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How to answer Interrogatories for Affirmative defenses.

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Hi I was recently sued by Unifund CCR, LLC for a credit card debt. I answered their summons . Now i received document for interrogatories.  I was not quite sure on how to respond back to the specific questions below which ties back to the Answer that i replied back to the summons. Would greatly help if any one could help me explain what exactly they mean and template to answer. I received the same question for 12 of my affirmative Defenses.

 

 

With respect to the First affirmative defense alleged by you in answer to the plaintiff’s complaint, please set forth:

 

I. “Identify” each and every person having knowledge or claiming to have knowledge regarding this defense

II. As to each such person, state his/her name, last known or present address, telephone number.

III. State specifically the facts of which such person has knowledge or claims to have knowledge and how such person came to have possession of such knowledge.

IV. “Identify” each and every “document” which supports, tends to support or is claimed by you to support each said defense. As to each such “document”, “identify” those facts as to which each “document” refers or relates. Attach hereto a copy of each “document”.

 

 

Incase you wanted to know my Affirmative defense they are as below :

 

1. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

 

2. Defendant denies the allegations as there is not, nor has there ever been any agreement, written, oral or implied with Plaintiff and Defendant.

 

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

 

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

 

5. Plaintiff has not proven that they are authorized and licensed to collect claims for others in the state of New Jersey, solicit the right to collect or receive payment of a claim of another.

 

 

6. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. § 1692e(2)from collecting interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify if such interest is allowed.

 

7. Defendant claims accord and satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the original creditor received other compensation in the form of monies or credits from the Plaintiff.

 

8. The Plaintiff has failed to reference with complaint proof of alleged assignment, original contract signed by Defendant, account numbers, accounting measures to come up with such sum, lack of bona fide proof this alleged debt is indeed Defendant’s. The complaint does not disclose this information and it cannot be assumed without creating an unfair prejudice against Defendant.

 

9. Failure to state a claim upon which relief can be granted.

 

10. Plaintiff’s complaint violates the statute of frauds as the purported contract or agreement falls within a class of contracts or agreements that are required to be in writing. The purported contract alleged in the complaint was not in writing and not signed by Defendant or by some another person authorized by Defendant and who was to answer to the alleged debt, default, or miscarriage of the other person.

 

11. Plaintiff’s complaint is time-barred by the applicable statute of limitations on credit card debt in the state of New Jersey

 

12. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

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This is a classic example of why you should never use generic affirmative defenses found on random websites or blogs whose authors do not have a clue as to what they mean.  All of these except possibly #3, #4 and #11 are invalid for defending a credit card lawsuit.

 

I would answer something like this:

 

I.  <your name>, Unifund CCR, LLC.

II. <your name, address and phone number>,Unifund CCR, LLC, names, addresses and phone numbers unknown.

III.  Discovery is still ongoing.  Facts will be brought forth once discovery is completed.

IV.  Objection- Defendant does not recollect referring to any such documents.

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actually... 1, 2, 9 are perfectly valid defenses should plaintiff not have necessary documents or witnesses to prove their claims

They are not the least bit valid for credit card collections cases.  If they were then us as defendants would have no problem winning against a JDB.  If there had to be a contract between the JDB and the people they sue then they would be out of business because the only ones who have a contract with them are the very few who may have signed a settlement agreement with them.  

 

#9 is invalid because the plaintiff states their claim, i.e. "Breach of Contract," in their original petition.  Whether or not that claim can be proven is another story but the claim is stated.

 

There is nothing wrong with using affirmative defenses; they certainly have their place.   I just believe that one should fully understand what they mean and be prepared to justify them with case law and procedural rules or risk making a fool of themselves right out of the gate.

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I don't think you understand what "failure to state a claim" means.  Just because you state that someone breached a contract, does not mean they actually breached a contract.  In that scenario you have failed to state a claim. 

 

But what do I know I've only worked as a litigation support paralegal for commercial and insurance litigation firms for about 14 years. =)

 

Defendants don't have problems beating JDB's actually, a partner in my law firm beats them on a routine basis. I also know plenty of lawyers who can beat them as well. The real shame is that pro se defendants don't seek out consumer attorneys enough who can beat JDBs

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@texasrocker

 

They are not the least bit valid for credit card collections cases.  If they were then us as defendants would have no problem winning against a JDB.  If there had to be a contract between the JDB and the people they sue then they would be out of business because the only ones who have a contract with them are the very few who may have signed a settlement agreement with them.  

 

 

 

 Note that @usctrojanalum said the defenses are valid if the plaintiff does NOT have the documentation.   Just as with standing to sue, privity would apply if the plaintiff cannot prove ownership of the account.

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I don't think you understand what "failure to state a claim" means.  Just because you state that someone breached a contract, does not mean they actually breached a contract.  In that scenario you have failed to state a claim. 

 

But what do I know I've only worked as a litigation support paralegal for commercial and insurance litigation firms for about 14 years. =)

 

Defendants don't have problems beating JDB's actually, a partner in my law firm beats them on a routine basis. I also know plenty of lawyers who can beat them as well. The real shame is that pro se defendants don't seek out consumer attorneys enough who can beat JDBs

The real shame is that most "consumer attorneys" are more interested in negotiating a settlement with JDB's than defeating them.

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That's another topic for a different day, that's usually more of a product of a cost benefit analysis that the client does - not the attorney.

 

As far as answering the interrogatorries. 

 

I'm guessing you are being sued by P&P based off these interrogs - a partner in the law firm I work for is handling a case against them on Long Island and got these same interrogs.  The best way to answer these interrogs is say that

 

"the witness is currently not known by the defendant, but as soon as the witness is available, same will be made known to the plaintiff."

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Thank you everyone for your prompt reply on my Questions. I'm trying to educate my self as much as possible within the limited time window that i had to respond hence chose the above defenses. @uscrojanalum , your are right P&P is the one suing me.  I am torn between hiring a lawyer or defending this  myself.  Can you give me the lawyers contact as well since he is familiar with them might makes sense to consult before answering these interrogatories myself.

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The partner I work for is not admitted in the state of NJ only in the state of NY, so he would not be permitted to offer you legal advice since he is not licensed in New Jersey.

 

Are the interrogatories in your original post just repeated 12 times? and are they the full set of interrogatories?

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@usctrojan yes they were repeated 12 times for each of my affirmative defenses. beside these they had  three more questions asking if i admit having the credit card account and the amount owed.

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