CIC BlogAffirmative Defenses That Don’t Work

[admin 902]

These defenses have been floating around the internet for years and are totally useless in the issues we deal with on this site. 1.  Failure of Consideration. No exchange of money or goods occurred between the Plaintiff and the Defendant. Failure of consideration will void contracts in some cases. If the court rules that the debt […]

The post Affirmative Defenses That Don’t Work appeared first on Credit Info Center Blog.

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[LegalWarrior 2]

On 2/10/2021 at 5:40 AM, admin said:

These defenses have been floating around the internet for years and are totally useless in the issues we deal with on this site. 1.  Failure of Consideration. No exchange of money or goods occurred between the Plaintiff and the Defendant. Failure of consideration will void contracts in some cases. If the court rules that the debt […]

The post Affirmative Defenses That Don’t Work appeared first on Credit Info Center Blog.

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So what does work now? I'm starting to think that a lot of this is old news. i don't see too many success stories like in the last 3 months...anyone got any recent defenses that has worked for them? (which btw...i plan on updating my info as i fight my battle this year with a JDB.)

[womanonfire 6]

Something I've wondered about is defaulting on a hardship program which does essentially create a new contract or changes the terms of the original contract. Contract law is complicated. 

[BV80 2,833]

6 hours ago, LegalWarrior said:

So what does work now? I'm starting to think that a lot of this is old news. i don't see too many success stories like in the last 3 months...anyone got any recent defenses that has worked for them? (which btw...i plan on updating my info as i fight my battle this year with a JDB.)

Many of those defenses never did work.  For instance, a certain description of “accord and satisfaction” failed.  Some who suggested that defense assumed that a debt buyer’s purchase of an account resulted in satisfying the balance owed by the consumer and, therefore, the consumer owed nothing.

Proponents of that description of the defense fail to understand that accord and satisfaction can only occur between the parties to an agreement.  The parties to a purchase agreement between a debt buyer and original are the debt buyer and original creditor.  The consumer is not a party to it.  As a result, the consumer cannot claim his balance was paid (satisfaction) by the debt buyer.

However, the defense is valid if you can prove you, yourself, paid or settled the debt.

Please remember that your affirmative defenses must be proven by you.

Some defenses to a lawsuit filed by a JDB are lack of standing, statute of limitations, accord and satisfaction (if you actually paid the debt), and identity theft.  One could also challenge the amount claimed in the complaint.  If a creditor or JDB cannot prove the amount allegedly owed, it could result in the court reducing the amount owed or just dismissing the complaint.  Note that the evidence required to prove a balance is state court specific.  The evidence required in courts of one particular state court may not be required in courts of other states.

[daisyduke 0]

So are there any affirmative defenses if the JDB has attached credit card statements to the summons/lawsuit?  In my case they attached an affidavit, last cc statement with charge off amount and cc statement with last payment posted.  Was charged off 3 years ago.  The amount is much higher than i remember but not sure how to validate. I could get copies from original creditor I suppose.

 

 

[admin 902]

On 2/27/2021 at 4:33 PM, daisyduke said:

So are there any affirmative defenses if the JDB has attached credit card statements to the summons/lawsuit?  In my case they attached an affidavit, last cc statement with charge off amount and cc statement with last payment posted.  Was charged off 3 years ago.  The amount is much higher than i remember but not sure how to validate. I could get copies from original creditor I suppose.

 

 

@daisydukeNot sure why that would trigger an affirmative defense.  Can you elaborate?

[LegalWarrior 2]

On 2/27/2021 at 4:33 PM, daisyduke said:

So are there any affirmative defenses if the JDB has attached credit card statements to the summons/lawsuit?  In my case they attached an affidavit, last cc statement with charge off amount and cc statement with last payment posted.  Was charged off 3 years ago.  The amount is much higher than i remember but not sure how to validate. I could get copies from original creditor I suppose.

 

 

You need to look up your local court rules of where you are. For instance...in california 

3.205 EVIDENTIARY STANDARDS (a) Court to Hear Evidence. The court may enter judgment as appears from the evidence to be just pursuant to Code of Civil Procedure section 585(b). (b) Authentication. Unauthenticated documents will not be received in evidence unless their authenticity has been pleaded in the complaint and admitted by entry of default. (c) Hearsay. The court, in its discretion, may disregard hearsay. (d) Foundation. The court, in its discretion, may disregard evidence lacking foundation, including declarations on the merits by attorneys or assignees which lack foundation as to their personal knowledge. (Rule 3.205 new and effective July 1, 2011)

The key is authentication. Just because someone attached an affidavit does not make it authenticated. if that was the case then i could go and put a affidavit on my answer with a made up receipt. So make sure you read your local court rules. The things i learned today just by reading my local court rules changed my whole strategy on how i'm going to file my answer.

[BV80 2,833]

24 minutes ago, LegalWarrior said:

The key is authentication. Just because someone attached an affidavit does not make it authenticated. if that was the case then i could go and put a affidavit on my answer with a made up receipt. So make sure you read your local court rules. The things i learned today just by reading my local court rules changed my whole strategy on how i'm going to file my answer.

While you are correct that evidence such as business records must be authenticated, you need to read court rulings from your state courts in order to determine the requirements set forth by the courts for an affidavit to be considered sufficient to authenticate business records.  Court rulings provide some of the best information and guidance.