Coltfan1972

Check Out This Beat down When A Defendant In A FDCPA Used Affirmative Defenses

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As most know, except for a very few I can't stand affirmative defenses. Of course my opinion does not matter, but it's a message board so everybody's got an opinion.

I invite you to read this Federal Judge's absolute beat down in granting a FDCPA Plaintiff's motion to strike about 90% of the Defendant's affirmative defenses.

And I thought I could be a little rough around the edges when somebody posts about asserting a ton of affirmative defenses.

This one is my favorite.

"It is hard to conceive of a more ridiculous defense to an action under the Fair Debt Collection Practices Act."

With this as a very close 2nd

"The eleventh defense is a waste of ink and will be stricken."

:ROFLMAO2::ROFLMAO2::ROFLMAO2:

http://www.warnerlawllc.com/uploads/07-cv-648.pdf

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I enjoyed reading that! It was especially enjoyable considering the identity of the defendant. It's about time a MI consumer got the best of that particular attorney.

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That was very entertaining reading.

While I get that the judge dismissed or denied almost all of the defendant's defenses...why does he also deny the plaintiffs motion at the end?

He says "for the forgoing reasons , defenses 2,9,10,11,12,13,14,15,16,17,&18 will be stricken, defenses 4 & 5 will be stricken with leave to amend, and the remainder of plaintiff's motion will be denied".

I don't understand this...

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The Plaintiff was asking for sanctions but they did not give the Defendant 21 days to cure their pleading and that (according to the ruling which I can only assume is correct) is required to be awarded sanctions.

So they got most of the defense struck but the request for sanctions. It's pretty obvious the judge wanted to hit them with sanctions though.

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This just showa what I have been telling most people in the forum about asserting affirmative defenses. The argument about if you do not assert them in you counter you may lose that right. The Judge strictly states what I have be saying, you NEVER lose the right to assert an affirmative defense, even if it is not in your pleadings in can be brought up even in trial.

The reason I say this a lot is the fact that sometimes debts are so old we forget them totally or forget what the debt was or the amount. So until discovery or oral arguments in court bring light to those facts, a person cannot assert a right until that time.

And I have said that you need not put in your pleadings that "the defendant/Plaintiff asserts the right to amend the complaint at a later date." That right need not be asserted it is part of the process. And a complaint can be amended as new light is shed on the suit.

I have also stated that if you use an affirmative defense you better darn well show the facts and any federal or state statutes, and case law that back up your claim. Merely asserting the right pisses of the Judge. It like the average person trying to tell the Gunny about how to shoot or how to use a weapon, come on do you think that you can educate the Gunny on how to shoot after 26 years in the Corps? It just don't work. You have to show the judge you know what you are talking about, or that the law is not strict and you are asking the court for a decision on the statute.

Edited by BTO429
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Defenses are fine, if they actually have some bearing on the case at hand and they are valid. When you see 18 defenses to an FDCPA claim, you know the attorney doesn't have a clue, or he let his office staff do the work. Same with credit card cases....most of them just don't have any bearing on the case. Some do, but you really have to know your stuff to use them. Most newbies cannot do this, so Coltfan's approach is correct, just leave them out or you'll make trouble for yourself.

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IMO your answer should be a generic denial of everything but your name and address. Because here's what happens.

They file.

You answer.

You send discovery.

They ignore it.

They file an MSJ.

That's where the rubber meets the road.

Anything up to that point in time is a waste of your time IMO.

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IMO your answer should be a generic denial of everything but your name and address. Because here's what happens.

They file.

You answer.

You send discovery.

They ignore it.

They file an MSJ.

That's where the rubber meets the road.

Anything up to that point in time is a waste of your time IMO.

You left one off your list after they file MSJ after ignoring discovery, they lose.

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New York courts have ruled that the defense of standing can be waived if not raised in an answer or preanswer motion to dismiss.

"Since the defendant did not raise the standing issue in his answer or in a pre-answer motion to dismiss the complaint, Wells Fargo correctly argued that the defendant did, in fact, waive any defense based on a lack of standing, pursuant to CPLR 3211 (e)." Wells Fargo v. Mastropaolo, 42 AD 3d 239, 244 - NY: Appellate Div., 2nd Dept. 2007.

Edited by BV80
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WOW - But you guys have to remember, that the defendant referenced here is a JDB. It is to be expected that an attorney for the JDB will be bale to piece together a better defense than the 18 "throw 'em against the wall and see what sticks" defenses...the Judge even said so at the end...

Every attorney admitted to practice in this state takes an oath promising, among other things, not to counsel or maintain “any defense except such as I believe to be honestly debatable under the law of the land.” Rule 15, § 3(1) of the Supreme Court Rules Concerning the State Bar of Michigan. The assertion of every conceivable affirmative defense falls far outside this solemn obligation. If the answer in the present case represents defense counsel’s usual approach to civil litigation, he should reform his practices immediately. Certainly, if counsel should ever file another set of omnibus affirmative defenses in this court, he will be subject to the imposition of sanctions under Rule 11, on the court’s own motion.

xrulesx

18 defenses from a JDB...nice :) Too bad Plaintiff didn't give the necessary 21 days...he'd have gotten his sanctions.

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18 defenses from a JDB...nice :) Too bad Plaintiff didn't give the necessary 21 days...he'd have gotten his sanctions.

No, what's really nice is I just got the same defenses. That is what sent me looking for something like this. And I'll be giving them the 21 day notice.

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