Getting ready to file Answers - one final check

[Paradise954]

I am preparing to file me answers with the court tomorrow and I just to make sure my form is correct with my answers. My concern is that I am not providing any specific affirmative defense, but under part of my answer titled "AFFIRMATIVE DEFENSE" i am listing the following:

AFFIRMATIVE DEFENSES

FURTHER, the Defendant asserts the following and states:

23. Defendant reserves the right to raise affirmative defenses as they become known to Defendant during discovery.

My question is: is this form correct and this will preserve my right should I want to amend my answers after discovery and present any affirmative defense(s)?

I am in Florida, civil county court.

Edited October 25, 2012 by Paradise954

[ReadytoWininCA]

My wording was:

That as Plaintiffs’ unverified Complaint on file herein is set forth in conclusionary terms, this answering Defendant cannot fully anticipate all affirmative defenses and/or immunities that may be applicable to the within action. Accordingly, the right to assert additional affirmative defenses and/or immunities, if and to the extent that such affirmative defenses and immunities are applicable, is hereby reserved.

Also, if you're doing your answer on pleading paper and not using the standard form (if there is one Florida), it looks like this:

AS AND FOR A FIRST, SEPARATE, DISTINCT, AND AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

That as Plaintiffs’ unverified Complaint on file herein is set forth in conclusionary terms, this answering Defendant cannot fully anticipate all affirmative defenses and/or immunities that may be applicable to the within action. Accordingly, the right to assert additional affirmative defenses and/or immunities, if and to the extent that such affirmative defenses and immunities are applicable, is hereby reserved.

Are you sure there are no affirmative defenses that you can use? You DO have to be able to prove them, but that is easy with a few of these, like:

That neither the unverified Complaint nor any cause of action in the Complaint states facts sufficient to state a cause of action or claim against this answering Defendant.

Answering Defendant has had No Prior Course of Dealing with Plaintiff sufficient, or at all, to support this action or certain causes of action therein.

Answering Defendant has had no meeting of the minds or agreement as to the amount, if any, due and owed under the parties’ agreement, if any, sufficient to support this action or certain causes of action therein.

All of the above 3 go to the essence of what must be proven by the Plaintiff in order to get a judgement against you.

Hope this helps! Good luck!

Edited October 25, 2012 by ReadytoWininCA

[Paradise954]

Thanks ready... I do like your affirmative defenses #1 and #2, but can you clarify the purpose of using this one:

Answering Defendant has had no meeting of the minds or agreement as to the amount, if any, due and owed under the parties’ agreement, if any, sufficient to support this action or certain causes of action therein.

My wording was:

That as Plaintiffs’ unverified Complaint on file herein is set forth in conclusionary terms, this answering Defendant cannot fully anticipate all affirmative defenses and/or immunities that may be applicable to the within action. Accordingly, the right to assert additional affirmative defenses and/or immunities, if and to the extent that such affirmative defenses and immunities are applicable, is hereby reserved.

Also, if you're doing your answer on pleading paper and not using the standard form (if there is one Florida), it looks like this:

AS AND FOR A FIRST, SEPARATE, DISTINCT, AND AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ALLEGES:

That as Plaintiffs’ unverified Complaint on file herein is set forth in conclusionary terms, this answering Defendant cannot fully anticipate all affirmative defenses and/or immunities that may be applicable to the within action. Accordingly, the right to assert additional affirmative defenses and/or immunities, if and to the extent that such affirmative defenses and immunities are applicable, is hereby reserved.

Are you sure there are no affirmative defenses that you can use? You DO have to be able to prove them, but that is easy with a few of these, like:

That neither the unverified Complaint nor any cause of action in the Complaint states facts sufficient to state a cause of action or claim against this answering Defendant.

Answering Defendant has had No Prior Course of Dealing with Plaintiff sufficient, or at all, to support this action or certain causes of action therein.

Answering Defendant has had no meeting of the minds or agreement as to the amount, if any, due and owed under the parties’ agreement, if any, sufficient to support this action or certain causes of action therein.

All of the above 3 go to the essence of what must be proven by the Plaintiff in order to get a judgement against you.

Hope this helps! Good luck!

[ReadytoWininCA]

Yes, I can clarify, glad to help. Meeting of the minds goes to a lack of contract or agreement that we BOTH agreed to.

From wikipedia: Meeting of the minds (also referred to as mutual agreement, mutual assent or consensus ad idem) is a phrase in contract law used to describe the intentions of the parties forming the contract. In particular it refers to the situation where there is a common understanding in the formation of the contract. This condition or element is often considered a necessary requirement to the formation of a contract.

When there is no meeting of the minds, it means the Plaintiff and the Defendant did not meet first of all, and did not agree to terms, to amount, to even having a relationship - mostly it goes to the fact that someone whom you've never heard of shouldn't be suing you for money, because no agreement was made - that you owed money, the amount you owed, the terms or how you would pay, etc.

When you are being sued by a junk debt buyer (Asset Acceptance), they try to say they are in the shoes of the assignor, the original creditor, they say because you signed an agreement with the original creditor that means you have an agreement with them...but if this is the first you've heard of the JDB, how can that be true? The fact is it is not true, you would have had to agree to the terms that Asset Acceptance is requiring. Its a goodie and as long as its true for you as it was for me you can use it.

Good luck!!

[Coltfan1972]

When you are being sued by a junk debt buyer (Asset Acceptance), they try to say they are in the shoes of the assignor, the original creditor, they say because you signed an agreement with the original creditor that means you have an agreement with them...but if this is the first you've heard of the JDB, how can that be true? The fact is it is not true, you would have had to agree to the terms that Asset Acceptance is requiring. Its a goodie and as long as its true for you as it was for me you can use it.

Good luck!!

Be very careful with that one. That is arguing lack of privity and it's a good way to lose your case. BV80 has some cases posted and it's in other threads. Lack of privity sounds like lack of standing and you will lose if you hang your hat on the fact you've never heard of the junk debt buyer and go down that road.

It sounds like a good argument and it is for the short term, but those credit card contracts have clauses where they can be sold or assigned and you don't get a vote, have to know or agree.

You'll lose if you run with privity and don't hammer standing when it's time to move from privity to standing. You have an absolute right to demand to know all about who is suing you and demand they prove they have the rights to the account, but you can't argue you never agreed and win with that.

[Paradise954]

Be very careful with that one. That is arguing lack of privity and it's a good way to lose your case. BV80 has some cases posted and it's in other threads. Lack of privity sounds like lack of standing and you will lose if you hang your hat on the fact you've never heard of the junk debt buyer and go down that road.

It sounds like a good argument and it is for the short term, but those credit card contracts have clauses where they can be sold or assigned and you don't get a vote, have to know or agree.

You'll lose if you run with privity and don't hammer standing when it's time to move from privity to standing. You have an absolute right to demand to know all about who is suing you and demand they prove they have the rights to the account, but you can't argue you never agreed and win with that.

I believe I will stick to my one affirmative defense of reserving my right to add any I find necessary once I have a better grasp of the facts and/or evidence they may (or may not) have since little to none was provided with the complaint.

[ReadytoWininCA]

He's got a good point, I've been arguing standing from the beginning (well covertly the way Coltfan taught me in his threads) but he does have a good point. Maybe it is better to just use the one that says you can add more later when you figure out what's doing - definitely safer!

[Paradise954]

He's got a good point, I've been arguing standing from the beginning (well covertly the way Coltfan taught me in his threads) but he does have a good point. Maybe it is better to just use the one that says you can add more later when you figure out what's doing - definitely safer!

Exactly... why put out anything they can put me on the spot to have to defend. Since the complaint and info provided with it is so vague, I can not make a concise defense that I can effectively argue.

But I do appreciate your input.

[Coltfan1972]

Actually you can reserve any right you wish, but the rules of procedure dictate what you can and can't do, however, DO reserve your right, but if you discover something in discovery (you know, what discovery is for) then of course you can amend based on your discovery.

It can't hurt to unilaterally make reservation of rights, but always keep in mind the rules of procedure will tell you what you can and can't do.

[Paradise954]

Actually you can reserve any right you wish, but the rules of procedure dictate what you can and can't do, however, DO reserve your right, but if you discover something in discovery (you know, what discovery is for) then of course you can amend based on your discovery.

It can't hurt to unilaterally make reservation of rights, but always keep in mind the rules of procedure will tell you what you can and can't do.

I cannot find anything in Florida's Rules of Civil Procedure that preclude me from reserving my rights.

[Coltfan1972]

I cannot find anything in Florida's Rules of Civil Procedure that preclude me from reserving my rights.

Is there anything in the rules that specifically preclude you from dressing up as Bozo the clown and riding into court on a unicycle while blowing up animal baloons and waiving to all the kids?

My point is, reserve your right, but unilaterally taking an action that might benefit you does not mean you've done anything. Do it, but your right is reserved for the simple fact that if you conduct discovery properly and find something that you had no knoweldge of you obviously you can move the court to allow you to amend to include the affirmative. The court will allow you to do that, based on that, not because you reserved a right.