A default judgment was placed on my record 7/2010. I am gathering my legal documents to set aside the judgment. I need help completing the answer (Form PLD-C-010). Under California Code of Civil Procedures 473.5, the plaintiff never served me. The plaintiff's complaints are as followed:
1) CC-a(1): within the last 4 years a) on an open book account for money due b) because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff
2) CC-b(3): for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff the sum of $4,235.01
3) CC-b(4): for money lent by plaintiff to defendant at defendant's request
4) CC-b(6): (to be continued)
(4 CC-b(4): other: FOR THE SUM BY WHICH DEFENDANT HAS BEEN UNJUSTLY ENRICHED BY VIRTUE OF DEFENDANT RECEIVING MONETARY OR OTHER BENEFIT. BY DEFENDANT KNOWINGLY REQUESTING THE FUNDS AT ISSUE AND/OR ACCEPTING THE BENEFITS BESTOWED. IT IS INEQUITABLE FOR DEFENDANT TO RETAIN SAID BENEFITS WITHOUT REPAYING PLAINTIFF THE VALUE THEREOF. *The original creditor was Citibank/Sears Premier Card* My defense is that I never entered into a contract with the Plaintiff (Midland Funding LLC), therefore no breach or damages could possibly exist. I deny everything because I never did business with them and have been in the past already sent them a validation of debt letter (post judgment) which they never responsed too.
In California, an Answer to Complaint typically includes a general denial plus a number of affirmative defenses.
“An affirmative defense must be pleaded in the same manner as if the facts were set forth in a complaint. In other words, the general requirement of stating the ultimate facts applies and, where particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense involving the issue.” (5 Witkin Cal. Proc. 4th (1997) Plead, § 1009, p. 463.)
The various affirmative defenses must be separately stated and must refer to the causes of action to which they relate in a manner by which they may be intelligently distinguished.” (Code Civ. Proc., § 431.30(g).)
Typical affirmative defenses for a breach of contract lawsuit include:
1. The complaint fails to state facts sufficient to constitute a cause of action.
2. Plaintiff lacks standing to sue.
3. Plaintiff failed to mitigate any purported damages it may have suffered.
4. Plaintiff's claims, in whole or in part, are barred by the doctrine of laches.
5. Plaintiff's claims are barred by the equitable principle of unclean hands by virtue of Plaintiff's conduct and actions.
6. Plaintiff's claims are barred by the equitable principle of estoppel.
7. Plaintiff’s claims are barred by the statute of limitations set forth under Code of Civil Procedure sections 337(1) and 339(1).
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.