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
11. 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
Third Affirmative Defense
16. 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
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 Defense
19. 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.
21. Defendant specifically reserves the right to file counterclaims which are
discovered in the course of discovery.