Author Topic: Answer - No summons ever served and FDCPA Counterclaims  (Read 3279 times)

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Flyingifr

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Answer - No summons ever served and FDCPA Counterclaims
« on: January 09, 2009 08:39:16 PM »
Note: No summons ever served, multiple FDCPA violations and an OOS debt

Quote
STATE OF ARIZONA      )
               ) ss.
COUNTY OF PIMA         )

ANSWER

   1.   Defendants, and all of them, without having seen or been served with a copy of the Summons and Complaint in this matter, denies each and every allegation therein.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

2.   Defendant hereby states that this Action is time-barred pursuant to A.R.S. 47-2725 in that the Cause of Action occurred at an earlier time than is allowed under Arizona Law for suit.

AS AND FOR A FIRST COUNTERCLAIM

3.   Plaintiff and Plaintiff’s Attorney are both “Debt Collectors” as defined in Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. §§1692 et seq.) .

4.   On or about August 25, 2007 Defendant received from Plaintiff’s attorney a letter dated August 3, 2007 claiming an alleged debt owed to one Western States Financial Management, LLC claiming an original creditor of Sonora Behavioral Health claiming an amount due in the amount of $536.55

5.   On August 30, 2007 Defendant notified Plaintiff’s attorney pursuant to FDCPA that Defendant (a) disputed the claim and pursuant to FDCPA §808(b) (15 U.S.C. 1692(f)) demanded Validation of such debt.
 
5.   FDCPA §809(b) requires the Collector to cease collection activities until the Debt Collector “obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector”.

6.   On October 14, 2007 Plaintiff’s attorney forwarded to Defendant a letter acknowledging receipt of the letter stated to have been sent in Allegation 5 and providing what purports to be “Verification” of the alleged debt.

7.   Nowhere on this “Verification” of the debt does the name of any party to this alleged transaction exist except the name of the Defendant.

8.   The “Verification” is dated as having been printed on the same date as the cover letter detailed in Allegation 6.

9.   The Statute’s plain language requires the Debt Collector to “obtain” Verification, not “Manufacture” it. Therefore, this Validation fails to meet even the most elementary definition of Verification of a Debt even under FDCPA’s lax standards.

10.   The Cover Letter for the “Verification” even lists as the enclosure an “Accounting Statement”, plainly meaning it was manufactured by the Plaintiff and not “obtained” by the Plaintiff or the Plaintiff’s attorney.

11.   The Cover letter goes on to state “In response to your request, and as required by law, please find the documentation provided to us (the Attorney) by my client (Plaintiff) supporting the claims listed above.” No allegation was even made that the “documentation” was ever intended to be Validation of the Debt as required by FDCPA.

12.   The Cover letter goes on to state “This matter must be resolved”, a clear demand for payment. Such demand for payment is in violation of FDCPA §809(b) which states “If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt “. By continuing collection efforts without even a cursory attempt to comply with FDCPA 809(b) Plaintiff and Plaintiff’s Attorney violated FDCPA.

13.   FDCPA §813(2) (A) allows for Statutory Damages for any violation of FDCPA in the amount of up to One Thousand ($1,000.00) Dollars.

AS AND FOR A SECOND COUNTERCLAIM

14.   Defendant re-alleges all statements in all prior Allegations.

15.   On or about August 21, 2008 Plaintiff again, without ever providing Validation of the alleged Debt, attempted to collect said alleged debt through letter.

16.   This second attempt to collect without providing Validation of the Debt is a violation of FDCPA §809(b).

17.   FDCPA §813(2) (A) allows for Statutory Damages for any violation of FDCPA in the amount of up to One Thousand ($1,000.00) Dollars.

AS AND FOR A THIRD COUNTERCLAIM

18.   Defendant re-alleges all statements in all prior Allegations.

19.   On or about November 21, 2008 Plaintiff’s attorney mailed a letter to Defendant.

20.   The contents of the envelope consisted of a single piece of paper with only the Defendant’s name and address thereon.

21.   There was no other writing or enclosure in said envelope.

22.   One may reasonably assume that the Summons and Complaint required to have been served upon Defendant in this matter should have also been in that envelope. It was not.

23.   In the Application and Affidavit for Default, Plaintiff’s Attorney does not allege the summons having been served on Defendant.

24.   On December 15, 2008 Plaintiff’s Attorney sought a Default Judgment, swearing under oath to certain statements, but not swearing under oath that Defendant had been served with a Summons.

25.   FDCPA §808 states “A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.”

26.   Attempting to deny a Defendant an opportunity to present defenses and obtain a Default Judgment by acts of fraud constitute “unfair or unconscionable means” in violation of FDCPA §809(b)

27.   FDCPA §813(2) (A) allows for Statutory Damages for any violation of FDCPA in the amount of up to One Thousand ($1,000.00) Dollars.

AS AND FOR A FOURTH COUNTERCLAIM

28.   Defendant re-alleges all statements in all prior Allegations.

29.   FDCPA §807(a)(A) prohibits the “(2) The false representation of  the character, amount, or legal status of any debt;”

30.   Higher Courts have ruled that filing a suit on a time-barred debt is a violation of this Section. Klewer v. Cavalry Invs. L.L.C., 2002 US Dist. LEXIS 1778 (W.D. Wis. Jan 30, 2002); Spencer v. Hendersen-Webb, 81 F. Supp. 2d 582 (D. Md. 1999)

31.   The Statement of Account referred to in Allegation 10, assuming it to valid and accurate, shows a Cause of Action date of March 3, 2004

32.   Suit as joined in this matter by filing a Summons and Complaint with the Clerk of this Court on November 17, 2008 - more than four years after the accrual date of the Cause of Action.

33.   FDCPA §813(2) (A) allows for Statutory Damages for any violation of FDCPA in the amount of up to One Thousand ($1,000.00) Dollars.

AS AND FOR A FIFTH COUNTERCLAIM

34.   Defendant re-alleges all statements in all prior Allegations.

35.    FDCPA  §808(1) prohibits “The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.”

36.   The document referred to in Allegation 6 claims an amount due in the amount of Four Hundred ($400.00) Dollars.

37.   The Initial Communication letter referred to in Allegation 4 claims an amount due in the amount of Five Hundred Thirty Six Dollars and Fifty Five Cents ($536.55)

38.   Plaintiff has never claimed or alleged that any purported agreement between the Original Creditor and Defendant allowed for the assessment of interest at any rate.

39.   Plaintiff has never claimed the existence of any law enacted by the State of Arizona or the United States that supercedes the lack of any provision to charge interest imposing a Statutory right to charge pre-Judgment interest.

40.   Since FDCPA affirmatively precludes a Debt Collector’s power to charge interest on an alleged debt absent any contractual or legal provision allowing the charging of interest, the increase of the amount claimed constitutes a violation of FDCPA §808(1).

AS AND FOR A SIXTH COUNTERCLAIM

41.   Defendant re-alleges all statements in all prior Allegations.

42.   The second letter sent by the Plaintiff’s attorney to Defendant referred to in Allegation 6 claims an amount due in the amount of Five Hundred Forty Four Dollars and Forty Four Cents ($544.44)

43.   Plaintiff has never claimed or alleged that any purported agreement between the Original Creditor and Defendant allowed for the assessment of interest at any rate.

44.   Plaintiff has never claimed the existence of any law enacted by the State of Arizona or the United States that supercedes the lack of any provision to charge interest imposing a Statutory right to charge pre-Judgment interest.

45.   Since FDCPA affirmatively precludes a Debt Collector’s power to charge interest on an alleged debt absent any contractual or legal provision allowing the charging of interest, the increase of the amount claimed constitutes a violation of FDCPA §808(1).

AS AND FOR A SEVENTH COUNTERCLAIM

46.   Defendant re-alleges all statements in all prior Allegations.

47.   The third letter sent by the Plaintiff’s attorney to Defendant referred to in Allegation 15 claims an amount due in the amount of Five Hundred Seventy Eight Dollars and Sixty Three Cents ($578.63)

48.   Plaintiff has never claimed or alleged that any purported agreement between the Original Creditor and Defendant allowed for the assessment of interest at any rate.

49.   Plaintiff has never claimed the existence of any law enacted by the State of Arizona or the United States that supercedes the lack of any provision to charge interest imposing a Statutory right to charge pre-Judgment interest.

50.   Since FDCPA affirmatively precludes a Debt Collector’s power to charge interest on an alleged debt absent any contractual or legal provision allowing the charging of interest, the increase of the amount claimed constitutes a violation of FDCPA §808(1).

NOW THEREFORE

51.   Defendant requests the Court to dismiss Plaintiff’s Claim against Defendant with Prejudice, and

   52.   Defendant requests the Court award Statutory Damages in the amount of One thousand ($1000.00) Dollars for violation of Defendant’s Rights under Law as detailed in the First Counterclaim, plus

53.   Defendant requests the Court award Statutory Damages in the amount of One thousand ($1000.00) Dollars for violation of Defendant’s Rights under Law as detailed in the Second Counterclaim, plus

54.   Defendant requests the Court award Statutory Damages in the amount of One thousand ($1000.00) Dollars for violation of Defendant’s Rights under Law as detailed in the Third Counterclaim, plus

55.   Defendant requests the Court award Statutory Damages in the amount of One thousand ($1000.00) Dollars for violation of Defendant’s Rights under Law as detailed in the Fourth Counterclaim, plus

56.   Defendant requests the Court award Statutory Damages in the amount of One thousand ($1000.00) Dollars for violation of Defendant’s Rights under Law as detailed in the Fifth Counterclaim, plus

57.   Defendant requests the Court award Statutory Damages in the amount of One thousand ($1000.00) Dollars for violation of Defendant’s Rights under Law as detailed in the Sixth Counterclaim, plus

58.   Defendant requests the Court award Statutory Damages in the amount of One thousand ($1000.00) Dollars for violation of Defendant’s Rights under Law as detailed in the Seventh Counterclaim, plus

59.   Punitive Damages as the Court may deem reasonable and proper, plus

60.   Such injunctve relief as the Court may deem reasonable and proper to ensure Plaintiff’s and Plaintiff’s Attorney’s future compliance with FDCPA, plus

61.   Reasonable and Customary Attorneys Fees pursuant to FDCPA §813(a)(3), plus

62.   The Costs and Disbursements of defending this Action.


Dated this 9th Day of January 2009.



__________________________________________
Flyingifr, Defendant

A copy of this Answer and Counterclaims was served on the Plaintiff by US Mail, postage prepaid, on 9 January 2009 to:

Hameroff/Lavinsky Law Firm, P.C.
3443 E. Ft. Lowell Road Suite 101
Tucson AZ 85716
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)