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Midland suit: Are my Affirmative Defenses Correct?

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Please help? Wondering if the Affirmative Defense I used to accompany my Answer filed in response to Midland's Complaint was appropriate or should I amend it?   I filed it last week with Motion to Compel Mandatory Contractual Arbitration and to Dismiss Plaintiff's Complaint or Stay the Case Pending Mandatory Contractual Arbitration. I included the Affidavit supporting my Exhibit of the Card Agreement. I attended Mediation and got the impasse. 

My concern is that after further research tonight, I came across "Account Stated" from reading another case and I realized that Midland's Complaint includes it, as well: "1. ACCOUNT STATED".   My point is... should I amend to include the following Affirmative Defense listed below, under point 1.?   I only listed the "Lack of Subject Matter Jurisdiction..." affirmative defense. Should I amend and refile with a motion stating my right to do amend, to include the following short version of  Affirmative Defense #1 or the long version?  Mediation was April 9th and Plaintiff has NOT filed anything since. Right now, this is pending Judge's rule on my Order.

Short version without Account Stated Affirmative Defense:

Defendant plead the following Affirmative Defenses:
1. The Plaintiff lacks standing to pursue the claims asserted against the Defendant
because the Plaintiff is not a proper party, has an invalid assignment, is not the real party
in interest, is not the Owner of the alleged instrument or debt necessary to give them
Standing to pursue the claim, and due to the Defense checked below: x Improper Venue (place).

2. Lack of Subject Matter Jurisdiction – The underlying contract contains a mandatory contractual Arbitration clause which the Defendant has elected to exercise.  Therefore, this Court does not have jurisdiction to hear this matter.

LONG VERSION: The following Affirmative Defense I found in another case I pulled up from the Hillsborough County Clerk of Court (FLORIDA) where defense counsel included this. (Bank of America is the plaintiff in that case.)  Should I use the following Affirmative Defense or the above?  I'm keeping Affirmative Defense 2. Lack of Jurisdiction - it will not be deleted. My question is AD for Account Stated.


Plaintiff has failed to plead and provide any evidence as to the elements of an account-stated theory of recovery. Plaintiff failed to attach copies of account statements showing transactions, time of accrual of each, and amount of each. See Form 1.933, Fla. R. Civ. P., requirements for an account-stated claim; see also Mercado v. Lion’s Enterprises, Inc., 800 So. 2d 753 (Fla. 5th DCA 2001) (holding that, for an account stated to exist, there must be an agreement between the parties that a certain balance is correct and due and an express or implied promise to pay this balance); Merrill-Stevens Dry Dock Co. v. “Corniche Express”, 400 So. 2d 1286 (Fla. 3d DCA 1981) (judgment for defendant where there was a dispute as to the performance, the value, and whether the services, if performed, were authorized).

Although the failure to object to a creditor’s periodic billing may establish an account stated, there can be no liability if there has been no mutual agreement. See Recreation Corp. of America v. Jack Drury & Associates, Inc., 235 So.2d 49 (Fla. 4th DCA 1970). Therefore, the presentation of a claim and its retention without objection are insufficient facts to establish the presumption that an account has been stated. See McKissick v. Bilger, 480 So. 2d 211 (Fla. 1st DCA 1985); Page Avjet Corp. v. Cosgrove Aircraft Serv., 546 So.2d 16, 18 (Fla. 3d DCA 1989). Furthermore, there is no evidence that any billing statements were actually received by Defendant, precluding an action for account stated. Farley v. Chase Bank, U.S.A., N.A., 37 So. 3d 936 (Fla. 4th DCA 2010); see also Bryson v. Banking, 75 So. 3d 783 (Fla. App. 2011) (holding that unauthenticated copies of default letters are legally insufficient for summary judgment purposes). As a matter of federal law, including the Truth in Lending Act and Regulation Z, “a cardholder’s failure to object to the disputed charges within a reasonable time . . . [does] not constitute ratification and acceptance of those charges.” DBI Architects, P.C. v. Am. Express Travel-Related Serv. Co., 388 F.3d 886, 891 (D.C. Cir. 2004) (quoting Crestar Bank, N.A. v. Cheevers, 744 A.2d 1043, 1048 (D.C. 2000)). These federal laws and regulations, found at 15 U.S.C. § 1601 et seq. and 12 C.F.R. 226.12, respectively, preempt any inconsistent Florida law and judicial opinions.

There has been no mutual agreement to pay. Although Plaintiff has alleged there was an agreement, the documents attached to Plaintiff’s complaint do not support this allegation. See F.D.I.C. v. Brodie, 602 So.2d 1358 (Fla. 3d DCA 1992). There can be no liability on an account stated if there has been no mutual agreement to pay a certain amount in satisfaction of an outstanding debt. Dutch Inns of America, Inc. v. Jenkins, 301 So.2d 119 (Fla. 3d DCA 1974). The original creditor did not accurately account for all payments made by Defendant and, therefore, the amount stated is based upon account stated is based upon errors and mistakes, rendering the amount asserted unreliable and inaccurate. Defendant has had no prior transactions with Plaintiff and has made no prior agreement with Plaintiff to pay any amount.

WHEREFORE, Defendant demands this Court dismiss with prejudice the above-styled action.



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