When Answering the Complaint, where do your affirmative defenses go? Do they replace the plaintiffs 'causes of action' or do you type at the end and continue numbering and "add additional information". Also, would burden of proof, burden of production, burden of pursuasion, good faith and/or entrapment be good aff. Defenses to use if someone asked me to do something and now saying they didn't (sort of being an indian giver).
First, remember that there are time deadlines that must be honored. You either have twenty or thirty days to answer, depending on how you were served. Pay strict attention to these.
You answer a complaint by admitting, denying, or denying information or belief sufficient to form a belief as to the truth of the allegations asserted. You do this for each paragraph of the complaint.
After you've done this, you can allege affirmative defenses and, if you've been damaged by the plaintiff, counterclaims. These are done by adding consecutive numbered paragraphs (picking up where the plaintiff left off) and identifying each as a separate affirmative defense and/or counterclaim. With each counterclaim, you set forth the amount you believe you've been damaged, and make a claim that the plaintiff pay that to you.
Remember that everything must be in good faith. Burden of proof, burden of production and burden of persuasion are not affirmative defenses, and should not be alleged. Intentional or negligent suffering are not proper affirmative defenses or counterclaims, and should not be alleged. Failure to act in good faith is a legitimate claim, as is entrapment. Both can be affirmative defenses and, depending on the facts, good counterclaims for money damages.
I think you should consult an attorney before you submit your answer, both to check it as to form and to make sure you're not doing anything improper. The lawyer can also tell you if you've left anything out.
Litigation is a very complicated field. I suggest you don't' go it alone, but if you decide to go pro se, at least consult a litigator in the beginning to set you on the right track.
DISCLAIMER - THIS IS NOT LEGAL ADVICE. THIS IS INTENDED TO BE AND IS FOR GENERAL INFORMATIONAL PURPOSES ONLY, AND DOES NOT CREATE AND ATTORNEY-CLIENT RELATIONSHIP.
In NYS you answer each allegation of the complaint; you have your own "wherefore" clause in which you ask the court to grant judgment in favor of the defendant, and then you follow with the affirmative defenses. You may benefit from hiring an attorney to review your paperwork before you submit it to the court. Since you did not post what the complaint is about, it is impossible to know if you can assert a counterclaim or not.
On my profile there are several legal guides. I recommend reviewing the following which may be helpful to you:
Hiring a lawyer helpful; Is it Legal? Is it Illegal?
Understanding the different court systems;
A guide to legal terms used in litigation…………………………………l.
New York City: A Guide to the Courts
Commercial litigation
LEGAL DISCLAIMER…………………………………………………………………..
Mr. Sarno is licensed to practice law in NJ and NY. His response here is not legal advice and does not create an attorney/ client relationship. The response is in the form of legal education and is intended to provide general information about the matter in question. Many times the questioner may leave out details which would make the reply unsuitable. Mr. Sarno strongly advises the questioner to confer with an attorney in their own state to acquire more information about this issue.
The affirmative defenses are alleged as part of the answer to the complaint. They don't replace anything, but most affirmative defenses permit the case to be dismissed if you prove it, even if the plaintiff proves his, her, or its case. It usually means that even if the plaintiff's case should be a winner, because of this affirmative defense (such as waiting too long to file the case, known as statute of limitations), the court can enter judgment of dismissal or nonsuit on the claim.
No one can answer your question of what would be a good affirmative defense, without knowing the specific claims in the complaint and what facts you believe permit the case to be dismissed.
If you are being sued by a debt collector or creditor, you should get a lawyer with experience handling debt collection defense, because you may have better success in doing so and assert the proper defenses to your case, which you may not even know what they are. Below is a link to consumer lawyers, which you can search by state and area of practice.
Your Answer should have at least the following, answer each paragraph in the Complaint (if it is not numbered, then reference each page and paragraph (eg. pg. 1, paragraph 1). The answer should be an admission, a denial, or partial admission/denial, or denial based on a lack of knowledge. The affirmative defenses would have a different section heading and go after the answer to each paragraph. Burden of proof, production, are not really defenses, they deal with who must produce evidence. I don't understand what your saying re: good faith, entrapment, and "asked me to do something and now saying they didn't."
This communication does not create an attorney-client relationship. A full review of your case, including actual documents and consultation is needed to render proper legal advice. This is not legal advice. Please consult an attorney before you decide on a course of action.
