Defense Attorneys – be careful when filing those affirmative defenses

My colleague, Mary Jane Elliot has been sued by Frank Glover for violation of the Fair Debt Collection Practices Act. I know Mary Jane. She is a very bright, and very astute individual. I don’t know the facts of this case, but merely want to talk about a recent development in this case that has made money for the Plaintiff’s counsel at her expense.
Mary Jane’s attorney filed a veritable laundry list of affirmative defenses in connection with her answer. I have seen this done literally, hundreds if not thousands of times. Under the court rules, generally any affirmative defense not asserted is waived. Mary Jane’s attorneys were probably concerned about inadvertently failing to assert a defense on her part and so, they listed a number of affirmative defenses that were really not relevant. Plaintiff’s counsel seized the opportunity and filed a motion to strike these affirmative defenses and ask for sanctions. In a tersely worded opinion the court held in part:

Tenth Defense. As noted above, the tenth defense attempts to incorporate by reference all affirmative defenses recognized in Rules 8(c) and 12(b) of the Federal Rules of Civil Procedure. This is utter nonsense. It is inconceivable that every defense known to the law could be applicable to a case of this [*12] simplicity. The tenth defense does not given plaintiff fair notice of anything and will be stricken.
Eleventh Defense. Defendant asserts that plaintiff has suffered no damages as a result of any act or omission of defendant. This is not an affirmative defense. Plaintiff has the burden of demonstrating that he is entitled to whatever damages the statutes allow. The eleventh defense is a waste of ink and will be stricken.
Twelfth Defense. Defendant raises the equitable defense of unclean hands. The unclean hands defense will, in certain circumstances, provide a defense to claims for injunction or other equitable relief. See, e.g., Performance Unlimited, Inc. v. Questar Pub., Inc., 52 F.3d 1373, 1383 (6th Cir. 1995). As plaintiff seeks no equitable relief, the unclean hands doctrine is inapplicable to this case and insufficient on its face.
Thirteenth Defense. The thirteenth defense alleges verbatim: “Plaintiff’s and/or their agents have engaged in the unauthorized practice of law.” Leaving grammatical errors aside, the court notes the utter futility of this so-called defense. Although called upon to do so by the motion to strike, defendant has not attempted to justify its accusation that [*13] plaintiff has engaged in the unauthorized practice of law. If the accusation is aimed at plaintiff’s counsel, it appears completely frivolous, as counsel has been admitted to the bar of this court. This nonsensical defense will be stricken.
Fourteenth Defense. In five words, defendant asserts the right of setoff, but does not identify any debt or claim owing to defendant that would give rise to such a right. Again, this is boilerplate pleading that the court will not tolerate. The defense will be stricken.
Fifteenth Defense. Defendant asserts that plaintiff’s claims are barred “due to impossibility.” The doctrine of impossibility may have some relevance to a contract claim or an action under Article II of the UCC. It is hard to conceive of a more ridiculous defense to an action under the Fair Debt Collection Practices Act.

The sharpness of the court’s rebuke of of defense counsel’s affirmative defenses grew with each successive affirmative defense. But, beesides the obvious embarrassment to Defense counsel, whats the harm? In this case, I see it as two fold: First, under the FDCPA, the Plaintiff may be awarded attorneys’ fees if it prevails. This motion and the fact that partial relief was granted on it, will undoubtedly add to the Plaintiff’s pot of attorneys’ fees at the end of this case or during settlement negotiations.
Secondly and perhaps more importantly, Plaintiff’s counsel took a chunk of Defense counsel’s credibility from the court. Attorneys win and lose cases not just on the facts, but on their credibility. In close calls on rulings, one would be hard pressed to believe that a court does not look to the credibility of counsel. I am not throwing stones at Mary Jane’s attorneys. Hell, I throw every affirmative defense into a case so as not to waive anything on behalf of my client. From now on, however, I will be quite sure to review those affirmative defenses. So will Mary Jane’s attorneys, I am sure.

This entry was posted on Sunday, October 14th, 2007 and is filed under Collection Law Firms in the News . You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

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