Answer to complaint
Date: Wed, 02/04/2009 - 11:10
The defendant xxxx answers the complaint by stating and showing that:
1. Admits
2. Admits
3a. Denies having information and knowledge sufficient to form a belief as to the truth of so much of paragraph a, as alleges xxxxxxx LLC purchased credit card account from Bank of America, and denies the remaining allegations of paragraph a.
3b. Denies the statements made by plaintiff in paragraph b.
3c. Denies the statements made by plaintiff in paragraph c. The plaintiff has not supplied the defendant with consistent data containing necessary and vital information or any valid and applicable documents that would substantiate the statements made in paragraph c.
4. Admits
5. Admits
AFFIRMATIVE DEFENSES
6. Plaintiff’s complaint is barred by 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.
7. Defendant claims a failure of consideration, as the agreement allegedly defaulted was not based on an exchange of promises and is therefore not enforceable. No exchange of money or goods occurred between plaintiff and defendant.
8. Defendant claims contributory negligence, as plaintiff admits to purchasing the defaulted debt allegedly owned by the defendant, causing plaintiff’s injury to its own self, therefore plaintiff is barred from seeking relief for damages.
9. Plaintiff voluntarily, with knowledge inherent, made an assumption of risk in assuming ownership of a purported debt, and is not entitled to judgment and not entitled to equitable, pecuniary or statutory damages.
10. Defendant alleges that the granting of the plaintiff’s demand in the complaint would result in unjust enrichment, as the plaintiff would receive money that the plaintiff is not entitled to receive.
11. Defendant claims lack of privity, as defendant has never entered into any contractual or debtor/creditor arrangements with the plaintiff.
12. The plaintiff has unreasonably delayed in asserting his claims to the defendant's prejudice. Accordingly, the plaintiff's claims are barred by the doctrine of laches.
13. Plaintiff, as the defendant is informed and believes, lacks the legal standing to maintain this action.
14. Plaintiff is barred under the Fair Debt Collection Practices Act from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by any purported agreement.
Defendant reserves the right to amend and/or add additional answers, defenses and/or counterclaims at a later date.
Certified
Signed and dated...
I really want to file a counter claim (for FDCPA violations) to try and recoup my filing fee (75$) but the rules of my court say that if I want to file a counter claim then I have to pay another filing fee to do so.
If you can find a way to pay the filing fee on the counter-claim
If you can find a way to pay the filing fee on the counter-claim, it might be beneficial. At $1,000 per violation, that can really add up, if you have some proof of the violations. And it likely would add some heat if you are attempting to (and have the money) to settle.
Okay, I found out from the court that it's only $4.oo more to fi
Okay, I found out from the court that it's only $4.oo more to file a counter claim along with my answer.
Here's my counter claim...
COUNTER CLAIM
Count I
15. On January 2, 2009, Plaintiff had a summons along with a complaint served to the defendant. Neither the complaint nor the summons provided a notice of validation per 15 U.S.C. 15 1692g.
16. In response thereto the defendant sent a certified/return letter to the plaintiff mailed January 8, 2009. The letter to the plaintiff stated that the summons was the first notification given to the defendant regarding the alleged debt and pursuant to the FDCPA 15 U.S.C 1692, denied the debt and requested simple specific debt validation.
17. This letter was delivered to plaintiff???s P.O. Box on January 10th, 2009, according to the postmaster, but not picked up and signed for until January 20th, 2009.
18. On January 13th, 2009, the plaintiff filed the complaint with the court.
19. Instead of picking up the certified letter from the defendant and having to answer to it, the plaintiff commenced action by filing the complaint with the court.
20. On a letter dated January 23rd, 2009, the plaintiff sent defendant a copy of a credit card agreement and a generic unsigned statement of the account along with an attached copy of a letter dated November 12, 2008 that was allegedly sent to the defendant. The attached copy of the letter dated November 12, 2008 did have a validation notice per 15 U.S.C. 1692g.
21. The plaintiff???s act to bring this action without giving the defendant and opportunity to dispute or receive validation of this debt is believed to be intentional.
22. To date the plaintiff has not sent defendant any requested or valid applicable validation of this disputed debt.
23. Plaintiff has violated the FDCPA by bringing this action before validation the debt, and defendant is injured thereby.
COUNT II
24. The letter dated January 23, 2009 and the copy of letter dated November 12, 2008 along with all its attachments:
a. were false, misleading and deceptive, in that it mischaracterized the debt, in violation of 15 USC 1692e.
b. contained unfairly and unconscionable sought amounts not authorized by agreement or permitted by law, in violation of 15 USC 1692f.
c. the defendant has been injured thereby.
WHEREFORE, the defendant asks the court for judgment:
a. dismissing the complaint herein,
b. in favor of the defendant on the counterclaims:
I. for actual damages
II. for costs and disbursements of this action,
IV. such other and different relief as the court finds proper.
III. says: statutory damages in an amount up to $1000 per 15 U
III. says: statutory damages in an amount up to $1000 per 15 U.S.C 1692k.
to be honest, I dont see anything wrong with the way you describ
to be honest, I dont see anything wrong with the way you described the service of summons, so I am not sure where you are going with that one in your counterclaim. They are legally allowed to file lawsuits as a first communication--they are only bound by the FDCPA to validate first when you request it before they send a summons to you. If you did not do so, there is no legal precedent for the court upholding your counterclaim there. Now, if you sent them a DV request, they got it, and then they served you a summons a month later, without validating, then you would have a case there. the court will likely dismiss count 1 of yoru countersuit, because nothing in the laws prohibits them from sending a summons as first communication. Also, it is generally understood that your request for validation, since it came after they already served you, will not get you anywhere because the lawsuit was already initiated at that point, and a DV request will not stop a lawsuit in progress.
In Count 2, you should be more specific as to exactly what amounts they are claiming that you owe them, that are not allowed by law. For example, you mentioned that they are claiming damages that they are not allowed to collect. This is not true--the FDCPA does NOT in any way prohibit them from collecting attorney fees and interest--the standard that applies is whether or not these additional charges are accounted for in the original credit agreement. If there is anything at all in the credit agreement that permits legal fees in case of default/lawsuit, which there most likely is, then they are not outside the law in trying to collect that money from you. For this, you need to hammer home the point that they have yet to produce any agreement which you actually signed--you must force them to prove that you did actually agree to the conditions in that agreement. If they cannot prove that you ever did so, then you need to push for dismissal with prejudice.
You said that they misrepresented the debt--how so? It would help there if you went into detail as to exactly how they did this. Simply telling the court that they did so will not help your cause at all--you are in effect suing them as well now, so that burden of proof is on you to show that they did those things.
Maybe this is to hard for me... Count I - I'm trying to say t
Maybe this is to hard for me...
Count I - I'm trying to say that the collection agency never sent me the original letter (the notice of the debt) that they dated 11/12/08. They made it up and sent me a copy saying they sent it. In my state, the plaintiff is allowed to serve you a summons and complaint and then file the complaint later with the court. (as long as it is 5 days before the return date on the summons) I guess the CA just has to say they did send it and since I can't prove they didn't, the court just has to assume that they did? I was never given an opportunity to obtain verification of the debt or disput it before they filed the complaint with the court. They pulled some kind of fast one there on me, but maybe there's nothing I can do about it.
Count II - My proof that the collection agency is using false information, misleading and misrepresenting the legal statis of the the debt is: Everything that they have sent me. Nothing is consistent... The complaint for one says I owed original creditor $1860.81 on 11/26/04 but the statement they sent me later (supposebly my last statement with the OC) says I owed that same amount on 4/7/07. The statement is very generic, no signatures, no letter head... it also says it was prepared by some other collection agency that I've never heard of. (Worldwide Purchasing ll LLC, not mentioned in the complaint) The other thing I have is the cc agreement that they sent me. Even though they stated in the letter that the account was opened in 2001, the copy of the card holder agreement that they sent me has a copyright of 2003.
Maybe this isn't going to be considered proof that they are violating the FDCPA. All they have to do is say they didn't know or it was a mistake right?
I personally would not use contributory negligence as an initial
I personally would not use contributory negligence as an initial defense. I would start off with volenti non fit injuria. Do a search on it and study it. If the volenti fails THEM back it up with contributory negligence. Reason being that if the volenti can be proved then the case gets thrown out. If you cannot prove volenti but can prove contributory negligence then it would be a reduced fee.
non fit injuria isn't listed as an affirmative defense set forth
non fit injuria isn't listed as an affirmative defense set forth in my county court rules for simplified civil procedure. Contributory negligence is. But you have a point there... I think, ... um, I would have to prove contributory negligence right, sense I am using it as an affirmative defense. So this would mean I would have to prove that they actually purchased and owned the account? I can't do that. I don't even think they can do that.
grr.
:(
Again, Do I really have to prove the contributory negligence if
Again, Do I really have to prove the contributory negligence if they admitted to purchasing the account? I don't understand reduced fee either? Can someone explain?
A defense to contributory negligence is not available for intent
A defense to contributory negligence is not available for intentional wrongdoing. HOWEVER if you can prove it in your defense that it is not intentional you may win.
The last thing you want to throw at them is unjust enrichment. They cannot sue you for more than what they paid for the debt. If they only paid $50 for a $2,000 debt and have no contract then they can only sue you for that $50 unless they can prove attorney fees and collection/court costs can be added.
contributory negligence: if you can prove it in your defense tha
contributory negligence: if you can prove it in your defense that it is not intentional you may win.
Can I have an example please?
unjust enrichment: The last thing you want to throw at them is unjust enrichment.
When you say "throw at them" do you mean the plaintiff or the court? Do or don't use the unjust enrichment in my defense?
Is this better? 8. Defendant claims contributory negligence,
Is this better?
8. Defendant claims contributory negligence, as plaintiff admits to purchasing the defaulted debt allegedly owned by the defendant, for which the defendant has had no control, causing plaintiff???s injury to its own self.
Sounds good to me. Follow it up with something like "Plaintif
Sounds good to me.
Follow it up with something like "Plaintiff is a debt collector and purchases debts for pennies on the dollar. To let the plaintiff prevail in this case for the amount demanded would be unjust enrichment."
you might be able to word it a little better than I did but it would help if you could get documents and find out how much they paid for the debt.
Thanks! Now here's my revision to contributory negligence. Doe
Thanks! Now here's my revision to contributory negligence. Does this make it more clear that my part in this debt is unintentional? (because I have to control)
Maybe I'm not understanding the defense correctly...
9. Defendant claims contributory negligence, as plaintiff admits to purchasing the defaulted debt allegedly owned by the defendant, for which the defendant has no control, causing plaintiff???s injury to its own self.
OK I got lost a little there. You must prove that the plaint
OK I got lost a little there.
You must prove that the plaintiff contributed to the negligence, meaning, no one ordered them to purchase charged off debts. They did it on their own. Your part is right on you in no way purposely defaulted with the plaintiff, maby the OC but not the 3rd party.
So I like what you have so far. It is really up to you as to if you want to use unjust enrichment now as part of your defense. I would use it now as part of your defense and then if you get in front of a judge you can use it again too.
Thank you all for your help! I couldn't have done this on my own
Thank you all for your help! I couldn't have done this on my own without your opinions. Now I just need to decide if pursuing my counter claim is a good idea or not. If you want to see it, I posted it under "Explaination of FDCPA violations in counter claim" from Lyna
My return date is this monday, so thanks again, wish me luck.
I do the best I can. I am not a professional nor an attorney but
I do the best I can. I am not a professional nor an attorney but I devote my time in helping others. Being disabled I have a lot of free time.
I try to only give advice on what I know. If I am unsure I will not say anything.
Best of luck to you.