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anybody willing to look over second amened answer?


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IN THE DISTRICT COURT OF THE STATE OF xxxxxxxx

FOR THE COUNTYxxxxxxxx

CAPITAL ONE )

Plaintiff ) Case No.

Vs. )

SECOND AMENDED ANSWERS,

) DEFENSES AND COUNTERCLAIMS

Defendant(s) )

Defendant, appearing pro se, for its reply to the Complaint of Capital One 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...

7. As and for a Third Defense

Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

8. As and for a Fourth 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.

9. As and for a Fifth Defense

Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

10. As and for a Sixth 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.

11. As and for a Seventh Defense

Plaintiff has no Fiduciary Duty.

12. As and for a Eighth Defense

Plaintiff has failed to name all necessary parties.

13. As and for a Ninth 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.

14. As and for a Tenth Defense

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

15. As and for a Eleventh 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.

16. As and for a Twelfth Defense

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

17. As and for a Thirteenth Defense

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

18. As and for a Fourteenth 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

19. September 26, 2005, Defendant sentxxxxxx(collection attorney for Capital One), by way of certified mail, request for validation of alleged debt.

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

21. Up until the date of this filing, no attempt at validation was received from xxxxxor Capital One, yet through their agent,xxxxxx, continued to collect on alleged debt.

Statement of Claim

22. 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

23. Defendant repeats and re-alleges each allegation in paragraphs 19-22 with like effect as if fully repeated herein.

24. Defendant received notice from xxxxxxxxxdated 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 of xxxxxxxxxxxxxUnless 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 ans address of the original creditor, if different from current creditor”.

25. Defendant received notice fromxxxxxxxxxx, 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 BY OCT 31, 2005. THIS SETTLEMENT PROGRAM IS VALID ONLY if funds are received by MONDAY, OCTOBER 31, 2005.

Statement of Claim

26. In the entire course of its action, Plaintiff, by itself and its agents including lawyers who brought this action 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, by itself and its agents including lawyers who brought this suit 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

27. Defendant repeats and re-alleges each allegation in paragraphs 19-22 and 23-26 with like effect as if fully repeated herein.

28.Defendant’s previously stated notice fromxxxxxxxxxx, dated September 17, 2005, noted a balance of $2573.43.

29. Defendant’s previously stated notice fromxxxxxxxxxxxxx, dated October 6, 2005, noted a balance of $2590.35.

Statement of Claim

30.In the entire course of its action, Plaintiff, by itself and its agent including lawyers who brought this action 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

31. Defendant repeats and re-alleges each allegation in paragraphs 19-22, 23-26, and 27-30 with like effect as if fully repeated herein.

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

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

Statement of Claim

34. In the entire course of its action, Plaintiff, by itself and its agents including lawyers who brought this action 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 notifiedxxxxxxxxxxxxand Capital One in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(B).

FIFTH CAUSE OF ACTION

Statement of Facts

35. Defendant repeats and re-alleges each allegation in paragraphs 19-22, 23-26, 27-30 and 31-33 with like effects as if fully repeated herein.

36. Plaintiff and Plaintiff’s agent’s acts as described above were deceptive trade practices and unfair trade practices and therefore violated the Rhode Islands Consumer Protection Laws.

37. Plaintiff and Plaintiff’s agent’s acts as described above were done in bad faith and therefore violated the Rhode Islands Consumer Protection Law.

38. Plaintiff and Plaintiff’s agent’s acts as described above were unconscionable and therefore violated the Rhode Island Consumer Protection Law.

NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF:

PRAYER FOR RELIEF:

39. 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 $1,000;

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;

D. 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 $1,000;

E. For Defendant’s Fifth Cause of Action

1) Statutory damages as specified in 15 O.S. Supp. 1999 §761.1 in the amount of $1,000;

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 16, 2005

by

______________________

What I was wondering is:

1. 7th paragraph/3rd defense-Now I don't think they did purchase the debt. Should I then take that out?

2. 12th paragraph/8th defense - "Didn't name all necessary parties"- Does that need to come out too?

Thank you so much in advance.

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