Determined1

Plaintiff's Motion to Strike my Affirmative Defenses - How to Respond?

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Hi,

I could really use the assistance of fellow board members on how to approach a Plaintiff's Motion to Strike my Affirmative Defenses in a rather large lawsuit. My main questions are: Do we just argue our respective positions at a hearing or does the Judge rule on what's been filed, or should I respond with an Objection clarifying my position, and how much time do I have to respond.

Here's some background:

I've been fighting a lawsuit in Florida since 2009. The case was filed by a large bank against my company, and myself, for what they claim was a breach of contract over a business line of credit and a personal guarantee. The amount in dispute is approximately $20,000. The original lawsuit was filed in 2009, and I replied with a General Denial due to their improper service and failure to attach a complete contract, among other defects. Their attempt at a default judgement was denied.

The next 15 months passed and they did nothing, no motions, no hearings, etc. While my state declares lack of prosecution occurs after 10 months, the courts generally allow a party who has not prosecuted a case to pick up where they left off and continue the suit. I was handling this matter Pro Se, as my company had been dissolved, but I was speaking to a law firm about potential representation. Because my case had very similar elements to two class actions already against the same bank, both filed in Florida, I felt had a strong defense and possibly a new class action to pursue. My case mirrors the consumer class actions, but this would be for a new class action for business customers. I spent 4 months speaking with a law firm and its attorneys that represented themselves as experts in bank class actions, and gave them my entire file, the issues in dispute, and a great deal of privileged information.

One day I received an email from one of this law firm's senior partners (small law firm, 5 attorneys) that they can't help me further and the attorney I was speaking to the most was no longer with the firm. A few days later I receive a Motion for Summary Judgement filed by the bank (after no action for 15 months), with a sworn Affidavit attesting to legal fees and costs for the Plaintiff's pursuit of the lawsuit as an Exhibit to their Motion for Summary Judgement. The Affidavit was signed by the senior partner of the law firm I was consulting with for 4 months. The lawyers I was consulting with for my defense took my info and not only handed it off to the Plaintiff's lawyers, but also used it to file an Affidavit against me! To say I was shocked and upset would be an understatement. This law firm was not representing the Plaintiff in my case, but it turns out they represented them in other similar cases and never revealed this to me, or told me there was a conflict of interest. I called the Florida Bar, and have registered a verbal complaint at this point, but have not yet formalized it in writing (but intend to).

I then went about defending the Motion for Summary Judgement, and thanks to feedback from board members and a lot of research, I successfully defeated their Motion for Summary Judgement. During the hearing, I also made issue of the fact that the Plaintiff improperly identified my company (they spelled the name improperly, which effected their lien rights). The Plaintiff then requested leave to amend their complaint to fix the company name errors, which was granted. This created the odd situation where they had to re-serve the lawsuit against my company. I was in the process of moving and they failed to serve the corporation (which no longer exists). They filed a notice with the Court of failed service for the corporation. If they were to do this right, I believe they were supposed to serve the Secretary of State in Florida for dissolved companies, and I'm not sure how that effects this lawsuit and their ability to win against me as the alleged guarantor. However, they properly handled service against me as an individual, so I answered.

I filed an Answer and Affirmative Defenses to their Amended Complaint as an individual, and they did nothing for another 6 months. Today I learned they filed a Motion to Strike my Affirmative Defenses, claiming they all "fail as a matter of law" and "lacked the facts to establish the legal elements of a defense." This isn't the first time this Plaintiff took this approach - it was their claim against my first Answer in their Motion for Summary Judgement - they were wrong then (and lost) and I think they're wrong now, but need to know how to properly go about disputing their Motion to Strike my Affirmative Defenses.

I am also still considering a countersuit, a class action, and pursuit of the bar complaint against the attorney who took my privileged info and used it against me in this case.

I'm grateful for any feedback and thoughts on how to proceed.

Edited by Determined1

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We'd need to see the defenses. 99% of the time they should be struck, most posters use a laundry list of stuff that does not apply.

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Hi Leagleagle,

I tried to be quite specific in my Affirmative Defenses, and I'm posting them here for review. Please note they have been edited to remove the identity of the parties. Attached to my Affirmative Defenses were case filings and significant detail from two class action cases that completely corroborate my defense. Some additional background - a checking account was attached to the alleged account in dispute. I'm looking forward to receiving feedback, and how to respond to their Motion to Strike...

Thank you.

AFFIRMATIVE DEFENSES

First Affirmative Defense

Plaintiff’s actions and lawsuit represent a Breach of Florida’s Covenant of Good Faith and Fair Dealing. Plaintiff: improperly combined Defendant(s) individual transactions to create debits larger than originally submitted triggering returned transactions and improper overdraft fees; submitted transactions for processing in a non sequential order to trigger improper overdraft fees; charged Defendant(s) non-contractual and unauthorized fees; reversed properly made transactions by Defendant in order to create false overdrafts in Defendant(s)’ accounts; and manufactured a series of improper transactions to create the false appearance of default by Defendant(s). These actions interfered with Defendant(s)’ finances, business and normal banking activity and can be further verified in two Federal Class Action lawsuits pending against the Plaintiff.

The first referenced Class Action which verifies Defendant’s Affirmative Defenses of Plaintiff’s improperly rigging its customers’ checking account transactions is _________________________________________ and combined in the Federal Multi District Class Action Case No.__________________. This lawsuit alleges (1) Breach the Covenant of Good Faith and Fair Dealing; (2) Breach of Contract; (3) Conversion; (4) Unconscionability; (5) Unjust Enrichment, amongst other claims.

The second referenced Class Action which verifies Defendant(s) Affirmative Defenses and shows Plaintiff improper and deceitful banking activity connected to its customers’ lines of credit is___________________________________________________________. This Class Action lawsuit, filed by a ________________ Florida resident alleges claims for: (1) Breach of the Covenant of Good Faith and Fair Dealing (2) Financial Elder Abuse under Florida’s Adult Protective Services Act, § 415.101; (3) Breach of Contract; (4) Deceit; (5) Negligent Misrepresentation; (6) Breach of Fiduciary Duty; and (6) Violation of Regulation Z of the Truth in Lending Act (“TILA”), 12 C.F.R. § 226.5b(f).

The facts and circumstances of these lawsuits which have been granted Class Action status and long since survived all Motions to Dismiss by Plaintiff corroborate Defendant(s) Affirmative defenses in the present case. Further, the facts, circumstances and evidence in each of these cases which in many ways mirror the present case, are of great relevance to these proceedings.

SECOND AFFIRMATIVE DEFENSE

Unconscionability. Plaintiff’s actions preceding the filing of this lawsuit, and after the case has commenced have been Unconscionable. By improperly combining Defendant(s)individual transactions to create debits larger than originally intended to trigger returned transactions and improper overdraft fees; submitting transactions for processing in a non sequential order to trigger improper overdraft fees; charged Defendant(s) non-contractual and unauthorized fees; reversed properly made transactions by Defendant in order to create false overdrafts in Defendant(s)’ accounts; and manufactured a series of improper transactions to create the false appearance of default by Defendant(s), Plaintiff has acted Unconscionably.

Third Affirmative Defense

Unconscionable Contract. The partial Agreement relied upon by the Plaintiff is unconscionable and therefore unenforceable. Per Plaintiff’s Exhibit “A”, this document states: “Guarantor waives notice of acceptance of this Guaranty, protest and notice of dishonor or default.” Plaintiff is putting forth a contract and argument that its customers waive their rights to accept a key contract provision, and protest or be apprised of any notice of default. This purported Agreement violates basic legal principle being provided notice of an alleged default, and should be deemed unconscionable and unenforceable.

Fourth Affirmative Defense

Ambiguity. The partial Agreement relied upon by Plaintiff is highly ambiguous and therefore unenforceable. Per Plaintiff’s Exhibit “A”, this document states: “Guarantor agrees that the time and place of payment of any Obligations may be changed or extended…” Plaintiff relies upon a purported contract that appears to grant itself the right to change the time and place of payment at will. Furthermore, This clause begins, “Guarantor agrees…” which may also give the Guarantor the right to change time and place of payment, including extensions thereof. Taken together with the aforementioned clause ““Guarantor waives notice of acceptance of this Guaranty, protest and notice of dishonor or default,” the Plaintiff appears to be granting itself the right to change the time and place of payment, and then not be required to notify Defendant(s). This purported Agreement relies upon terms that are highly ambiguous, overwhelmingly self serving and should be deemed unenforceable.

Fifth Affirmative Defense

Unjust Enrichment. Plaintiff improperly combined Defendant(s) individual transactions to create debits larger than originally intended triggering returned transactions and improper overdraft fees; submitted transactions for processing in a non sequential order to trigger improper overdraft fees; charged Defendant(s) non-contractual and unauthorized fees; reversed properly made transactions by Defendant in order to create false overdrafts in Defendant(s)’ accounts; and manufactured a series of improper transactions to create the false appearance of default by Defendant(s), unjustly enriching themselves in the process. These action can be further corroborated by the aforementioned Federal Class Action lawsuits: ____________________________________________________________ .

Sixth Affirmative Defense

Plaintiff’s Breach of Contract. Plaintiff improperly combined Defendant(s) individual transactions to create debits larger than originally intended triggering returned transactions and improper overdraft fees; submitted transactions for processing in a non sequential order to trigger improper overdraft fees; charged Defendant(s) non-contractual and unauthorized fees; reversed properly made transactions by Defendant in order to create false overdrafts in Defendant(s)’ accounts; and manufactured a series of improper transactions to create the false appearance of default by Defendant(s), thereby breaching multiple Agreements with the Defendant(s). These actions can be further corroborated by the aforementioned Federal Class Action lawsuits: ______________________________________________.

Seventh Affirmative Defense

Impossibility of Performance. Plaintiff improperly combined Defendant(s) individual transactions to create debits larger than originally intended triggering returned transactions and improper overdraft fees; submitted transactions for processing in a non sequential order to trigger improper overdraft fees; charged Defendant(s) non-contractual and unauthorized fees; reversed properly made transactions by Defendant in order to create false overdrafts in Defendant(s)’ accounts; and manufactured a series of improper transactions to create the false appearance of default by Defendant(s), making it impossible for Defendant(s) to perform under the purported Agreement(s) with the Plaintiff. These actions can be further corroborated by the aforementioned Federal Class Action cases: ______________________________________________________________.

continued in next post...

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Eighth Affirmative Defense

Failure of Condition Precedent. Specifically, Plaintiff relies upon the purported partial Application and Agreement attached as Exhibit “A” to its Amended Complaint, which states: “Guarantor waives notice of acceptance of this Guaranty, protest and notice of dishonor or default.” It appears that the Plaintiff is stating it was not required to notify Defendant(s) of any dishonor or default. This violates the basic legal standard of notifying a party to an agreement of a breach, or perceived breach, and giving the other party the right to cure an alleged breach. This clause is a recipe for unnecessary litigation, and creates disputes rather than resolves them.

Ninth Affirmative Defense

Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff’s complaint alleges a “Breach of Line of Credit.” “Breach of Line of Credit” is not a legal cause of action and therefore Plaintiff has failed to state a claim upon which relief can be granted.

Tenth Affirmative Defense

Defendant invokes the Doctrine of Unclean Hands and in its actions and the filing of this lawsuit and subsequent Amended Complaint have made misrepresentations to this Honorable Court. Specifically, Plaintiff improperly combined Defendant(s) individual transactions to create debits larger than originally intended triggering returned transactions and improper overdraft fees; submitted transactions for processing in a non sequential order to trigger improper overdraft fees; charged Defendant(s) non-contractual and unauthorized fees; reversed properly made transactions by Defendant in order to create false overdrafts in Defendant(s)’ accounts; and manufactured a series of improper transactions to create the false appearance of default by Defendant(s).

Eleventh Affirmative Defense

Violation of Attorney Client Privilege. Plaintiff’s attorneys breached attorney-client privilege and used its own legal counsel to pose as potential Defense attorneys for Defendant(s), in an unethical attempt to gain advantage in this dispute, thereby prejudicing Defendant(s)’ ability to defend this case. Plaintiff hired (Law Firm #1) for representation in this lawsuit. In their prosecution of this case, Plaintiff and its attorneys also engaged Law Firm #2 at a time when the Defendant was concurrently consulting with that very same law firm for its Defense. Law Firm #1’s attorney “Ms. Jane Doe” inappropriately obtained and used an Affidavit by attorney “Mr. John Smith,” a principal at Law Firm #2, against Defendant(s), and also appears to have gained privileged and confidential information from that law firm and used it against Defendant(s) in this case.

Twelfth Affirmative Defense

Plaintiff is not entitled to attorney’s fees as a result of its unethical violation of attorney client privilege and rules of the Florida Bar. Plaintiff is not entitled to attorneys fees as its attorneys violated ethical rules of the Florida Bar and professional standards. Plaintiff hired Law Firm #1 for representation in this lawsuit. In their prosecution of this case, Plaintiff and its attorneys also engaged Law Firm #2 at a time when the Defendant was concurrently consulting with that very same law firm for its Defense. Law Firm #1 attorney Ms. Jane Doe inappropriately obtained and used an Affidavit by attorney Mr. John Smith, a principal at Law Firm #2 against Defendant(s), and also appears to have gained privileged and confidential information from that law firm and used it against Defendant(s) in this case.

Thirteenth Affirmative Defense

Equitable Estoppel. A court cannot grant judgment or other legal relief to a party who has not acted fairly by having made false representations or harmed another party by either its inaction or improper action. Defendant(s) maintain that Equitable Estoppel or Estoppel in Pais bar Plaintiff’s claims as a result of both Plaintiff’s inaction, and aforementioned improper banking activity and violations of Florida Bar Rules of Ethics. Pertaining to Plaintiff’s inaction, Plaintiff was silent in this case for 15 months, filing no Motion or calling any Hearing from March 17, 2010 to June 20, 2011. Only when Plaintiff learned of Defendant(s) consultation with Law Firm #2 for its defense, and a pending counterclaim and defensive motions, did Plaintiff raise the dead and file a Motion for Summary Judgment in this case, which was denied. It is not a coincidence that Defendant(s)’ consultation with attorneys at Law Firm #2 ended on July 6, 2011, and the Motion for Summary Judgment was filed on June 20, 2011, after a 15 month period of inactivity.

Further, Plaintiff pulled Defendant’s personal credit on December 6, 2011. This is a violation of the United States Fair Credit Reporting Act [15 U.S.C. § 1681 et seq.], as it was pulled willfully by Plaintiff without a permissible purpose as defined by law. Pursuant to Federal Trade Commission rulings and legal precedence, the pulling of a consumer’s credit report is deemed collection activity. Collection activity should not be undertaken by a party in the middle of a lawsuit. This action has harmed the Defendant’s credit, and appears to have been improperly undertaken by Plaintiff in attempt to gain knowledge of Defendant’s finances. Defendant(s) rely upon the Affirmative Defenses of Equitable Estoppel or Estoppel in Pais as Plaintiff’s actions and inactions have harmed Defendant(s), and also represent significant misrepresentations to this Honorable Court.

Fourteenth Affirmative Defense

Estoppel by Laches. Defendant relies upon the Affirmative Defense of Estoppel by Laches which precludes a party from being awarded a judgment or other such relief when that party knowingly or unreasonably delayed pursuit of its claims, or failed to claim or enforce a legal right at the proper time. Plaintiff knowingly failed to act in this lawsuit for 15 months, remaining entirely silent, filing no Motion or Hearing to pursue its case. During this time, Defendant __________________ was dissolved, and has no remaining financial assets.

Defendant(s) reserve the right to amend and/or add additional Answers, Defenses, and/or Counterclaims at a later date and at the discretion of the Court.

Defendant(s) hereby submit this Answer and Affirmative Defenses to Plaintiff’s Amended Complaint.

Edited by Determined1

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From what you have explained, if it was me this would be the war of the competing motions. I would motion the court to exclude the attorney right now. That is going to create all kinds of headaches. You obviously had in depth consultations with them and they are now using privileged information for the benefit of the other side. This is about the only time you can get counsel dismissed from the opposing side.

One example:

http://www.ccfj.net/CCFJRecallCourtMotDisq.pdf

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Hi KentWA,

Thank you for the feedback and case reference, I really appreciate it. I am thinking of using their unethical conduct as a Motion for Summary Judgement. Not only did they use my privileged information against me, but they used it to lie about the amount they were claiming for damages. The law firm I was consulting with had their senior partner file a sworn Affidavit to be reimbursed for legal fees, and the Plaintiff then used it as part of their attempted Motion for Summary Judgement. While I am primarily focused on how to approach their Motion to Strike right now, I am also considering my own MSJ, and have this so far:

Defendant(s) rely upon case reference Desimone v. Old Dominion Ins. Co. 740. So. 2d 1233, 1234 (Fla. 4th DCA 1999). The Court held: “When a party lies about the issue of damages, dismissal is an appropriate sanction.”

I also have this for their pulling my credit in violation of the FCRA:

Defendant(s) rely on Slantis v. Capozzi & Assocs., P.C., U.S. Dist. M.D. Pa. Aug. 10, 2010. In this case, an adverse party pulled a consumer credit report in the course of litigation in preparation for filing a new complaint. The Court held that Summary Judgment was proper as a remedy for willful violation of the Fair Credit Reporting Act. Further, the Court held: “The Third Circuit overwhelmingly supported the proposition that obtaining a consumer report in preparation for litigation is not a legitimate business need under the FCRA.”

In my case, even after I warned them in writing not to pull my credit as its a violation of the FCRA, they did it again last month.

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My short opinion, none of these apply. Most of them are not even recognized defenses. You'll just invite a motion to strike, which will be granted. Some of these are causes of action for a counterclaim which you did not file. Don't object to the motion, let it be granted absent objection. Either that or file a new answer without all this junk. You'll just make trouble for yourself, the judge will make you out for somebody who has no clue. Especially in Florida, which is anti consumer.

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I'm sorry to hear you say that LeagleEagle, and must disagree. Even in their Motion to Strike, they only claimed 1 was not a recognized Affirmative Defense. Most of these come from well established Florida Affirmative Defenses (look 'em up). While I may have used a few that are subject to debate, all I need is several strong ones to survive this debate. Their primary complaint was not that they were not legal Affirmative Defenses, but that they were insufficiently plead without enough facts.

I absolutely plan to respond to their Motion to Strike, the question in what form? I could ask the Court for Leave to Amend, after all they did the same with their complaint.

I have found the following Court Order denying a Motion to Strike Affirmative Defenses in Florida with a handful of similarities. Although this was a foreclosure case, and not all of the Affirmative Defenses are the same, it has a good deal of case law to support my positions:

http://www.msfraud.org/law/lounge/DeutschevMassey/orderdenying-plaintiffs-motion-strikedefendantsaffirmativedefensesdenyingmotiondismisscounterclaimsdenyingplaintiffsmotionstrike.pdf

Edited by Determined1

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You need to annihilate the attorney that screwed you over. You file a motion to have them removed from the case (or whatever jargon Florida uses). You then file a brief from hell and lay out the timeline like you did in your post only a thousand times more detailed.

Attached exhibits like emails, letters, your personal notes from conversations (yes, if you look hard enough I bet you find them), etc.......

Time to turn this into a three ring circus. I'd have them tied up for six months just on that motion and similar. Shoot I move to disqualify every atty on the case because of the unethical activity of this one clown. What are they all going to say we did not know.

As to the affirmative defenses. They are moving to strike because they fail under "any theory of law" is basically what they are arguing. You need to show a theory(s) where they would not fail.

Generally what we see on affirmative defenses is the laundry list and they move to strike them because it's so obvious they don't apply. I don't really know about yours as some are Florida specific.

You at least make an argument for them which is more than most do. They don't sound incredibly strong, but they are nowhere near like most we see. Again, some are FL specific and you might be on track, just appears not.

Worry about that later. Attack every attorney on the case, file bar complaints against them all, sue them, move to amend to include a counterclaim etc..... Three ring circus time for the next six months to a year.

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Here, none of these are recognized defenses. Unjust enrichment? Really? How was the plaintiff unjustly enriched when you never paid him? UJ is the retention of an unjust benefit retained at the expense of another. The judge that let this crap go forward must have worked for Midland. Give him a kiss, you have the best judge in FLA for a credit card case, he has no clue.

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Thanks for your reply Coltfan, you have an awesome fighting spirit. I'm just warming up here and plan to file multiple bar complaints and a possible separate malpractice suit. The law firm representing this bank recognized enough of a problem that the attorney of record on the case for 2 years is no longer on the case (after I read her the riot act by phone). However, the same law firm is still on the case, so essentially I'm still dealing with the same problem - they're using my info against me.

I don't think a Motion to Disqualify the attorneys or their law firms goes far enough. I think I have a strong argument for dismissal as a sanction. I could also seek to disqualify their attorneys in the same Motion. I'm speaking to an attorney about a malpractice suit...

I learned another odd thing at Court today. The Judge has disqualified herself by her own motion without further explanation. I have to wonder what that's about.

Coltfan, can you expand a bit on what you mean when you (and the Plaintiff's Motion) say that my Affirmative Defenses fails under "any theory of law." I was under the impression I fairly cited theories of law for each. Can you offer an example.

Thanks for the great feedback.

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I think what Colt meant is that even though an affirmative defense may be a legal defense, it may not apply to your case. For instance, in a credit card case, the statute of limitations is a legal defense, but if your debt is not outside the SOL, it's not a valid defense. The statute of frauds is another example. If the statute of frauds states an agreement must be in writing and signed by the consumer, it wouldn't usually apply to a credit card case.

Am I making sense? You might have to use some case precedent to show how each defense legally and specifically applies to your case.

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Unjust enrichment? Really? How was the plaintiff unjustly enriched when you never paid him?

You may not have read all of my intro and first Affirmative Defense. There was a checking account involved with rigged overdrafts and improper transactions that were not of my making. This is not a one dimensional case, and my total damages far exceed their claims. I'm trying to be discreet about some of the details while I focus on the law and strategy here. Please see the following for reference:

Bank Of America Overdraft Lawsuit: Judge Approves $410 Million Settlement

PNC Reaches $90M Overdraft Fee Class Action Settlement

U.S. Bank Reaches $55M Overdraft Fee Class Action Settlement

Again, I never breached any alleged agreements here, the Plaintiff did, and I can prove it.

And, my Affirmative Defenses are recognized in Florida.

Edited by Determined1

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I'll just pull the last one. My comments in bold.

Fourteenth Affirmative Defense

Estoppel by Laches. Defendant relies upon the Affirmative Defense of Estoppel by Laches which precludes a party from being awarded a judgment or other such relief when that party knowingly or unreasonably delayed pursuit of its claims, or failed to claim or enforce a legal right at the proper time. You're correct and just stated what Laches is.

Plaintiff knowingly failed to act in this lawsuit for 15 months, remaining entirely silent, filing no Motion or Hearing to pursue its case. During this time, Defendant __________________ was dissolved, and has no remaining financial assets. While you're probably right your statement is simply a conclusion with zero facts to support your statement. Obviously nothing was happening, but "knowingly"? and even if knowingly, does it rise to the level of anything more than a procedural error that would not rise to the level of dismissal.

Keep in mind I did a quick Google search and clicked the first link only I've done no follow up research or looked to see if anything had been changed with FLorida Rule of Civil Procedure 1.420. That rule puts all of the burden on the clerk to dismiss the case.

However, you assert latches and state correctly what latches is, and then you make a statement that is just a conclusion with no supporting facts. A fact you're probably right about. But the huge problem is that let's say the clerk dropped the ball, how did the Plaintiff prejudice you by their delay. I know it pissed you off and it left you in lingo but how have you been prejudiced where you can't defend yourself. What evidence was spoiled, destroyed, lost etc.. and directly because of the Plaintiff's delay.

A good example would be a witness of yours died before trial or being deposed. You've been jerked around, delayed, left in lingo, but how have you specifically been prejudiced and how is that prejudice the exact proximate cause due to the Plaintiff's delay.

You give a definition, an action by the Plaintiff, but you leave out the important element of prejudice. In other words, what can you not present now that you could have presented if they had not delayed. What evidence do you now not have or can't get due directly to their delay.

So you've given no theory of law how that defense would work. Here is an example. Give your definition of latches, their actions, and then you say, Mr. Smith was a witness for the Plaintiff which was scheduled to be deposed on the following dates of XXX,XXX,XXX,XXXX.

All four times were cancelled by the Plaintiff. The Defendant tried on XXXX,XXXX,XXXX and XXXX date to move this case forward by filing xxx,xxx,xxx, or calling XXXX, XXXX, to discuss XXXXX. However, the Plaintiff did not cooperate and advised the Defendant of XXXX, which caused an unnecessary delay.

At all relevant times stated above the Plaintiff knew the Defendant was attempting to XXXXX and knowlingly delayed XXXX from happening. On the date of XXXX Mr. Smith passed away. Mr. Smith had evidence of XXXXX. However, that evidence can't be used due to the Plaintiff's delays as stated above. Mr. Smith was never deposed and the proximate cause of not being deposed was solely due to Plaintiff's delays.

The Plaintiff now unfairly benefits by delaying this action unreasonably as Mr. Smith, a critical witness for the Plaintiff, is no longer available to testify. The Defendant has now suffered extreme prejudice due to Mr. Smith's supporting testimony of Defendant's case being unavailable and this unavaibility is directly due to Plaintiff's actions in delaying this matter unreasonably.

What you have is "they are really jerking me around", true, but how are you prejudiced to the high burden of prejudice where the case should be dismissed in your favor due to their delays. You've got the delay element nailed, but the prejudice or your "damages" are not pleaded in your affirmative defense allegation.

You have a procedural error on the clerk's part that they will argue caused you no prejudice. That is if you can even muster enough arguments to rise to the level they must respond because an affirmative defense is yours to prove by a preprodence of the evidence, and a conclusion does not even get close to that burden.

So there you go for one of them. I'm sure you can see why I'm not going to go through all of them. :mrgreen:

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Thanks for the replies Coltfan and BV80, this is very helpful to me in fleshing out a response. Coltfan, in my Fourteenth Affirmative Defense, I did state how latches would apply here. My Affirmative Defense ends with "During this time, Defendant ______________ was dissolved, and has no remaining financial assets." The blank space references my corporation, which was dissolved and has no remaining assets - perhaps I should have said "...for the Plaintiff to file a claim against." However, I thought I fairly pointed out an instance as to how latches specifically applied in my case.

I've also been researching the "Twiqbal Standard" for Affirmative Defenses, which relates to several Supreme Court cases on this topic, with this new standard being applied in many district courts. The original rulings relied on Federal Rules, which state: Rule 8(a), which is applicable to complaints, requires a "short and plaint statement of the claim," while 8(B) requires defendants to "state in short and plain terms its defenses."

Reference: Supreme Court Watch Does court's heightened pleading standard apply to affirmative defenses? > Detroit Legal News

Here's what a Federal Judge ruled on this issue:

U.S. Magistrate Judge M. Hannah Lauck:

"'An even-handed standard as related to pleadings ensures that the affirmative defenses supply enough information to explain the parameters of and basis for an affirmative defense such that the adverse party can reasonably tailor discovery.' Accordingly, 'the considerations of fairness, common sense and litigation efficiency' dictate that litigants articulate complaints and affirmative defenses according to the same pleading standards.

"Twombly and Iqbal require only minimal facts establishing plausibility, a standard this court presumes most litigants would apply when conducting the abbreviated factual investigation necessary before raising affirmative defenses in any event," the court said.

This has led me to this conclusion. Their case is based on a "skeleton complaint" with two claims - Breach of Line of Credit and Breach of Guarantee to which they attached part of a contract, but not all. However, the writing of the complaint is so bare bones, that nowhere do they state how I allegedly breached this contract (because I did not). So my Affirmative Defenses are briefly stated defenses to their brief complaint, unsupported by complete evidence or any proof of a breach or proof of default. My Answer which accompanied my Affirmative Defenses was also in a similar vein.

If I use the Plaintiff's argument, that my Affirmative Defense pleading is legally insufficient because it lacks in specificity, and therefore should be stricken, then by the same standard, their lawsuit lacks specificity and therefore should also be stricken.

I certainly welcome feedback to my conclusion and how you think this position will play out in court.

Edited by Determined1

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Again, you make a conclusion based on your facts and knowledge that the corporation was dissolved and there was nothing to go after. Whether you are right or wrong your making legal conclusions and then passing it off as a well settled fact and the complaint should be dismissed. You just can't do that.

Your argument fails for at least two reasons.

1. As I said, you are making a conclusion and then passing that off as fact. You might be right, but it's not a fact. Well the dissolved corporation might be a fact.

2. How are you prejudiced assuming you're right. The corporation is still dissolved and still has no assets. If I was them I'd argue that is all the more reason to grant the motion to strike. They waited and waited looking trying to wait until they knew the judgement could be paid before moving forward. However, that time never arrived so they moved forward. That argument actually works more in their favor than yours.

What you are basically arguing is that they sued somebody or something that was/is judgement proof. As you know, while stupid, it happens all the time and there is nothing legally wrong with suing somebody or something that will never yield any money even if you win.

I just picked one at random, but I think that one is dead on arrival. There are issues (not fatal necessarily) with most of them if more specific facts are required under Florida law.

I'm very familiar with the Twiqubl ruling, but that applies to federal courts and the federal rules of procedure. This is a state lawsuit, so Florida rules apply. You can't argue a standard that applies in federal court for a state lawsuit complaint. While the rules might be similar, I have no idea, Twiqubl and the federal court case cities are irrelevant for this lawsuit.

This is why I said "under any legal theory" If you assume 100% you're correct in your 14th affirmative defense, your legal theory fails and therefore the court would probably strike the defense as "irrelevant" or "insufficient" or whatever term the court uses.

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You need to research case law concerning your defenses. Unclean hands is an equitable defense. It doesn't usually apply to claims for money damages.

The next 2 citations explain laches:

"Laches is an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party. It is an equitable defense, and its applicability depends upon the circumstances of each case. Delay alone in asserting a right does not constitute laches, and the burden is on the party who asserts the doctrine of laches to prove prejudice." STATE EX REL. BANKERS LIFE AND CASUALTY CO. v. Village of North Palm Beach, 138 So. 2d 378 - Fla: Dist. Court of Appeals, 2nd Dist. 1962

"The doctrine of laches is never invoked or applied as a bar by virtue of nothing more than delay." Reed v. Fain, 145 So. 2d 858 - Fla: Supreme Court 1961.

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I don't think laches applies either. You are talking about the wrong kind of delay.

‘‘Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. Kurzatkowski v. Kurzatkowski,142 Conn. 680, 684–85, 116 A.2d 906 (1955) . . . . The mere lapse of time does not constitute laches . . . .’’(Citations omitted; internal quotation marks omitted.) Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979).

Our Supreme Court has stated that ‘‘[t]he defense of laches does not apply unless there is an unreasonable, inexcusable, and prejudicial delay in bringing suit. . . .Delay alone is not sufficient to bar a right . . . .’’ (Citations omitted; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987).In Giordano v. Giordano, 39 Conn. App. 183, 664A.2d 1136 (1995), this court stated: ‘‘The defendant misunderstands the nature of a laches defense. A laches defense is not, as he asserts, a substantive right that can be asserted in both legal and equitable proceedings. Laches is purely an equitable doctrine, is largely governed by the circumstances, and is not to be imputed to one who has brought an action at law within the statutory period. . . . It is an equitable defense allowed at the discretion of the trial court in cases brought in equity." (italics added)

Your argument seems to be that the Plaintiff sat back and snoozed for 15 months, resulting in some harm to you. If I was them, my defenses would be that you took no action either, therefore you failed to mitigate your own damages. The rules provide a time line that must be followed. They are one day late, I try to non suit them, I don't sit here and wait for them to wake up. If Florida allows these, by all means use them. I would still leave out laches. Sounds like you got mixed up with some bad attorneys, I would not let that go.

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Thanks for the great feedback Coltfan, BV80 and Leagleagle. Coltfan used my Affirmative Defense of Laches as an example to help me understand how to better address their Motion to Strike any deficiencies in my pleading. Its interesting that you all "latched on" to laches, because I don't think its the strongest of my Affirmative Defenses and intentionally stated last. However, I added it for a strategic reason, as well as a factual element that tells an important part of the story and my defense. Let me explain...

Since the complaint was filed against both my corp. and I, I would likely need a lawyer to represent my corporation in court. This would be very costly given the nature of the case. The Plaintiff knows this, and that improves their negotiation strategy. The corporation was dissolved a few years ago, and the Plaintiff's attorneys told me they already knew this. With a dissolved entity, I think I can handle the case Pro Se, because the remaining claim is only against me as an individual. Strangely, they are still trying to serve the corporate entity, and I'm still not certain why, or how that plays into the mechanics of the suit since the corp no longer exists. Can they win a claim against me as the alleged guarantor if they don't first win against the alleged borrower - an entity that no longer exists? Perhaps they would have a technical problem with any potential judgement without dealing with my dissolved corp first.

By briefly stating the dissolved corp. issue into my Answer and Affirmative Defenses, I feel I've properly advised the Court and Plaintiff that I can proceed Pro Se. I imagine they can object, but they haven't thus far, and the case is 2 years and 8 months old. The Judge also told me I can proceed Pro Se, as long as my pleadings were signed as an individual.

The factual elements to the laches defense are as follows. First, my company was dissolved, so as a practical matter I think it negates the claim against that former entity, which was a simple corp., one stockholder, never held real estate, large investments, etc., and was dissolved honorably due to the recession and its effects on my clients and business. If it doesn't negate the claim outright, at a minimum it presents a problem for the Plaintiff - who waited too long to act.

The fact that the Plaintiff failed to act for 15 months is material and prejudiced my defense.

BV80 posted a helpful case reference that said: "Laches is an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party." Let's look at each.

1) "Unreasonable and unexplained length of time." The Plaintiff has never offered an explanation for its 1 year and 3 month delay, so it remains unexplained. Its unreasonable because the presence of the lawsuit in the public record was damaging to my credit and career options (I can prove this). I don't believe a Judge wants to hear a Plaintiff argue "Your Honor, we feel we can file lawsuits and sit on them for over a year without action or explanation." Regarding Coltfan's argument, sitting on a claim and waiting for the Defendant's financial condition to improve its chances of collection fails because they never contacted me to inquire about my financial condition. No letter, no motion, no hearing, no Christmas card. Their only "contact" was pulling my credit in violation of the FCRA. It also should be noted that early in the case I filed a Motion to Dismiss and the Clerk misplaced my Motion, inserting it in another case file. When I tried to schedule the MTD for a hearing, I was told there was no Motion to Schedule by the Judge's Assistant. Eventually, the Clerk located my Motion to Dismiss, and I can prove it was lost due to a Clerk's error. So I attempted to address this matter in Court, while the Plaintiff sat on their claim doing nothing.

2) "Circumstances prejudicial to the adverse party." If we (and I hope the Court) looks at my Affirmative Defenses as a whole, I hope it paints a picture for what transpired here. Florida Rules of Civil procedure declare a lack of prosecution exists after 10 months. Once 10 months pass, two things can occur. The Clerk notifies the Plaintiff and they are given a chance to state why the case should continue, or the Defendant can file a Motion to Dismiss for Lack of Prosecution. Once 10 months passed, I contacted the law firm I referenced in my Affirmative Defense (law firm #2) and said on the phone and in writing, "I would like to file a Motion to Dismiss for Lack of Prosecution and have you review my case for a possible counterclaim and/or class action." We then spent 4 months going through the guts of my case (many emails, Fedex's, and letters exchanged - all saved) without my knowing these creeps represented the Plaintiff in other cases and turned my info over to the Plaintiff's counsel of record and tipped them off. Plaintiff's attorney then filed a Motion for Summary Judgement after 15 months of inaction, heading off my Motion to Dismiss for Lack of Prosecution. On top of it, the attorneys I was consulting with filed an Affidavit against me in the case. They were so arrogant that this Affidavit is dated during the same time frame that I was still corresponding with this law firm for my defense. If this isn't prejudicial to my case, I cant imagine what is. This is also the reason laches follows violation of attorney client privilege and the accompanying explanation. However, in retrospect I could have been clearer on how the issues intersected.

With my Affirmative Defenses I tried to tell the Court my side of the story, leaving some of the factual specificity for post discovery motions and trial. It was my understanding this was appropriate, however, if I'm wrong (and I can see where I was too brief in some areas), I hope the Court will give me leave to amend my Answer.

Please note the following case law I have so far to support a Memorandum in Opposition:

"A motion to strike a defense should not be granted where the defense presents a bona fide question of fact." Kidder & Co. v. Turner (Fla. 1958)

"A motion to strike an affirmative defense will be denied if the defense is sufficient as a matter of law, or if it fairly presents a question of law or fact which the court ought to hear." Talarowski v. The Pennsylvania Railroad Company, 135 F. Supp. 503 (D. Del. 1955)

"A motion to strike should 'be denied if the defense is sufficient as a matter of law or if it fairly presents a question of law or fact which the court ought to hear.'" Bartoe v. Mo. Barge Line Co., No. 1:07CV165, 2009 WL 1118816,

"Motions to strike affirmative defenses should not be granted unless, as a matter of law, the defense cannot succeed under any circumstances.'" Champion Bank, 2009 WL 1351122,(quoting FDIC v. Coble, 720 F. Supp. 748, 750 (E.D.Mo. 1989))

"Matters labeled affirmative defenses should be stricken only where it is completely certain they have been mistitled." Bobbitt v. Victorian House, Inc., 532 F. Supp. 734, 737 (N.D. Ill. 1982).

"Great caution should be exercised by denying a litigant ample opportunity to demonstrate that he is entitled to the benefit of a trial." Stephens v. Dichtenmueller, 216 So.2d 448 (Fla. 1968. (Note - If the Court would allow the Plaintiff to Strike all of my Affirmative Defenses, that would be the practical effect.)

It also should be noted that to date, the Plaintiff has not presented a complete contract that its complaint relies upon, offered any evidence or proof of a breach or default, no evidence or proof of any bank statement or record of the alleged debt. Further, the Affidavits submitted with its Motion for Summary Judgement were determined to be "legally insufficient" in the Judge's ruling.

My plan of attack is this:

1) File a Memorandum in Opposition to Plaintiff's Motion to Strike (does anyone know how much time I have for this?)

2) File a Motion for Summary Judgement and a Motion to Disqualify Plaintiff's attorneys and law firm. I think at a minimum I can get them disqualified, and potentially win a dismissal of the case as a sanction for their unethical conduct.

3) Bar Complaints against several attorneys.

4) Federal lawsuit against the Plaintiff for FCRA violations and pulling my credit during litigation - twice.

5) Buy some great scotch and get ready to duke it out.

What do you guys think?

Thanks again for the great feedback!

Edited by Determined1

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Florida Rules of Civil procedure declare a lack of prosecution exists after 10 months.

Rule 1.420(e) says it's one year. And even then, it's not an automatic dismissal.

"All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person . . . after reasonable notice to the parties, unless . . . a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute."

You referenced the fact that your attorney had represented the Plaintiff in other cases. Could that be considered a conflict of interest?

Giving your information to the opposition would be at least a violation of the attorney-client privilege. But you have to prove your attorney committed the violation.

The Rules of Professional Conduct

The Florida Bar

4-1 CLIENT-LAWYER RELATIONSHIP

RULE 4-1.6 CONFIDENTIALITY OF INFORMATION

(a) Consent Required to Reveal Information. A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (B), ©, and (d), unless the client gives informed consent. (You need to read the whole rule.)

"A lawyer is bound by rule 4-1.6 to honor such a request by a current client and by rule 4-1.9 as to a former client. Thus, it has been ruled that a lawyer is bound to respect the request of a client or former client not to use or disclose information or confidences learned during that representation, and is forbidden to use such information for the advantage of himself or of a third person." Lee v. Florida Dept. of Ins. & Treasurer, 586 So. 2d 1185, 1189 - Fla: Dist. Court of Appeals, 1st Dist. 1991. See Campbell v. American Pioneer Savings Bank, 565 So.2d 417 (Fla. 4th DCA 1990); Ford v. Piper Aircraft Corp., 436 So.2d 305 (Fla. 5th DCA 1983), rev. denied, 444 So.2d 417 (Fla. 1984); Buntrock v. Buntrock, 419 So.2d 402 (Fla. 4th DCA 1982).

Does that help?

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Hi BV80,

Yes this does help - thanks!. Re lack of prosecution, I'm not certain why I thought it was 10 months, but great that you confirmed the time frame for me so I don't quote it inaccurately.

I still feel I was prejudiced here as 15 months is obviously more than 12 months, and I was about to file a new Motion to Dismiss for Lack of Prosecution - as well as failure of service, failure to attach a complete contract, etc. Whether I would have won that Hearing or not is conjecture. I never got to make the argument as the Plaintiff's attorneys were apprised of my intentions by the attorneys I was consulting with, and beat me to the punch with a Motion for Summary Judgement. I agree that a Motion to Dismiss for Lack of Prosecution is not a given, but I never got to make my argument due to a breach of attorney client privilege.

As for proving their actions, I'll let their own Affidavit do the talking. The Affidavit filed against me by the senior partner of the small law firm I was consulting with - and who represents the Plaintiff in other cases - begins: “I have examined the file of "Law Firm #1", attorneys for the Plaintiff "ABC Bank," a foreign corporation authorized to transact business in the State of Florida, in the above-styled cause…” He then goes on to support their claim, and file a demand for fees, costs and expenses. It's signed, notarized and dated several weeks before his partner emailed me saying they can't assist me further in my defense.

Names have been changed to protect the guilty.

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Take a look at this:

"Therefore, before a party's former attorney can be disqualified from representing a party whose interests are adverse to those of the former client, the former client must show that the matters embraced in the pending suit are substantially related to the matters in which the attorney previously represented him or her, the former client." Ford v. Piper Aircraft Corp., 436 So. 2d 305, 307 - Fla: Dist. Court of Appeals, 5th Dist. 1983.

The above states you have to prove that the pending suit has to do with the same thing for which the attorney previously represented you. You can do that.

Regarding Rule of Professional Conduct 4-1.6:

"This rule is aimed at the problem of attorneys "switching sides," and arises because the duty of confidentiality under rule 4-1.6 protects all confidences and information obtained during representation of a client, and because this duty continues even after the attorney-client relationship is terminated." Kenn Air Corp. v. GAINESVILLE-ALACHUA CTY. REGIONAL AIRPORT AUTH., 593 So. 2d 1219, 1222 - Fla: Dist. Court of Appeals, 1st Dist. 1992. See T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265, 268 (S.D.N.Y. 1953) (lawyer's obligation of absolute loyalty to his or her client's interest does not end with the retainer; the lawyer is enjoined for all time, except when released by law, from disclosing matters revealed by reason of the confidential relationship with the lawyer's client).

Kenn Air Corp. v. GAINESVILLE-ALACHUA CTY. REGIONAL AIRPORT AUTH - Google Scholar

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Great stuff BV80, all which will be included in my pleadings. I can factually prove what they've done, including breach of attorney client privilege, conflict of interest, and that the matters I sought representation for are identical to those in their representation of the Plaintiff. In my estimation, they're playing a game of "catch me if you can."

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I was thinking of adding this as a new Affirmative Defense:

Affirmative Defense Fifteen: "Breach of the Public Trust"

Plaintiff took $5 Billion in U.S. Federal Government Bailout Money, and simply didn't need its customers anymore. Despite taking our taxpayer money to line their executive's pockets with bonuses and using the bailout funds for acquisitions instead of their stated purpose - to keep customers lines of credit open -they added insult to injury by suing their customers en masse.

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