions as the Plaintiff. I did send a validation letter to attorney acting as agent for Pride and the day after they whipped a stack of Chase documents right back at me. A sheet that showed a bundled sale of debt with amounts of purchase price blacked out. No specific affadavit that our debt was included.

There was a stack of Chase statements. The debt the statements showed was 20K less than amount alleged by PA. Lot more stuff in mix, but I'll start with that. I'll give more info if someone has specific questions.

Thanks for all the good stuff you are posting here.

It would be good if you could start your own thread.

[oxyrynchus]

I actually received that exact list of defenses in my JAMS case against Cap1 -- Boilerplate stuff and not signed by the lawyer but from the paralegal..sensing a pattern here?