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Date: Fri, 07/09/2010 - 13:19
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STATE OF GEORGIA MAGISTRATE
COUNTY OF RICHMOND COURT FILE NO.
[SIZE=3]CASE TYPE[/SIZE]
[SIZE=3]LVNV FUNDING LLC [/SIZE]
[SIZE=3]PLAINTIFF [/SIZE]
VS.
[SIZE=3]_____________________________ [/SIZE]
[SIZE=3]DEFENDANT [/SIZE]
DEFENDANT'S ANSWER
TO
PLAINTIFF'S COMPLAINT
[COLOR=black][SIZE=3]COMES NOW the defendant, for himself alone and in answering the allegations of the complaint on file herein, affirms, denies, and alleges as follows:[/SIZE][/COLOR]
[SIZE=3]1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Plaintiff lists an account number of which I have no knowledge and likewise references exhibit “A†of which they have conveniently failed to attach anything other than hearsay. [/SIZE]
[SIZE=3]2. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. [/SIZE]
[SIZE=3]3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. [/SIZE]
[COLOR=black][SIZE=3]DEFENSES[/SIZE][/COLOR]
[COLOR=black][SIZE=3]1. LVNV Funding LLC has not proven that they are authorized and licensed to collect claims for others in the State of Georgia, or solicit the right to collect or receive payment of a claim of another.[/SIZE][/COLOR]
[SIZE=3]2. LVNV FUNDING LLC 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.[/SIZE]
[SIZE=3]3. LVNV FUNDING, LLC has not proven that CITIFINANCIAL – is the real party in interest. Defense demands proof of ownership, specifically that the alleged account is still the legal property of LVNV FUNDING LLC with all of the original creditor’s rights and privileges intact.[/SIZE]
[SIZE=3]4. Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.[/SIZE]
[SIZE=3]5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.[/SIZE]
[COLOR=black][SIZE=3]6. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.[/SIZE][/COLOR]
[SIZE=3]7. Plaintiff filed suit in wrong venue as Plaintiff is well aware Defendant resides in South Carolina.[/SIZE]
[COLOR=black][SIZE=3]8. Plaintiff filed suit against Defendant referencing someone different in the civil action suit and statement of claim that is not consistent with Plaintiffs own affidavit of indebtedness and ownership of account.[/SIZE][/COLOR]
[COLOR=black][SIZE=3]9. A debt collector’s misrepresentation that it is an assignee is actionable. Gearing v. Check Brokerage Corp., 233 F.3d 469 (7th Cir. 2000).[/SIZE][/COLOR]
[COLOR=black][SIZE=3]10. Gearing also holds that misrepresentations are actionable regardless of intent. 233 F.3d at 473. The "FDCPA is a strict liability statute," and "proof of one violation is sufficient to support summary judgment for the plaintiff." Cacacev. Lucas, 775 F. Supp. 502, 505 (D. Conn. 1990). [/SIZE][/COLOR]
[SIZE=3]11. 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).[/SIZE]
[SIZE=3]12. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) [/SIZE]
[SIZE=3]Defendant asks the Court to: Strike Exhibit “A†as hearsay due to lack of information ie contract with signature provided coupled with lack of jurisdiction to process in this venue, lack of proof of ownership and even lack of authority to judicate. Thus, Defendant now requests the Dismissal of case file __________ with prejudice, and enter a summary judgement in favor of Defendant pursuant to “FDCPA under its strict liability statute as outline in point 10 above.Defendant seeks $1,000 in statutory penalties under the FDCPA, and $25,000 in punitive damages, as they have reported erroneous information on three credit reports and listing this as an open account with installment for one month for an account that I have not contracted for, and likewise mental anguish of having to deal with these LVNV tactics. I likewise request that they be ordered to remove all information from which was established by themselves on my credit reports, and that they be not allowed to proceed with future harassment through another sister company, alias, or even a subsidiary in order to pursue future suits. As this account is not confirmed that it also be mandated that it cannot be sold to another collector.[/SIZE]
Dated____________________ _________________________________________
[SIZE=3]Defendant[/SIZE]
[SIZE=3]_________________________________________[/SIZE]
[SIZE=3]Address[/SIZE]
[SIZE=3]__________________________________________[/SIZE]
[SIZE=3]City/State/Zip[/SIZE]
[SIZE=3]_________________________________________[/SIZE]
[SIZE=3]Telephone [/SIZE]
VERIFICATION AND ACKNOWLEDGEMENT
[SIZE=3]a. I have read this document. To the best of my knowledge, information and belief the information, contained in the document is well grounded in fact and is warranted by existing law. [/SIZE]
b. I have not been determined by any court in Georgia or in any other State to be a frivolous litigant or subject to an Order precluding me from serving and filing this document.
[SIZE=3]c. I am not serving or filing this document for any improper purpose, such as to harass the other party or to cause delay or needless increase in the cost of litigation or to commit a fraud on the Court. [/SIZE]
___________________________________________
[SIZE=3]Defendant [/SIZE]
Subscribed and sworn to before me this
__________day of ___________, 20__.
Notary Public/Court Clerk______________________________
My Commission expires________________________________
STATE OF GEORGIA MAGISTRATE
COUNTY OF RICHMOND COURT FILE NO.
[SIZE=3]CASE TYPE[/SIZE]
[SIZE=3]LVNV FUNDING LLC [/SIZE]
[SIZE=3]PLAINTIFF [/SIZE]
VS.
[SIZE=3]_____________________________ [/SIZE]
[SIZE=3]DEFENDANT [/SIZE]
DEFENDANT'S ANSWER
TO
PLAINTIFF'S COMPLAINT
[COLOR=black][SIZE=3]COMES NOW the defendant, for himself alone and in answering the allegations of the complaint on file herein, affirms, denies, and alleges as follows:[/SIZE][/COLOR]
[SIZE=3]1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Plaintiff lists an account number of which I have no knowledge and likewise references exhibit “A†of which they have conveniently failed to attach anything other than hearsay. [/SIZE]
[SIZE=3]2. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. [/SIZE]
[SIZE=3]3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. [/SIZE]
[COLOR=black][SIZE=3]DEFENSES[/SIZE][/COLOR]
[COLOR=black][SIZE=3]1. LVNV Funding LLC has not proven that they are authorized and licensed to collect claims for others in the State of Georgia, or solicit the right to collect or receive payment of a claim of another.[/SIZE][/COLOR]
[SIZE=3]2. LVNV FUNDING LLC 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.[/SIZE]
[SIZE=3]3. LVNV FUNDING, LLC has not proven that CITIFINANCIAL – is the real party in interest. Defense demands proof of ownership, specifically that the alleged account is still the legal property of LVNV FUNDING LLC with all of the original creditor’s rights and privileges intact.[/SIZE]
[SIZE=3]4. Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.[/SIZE]
[SIZE=3]5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.[/SIZE]
[COLOR=black][SIZE=3]6. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.[/SIZE][/COLOR]
[SIZE=3]7. Plaintiff filed suit in wrong venue as Plaintiff is well aware Defendant resides in South Carolina.[/SIZE]
[COLOR=black][SIZE=3]8. Plaintiff filed suit against Defendant referencing someone different in the civil action suit and statement of claim that is not consistent with Plaintiffs own affidavit of indebtedness and ownership of account.[/SIZE][/COLOR]
[COLOR=black][SIZE=3]9. A debt collector’s misrepresentation that it is an assignee is actionable. Gearing v. Check Brokerage Corp., 233 F.3d 469 (7th Cir. 2000).[/SIZE][/COLOR]
[COLOR=black][SIZE=3]10. Gearing also holds that misrepresentations are actionable regardless of intent. 233 F.3d at 473. The "FDCPA is a strict liability statute," and "proof of one violation is sufficient to support summary judgment for the plaintiff." Cacacev. Lucas, 775 F. Supp. 502, 505 (D. Conn. 1990). [/SIZE][/COLOR]
[SIZE=3]11. 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).[/SIZE]
[SIZE=3]12. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) [/SIZE]
[SIZE=3]Defendant asks the Court to: Strike Exhibit “A†as hearsay due to lack of information ie contract with signature provided coupled with lack of jurisdiction to process in this venue, lack of proof of ownership and even lack of authority to judicate. Thus, Defendant now requests the Dismissal of case file __________ with prejudice, and enter a summary judgement in favor of Defendant pursuant to “FDCPA under its strict liability statute as outline in point 10 above.Defendant seeks $1,000 in statutory penalties under the FDCPA, and $25,000 in punitive damages, as they have reported erroneous information on three credit reports and listing this as an open account with installment for one month for an account that I have not contracted for, and likewise mental anguish of having to deal with these LVNV tactics. I likewise request that they be ordered to remove all information from which was established by themselves on my credit reports, and that they be not allowed to proceed with future harassment through another sister company, alias, or even a subsidiary in order to pursue future suits. As this account is not confirmed that it also be mandated that it cannot be sold to another collector.[/SIZE]
Dated____________________ _________________________________________
[SIZE=3]Defendant[/SIZE]
[SIZE=3]_________________________________________[/SIZE]
[SIZE=3]Address[/SIZE]
[SIZE=3]__________________________________________[/SIZE]
[SIZE=3]City/State/Zip[/SIZE]
[SIZE=3]_________________________________________[/SIZE]
[SIZE=3]Telephone [/SIZE]
VERIFICATION AND ACKNOWLEDGEMENT
[SIZE=3]a. I have read this document. To the best of my knowledge, information and belief the information, contained in the document is well grounded in fact and is warranted by existing law. [/SIZE]
b. I have not been determined by any court in Georgia or in any other State to be a frivolous litigant or subject to an Order precluding me from serving and filing this document.
[SIZE=3]c. I am not serving or filing this document for any improper purpose, such as to harass the other party or to cause delay or needless increase in the cost of litigation or to commit a fraud on the Court. [/SIZE]
___________________________________________
[SIZE=3]Defendant [/SIZE]
Subscribed and sworn to before me this
__________day of ___________, 20__.
Notary Public/Court Clerk______________________________
My Commission expires________________________________
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