ASSET ACCEPTANCE. LLC vs. ALLEGED DEBTOR

Notice of Motion and Motion to Strike Asset Acceptance, LLC's Affirmative Defenses to a Complaint filed under the Federal Fair Debt Collection Practices Act (FDCPA).

by Barry Fagan
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Sample Motion to Strike Affirmative Defenses to a FDCPA Complaint

Unfair Debt Collection Practices

Shown below is a sample Notice of Motion and Motion to Strike Asset Acceptance, LLC's Affirmative Defenses to a Complaint filed under the Federal Fair Debt Collection Practices Act (FDCPA). This Motion to Strike Affirmative Defenses to an Unfair Debt Collection Practices complaint is provided for informational purposes, and is not intended as a substitute for legal advice or for representation by a qualified Lawyer.

THE FDCPA ALLOWS ONLY THOSE DEFENSES SET FORTH IN STATUTE

In this case, all of the defenses raised by Cross-Defendant relate to claims brought by Cross-Complainant pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Since the FDCPA is a federal statutory cause of action, the defenses are limited to those set out in the statute itself. Howlett v. Rose, 496 U.S. 356, 375 (1990) (“The elements of, and the defenses to, a federal cause of action are defined by federal law.”); see also Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 232 (4th Cir. 2007) (“To insist that some unarticulated, common law immunity survived the creation of the FDCPA would be to fail to give effect to the scope of the immunity articulated in the text”). Moreover, the FDCPA is a strict liability statute. Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1175 (9th Cir. 2006); Russell v. Equifax

A.R.S., 74 F.3d 30, 33 (2nd Cir. 1996).

An affirmative defense is the “cross-defendant’s assertion raising new facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all allegations in the complaint are true.” Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003).

In an FDCPA case, there are only three defenses, pursuant to 15 U.S.C. § 1692k(c)-(e):

? statute of limitations,

? reliance on an FTC advisory opinion, and

? bona fide error.

The court may strike from a defendant’s answer “any insufficient defense.” C.C.P. §431.10 et seq, §436. Courts strike frivolous affirmative defenses early on in an effort to streamline the ultimate resolution of a case and avoid the waste of time and money involved in litigating spurious issues. Kelley v. Thomas Solvent Co., 714 F. Supp. 1439, 1442 (W.D. Mich. 1989).

CROSS-DEFENDANT’S ANSWER IS DEVOID OF ANY FACTUAL ALLEGATIONS CONSTITUTING A DENIAL OF LIABILITY OR

AFFIRMATIVE DEFENSES

Cross-Complainant is unable to prepare a case against facts not stated either by discovery (failure to comply with a demand for bill of particulars), or pleadings, and Cross-Defendant has raised no need for the unconscionable delay. In FPI Development, Inc vs. A1 Nakashima, (1991) [231 Cal.App.3d 367, 384], the court held that the affirmative defenses pled in an answer to a complaint must be pled in the same fashion, and with the same specificity, as a cause of action in a complaint.

CONCLUSION

A cross-defendant should not be able to assert a laundry list of defenses hoping to find at a later date some fact that supports the defense. In this instance, Cross-Defendant has not set forth sufficient facts in support of any of their affirmative defenses. It is impossible to determine if any of the affirmative defenses pled by Cross-Defendant in the Answer is plausible on its face.

Should Cross-Defendant discover any basis for its affirmative defenses as this litigation progress, it should seek leave of Court to assert them at some other time.

Moreover, the FDCPA Cross-Complaint is statutorily limited to just three affirmative defense, none of which apply here. Therefore, Cross-Complainant requests that each of these affirmative defenses be stricken and that Cross-Defendants be denied leave to amend their Answer.

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Barry Fagan
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