Florida Debtor
November 24, 2017, 10:35:08 AM *
Welcome, Guest. Please login or register.

Login with username, password and session length
News: Florida Debtor - Now even better!
 
   Home   Help Search Login Register  
Pages: [1]
  Print  
Author Topic: There Are Two Types of Affirmative & Separate Defenses  (Read 10663 times)
Dragon
Newbie
*
Posts: 138


View Profile
« on: September 13, 2006, 08:47:07 PM »

There Are Two Types of Affirmative & Separate Defenses

Definition of Affirmative and Separate Defenses: These are legal responses to a Plaintiff's claim, that even if his complaint is true, it acts to bar his legal right to bring the action. Generally failure to include an affirmative defense in ones answer to a complaint is a waiver of the right to that legal defense. An affirmative defense can be used to dismiss an action on legal grounds even if the complaint of the Plaintiff is true.
Standard affirmative defenses includes those of general application and should always be included in an answer to a complaint.

Special affirmative defenses consist of some special legal element as to defense in a particular type of action such as failure to comply with a specific section of a states motor vehicle financial responsibility law section # or failure to comply with the law to wear a seat belt in section #. One needs to do some legal research and consult an attorney in a specific jurisdiction that regularly deals the particular type of law involved as to the appropriate specific affirmative defenses.

Standard Affirmative Defenses:
1. Failure to state a cause
2. Insufficiency or defect of service
3. Latches
4. Pari Delicto
5. Unclean Hands
6. Violation of state or federal statute
7. Failure to name all necessary parties
8. Lack of jurisdiction and/or venue
9. Accord and satisfaction
10. Fraud
11. Statute of Limitations and/or other time limitations
12. Failure to comply with applicable state or federal law
13. Estopple or collateral estopple
14. Negligence
15. Omissions
16. Bad Faith Acts
17. Contrary to Public Policy
18. Unenforceable as constitutes an illegal practice
19. The Plaintiff failed to mitigate damages

Specific Specialized Affirmative Defenses -- Example Debt Collection::
1. Failure to Comply with Fair Credit Practices
2. Failure to Comply with Fair Credit Reporting Act.
3. Failure to comply with applicable State Banking laws and requirements
4. Failure to comply with applicable Federal Banking law and requirements
5. Denial of personal guarantee by way of insertion of title with signature
6. Denial of intent to accept terms of Plaintiff Bank by marked modification
7. Terms and or rates of interest and payments were not in compliance with either state or federal restrictions.
8. Denial of guarantee by way of notice under New York State Law.
9. Defect in documents upon which the Plaintiff bank relies by law.
10. The Plaintiff failed to mitigate damages by selling out collateral on a timely basis and/or at an appropriate price.
11. The Plaintiff failed to comply with normal and accepted business practices
12. The Plaintiff was not in compliance with the requirements of the commercial code.
Logged
HighestAppeal
Newbie
*
Posts: 74


View Profile
« Reply #1 on: February 07, 2007, 12:58:05 PM »

Not to nit pick, but if we're posting forms, they ought to be as tight as we can make them:

Quote
1. Failure to state a cause


That should be "failure to state a claim..."  I'd even continue with "...upon which relief can be granted."

Quote
3. Latches


Laches.

Quote
4. Pari Delicto
5. Unclean Hands


Unclean hands should only be pled where the plaintff is seeking relief other than money, such as an injunction.  It's an equitable defense.

Quote
6. Violation of state or federal statute
12. Failure to comply with applicable state or federal law


You will probably want to pick one of these, not both.

Quote
13. Estopple or collateral estopple


Estoppel.

Quote
15. Omissions


What was omitted?

Quote
16. Bad Faith Acts


What acts were in bad faith?

Quote
17. Contrary to Public Policy


What's contrary to what policy?


This is a pretty good comprehensive list, but pleading ALL of them - or pleading them they way they are stated - a judge might think that you don't know what they mean, and therefore ignore them.
Quote

1. Failure to Comply with Fair Credit Practices
2. Failure to Comply with Fair Credit Reporting Act.
3. Failure to comply with applicable State Banking laws and requirements
4. Failure to comply with applicable Federal Banking law and requirements
5. Denial of personal guarantee by way of insertion of title with signature
6. Denial of intent to accept terms of Plaintiff Bank by marked modification
7. Terms and or rates of interest and payments were not in compliance with either state or federal restrictions.
8. Denial of guarantee by way of notice under New York State Law.
9. Defect in documents upon which the Plaintiff bank relies by law.
10. The Plaintiff failed to mitigate damages by selling out collateral on a timely basis and/or at an appropriate price.
11. The Plaintiff failed to comply with normal and accepted business practices
12. The Plaintiff was not in compliance with the requirements of the commercial code.


For each of these you'll want to provide at least a little bit of detail in support of the defense.
Logged

Nothing on this Board is to be construed as legal advice. If you need legal advice hire a lawyer."
Pages: [1]
  Print  
 
Jump to:  

Powered by MySQL Powered by PHP Powered by SMF 1.1.11 | SMF © 2006-2009, Simple Machines LLC Valid XHTML 1.0! Valid CSS!