Hey, Thank You everyone,
I filed my answer with my affirmative defenses. I'll post it here, I did not ask for arbitration, it was prepared before I really got a chance to go through the forum.
I looked up similar cases in the 2nd distrcit of Suffolk, it looks like a lot of them went to arbitration by self represented individuals, What does Part 28 Arbitration mean?
I made a really stupid mistake, for some reason I referenced the Plantiff as Portfolio Recovery Services LLC instead of Associates. I have to go to court and correct this.
If anyone can look at this, and let me know that will be a great help.
This was my answer, in the last paragraph it mentions Jury Trial, should I change it to arbitration, in section 26
The Defendant, ----------------, ("Defendant"), Representing himself Pro Se hereby files his Answer and Affirmative Defenses to Plantiff, Portfolio Reovery Associates LLC:(" Plantiff") Complaint , and states:
1. Defendant admits that he is a resident of Suffolk County, but does not have sufficient information to admit or deny the remaining allegations contained within paragraph .2
2. Defendant does not have sufficient information to admit or deny the allegations contained within Paragraph 2.
3. Defendant does not have suffient information to admit or deny the allegations contained within Paragraph otherwise Defendant denies allegations in Paragraph .3
4. Defendant denies the allegations contained in Paragraph 4. The Defendant demands that Plantiff provide proof that the Defendant entered into an agreement with Plantiff or Asignors regarding a credit card account (hereinafter to be referred to as the "Account"
FIRST DEFENSE—LACK OF STANDING
1. Plaintiff, by filing this Complaint, implicitly alleges that it has “standing” to bring forth this cause of action. Plaintiffs Complaint, however, fails to demonstrate that it has standing to bring forth suit on the Account.
2. Upon information and belief, the books and records of Plaintiff will show that prior to the filing of this claim Plaintiff sold all right, title, and interest it had with respect to the Account to a third-party pooling and servicing trust for credit card accounts. The Account is now a “debt receivable” owned by the pooling and servicing trust; only the trust’s designated trustee has standing to bring forth suit on the Account,SECOND DEFENSE—CONDITIONS PRECEDENT
3. Plaintiffs Complaint fails to allege or offer any evidence that it has performed the conditions precedent before performance under the contract became due. The Defendant has disputed the debt owed as claimed by Plaintiff.
4. Plaintiff s claims are barred in whole or in part for failure or lack of fulfillment of conditions precedent to such a claim. 15 U.S .C. § 1637(a) requires a creditor to disclose rates, fees and other cost information in applications and solicitations to open credit card accounts before opening any account under an open end consumer credit plan. Defendant reserves its rights to amend to seek redress pursuant to said $tatute(s).
THIRD DEFENSE- CONSIDERATION
5. The sole consideration for the alleged promise to pay on the credit card described in the Complaint was the Plaintiffs promise to lend the Defendant or advance money to third parties. The Plaintiff did not lend the sum to Defendant or advance the sum to any third parties.
FOURTH DEFENSE FAILURE TO STATE A CLAIM-ACCOUNT
6. Plaintiff implicitly asserts it has a claim against Defendant for an “account stated.” Pursuant to New York Law an account stated arises when there is “...an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the separate items composing the account and the balance due, if any, in favor of one party or the other . . . .” Chisholm-Ryder Co. v, Sommer & Sommer, 70 A-D.2d 429, 431 (N.Y* App. Div. 1979); see also Ally & Gargano, Inc. v. Comprehensive Accounting Corp., 615 F. Supp. 426,428-29 (S.D.N.Y. 1985) (“[A]n account stated refers to a promise by a debtor to pay a stated sum of money which the parties had agreed upon as the amount due?’).
7. To satisfy a claim for an account stated the partying bringing for the claim must plead and prove each of the following: (1) an account was presented; (2) it was accepted as correct; and (3) [the] debtor promised to pay the amount stated.” IMG Fragrance Brands, LLC v. Houbigant, Inc,, 679 F. Supp, 2d 395, 411 (S.D.N.Y. 2009).
8. Prior to the filing of this Complaint, the Defendant, acting through Defendant’s representative, served written notice on Plaintiff disputing the balance on the Account. This written notice objecting to the balance on the Account is evidence that a mutual balance was never stuck on the Account between Plaintiff and Defendant. It also effectively revoked any promise, express or implied, to Plaintiff that Defendant would make payment on the Account balance.
FIFTH DEFENSE- FAILURE TO STATE A CLAIM -BREACH OF
9. Plaintiff implicitly asserts a claim against Defendant for breach of contract. To satisfy a claim for breach of contract under New York law the party bringing forth such claim must plead and prove the following elements (1) the existence of a contract, the plaintiffs performance thereunder, the defendant’s breach thereof, and damages resulting from the breach. - Harris v. Seward Park Housing Còrp-, 79 AD3d 425, 913 N.Y.S.2d 161 [1st Dept 2010]; Morris v. 702 E. Fifth St HDFC, 46 AD3d 478, 850 N.Y.S.2d 6 [1st Dept 2007]).
10. A question of fact exists whether Plaintiff holds title to the Account. Upon information and belief the Plaintiff sold/transferred, the Account to a pooling and servicing trust for credit card accounts. See - Defendant’s Exhibit “B.”
SIXTH DEFENSE- FAILURE TO JOIN AN INDISPENSABLE PARTY
11. Plaintiffs claims are barred in whole or in part for failure to join an indispensable party. In the event, Plaintiff and/or Original Creditor engages in the financial practice of securitization, through which the Plaintiff and/or Original Creditor may have sold and/or assigned the accounts receivable portion of such account to a Qualified Special Purpose Entity (QSPE) comprised of certificate holders that are independent of the Plaintiff s corporate entity, then Plaintiff alone cannot maintain this suit as same has assigned its right to receive payment on the alleged account/7 Further, said QSPE is essential to this suit and no final decision can be rendered without their joinder. The disposition of the action in the QSPE's absence may leave Defendant subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the assigned interest.
SEVENTH DEFENSE- BUSINESS RECORD EXCEPTION
12. Plaintiff lacks the necessary witness(es) and business records to lay the required evidentiary foundation pursuant to CPLR 4518 (a) to show that Defendant owes the amount(s) set forth in Plaintiffs Complaint.
EIGHTH DEFENSE- INCORRECT BALANCES
13. Defendant does not believe the balance Plaintiff and/or Original Creditor is requesting is either accurate and/or correct. Instead, Defendant has reason to believe that Plaintiff and/or Original Creditor incorrectly computed interest and/or late fees on the account in their favor. As result of Plaintiff and/or Original Creditor miscalculating interest and/or late fees on the account, payments) were improperly applied and additional interest and/or late fees were added in Plaintiff and/or Original Creditor’s favor. The Defendant, acting through Defendants representative, served written notice on Plaintiff disputing the Account balance.
NINTH DEFENSE-REAL PARTY IN INTEREST
14. Plaintiff, by filing this complaint, implicitly alleges that it is the “real party in interest” on the Account.
15. Upon information and belief, Plaintiff transferred the Account to third- party pooling and servicing trust for credit card accounts. Plaintiff, therefore, no longer holds title to the Account,
16. Only the “real party in interest” on a contract may bring forth suit to enforce the rights of a contract.
17. Owing to the fact that Plaintiff no longer holds title to the Account, Plaintiff lacks standing to enforce the rights of the Account as the “real party in interest.”
TENTH DEFENSE- MITIGATION
18. Plaintiff alleges that Defendant owes Plaintiff a sum. Plaintiff has voluntarily mitigated any and all complained of damages through the act of securitization of its account receivables to third party trusts.
19. Plaintiff has mitigated its damages and does not have the amount of damages alleged in the complaint.
20. Upon the information and belief, Plaintiff received compensation from third parties in an amount equal to the face value of each receivable placed with the Defendant’s alleged account at or near the time of each receivable in the account.
21. The act of recouping the face value of the alleged sums lent to the Defendant prior to any interest accumulating on said receivable completely mitigates any alleged loss suffered by the Plaintiff
ELEVENTH DEFENSE- FAILURE TO ATTACH DOCUMENTS
22. Plaintiff has failed to attach documentation providing evidence that a binding agreement was entered into by Plaintiff and Defendant. There is no evidence that the Defendant agreed to these terms. Without evidence of such, there is no proof that Defendant is liable to Plaintiff.
TWELFTH DEFENSE - FAILURE TO ATTACH TERMS OF THE
CREDIT CARD ACCOUNT
23. 12 C.F.R. §226.5(a)(l) (2009) requires that the material terms of a credit card contract be clear, conspicuous and in writing. The Plaintiff is required to incorporate or attach to the pleadings the credit card contract serving as the basis of a claim on a credit card account. The Plaintiff did not incorporate or attach to the pleadings the credit card contract or attach as an exhibit the credit card account. Thus, Plaintiff has failed to state a cause of action under a credit card account.
THIRTEENTH DEFENSE- IN PERSONAM JURISDICTION
24. This court lacks in personam jurisdiction. Within the Complaint, there are no statements nor attachments within same alluding to the following: (a) Plaintiff, as a corporation, has standing to sue in the court located in this state and provides documentation on same; (b) Plaintiff, as a “foreign corporation”, has standing to
. sue in any court within this state because there is no averment as to where it is duly registered, or the name of the actual entity being registered as a corporation and provides documentation for same; (c) Plaintiff has met the minimum contacts requirement for in personam jurisdiction in this state and provides documentation for same; (d) Plaintiff has made any representation that it has a verified contract with the Defendant and provides documentation for same; (e) Plaintiff has made any representation that verifies that it has authorized the filing of this action or is even aware of it and provides documentation for same; and (f) Plaintiff has provided documents that verify that Defendant owes any monies to it.
FOURTEENTH DEFENSE- STATUTE OF LIMITATIONS
25. The Plaintiff’s claim is barred by the applicable statute of limitations. The Plaintiff has not alleged nor proven when the Defendant made her last payment, and upon information and belief, the applicable statute of limitations has run.
FIFTEENTH DEFENSE- FEDERAL TRUTH IN LENDING ACT
26. Upon information and belief, Plaintiff did not comply with the Federal Truth in Lending Act.
WHEREFORE, Defendant, ---------------------, requests that Plaintiff take nothing by this suit, assess cost against Plaintiff, and costs and fees and all other
relief to which the Defendant is entitled, and requests trial by jury on all issues so