Please read my Answer to Complaint involving Arbitration

[razorack]

Will some of you please read and let me know what you think and any good advice on the Arbitration part of this, CM CHase gave me some great advice on the other parts but is not real versed as far a Arbitration law goes I have till the 18th of March to have them served, so was looking to get this sent by certified mail late this week please take a look and advise anything will help.

Thanks

razorack--

The formatting didnt hold from Open Office, so may look a little strange.

STATE OF MICHIGAN

IN THE xxth CIRCUIT COURT

Attorney for Plaintiff

XXXXXX E. XXXXX P2XXXX

RXXXX, XXXXX, XXXXL & XXXX, S.C.

xxxx Gxxx xxxx Ave. Ste.xxx

Fxxxxxx Hxxx MI 4xxxx

MBNA AMERICA BANK, N.a. )

) No. 04-xxxx-xx

Plaintiff ) File No. xxxxxx

-vs- )

) ANSWER TO COMPLAINT

)

Bxxxxx xxxxxx )

5xxxx xxxxxx Dr. )

Gxxx xxxxx, MI xxxxx )

)

Defendant )

_____________________________

Defendant, Bxxx R Jxxx, answers the complaint of plaintiff, MBNA AMERICA BANK, N.a., in this action as follows:

RESPONSE TO PRELIMINARY ALLEGATIONS

1.Answering paragraph 1, defendant admits that he is an individual residing at xxxx Mxxxxxxx Dr. Gxxxx xxxc MI xxxxx-xxxx.

2.Answering paragraph 2, defendant is without sufficient information or belief to admit or deny the allegations in this paragraph based on the lack of information or belief, defendant denies this allegation.

3.Answering paragraph 3, defendant is without sufficient information or belief to admit or deny the allegations in this paragraph based on the lack of information or belief, defendant denies this allegation.

4.Answering paragraph 4, defendant is without sufficient information or belief to admit or deny the allegations in this paragraph based on the lack of information or belief, defendant denies this allegation.

5.Answering paragraph 5, defendant is without sufficient information or belief to admit or deny the allegations in this paragraph based on the lack of information or belief, defendant denies this allegation.

6.Answering paragraph 6, defendant is without sufficient information or belief to admit or deny the allegations in this paragraph based on the lack of information or belief, defendant denies this allegation.

7.Answering paragraph 4, defendant is without sufficient information or belief to admit or deny the allegations in this paragraph based on the lack of information or belief, defendant denies this allegation.

FIRST AFFIRMATIVE DEFENSE

No Prior or Existing Disputes

8.There were no existing or legitimate disputes between the parties at the time the claimant may have made the attempt to include any arbitration provision in any purported agreements.

SECOND AFFIRMATIVE DEFENSE

Lack of Standing

9.Additionally, if there was an arbitration clause and it was part of any supposed original written agreements between the parties. H.R. 1054 and 3607 that amends the Truth in Lending Act make pre-dispute mandatory arbitration agreements between a lender and consumer void and unenforceable.

THIRD AFFIRMATIVE DEFENSE

Arbitration Violates House Resolution and Consumer Credit Protection Act

9.A binding arbitration agreement violates House Resolution 5162 which amends Title 15 USC 1601 of the Consumer Credit Protection Act.

THIRD AFFIRMATIVE DEFENSE

Binding Arbitration Violates Amendments to Federal Arbitration Act

10. Binding arbitration violates amendments to the Federal Arbitration Act (S. 192) which make pre-dispute mandatory arbitration agreements in consumer credit contracts invalid.

FOURTH AFFIRMATIVE DEFENSE

Arbitration Agreement Unenforceable

11.The arbitration agreement in a credit card holder agreement is unconscionable and unenforceable, to the extent it prohibits class treatment of small individual claims, where presented as a 'take it or leave it' clause with no opportunity for negotiation" Szetela v. Discover Bank, No. G029323 (Cal. 4th App. Dist. April 22, 2002).

FIRST COUNTER CLAIM

FDCPA COMMUNICATION VIOLATION

12.Plaintiff attorney did willingly and knowingly violate the FDCPA act, section 805 paragraph © making a phone call the to defendant after defendant requested in writing that the Plaintiff's attorney not call him by phone again. Letter was sent by certified mail and return receipt received. Phone call was made to defendant on February 19th 2005 at 8:51 am to defendants cell phone. Message was left to call back Plaintiff's attorney by 1:00 pm to discuss arrangements on the account.

SECOND COUNTER CLAIM

FDCPA COMMUNICATION VIOLATION

13.Plaintiff attorney did willingly and knowingly violate the FDCPA act, section 805 paragraph © making a phone call the to defendant after defendant requested in writing that the Plaintiff's attorney not call him by phone again. Letter was sent by certified mail and return receipt received. Phone call was made to defendant March 5th at 11:55 am to defendants home and to defendants cell phone.

THIRD COUNTER CLAIM

FDCPA VALIDATION VIOLATION

14.Plaintiff's attorney called defendant on September 11th at 12:00 pm EST to ask about debt. This was the first communication by Plaintiff's attorney to defendant. The plaintiff then was supposed to per the FDCPA act, section 809, paragraph (a) communicate with the defendant by writing informing the defendant of their right and validating the debt. The next correspondence was received by defendant on October, 4th 2005.

FOURTH COUNTER CLAIM

FDCPA UNFAIR PRACTICES VIOLATION

15.Plaintiff did willingly and knowingly violate the FDCPA act, section 808 paragraph (a), by providing false amounts on the letters and correspondence to the defendant. The amount owed kept changing on the letters being sent to the defendant.

FIFTH COUNTER CLAIM

FCRA VIOLATION FAILURE TO REPORT DISPUTED DEBT

16.Neither plaintiff or the Plaintiff's attorney have reported this debt as disputed by the consumer to the credit reporting agencies. This is a violation of the Fair Credit Reporting Act.

WHEREFORE, defendant request judgment as follows:

1.The plaintiff take nothing by the complaint, which will be dismissed with prejudice.

2.That the defendant recover from plaintiff damages for violations of the FAIR DEBT COLLECTION PRACTICES ACT, at a rate designated by the FAIR DEBT COLLECTION PRECTIVCES ACT of $xxxx.00 per violation in the amount of $xxxx.00 and xxx.00 for violations of the Fair Credit Reporting Act.