FDCPA violations

They are counter claims. Answer each count of the complaint and at the end of your response, add in the counter claims. Remember that FDCPA violations are per action, not per violation. What is your affirmative defense and what are the violations?

Affirmative defenses:

1. Defendant claims a Failure of Consideration, as the agreement allegedly defaulted was not base on an exchange of promises and is therefore not enforeceable. No exchange of money or goods occured between plaintiff and defendant.

2. Plaintiff's complaint is unenforceable because it violates the Statute of frauds, as the purported agreement falls within a class of contracts or agreements required by Colorado "statute of frauds" to be in writing. The purported agreement alleged in the complaint is not in writing and signed by the defendant

3. Defendant claims Lack of Privity, as defendant has never entered into any contractual or debtor/creditor arrangements with the plaintiff.

4. Defendant claims illegality to any and all alleged agreements or contracts as there are no exibited facts that demonstrate the legal rights to pusue this action and is therefore unenforceable.

5. Plaintiff failed to state a proper claim upon which relief can be granted, as the defendant does not recognize the claim. Plaintiff's complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the defendant

6. Plaintiff admits to purchasing the defaulted debt allegedly owned by the defendant causing plaintiff's injury to its own self, therefore plaintiff is barred fromseeking relief for damages.

7. Defendant alleges that the complaint includes references to an alleged agreement that, ("as stated by the plaintiff's assignor") made outside any alleged written contract, violating the Parole Evidence Rule

8. Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration

9. Plaintiffs complaint fails to allege whether or not the purpoted assignment was legaly assigned and there is no evidence that the purported assignment was bonafide.

10. Defendant claims that the plaintiff is not an assignee/owner for the purpoted agreement or account and no evidence appears in the complaint to support any related assumptions.

11. Defendant claims that the plaintiff is not entitled to reimbursement of attorneys' fees or any kind of interest because there is no valid agreement signed by defendant that included such a provision and there is no law that otherwise allows it.

12. Defendant reserves the right to amend and/or add addition answers. Defenses and/or counterclaims at a later date.

Counter claims:

1. Defendant claims that the Plaintiff has violated FDCPA 807 (2) (A), 15 U.S.C 1692e. (2) (A) and 15 U.S.C 1692e (10)for falsely representing the character amount, and legal status of this debt and using false representation or deceptive means to try and collect or attempt to collect this debt. Plaintiff's complaint and the validating statement of this account both provide different information regarding the amount, date and legal status of this debt.

Any comments would be greatly appreciated.

Those are pretty much generic defenses. Really, the best defense you could hope for is SOL. Has SOL expired on the debt? Can you be more specific on how the CA mis-represented the legal status of the debt?

I asked for debt validation from the CA, and they sent me what is supposed to be my last statement with the bank. It is very generic. There is an address at the top to remit payment to that says Worldwide Asset Purchasing, LLC (not even the company suing me) The statement copy says an amount owed to OC on april of 2007 and is in default. There are no signatures anywhere and the account number I do not recognize. They also sent me a copy of an agreement that has a copyright of 2 years after they say I supposedly open this account.

The complaint says I owed OC that same amount on 11/04 and that they are the owner of the account now.

Basicly the validation and the complaint contradict each other. I am sure that something has been done illegally. I don't a cross-claim for violations does anything for my case anyway does it? What good could a cross-claim do? I just want them to have to prove that that account was mine.

What state do you live in? When was the last time you paid on the account? At this point, you will have to request validation thru the Discovery Phase of litigation in the form of Interrogatories and Requests for production of Documents.

CO. is 6 years. Date of last payment they say was 54.00 in July 2004. (although I have no record of that pmt.) When I request for production of documents through discovery what can I ask for that they will have to provide? I really think I am entitled to valid legal proof of some kind. Is it called a chain of title or chain of custody? I wish they could provide me with something that has my signature or somebody's signature on it, not just generic pieces of paper with irrelivant false information. Can I send a request for production of documents right after I file my answer or do I need to wait until after I first appear in court?

Here's a sample of a response with couterclaims:

Here's an example of a request for POD:

Wow, thanks Nascar! I will research these and revise...

Question about #6. "Plaintiff fails to state a cause of action against the defendant" and #7. "Plaintiff, as the defendant is informed and believes, lacks the letal standing to bring and maintain this action."

My CRCP Rules 8 under Anotations says:

Plaintiff is not required to set out "a cause of action" under the rules of civil procedure. Smith v. Mills, 123 Colo. 11, 225 P.2d 483 (1950).

Theories of action are no longer significant. Continental Sales Corp. v. Stookesbury, 170 Colo. 16, 459 P.2d 566 (1969).

The rules of civil procedure were intended to deemphasize the theory of a "cause of action" and to place the emphasis upon the facts giving rise to the asserted claim. Bridges v. Ingram, 122 Colo. 501, 223 P.2d 1051 (1950); Hutchinson v. Hutchinson, 149 Colo. 38, 367 P.2d 594 (1961).

One does not stand or fall on a "theory" or "cause of action", as obtained under the practice prior to adoption of the rules. Hutchinson v. Hutchinson, 149 Colo. 38, 367 P.2d 594 (1961).

The basic theory of plaintiff's pleading under the present rule is that the transaction or occurrence is the subject matter of a claim, rather than the legal rights arising therefrom. Brown v. Mountain States Tel. & Tel. Co., 121 Colo. 502, 218 P.2d 1063 (1950).


Does this mean that the plaintiff is not required to state a cause of action or have legal standing to bring action?