dial001

Can Discovery Response be use to remove some affirmative defenses?

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*** I listed a bunch of affirmative in my answers and was hit with this interrogatory:

INTERROGATORY NUMBER 15

State all facts upon which your base each affirmative defense to the complaint in this action.

RESPONSE TO INTERROGATORY NUMBER 15

Responding party asserted a number of affirmative defenses on information and belief in order to preserve the defenses should discovery and investigation reveal circumstances supporting the affirmative defense. However, Defendant withdraws the following affirmative defenses and has no objection to it being precluded from being argued:

a. Plaintiff’s complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

b. Plaintiff’s complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

c. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

d. Plaintiff has failed to name all necessary parties.

e. Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

f. Plaintiff’s complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

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This is what happens when you copy and paste junk from the internet, or even from here. These are not valid defenses. In a credit card case, very few defenses work, and when they do, you'd better have a deep understanding of the law and a specific plan in mind, because you have to prove those defenses are valid. A defense basically means that even if every word of the plaintiff's complaint is true, he still loses because of XXXXX. Now they are turning the tables on you and asking you to prove up this garbage. My suggestion is to respond to the ROGs stating that you will withdraw all defenses, then file a motion for leave of court to file an amended answer, and leave out all these defenses. JDB lawyers are not very good, but they did go to law school and they can beat up on some pro se who knows nothing. You have sent them a clear message that you have no clue, and they will capitalize on this like the bullies they are. When they face a serious competitor, several of whom post here, they run for the hills. No offense to you, but we have to tell you like it is. You can learn this stuff. The best way to help yourself is to file NOTHING with the court until you get it vetted here.

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"The best way to help yourself is to file NOTHING with the court until you get it vetted here."

Legaleagle, If I respond with this ROGS to withdraw all defenses including the basic Standing, would they file MSJ saying that I have no defenses at all in my case and award them judgment?

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Responding party asserted a number of affirmative defenses on information and belief in order to preserve the defenses should discovery and investigation reveal circumstances supporting the affirmative defense. However, base on available information at this time Defendant withdraws all affirmative defenses and has no objection to it being precluded from being argued.

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That should do. You are always allowed to defend yourself in court, part of which is putting the burden of proof where it belongs, which is on the plaintiff. I can accuse you of anything, and you don't have to offer up a special defense, just a general defense. A special defense is designed to defeat the entire claim. You may not have one to what I charge you with, but that doesn't mean I win the case. I still have the burden of proof.

You still have to file an amended answer.

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Dial,

From your last post:

Responding party asserted a number of affirmative defenses on information and belief in order to preserve the defenses should discovery and investigation reveal circumstances supporting the affirmative defense. However, base on available information at this time Defendant withdraws all affirmative defenses and has no objection to it being precluded from being argued.

In most cases it isn't wise to list a bunch of Affirmative Defense, which you don't know if they apply or not. But you have already done so and now need to account for this in discovery based on the interogg.

Instead of pounding out a Motion for Leave to amend and pleading a new answer I would suspect you could go with a version of your first answer listed in this post-

Responding party asserted a number of affirmative defenses on information and belief in order to preserve the defenses should discovery and investigation reveal circumstances supporting the affirmative defense. However, Defendant withdraws the following affirmative defenses and has no objection to it being precluded from being argued:

I would change it to this-

Responding party asserted a number of affirmative defenses on information and belief in order to preserve the defenses until discovery and investigation is completed. Discovery is ongioing at time of answer.

I assume because you know this isn't your account and that you have some proof or exculpatory evidence that you will present, you don't need to spend the time to make all the changes to your affirmative defenses.

The Plaintiff will need to present their case first and with the "proof/evidence" that you have regarding this not being your account, you should rebutt their case. The case will end, without need for you to rely on the affirmative defenses.

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