Saturday, November 3, 2012

And the Affirmative Defenses Go On

Here are even more of their Affirmative Defenses.

"Defendant [FNTIC] is informed and believes and thereupon allege that Plaintiff [me] was negligent, legally responsible, comparatively at fault, or otherwise at fault or responsible for the loss and damages complained of, if any there were."

  • I did not write nor include in the Grant Deed the four lost parcels so I do not understand how this applies.

"Defendant [FNTIC] is informed and believes and thereupon allege that the failure to limit discretion of the finder of fact as to the amount of punitive damages violates Defendant's constitutional rights."

  • I do not understand this.

"Defendant [FNTIC] is informed and believes and thereupon allege that California Law impermissibly discriminates against Defendant by limiting the amount of punitive damages which may be awarded in certain cases, while not providing limitations in the pending case."

  • Again, I cannot comment as I do not understand this.

"Defendant [FNTIC] alleges that defendant has the right, at its option, to settle a claim by making payment in the amount of the loss to Plaintiff and at the time payment was made in the amount of the loss, any liability or obligation to defend, prosecute or continue any litigation terminated.  Defendant diligently and appropriately made payment to Plaintiff [me] under the terms of this policy and thereby terminated any liability or obligation to defend, prosecute or continue any litigation."

  • Fidelity National Title Insurance Company diligently and [in]appropriately determined that the loss was zero by accepting the opinion of their appraiser from Boise Idaho.  LOL.

"Defendant [FNTIC] alleges that Plaintiff [me] failed to provide proof of loss or damage signed and sworn to by Plaintiff within 90 days after the Plaintiff ascertained the facts giving rise to the alleged loss or damage.  Said failure to provide the proof of loss or damage was a breach of the contract that contributed to or was the primary caused of any alleged delay in the processing of the insurance claim."

  • This requirement was waived by the second Claims Counsel and even after that both Claims Counsel numbers three and four hired and procured two appraisals from the Boise Idaho appraiser - so I do not understand how this caused the delay.  I actually had to contact the California Department of Insurance in order to get a response from Fidelity National Title Insurance Company.

"Defendant [FNTIC] alleges that Plaintiff [me] failed to give the Company a written statement at the address provided in the insuring contract.  Said failure to provide the written statement to the address provided in the insuring contract.  Said failure to provide the written statement to the address provided was a breach of the contract that contributed to or was the primary caused of any alleged delay in the processing of the insurance claim."

"Defendant [FNTIC] alleges that after the foreclosure of the subject property, Plaintiff [me] by and under the terms of the insuring contract no longer was an insured and was no longer entitiled to benefits under the policy of title insurance."

  • The research and claim that was filed on my behalf was almost a year before this date and Fidelity ordered the second appraisal after this date as we were still attempting to settle this matter so this does not make sense to me.

"Defendant [FNTIC] alleges that by the agreement under which Plaintiff [me] accepted the insurance proceeds for her loss there was an accord and satisfaction."

  • Accord and satisfaction??????  I think not.

"Defendant [FNTIC] is informed and believes and thereupon allege that some or all of Plaintiff's [mine] causes of action are barred by the applicable statutes of limitation including but not limited to Code of Civil Procedure Sections 337, 339 and 343."

  • I will leave this to the attornies.

"Defendant [FNTIC] is informed and believes and thereupon allege that some or all of Plaintiff's [mine] causes of action are barred by the doctrine of laches."

  • This is a delay in pursuing a claim but the claim was actually opened on my behalf by a title officer with Fidelity.  So I do not understand this.