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anybody willing to look over an answer?need to file today


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Thanks for replying. Basically complaint aledges I owe Cap one 2573.43. It is from lawyer in my state for Cap one. As soon as lawyer wrote me I DV'd them CMRRR, with no response. Within 30 days I received another letter from lawyer offering settlement if paid immediately. Before I could send second DV they sent summons via sheriff. Needless to say I wrote answer and defenses (some of which I don't know if they apply)I also tried to add counterclaims, but I am fairly new ( and definiately not a legal brain) though I have been reading this forum and others for 4 months. If you are willing to check this over I can copy and paste I think. Thanks again

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Yes Iam being sued in my county. The top is a bit off because I tried to x out details just in case. Thank you and here goes;

IN THE DISTRICT COURT OF THE STATE OF RHODE ISLAND

FOR THE COUNTY OF xxxxx

Capital One )

Plaintiff Case No._____________________

Vs.

FIRST AMENDED ANSWERS,

) DEFENSES AND COUNTERCLAIMS

Defendant(s)

Defendant, appearing pro se, for its reply to the Complaint of Capital One states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. In response to paragraph #1, the Defendant disputes the alleged debt, defendant denies allegation and demands strict proof thereof.

2. In response to paragraph #2, the Complaint states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof.

3. In response to paragraph #3, the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

4. In response to paragraph #4, to the extent a response is required, defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

DEFENSES

5. As and for a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6. As and for a Second Defense

Defendant alleges that this action is time-barred under § O.S. 12-95-2 of the laws of Rhode Island.

7. As and for a Third Defense

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.

8. As and for a Fourth Defense

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

9. As and for a Fifth Defense

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parol Evidence Rule.

10. As and for a Sixth Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

11. As and for a Seventh Defense

Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais.

12. As and for a Eighth Defense

Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

13. As and for a Nineth Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

14. As and for an Tenth Defense

Plaintiff failed to comply with normal and accepted business practices.

15. As and for a Eleventh Defense

Plaintiff’s claim is in violation of federal statute.

16. As and for a Twelfth Defense

Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence, or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

17. As and for a Thirteenth Defense

Plaintiff has no Fiduciary Duty.

18. As and for a Fourteenth Defense

Plaintiff's alleged damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control.

19. As and for a Fifteenth Defense

Plaintiff's alleged damages are the results of acts or omissions committed by the Plaintiff.

20. As and for a Sixteenth Defense

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.

22. As and for a Seventeenth Defense

Plaintiff's alleged damages are limited to real or actual damages only.

23. As and for a Eighteenth Defense

Defendant invokes the doctrines of Scienti et volenti non fit injuria and Damnum absque injuria.

24. As and for a Nineteenth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

COUNTERCLAIMS

FIRST CAUSE OF ACTION

Statement of Facts

25. September 26, 2005, Defendant sent Lawyerxxx, PC(collection attorney for Capital One), by way of certified mail, request for validation of alleged debt, including a request for documentation.

26. Similar letters and request for validation were sent to Capital One by way of regular mail on October 1, 2005.

27. Up until the date of this filing, no attempt at validation was received from Lawyerxx or Capital One, yet Lawyerxx, PC continued to collect on alleged debt.

Statement of Claim

28. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act (hereafter “FDCPA”) in the following respects:

(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(B).

SECOND CAUSE OF ACTION

Statement of Facts

29. Defendant repeats and re-alleges each allegation in paragraphs 25-28 with like effect as if fully repeated herein.

30. Defendant received notice from lawyerxxx, PC dated September 17, 2005. Said notice contained the statement: “ This is an attempt to collect a debt. Any further information obtained will be used for that purpose. This communication is from a debt collector. We suggest you send us a check or money order for the balance due payable to Law offices lawyer xxx, PC. Unless you intend to exercise your rights as stated in the validation notice below. All questions should be directed to this office. If you dispute the validity of the debt, or any portion thereof, in writing within 30 days of the receipt of this letter, we will obtain and mail you verification of the debt. At your request, in writing within 30 days of receipt of this letter, we will provide you with the name and address of the original creditor, if different from current creditor.”

31. Defendant received notice from lawyerxx, PC dated October 6, 2005, which stated “ In the interest of resolving this debt, we have been authorized to offer you a settlement of 50% of the balance due, IF RECEIVED AT OUR OFFICE BT OCTOBER 31, 2005. THIS SETTLEMENT PROGRAM IS VALID ONLY if funds are received HERE by MONDAY, OCTOBER 31,2005.

Statement of Claim

32. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:

(a) by making an offer to settle by a certain date, Plaintiff instilled a false sense of urgency of settlement payment. Since payment date was within the 30 day period, Plaintiff overshadowed Defendant’s right to request validation within 30 days, violating 15 USC 1692g(a)

THIRD CAUSE OF ACTION

Statement of Facts

33. Defendant repeats and re-alleges each allegation in paragraphs 25-28 and 29-32 with like effect as if fully repeated herein.

34. Defendant’s previously stated notice from lawyer xxx, dated September 17, 2005, noted a Balance of $2,573.43.

35. Defendant’s previously stated notice from lawyer xxx, dated October 6, 2005, noted a Balance of $2,590.35.

Statement of Claim

40. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:

(a) By falsely representing the amount of the alleged debt and therefore violating 15 USC 1692e(2)(A)

FOURTH CAUSE OF ACTION

Statement of Facts

37. Defendant repeats and re-alleges each allegation in paragraphs 25-28, 29-32 and 37-40 with like effect as if fully repeated herein.

38. Defendant had asked for documents concerning alleged debt as validation.

39. On November 28, 2005, Defendant was served with Summons concerning alleged debt.

Statement of Claim

40. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:

(a) by failing to cease collection of an alleged debt after the Defendant notified xxx in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(B).

.

NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF:

PRAYER FOR RELIEF:

41. A. For Defendant’s First Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury ;

2) Statutory damages as specified in 15 USC 1692k in the amount of $1,000;

B. For Defendant’s Second Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury;

2) Statutory damages as specified in 15 USC 1692k in the amount of $2,000;

C. For Defendant’s Third Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury;

2) Statutory damages as specified in 15 USC 1692k in the amount of $1,000;

E. For Defendant’s Fourth Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury;

2) Statutory damages as specified in 15 USC 1692k in the amount of $2,000;

F. Actual damages in an amount to be determined by judge or jury;

G. Exemplary relief in an amount to be determined by judge or jury;

H. Injunctive relief;

I. Declaratory relief;

J. Any attorney fees if applicable;

K. costs;

L. That any and all contracts having balances owed to the Plaintiff by the Defendant be declared null and void.

FURTHER, sayeth naught.

Dated: December 2, 2004

by

xxxxx

xxxxx

xxxxx

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I'd can defenses 5-8, 10-19. I know there are other people here who like this bombast-style answer, but it stirkes me as insincere and amatuerish. I think your counterclaims are well thought out and well placed and will help you more than all those defenses. I would say "PLaintif, by itself and its agents including the lawyers who brought this action" since the FDCPA aplies to third party collectors, not OCs. You might also write the lawyers and tell them you intend to sue them separately for the violations.

I have case law for the shortened time, if you need it. They covered themselves in one of teh letters, but since they failed to send you anyhting, they may be cooked. However, remember that whatever validation they would have sent you you can now get in discovery.

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Thank you so much!! Iam going to do as you suggested, I agree but don't trust my limited knowledge.I will fix it and go file right now. I was wondering about the letter to the lawyer that you mentioned. Is their any previous suggestions on this forum or does anybody have a outline (how to word it and what exactly to say)? Thanks again

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add it in the counterclaim, where you already say Plaintiff.

I'd write the lawyers something like this.

Dear Sirs,

You have sued me for Capital One. However, you served me without validating the debt as I legally requested. Moreover, I have considered the letters you sent me and believe that they, separately and taken togther, violate my rights under the FDCPA.

So, be informed that I intend to take action against you for these violations. I expect we will want to combine this case with the Capital One case, as I have counterclaimed for your violations and common issues of fact are present. Please advise your liability carrier of this action.

Please advise who should accept service on your behalf and if you will accept service by mail. Let me know by December 16. You can call me at teh above number to discuss this limited issue. Thank you.

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Thank you very much "Recovering Attorney" for all the help, it was filed today and sent to the law firm. I will write letter to lawyer and send Monday.

Sarris--Thanks I did catch that 2004 mistake at the end. I will let you guys know what happens-hopefully they drop out of sight.

Kevan 3322- Heres the complaint;

On or before 09/15/05 the defendant became indebted to the plaintiff in the sum of $2,573.43

for charges and/or cash advances incurred on defendant's credit account.

Despite demand, the balance of $2,573.43 remains wholly unpaid and the defendant has failed and continues to fail to make payment.

provisions of the credit agreement between the parties may provide for interest on any unpaid balance.

Thanks again IthinkIcan

4. Said agreement is still owned by the plaintiff.

WHEREFORE, the plaintiff demands judgment against the defendant for damages in the amount of $2,573.43

plus interest, and costs, all

as provided for by said agreement.

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WHEREFORE, the plaintiff demands judgment against the defendant for damages in the amount of $2,573.43

plus interest, and costs, all

as provided for by said agreement.

DEMANDS judgement?? wow talk about terse in their legal pleadings. Here it's usually written "Prays the court for a summary and judgement"

You are sure this is real right?

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Yup, Grim afraid it is in fact true. I just pray that they were only hoping to scare the .... out of me and they are going to be shocked at my effort to fight back. Of course then they will stop in their tracks (just dreaming). If I had not found this forum it would have worked--I promise.

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Leave defense #6 in. The SOL is IMO, the best one you have. Also, in your counterclaims, you can only ask for $1000 in the whole action, not per violation.

Actually, I think Recovering was saying to take out the 5th Defense which is paragraph 9, etc. (It's confusing.)

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ok do I re-write the whole answer again (start to finish including counterclaims)or do I just add a part with those 4 defenses only? Also do I have to first ask the court to except an amended answer? I forgot that I was suppose to mention in the answer somewhere that my income is S.S. Can I add that now too? If so, where? Iam sorry I really am ignorant about law/court/anything legal. Thanks again

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What I read was to add the S. S. as only income as a defense so that the Lawyer for the OC would see that even if they were granted a judgement they couldn't garnish wages or bank account so therefore they might just give up and not pursue the judgement. Is that not really true?

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