Answer to Civil Complaint- How does it look?
Date: Tue, 02/02/2010 - 07:08
I have a Civil Complaint against me in NC. I believe the law firm is falsely claiming to that they were retained by FIA Card Services. This is the third debt collector/lawyer that I have dealt with over this debt. It's the first time one have filed a complaint against me though.
Any feedback would be appreciated, I have to file this in a week. Thanks.
ANSWER OF THE DEFENDANT
Defendant, appearing pro se, for it's reply to Complaint naming FIA Card Services N.A. Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.
ANSWERS TO COUNT 1
1. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment.
2. Admit
3. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment.
4. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment.
DEFENSES
1. FIA Card Services agent xxxxxxx and xxxxxxx P.A. has not proven that they are authorized and licensed to collect claims for others in the State of North Carolina, or solicit the right to collect or receive payment of a claim of another.
2. FIA Card Services agent xxxxxxxxx and xxxxxxxx P.A. has not proven that they were retained by FIA Card Services N.A as it???s representative in this matter.
3. FIA Card Services N.A. agent xxxxxxxx and xxxxxxxx P.A. has not proven that FIA Card Services N.A. is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of FIA Card Services with all of the original creditor???s rights and privileges intact.
4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.
5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.
6. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).
COUNTERCLAIMS
FIRST CAUSE OF ACTION
Statement of Facts
1. xxxxxxx 23, 2009, Defendants sent Plaintiff, via their agent, xxxxxxxxx & xxxxxxxxx, P.A., by way of certified mail, request for validation of alleged debt and a request for documentation pursuant to 15 USC 1692g(b).
2. Defendant received a notice from Plaintiff???s agent, xxxxxxxxx & xxxxxxxxx, P.A., dated xxxxxxxx 27, 2009, stating they had received the request. However, their response did not include proper validation as set forth in 15 USC 1692g(b).and the cases and Federal Trade Commission documents which interpret it.
3. Within the response letter dated xxxxxxxx 27, 2009, xxxxxxxxx & xxxxxxxxx, P.A. stated: ???This communication is from a debt collector. The purpose of this communication is to collect a debt.???
4. On xxxxxxx 13, 2010 the Defendant was served a Civil Summons citing FIA Card Services, N.A. as Plaintiff from Plaintiff???s agent xxxxxxxxx & xxxxxxxx P.A.
Statement of Claim
5. In the course of its action, Plaintiff's agent, xxxxxxxxx and xxxxxxxxx P.A., willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act in the following respects:
(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff???s agent in
writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b) in its debt collection attempts via dunning letter through its agent dated xxxxxxxx 27, 2009.
(b) by making a demand for payment within 30 days of the receipt of their initial notice sent to Defendant. Plaintiff's agent, xxxxxxxxx and xxxxxxxxx P.A., instilled a false sense of urgency of payment. Since payment demand date was within the 30 day period, Plaintiff's agent, xxxxxxxxx and xxxxxxxxx P.A., overshadowed Defendant???s right to request validation within 30 days, violating 15 USC 1692g(a).
NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF:
6. For Defendant???s First Cause of Action
(a) Statutory damages as specified in 15 USC 1692 (k) in the amount of $1,000.
7. As a result of the above violations of the Fair Debt Collections Practices Act, Plaintiff???s agent, Bernhardt and Strawser P.A. are liable to the Defendant for damages in the amount of One Thousand Dollars ($1,000).
8. Therefore, Defendant prays judgment in Defendant???s favor and asks relief in the total amount of One Thousand Dollars ($1,000).
Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not. By the Defendant acting pro se.
Dated: / / xxxxxxxxx
By: ____________________________
xxxxxxx
xxxxxxx xxxxxxx
Any feedback would be appreciated, I have to file this in a week. Thanks.
ANSWER OF THE DEFENDANT
Defendant, appearing pro se, for it's reply to Complaint naming FIA Card Services N.A. Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.
ANSWERS TO COUNT 1
1. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment.
2. Admit
3. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment.
4. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment.
DEFENSES
1. FIA Card Services agent xxxxxxx and xxxxxxx P.A. has not proven that they are authorized and licensed to collect claims for others in the State of North Carolina, or solicit the right to collect or receive payment of a claim of another.
2. FIA Card Services agent xxxxxxxxx and xxxxxxxx P.A. has not proven that they were retained by FIA Card Services N.A as it???s representative in this matter.
3. FIA Card Services N.A. agent xxxxxxxx and xxxxxxxx P.A. has not proven that FIA Card Services N.A. is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of FIA Card Services with all of the original creditor???s rights and privileges intact.
4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.
5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.
6. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).
COUNTERCLAIMS
FIRST CAUSE OF ACTION
Statement of Facts
1. xxxxxxx 23, 2009, Defendants sent Plaintiff, via their agent, xxxxxxxxx & xxxxxxxxx, P.A., by way of certified mail, request for validation of alleged debt and a request for documentation pursuant to 15 USC 1692g(b).
2. Defendant received a notice from Plaintiff???s agent, xxxxxxxxx & xxxxxxxxx, P.A., dated xxxxxxxx 27, 2009, stating they had received the request. However, their response did not include proper validation as set forth in 15 USC 1692g(b).and the cases and Federal Trade Commission documents which interpret it.
3. Within the response letter dated xxxxxxxx 27, 2009, xxxxxxxxx & xxxxxxxxx, P.A. stated: ???This communication is from a debt collector. The purpose of this communication is to collect a debt.???
4. On xxxxxxx 13, 2010 the Defendant was served a Civil Summons citing FIA Card Services, N.A. as Plaintiff from Plaintiff???s agent xxxxxxxxx & xxxxxxxx P.A.
Statement of Claim
5. In the course of its action, Plaintiff's agent, xxxxxxxxx and xxxxxxxxx P.A., willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act in the following respects:
(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff???s agent in
writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b) in its debt collection attempts via dunning letter through its agent dated xxxxxxxx 27, 2009.
(b) by making a demand for payment within 30 days of the receipt of their initial notice sent to Defendant. Plaintiff's agent, xxxxxxxxx and xxxxxxxxx P.A., instilled a false sense of urgency of payment. Since payment demand date was within the 30 day period, Plaintiff's agent, xxxxxxxxx and xxxxxxxxx P.A., overshadowed Defendant???s right to request validation within 30 days, violating 15 USC 1692g(a).
NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF:
6. For Defendant???s First Cause of Action
(a) Statutory damages as specified in 15 USC 1692 (k) in the amount of $1,000.
7. As a result of the above violations of the Fair Debt Collections Practices Act, Plaintiff???s agent, Bernhardt and Strawser P.A. are liable to the Defendant for damages in the amount of One Thousand Dollars ($1,000).
8. Therefore, Defendant prays judgment in Defendant???s favor and asks relief in the total amount of One Thousand Dollars ($1,000).
Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not. By the Defendant acting pro se.
Dated: / / xxxxxxxxx
By: ____________________________
xxxxxxx
xxxxxxx xxxxxxx
You can check out the following link before you file the reply.
You can check out the following link before you file the reply.
"http://www.nedap.org/hotline/defenses.html"
Counterclaim only goes after the debt collector and doesn't real
Counterclaim only goes after the debt collector and doesn't really mention any claim against FIA. They've probably slammed you on the "no signature" claim, right? Credit card agreements don't have to be signed. Have you sent them any discovery questions? Typically credit card banks sell off the debt within 60 -180 days of default for 3.5 - 8.5 cents on the $$. They just don't tell you. If they can't prove they own the account, then they have failed to state a claim upon which relief can be granted. You can move for summary judgment. Look up your state rules of civil procedure for discovery and send them some interrogatories and production of documents. Depending on your state, they have 20 - 30 days to answer. And if they don't answer, you can move for dismissal.
Sara Goodman
DebtExecutioner
