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rvlaw
rvlaw, Attorney
Category: Business Law
Satisfied Customers: 8386
Experience:  NYC Trial Attorney 30+ years; Law professor ; BUSINESS LAW; CONTRACTS; TORTS; Arbitrator
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Re: FLORIDA Law - DEFENSE - Aff. Def. (re alleged debt) Defendant

Customer Question

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 Defense

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

considered).
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

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 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.

Counterclaims

21. Defendant specifically reserves the right to file counterclaims which are

discovered in the course of discovery.
Submitted: 2 years ago.
Category: Business Law
Expert:  rvlaw replied 2 years ago.

Hi and welcome to JA

I am reviewing your question

rich

Expert:  rvlaw replied 2 years ago.

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........................

 

l

 

 

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

Expert:  rvlaw replied 2 years ago.

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

21...OK

then add the language of 17

WHEW!!!!!!!!!!!!!!!!!!!


Please press 3 or 4 or 5 below so that I may get credit for assisting you.
have intended. Please do NOT press 1 or 2 since that will result in a negative rating for me
which you may not If you want further information or
clarification, just ask before you give a rating


I ask you to be fair in your rating. For instance, in these actual examples , the expert should not have received a negative rating:
a. A customer says "I ALREADY KNEW THAT".....but the expert didn't know what the customer knew or didn't know.
b. A customer wants to hear "YES YOU CAN".....but the certified legal expert says "LEGALLY NO YOU CAN'T".
c. The answer is short, but ACCURATE. A customer simply wants a longer answer.

Thank you for reading this and for your consideration. I'm always ready to help further.


I NEVER SAY THIS, BUT THIS TOOK SO MUCH WORK. I RESPECTFULLY XXXXX XXXXX TO THE "BONUS" OPTION. THANKS

RICH

rvlaw, Attorney
Category: Business Law
Satisfied Customers: 8386
Experience: NYC Trial Attorney 30+ years; Law professor ; BUSINESS LAW; CONTRACTS; TORTS; Arbitrator
rvlaw and 7 other Business Law Specialists are ready to help you
Customer: replied 2 years ago.
This is forCustomer.. Bonus was submitted.
Thank you again. Appreciate very much your help and time.
Expert:  rvlaw replied 2 years ago.

Thank you very much Glad I could use my heavy litigation background to assist.

 

 

 

 

I notice however that you did not formally accept; and pay the posted amount Could you do that? Thanks again

 

 

 

rich

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rvlaw
rvlaw
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8386 Satisfied Customers
NYC Trial Attorney 30+ years; Law professor ; BUSINESS LAW; CONTRACTS; TORTS; Arbitrator