Re: FLORIDA Law - DEFENSE - Aff. Def. (re alleged debt)Defendant has denied the allegations of Plaintiff's Complaint and proposes the following for Defenses, AD, and CC. How does below look legally? Should any other Defenses/AD be raised? DEFENSES, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS First Defense11. The alleged amounts requested in Plaintiff’s Complaint are inaccurate and Defendant demands strict proof thereof. First Affirmative Defense 12. Pursuant to the Fair Debt Collections Practices Act, 15 U.S.C. §1692(g) (“FDCPA”), Defendant is entitled to a notice of default and collection action providing Defendant thirty (30) days to cure any alleged default and to request verification of the alleged debt before the Plaintiff may collect any alleged amounts due. 13. Plaintiff failed to provide Defendant sufficient notice of default and collection action of the alleged debt and of its intent to pursue collection action as required by the FDCPA. Therefore, Plaintiff is in violation of the FDCPA and is prohibited from pursuing this action. Second Affirmative Defense 14. Plaintiff has failed to attach a copy of the alleged Contract to its action to enforce the alleged Contract as required by Rule 1.130(a) of the Florida Rules of Civil Procedure. 15. The Complaint fails to allege the terms of the Contract as no Contract is attached to the Complaint. Therefore, Defendant lacks the basic information necessary to respond to the Complaint and the Complaint should be dismissed. See Nichols v. Presier, 849 So.2d 478 (Fla.2nd DCA 2003) (Documents attached to motion, but not properly authenticated, could not be considered). Third Affirmative Defense16. Defendant believes Plaintiff has charged Defendant for attorney fees, legal fees, costs, interest fees, other fees and charges, and has wrongfully added and continues to unilaterally add these charges to the alleged amount Plaintiff claims is due and owing it. Thus, Plaintiff is stopped or has waived its right to collection and is otherwise before this Court with unclean hands. Fourth Affirmative Defense 17. If Defendant is the prevailing party, Defendant is entitled to recover defense costs in this action, including reasonable attorney fees from Plaintiff if Defendant is obligated to pay said attorney fees in the course of retaining counsel to represent Defendant’s interests in this action. Fifth Affirmative Defense 18. Plaintiff has provided no sworn statement testifying to the accuracy or validity of the alleged debt account. Judgments entered by any court which are the product of fraud are either void or voidable and the judgment may be attacked pursuant to Rule 1.540(b) of Florida Rules of Civil Procedure for allegations of fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party for up to one year after entry of that judgment. Sixth Affirmative Defense19. Plaintiff lacks standing to enforce the alleged Contract as Plaintiff has not shown it is the true owner of the alleged Contract, which Plaintiff is seeking to enforce. 20. Plaintiff failed to attach any evidence proving its authority to bring this action or showing that (1) XXXX currently owns the alleged Contract or (2) that Plaintiff has any interest in this action. Consequently, Plaintiff lacks standing to bring this action and the Complaint should be dismissed pursuant to Rule 1.130(a) of the Florida Rule of Civil Procedure. Counterclaims21. Defendant specifically reserves the right to file counterclaims which are discovered in the course of discovery.
Hi and welcome to JA
I am reviewing your question
First of all the answer just addresses the numbered allegations of the complaint by
denying the allegation contained in paragraph A of the complaint
admitting an allegation ..................................B........................
acking sufficient information and belief to repond to the allegation contained in paragraph C of the complaint.
Requests for information are contained in a totally different document called a DEMAND FOR A BILL OF PARTICULARS, OR FOR DOCUMENTS, ETC.
to be continued
So without knowing the allegations of the complaint, your answer should be:
11. Denies the allegation contained in paragraph_________of the complaint.
12. Lacks sufficient information and belief to respond to paragraph_________of the complaint.
Your first affirmative defense is good
Your second is NOT an affirmative defense but would be the subject of a request for documents
The first part off your 15 should not be an affirmative defense but should match up with one of the allegations of the complaint (see 12 above). The part regarding demanding the contract or the terns thereof would be the subject matter of a demand for a bill of particulars and/or a demand for documents.
The beginning of your 16 should be paragraph 13 of the answer.
The estoppel language is your third affirmative defense
Your 17 is a demand that goes at the end of the answer.
Your 18..........part of a demand for documents
Balance of 18 Fourth affirmative defense
19. Should be the first affirmative defense and renumber the others accordingly along with second sentence of 20
20 first part........document demand
then add the language of 17
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