JR42

Being sued by Razor Capital in California

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If it were mine; on page 1 where it says all statements are true except for the following paragraphs; I would add all the paragraph numbers you have right below it where it says you do not have enough information to form a belief. Otherwise you are saying you deny everything but you admit it is true. I have always considered this to be a bit of a trick statement.

Also, on affirmative defenses you claim SOL has run. Is this true, is the debt beyond the SOL?

 

Got it.  Thank you for that advice.  I will change it.

 

As far as the SOL, I have no records of the dates in question thus I feel it is the responsibility of the plaintiff to prove this time frame is accurate.  Please let me know your opinion on that.  Should I reconsider using this defense?

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I would send a BOP ASAP, they used account stated only for me , I sent it anyways just to see what they would send me. Take a look at my answer and try to find a better wording or fit for you , maybe its better for you due to your situation. I believe all you have to do is deny each and every paragraph .

I sent BOP before I filed my answer in court .

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Got it.  Thank you for that advice.  I will change it.

 

As far as the SOL, I have no records of the dates in question thus I feel it is the responsibility of the plaintiff to prove this time frame is accurate.  Please let me know your opinion on that.  Should I reconsider using this defense?

If you know the alleged debt is under 4 years old then you might consider not using it, if you have no idea then maybe not. With an affirmative defense the burden of proof shifts to you. If you assert the defense; then you have to prove it; they do not have to prove it is not true as the burden of proof shifted to you when you asserted a defense that is affirmative, rather than just deny an allegation.

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If you know the alleged debt is under 4 years old then you might consider not using it, if you have no idea then maybe not. With an affirmative defense the burden of proof shifts to you. If you assert the defense; then you have to prove it; they do not have to prove it is not true as the burden of proof shifted to you when you asserted a defense that is affirmative, rather than just deny an allegation.

 

Very good catch my friend.  I will remove that defense.  I must have missed that part about shifting the proof back to me.  Thank you for pointing that out to me.

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I would send a BOP ASAP, they used account stated only for me , I sent it anyways just to see what they would send me. Take a look at my answer and try to find a better wording or fit for you , maybe its better for you due to your situation. I believe all you have to do is deny each and every paragraph .

I sent BOP before I filed my answer in court .

 

Thanks for showing me your answer.  I will check it out ASAP.  I will be attaching my BOP to answer.  Is that proper?  Or does it need to be sent seperately?

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Very good catch my friend.  I will remove that defense.  I must have missed that part about shifting the proof back to me.  Thank you for pointing that out to me.

No problem. I will point this out (and for others reading)You do not need to be "over cautious" with affirmative defenses either. Some people will never assert an affirmative defense because they are scared to death that they have to prove it, you don't lose the case just because you can't prove it.

If you assert an affirmative defense and then fail to prove it; it has the same effect as if you never asserted it in the first place. If you do have an affirmative defense but fail to assert it; then you most likely will not be able to use that defense at trial.

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No problem. I will point this out (and for others reading)You do not need to be "over cautious" with affirmative defenses either. Some people will never assert an affirmative defense because they are scared to death that they have to prove it, you don't lose the case just because you can't prove it.

If you assert an affirmative defense and then fail to prove it; it has the same effect as if you never asserted it in the first place. If you do have an affirmative defense but fail to assert it; then you most likely will not be able to use that defense at trial.

 

So in your opinion, do you think it would be wise just to leave the SOL affirmative defense even though I have no way of proving it at this point in time?  Technically, I will be able to research this further at some point to check the validity, but my opinion is the date they provided is incorrect.

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I personally would not use it , I would attack their docs and alleged proof of ownership . To me it was easier to prove they had not standing to sue me because their docs do not lay the proper foundation .

 

I'm currently researching and trying to understand "foundation" as well.  I will be adding lack of evidence to my defense.

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Just for the sake of others  and to maintain continuity, here are the affirmative defenses that I will likely be using in this case.  *I have yet to decide on #4 (SOL)

 

1. Plaintiff has failed to state the facts sufficient to state a cause of action against Defendant.
2. Plaintiff lacks standing to bring this action.
3. Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in your contract,     and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.
4. Plaintiff's claim is barred by the Statute of Limitations.*
5. Plaintiff lacks of evidence
6. Plaintiff lacks of foundation

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JR,

I have been keeping an eye on your thread, you are doing ok, but here are some thoughts on Affirmative Defenses. In California you do need to plead Affirmative Defenses or you could be precluded from using them later as the case progress.

But remember that if you go all the way to trial and are needing to mount a defense, based on your affirmative defenses. You will likely have already lost the case. Here is why. This would mean the court has accepted that they have standing to sue you, that the evidence presented by the plaintiff's case in chief has been accepted by the court.

My point is you can list as many Affirmative Defenses as you wish or think you may need. Minimally you need to list " Lack of Standing" and Statute of Limitations"

I have attached a file that will explain generally a large number of Affiramtive Defenses.

I would note in your last post #3, #5 and #6 aren't really affirmative defenses. Personally, while Failure to State a Cause of Action is an Affirmative Defense, the bar is pretty low in civil court for stating a cause of action. Certainly if they used governemt forms to plead the case, there is enough for a cause of action against you.

You are getting a great education on the legal system and how it works. There are items that are techincal by nature and require great concern. Filing the answer and what affirmative defenses to use isn't that techical.

I had an attorney fight one case for due to the amount. The answer we filed had 23 Affirmative Defenses. The case was won when the judge ruled that the witness for the OC couldn't testify to the cardagreement of another bank that the card orignated from. Case over no true defense was ever presented in court, only that the plaintiff hadn't proven their case....

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My point is you can list as many Affirmative Defenses as you wish or think you may need. Minimally you need to list " Lack of Standing" and Statute of Limitations"

I would note in your last post #3, #5 and #6 aren't really affirmative defenses. Personally, while Failure to State a Cause of Action is an Affirmative Defense, the bar is pretty low in civil court for stating a cause of action. Certainly if they used governemt forms to plead the case, there is enough for a cause of action against you.

You are getting a great education on the legal system and how it works. There are items that are techincal by nature and require great concern. Filing the answer and what affirmative defenses to use isn't that techical.

 

 

I think I understand what you mean here.  Defenses 3, 5 and 6 are all covered in my #1 defense.  Is that what you meant?

 

Thank you for the attachment.  I'm going through it now.

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My point is you can list as many Affirmative Defenses as you wish or think you may need. Minimally you need to list " Lack of Standing" and Statute of Limitations"

I have attached a file that will explain generally a large number of Affiramtive Defenses.

I would note in your last post #3, #5 and #6 aren't really affirmative defenses. Personally, while Failure to State a Cause of Action is an Affirmative Defense, the bar is pretty low in civil court for stating a cause of action. Certainly if they used governemt forms to plead the case, there is enough for a cause of action against you.

 

 

Studying up on "No Prior Course of Dealing" as an affirmative defense in the document you provided.  I am also re-reading the section about "Statue of Fraud" because I find it applicable in that I have no proof that their allegations are ligitimate.  However, I'm not certain.  Any advice here would be great.

 

My advice to any and all of your who might be following this thread would be to read the document posted by skippy1960.  It is very informative and essentially allows you to see several "Affirmative Defenses" and how they may be applicable to your defense.  If you are just getting started with your defense, I suggest you read through this before deciding which defenses you may argue.

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In the document supplied by skippy1960, the author is very adamant about stating supporting facts in your "Affirmative Defense."  The author claims that simply listing your defense is inadaquate. I've read several different threads and this is the first time I have seen this.  I am very interested in the thoughts of others on this board concerning this.

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In the document supplied by skippy1960, the author is very adamant about stating supporting facts in your "Affirmative Defense."  The author claims that simply listing your defense is inadaquate. I've read several different threads and this is the first time I have seen this.  I am very interested in the thoughts of others on this board concerning this.

This is where most people have tripped up you have to say for instance. Statute of frauds The complaint does not contain a recitation of terms of any alleged contract or detail the contents of any other written material that would support plaintiffs claims. You see the affirmatives have to show where they have erred.

 

taken further you can also possibly file a judgment on the pleadings in an unverified complaint if you have definite affirmative defenses.

 

The statute of limitations thing can be that plaintiff has not stated a claim that is within the statute of limitations under California or Delaware law. The complaint does not specifically show the state laws that are applicable to the parties.

 

Like that, it is not enough to say affirmative defense statute of frauds but to tie the plaintiffs actions to it.

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I think I understand what you mean here.  Defenses 3, 5 and 6 are all covered in my #1 defense.  Is that what you meant?

 

Thank you for the attachment.  I'm going through it now.

 

 

Yes.  You are just responding to the complaint, not plaintiff's whole case.  Evidence will be (should be) provided in discovery.  It is not given to you with the complaint.

 

So you do not need 3, 5 or 6.

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At this point I think I am prepared to send my answer using these defenses.  I did use a summary.  I have posted it below.  Any last minute advice before I head to post office.  Oh yea, do I need to send the original complaint  back to them?    Right now my answer is 2 pages and I am attaching my BOP and POS. I have a person not involved with this case who will be mailing them certified mail return receipt.  Once I get the return receipt I will file these 4 pages along with the receipt in court. 

 

Here are my AD's

 

1. Plaintiff has failed to state the facts sufficient to state a cause of action against Defendant.
2. Plaintiff lacks standing to bring this action.
3. Plaintiff's claim is barred by the Statute of Limitations as to the date listed in the complaint.

Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

WHEREFORE, the defendant asks the Court for judgment:
a. dismissing the complaint herein with prejudice.

Defendant reserves the right to amend, modify, supplement and otherwise change this answer and the foregoing affirmative defenses based upon legal theories, facts and circumstances which may become known after discovery

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At this point I think I am prepared to send my answer using these defenses.  I did use a summary.  I have posted it below.  Any last minute advice before I head to post office.  Oh yea, do I need to send the original complaint  back to them?    Right now my answer is 2 pages and I am attaching my BOP and POS. I have a person not involved with this case who will be mailing them certified mail return receipt.  Once I get the return receipt I will file these 4 pages along with the receipt in court. 

You do not need to send the complaint to them. File your answer with the court with the POS, and send copies of he answer and POS to the lawyer.

Do not file the BOP with court or your answer. Send that to the lawyer separately.

 

Here are my AD's

 

1. Plaintiff has failed to state the facts sufficient to state a cause of action against Defendant.

2. Plaintiff lacks standing to bring this action.

3. Plaintiff's claim is barred by the Statute of Limitations as to the date listed in the complaint.

That should work.

Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

I would remove all that. You do not need to argue your case in the answer. You are just answering the complaint to avoid default and to get your denials to their allegations on record.

WHEREFORE, the defendant asks the Court for judgment:

a. dismissing the complaint herein with prejudice.

Defendant reserves the right to amend, modify, supplement and otherwise change this answer and the foregoing affirmative defenses based upon legal theories, facts and circumstances which may become known after discovery

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Just for continuity sakes and for others following this thread, I sent in my answer yesterday.  I used Priority Mail and sent Certified Mail/Return Receipt to the Plaitiff's lawyers at a cost of $11.75.  The website estimated time of arrival would Monday, July 8th.  Upon receipt of the confirmation of delivery I will file my answer with the court next week.  Thus meeting the 30-Day time trame I was permitted by about a week.

 

At this juncture I will start researching the next phase, which I believe to be discovery and to see if they respond to my BOP. 

 

Once again, thank you to all the people who have helped thus far.  I could not have done this without your assistance.

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Just to be clear, the 30 day time limit is to FILE your answer with the court not serve it on the plaintiff.  You can do both on the same day.  Service by US mail is fine.

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Just an update or lack of an update.  There has been no response to my request for a BOP as of yet.  I did get my "return of receipt" from the post office, so they have indeed received my Answer.  Everything is filed with court as well. 

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