I sued PDMI. They responded. Now what?

[Thisisit]

I sued PDMI for continuing to collect on a debt that they never validated. They never responded to my validation request yet they continued to report negative information on credit bureau report. They continued to call. They called my elderly grandmother, who lives in a different city than me.

Today, I received their response to my lawsuit:

RESPONSE TO PLAINTIFFS STATEMENT OF CLAIM

Defendant PDMI answers Plaintiff's Statement Claim by denying all the allegations of the Statement of Claim that are not expressly admitted below and by further pleading as follows:

1. PDMI denies Plaintiff's allegation that PDMI owes her $1,000.00 plus fees.

2. PDMI denies Plaintiff's allegation that PDMI failed to validate the debt which is the subject of this litigation.

3>PDMI denies Plaintiff's allegation that PDMI defamed Plaintiff or Plaintiff's character.

4. PDMI denies Plaintiff's allegation that PDMI engaged in harassing phone calls.

5. PDMI denies Plaintiff's allegation that it contacted Plaintiff's mother and provided details regarding the debt.

DEFENSES AND AFFIRMATIVE DEFENSES

6. Failure to state a claim. Plaintiff's Complaint, and each purported claim for relief contained herein, fails to state facts sufficent to constitute a claim upon which relief can be granted.

7. Laches. Plaintiff's claims are barred by the equitable defense of laches.

8. Unclean Hands. Plaintiff's claims are barred by the equitable defense of unclean hands.

9. Equitable Estoppel. Plaintiff's claims are barred by the doctrine of equitable estoppel.

10. Waiver and Release. Plaintiff has waived and released any and all claims she may have had against PDMI.

11. Third Party Negligence. Plaintiff's damages, if any were caused by the acts and/or omissions of third parties for whose conduct PDMI is not responsible.

12. Bad Faith/Breach of Contract. Plaintiff has acted in bad faith by (among other things) breaching the terms of her credit agreement, and should not be permitted to recover damages against PDMI. Specifically, Defendant has sent verification of the debt owed by Ms. Norman to My Cash Now on more than one occasion.

13. Comparative Fault/Contributory Negligence. Even assuming that PDMI is at some faul, Plaintiff is at greater fault that PDMI. Additionally even assuming that PDMI is at some faul any damages suffered by Plaintiff were cause by Plaintiff's own intentional or negligent acts, omissions, or wrongdoing.

14. Set-Off and Reduction. Even assuming Plaintiff has been damaged, PDMI is entitled to receive a set-0off and reduction against any amounts recovered by Plaintiff from any other party or source, including (but not limited to insurance or separtate litigation.

15. Mitigation of Damages. Even assumiong Plaintiff has been damaged, Plaintiff has not reasonably acted to mitigate her damages(if any) by (among other things( failing to makepayments on the alleged debt to prevent an arrearage from mounting. Any damages should be reduced in direct proportion.

16. Default. Plaintiff defaulted on the terms of the credit agreement, and her claims are barred for that reason.

17. Bona Fide Error. To the extent any violation of the Fair Debt Collection Practices Act took place, which PDMI denies, said violation was not intentional and resulted from a bona fide error that occurred notwithstanding the maintenance of procedures reasonably adapted to avoid such errors, and thus create an exception barring any claim under the Fair Debt Collection Practices Act.

18. legitimate Debt. The Fair Debt Collection Practices Act claims are barred because any debt for which collection wa attempted is a legitimate debt, due and owing. Specifically, Defendant has sent verification of the debt owed my Ms Norman to My Cash Now on more than one ocassion.

19. Statue os Limitations. To the extent any claim under the Fair Debt Collection Practices Act was brought more than one year after the alleged violation occurred, such claim is barred by the applicable statue of limitations of said Act, including without limitations 15U.S.C. 1692K(d).

20. Truth. PDMI denies it defamed Plaintiff or Plaintiff's character and states that any statements made regarding Plaintiff were not fefamatory because they were entirely or substantially true.

21. Qualified Privilege. PDMi denies it defaimed Plaintiffs or Plaintiff's character and states that any statement made regarding Plaintiff were protected by the qualified privilege as PDMI made such statement without malice, the statement concerned a subject matter of sufficient interest to PDMI, and it was communicated to a person with a corresponding interest.

PDMI expressly reserves the right to assert additional defenses and affirmative defenses it may discover through further investigation and discovery.

WHEW. You get the point. They are so off point. Whether or not I owed this debt is irrelevant. Where do I go from here. I am thinking discovery of their finances. Can anyone clue me in as to what my next step is and what I should expect in court?

[HobbesMG]

I sued PDMI for continuing to collect on a debt that they never validated. They never responded to my validation request yet they continued to report negative information on credit bureau report. They continued to call. They called my elderly grandmother, who lives in a different city than me.

Today, I received their response to my lawsuit:

RESPONSE TO PLAINTIFFS STATEMENT OF CLAIM

Defendant PDMI answers Plaintiff's Statement Claim by denying all the allegations of the Statement of Claim that are not expressly admitted below and by further pleading as follows:

1. PDMI denies Plaintiff's allegation that PDMI owes her $1,000.00 plus fees.

2. PDMI denies Plaintiff's allegation that PDMI failed to validate the debt which is the subject of this litigation.

3>PDMI denies Plaintiff's allegation that PDMI defamed Plaintiff or Plaintiff's character.

4. PDMI denies Plaintiff's allegation that PDMI engaged in harassing phone calls.

5. PDMI denies Plaintiff's allegation that it contacted Plaintiff's mother and provided details regarding the debt.

DEFENSES AND AFFIRMATIVE DEFENSES

6. Failure to state a claim. Plaintiff's Complaint, and each purported claim for relief contained herein, fails to state facts sufficent to constitute a claim upon which relief can be granted.

7. Laches. Plaintiff's claims are barred by the equitable defense of laches.

8. Unclean Hands. Plaintiff's claims are barred by the equitable defense of unclean hands.

9. Equitable Estoppel. Plaintiff's claims are barred by the doctrine of equitable estoppel.

10. Waiver and Release. Plaintiff has waived and released any and all claims she may have had against PDMI.

11. Third Party Negligence. Plaintiff's damages, if any were caused by the acts and/or omissions of third parties for whose conduct PDMI is not responsible.

12. Bad Faith/Breach of Contract. Plaintiff has acted in bad faith by (among other things) breaching the terms of her credit agreement, and should not be permitted to recover damages against PDMI. Specifically, Defendant has sent verification of the debt owed by Ms. Norman to My Cash Now on more than one occasion.

13. Comparative Fault/Contributory Negligence. Even assuming that PDMI is at some faul, Plaintiff is at greater fault that PDMI. Additionally even assuming that PDMI is at some faul any damages suffered by Plaintiff were cause by Plaintiff's own intentional or negligent acts, omissions, or wrongdoing.

14. Set-Off and Reduction. Even assuming Plaintiff has been damaged, PDMI is entitled to receive a set-0off and reduction against any amounts recovered by Plaintiff from any other party or source, including (but not limited to insurance or separtate litigation.

15. Mitigation of Damages. Even assumiong Plaintiff has been damaged, Plaintiff has not reasonably acted to mitigate her damages(if any) by (among other things( failing to makepayments on the alleged debt to prevent an arrearage from mounting. Any damages should be reduced in direct proportion.

16. Default. Plaintiff defaulted on the terms of the credit agreement, and her claims are barred for that reason.

17. Bona Fide Error. To the extent any violation of the Fair Debt Collection Practices Act took place, which PDMI denies, said violation was not intentional and resulted from a bona fide error that occurred notwithstanding the maintenance of procedures reasonably adapted to avoid such errors, and thus create an exception barring any claim under the Fair Debt Collection Practices Act.

18. legitimate Debt. The Fair Debt Collection Practices Act claims are barred because any debt for which collection wa attempted is a legitimate debt, due and owing. Specifically, Defendant has sent verification of the debt owed my Ms Norman to My Cash Now on more than one ocassion.

19. Statue os Limitations. To the extent any claim under the Fair Debt Collection Practices Act was brought more than one year after the alleged violation occurred, such claim is barred by the applicable statue of limitations of said Act, including without limitations 15U.S.C. 1692K(d).

20. Truth. PDMI denies it defamed Plaintiff or Plaintiff's character and states that any statements made regarding Plaintiff were not fefamatory because they were entirely or substantially true.

21. Qualified Privilege. PDMi denies it defaimed Plaintiffs or Plaintiff's character and states that any statement made regarding Plaintiff were protected by the qualified privilege as PDMI made such statement without malice, the statement concerned a subject matter of sufficient interest to PDMI, and it was communicated to a person with a corresponding interest.

PDMI expressly reserves the right to assert additional defenses and affirmative defenses it may discover through further investigation and discovery.

WHEW. You get the point. They are so off point. Whether or not I owed this debt is irrelevant. Where do I go from here. I am thinking discovery of their finances. Can anyone clue me in as to what my next step is and what I should expect in court?

Hey Thisisit.

I cant give you a complete answer since you included their response but not your complaint. I also must ask if you got a return receipt for your validation request. Did you also keep logs of dates and times of phone calls from PDMI as well as the date and time that they called your grandmother.

Here is my thoughts on their response, and no I am not a lawyer, just a layman that is 4-0 against the JDBs.

1-5) Standard form denials, to be expected.

6) Another standard answer but if you referenced the applicable sections of the FDCPA, there is obviously a claim if you can prove the issues.

7) Laches is a "stupid"claim since it says you didnt exercise your rights in a timely matter. If you are within the SOL you obviously did.

8) Another standard claim. I bet they will say that since you "owe" a debt you cant sue for the way it is collected. Not true through FDCPA.

9) Another crap defense

10) Not true unless you signed a release. They will need to show.

11) Plaintiffs are liable for third party actions according to FDCPA but who is the third party?

12 - 16) Again not an issue involving FDCPA. just trying to make themselves look good. "you cant sue us for violating debt collection laws cuz you didnt pay your debt causing us to collect". It makes them look like a "pro se".

17) "In case we did violate laws it wasnt intentional"

18) Completely made up and not even close to what the law says.

19) Cant answer. Have you filed suit within 1 year of the violations?

20) Depending on what was said this is valid. If they said you owe a debt and you do then it isnt defamation. if they made comments beyond that then they violated FDCPA about communication to others.

21) Basic buncha crap again.......

This is a non-response but good enough to get started. They have the responsibility to prove most of what they brought up so they gave themselves more work.

Discovery... too soon. Lets get the case established first. You filed a complaint. They answered. Your next step would be to respond to their complaint with your response. If you have proof of violations, I would respond to each item, show how it is irrelevant and file a motion for summary judgment based on their irrelevant answers.

[WhoCares1000]

Now I am not sure a plaintiff has to respond to an answer but maybe for affirmative defenses. In either case, it is now time to get your evidence together for discovery (unless you are going through small claims court).

Now they have to prove their affirmative defenses (and by golly, they seem to have thrown out the kitchen sink. If I am every sued, I should use that as a guide). Beyond that, you only have to prove that they did violate the FDCPA.

I find it funny though that they claim that the FDCPA does not apply if you actually owe the debt. Kinda like me saying for the defense of robbery of a bank that I can not rob the bank if I have an account with said bank.

[Guest usctrojanalum]

Since you are not suing them under an equitable cause of action you can automatically throw out the laches, unclean hands, equitable estoppel which are defenses to an equitable claim.

The other defenses are pretty lol too. Bona fide error is the only defense that could probably be relevant at all.

[Thisisit]

Thanks for the quick response. I do have evidence. I have certified receipts and letters I sent requesting validation. I don't have exact time of calls but they continued to call even after I sued them. I could get phone records for January and February from the telephone company - I think maybe. Just to be clear, should I respond to each defense?

[Thisisit]

Also, I am going through small claims court.

[Credithis]

Bona fide error for a CA or JDB has been already been tossed by the United States Supreme Court. Also, the FDCPA is a strict liability Statute. They can't unring the bell so to speak if they violated it.

[Guest usctrojanalum]

Bona fide error for a CA or JDB has been already been tossed by the United States Supreme Court.

No it hasn't, maybe you want to read that case again - or read it for the first time.

[Credithis]

U.S. Supreme Court Holds That FDCPA Bona Fide Error Defense Does Not Apply to Mistake of Law

http://www.troutmansanders.com/us-supreme-court-holds-that-fdcpa-bona-fide-error-defense-does-not-apply-to-mistake-of-law-04-23-2010/

They cannot make mistakes about not being held actionable under the FDCPA. That claim I would think would be a mistake of law.

Perhaps I'm wrong, and yes, I did read it.

[Guest usctrojanalum]

First, it is attorneys who can't use the bona fide error defense for mistake of law (which is insane if you think about it because the federal judges in each circuit don't even agree on how the FDCPA is applied).

"They cannot make mistakes about not being held actionable under the FDCPA"? What does that even mean? lol. It makes no sense what-so-ever. I don't think you understand what the bona fide error defense is.

[BV80]

"They cannot make mistakes about not being held actionable under the FDCPA"? What does that even mean? lol. It makes no sense what-so-ever.

I think this is an example of what Credithis meant:

John D. sues Debt Collection Attorney for violation of the FDCPA. Debt Collection Attorney claims the FDCPA does not apply to him. Court informs him that FDCPA most certainly does apply to him. Debt Collection Attorney states, "Oops. I was mistaken. I thought it didn't apply to me."

Needless to say, that's not a bona fide error, but that might be the "mistake" Credithis might have had in mind.

[jackson212]

the bona fide error defense can be applied to different types of cases by different defendants. whether they can survive the burden of proving the bona fide error defense is something which you have to destroy. you always have to anticipate they will use the bonafide error defense.

forget about JARMIN V CARLISLE for a one quick minute and look to Isham v Gurstel, Staloch & Chargo, P.A.,

you can also see the thread on this board here http://www.creditinfocenter.com/forums/showthread.php?t=305990

skip to page 15 of that document and you'll find other relevant case law.

The bona fide error exception to FDCPA liability is an affirmative defense, with the burden of proof resting upon the defendant. Fox v. Citicorp Credit Serv., Inc., et al., 15 F.3d 1507, 1514 (9th Cir. 1994). There are three main prongs that the debt collector must meet: (1) the “no intent” prong, (2) the “bona fide error” prong, and (3) the “procedures” prong. Id.

Generally the [bona fide] defense “‘applies almost exclusively to clerical errors which somehow manage to slip through procedures designed to catch them.’” Gostony v. Diem Corp., 320 F. Supp. 2d 932, 946 (D. Ariz. 2003) (quoting Irwin v. Mascott, 112 F. Supp. 2d 937, 959 (N.D. Cal. 2000)).

dont let anyone try to use the bona fide error defense on you. raise all holy hell and destroy them.