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Hows this for an answer and defense?


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I have put together my answer and I'm working on my affirmative defenses now. These are the ones I think apply but I'm a little unsure about "'lack of privity".

A little background: We had the account, debt was sold in March 2006, we made a payment to the CA in May 2006. They only submitted an affidavit from some unknown clerk(clerk of CA) as evidence so far. I'm sure they will present the original signed contract agreement with the OC since it was 2004 when we signed that. Will that preclude us from using the Lack of Privity defense?

Will the fact that we made a payment to the CA preclude us from using that? Does making a payment imply agreement of a contract?

Here is my answer so far:

COMES NOW, Defendant XXXXXXXX in answer to Plaintiff XXXXXXX ASSIGNEE OF XXXXXXXXXXXXX.

1. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in paragraph 1. Of the Complaint, and based on that denies generally and specifically each and every allegation contained therein.

2. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in paragraph 2. Of the Complaint, and based on that denies generally and specifically each and every allegation contained therein.

3. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in paragraph 3. Of the Complaint, and based on that denies generally and specifically each and every allegation contained therein.

4. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in paragraph 4. Of the Complaint, and based on that denies generally and specifically each and every allegation contained therein.

AFFIRMATIVE DEFENSES

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

2. Plaintiff’s Complaint includes references to alleged agreements made outside the alleged written contract, violating the Parole Evidence Rule.

3. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by agreement.

4. Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; 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.

5. Plaintiff's complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

6. Plaintiff is not an Assignee for the purported agreement and no evidence appears on the record to support any related assumptions.

7. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

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