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Unifund CCR, LLC and Daniel N Gordon PC


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Also, this was my ANSWER

1. Defendant admits the allegations contained in Paragraph 1, that Plaintiff is who they say they are.

2. Defendant denies the allegations contained in paragraphs 2 and 3 of Plaintiffs complaint.                                                                     

3. Defendant denies having knowledge or information sufficient thereof to form a belief as to the truth of the allegations in paragraphs 4, 5, 6, 7, 8 and 9 of Plaintiffs Complaint and respectfully refers all questions of laws to the trial court.

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@

 

There's a few more defenses that are not valid or are not applicable.

 

FOURTH AFFIRMATIVE DEFENSE

7. That Plaintiff is not in possession and/or control of the documents and/or witness necessary to prove its alleged claim against Defendant.

FIFTH AFFIRMATIVE DEFENSE

8. The Plaintiff has failed to reference with complaint proof of alleged assignment, original contract signed by Defendant, account numbers, accounting measuring to come up with the such sum of $12,611.58, lack of bond fide proof this alleged debt is indeed the Defendants. The complaint does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

 

 

Unless your rules of civil procedure requires the above-referenced proof to be attached to the complaint, they are not valid defenses.   The proof you referenced would be requested in discovery.

 

SEVENTH AFFIRMATIVE DEFENSE

10. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation n the form of monies or credits from the Plaintiff.

 

 

Accord and satisfaction means that a debt has been settled.  The sale of the debt to the JDB is not a settlement of the debt.

 

 

THIRTEENTH AFFIRMATIVE DEFENSE

16. Defendant claims a failure of consideration, as there has never been any money or item of value between Plaintiff and the Defendant.

 

 

That defense means that the other party failed to perform what they were required to do under a contract.  

 

 

 

FIFTEENTH AFFIRMATIVE DEFENSE

 

18. The Defendant did not receive a copy of the alleged credit card agreement from Plaintiff, the alleged original creditor, or anyone else.

 

 

That's not an affirmative defense.

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So, I spoke to consumer attorney yesterday. We spoke for about an hour(free consultation) :-). Just  getting more legal advice's before I amend my answer for the final time.  His advice's to me was the following. 

 

Put all the Affirmative Defense you can, and let the judge decide what will be stricken and what will apply. He said since I am pro se, they will work with me more than let say an attorney.   I will for sure remove SIXTH AFFIRMATIVE DEFENSE, as I agree this is a little confusing. 

 

But, let say's that I leave the rest, what's the worst that can happen, beside the judge striking it off and saying it didn't apply to me? I am just wondering? what are you're thoughts on that? I dont' want to annoy the courts, but at the same time I am pro se, so I am hopeful i can play dumb as much as I can. Of course without annoying the courts. 

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@

 

Of course, you can keep the defenses, but I wasn't sure if you thought they applied to you or not.   I think the judge would only strike defenses if the plaintiff made a motion to do so.   Otherwise, you don't have to prove all of them.  You only have to prove the ones that actually apply to your case.

 

To undo the bold type, highlight the words, then click on the "B" in the toolbar.

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Please note that in your Answer, its generally the form to answer each numbered question, number for number, even if you are being repetitive. If they have 9 points to their complaint, your Answer should have 9 answers, point by point. Then you begin your affirmative defenses sequentially, beginning with the First Affirmative Defense as #10.  If your answers are the same for 4 - 9, simply repeat them.  

 

Also, you may want to review this thread, with a similar lawsuit in your state.  http://www.creditinfocenter.com/community/topic/321434-sued-by-daniel-n-gordon-pc-jdb/?hl=%2Boregon+%2Baffirmative+%2Bdefenses#entry1262786

The poster attached an Answer, which is very helpful. However, I disagree with many of the Affirmative Defenses in that attachment. 

 

Regarding your Fifteenth Affirmative Defense, I agree with @BV80, it is not an Affirmative Defense. What you may wish to do, is caption what you've written as a summation to your Answer. As for Affirmative Defenses that may not be technically correct, the only time you really cause a problem by listing an improper Affirmative Defense, is by opening up a difficult line of questioning for the Plaintiff - or the Judge (ie. your Sixth Affirmative Defense).

 

My read of many of the JDB cases from around the country on this board is that the issues that bring greatest success for Defendants are cases brought past the statute of limitations, lack of standing for the Plaintiff, inability for the Plaintiff to prove a chain of title, inability for the Plaintiff to provide records that substantiate the alleged debt, falsified records, and leverage. By leverage I mean whether or not a Plaintiff will invest the cost to take a case to trial, on an alleged account they paid pennies on the dollar for - and if their conduct has given rise to claims against them that are more valuable than any judgment they may win.

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Here is my 02 cents on the matter of throwing everything up against the wall to see what sticks.

 

DNG is a small firm that has lots of cases.  They really really want to settle.  How many calls from Jan at DNG have you had?

 

What you want to do is make it known they are in for a fight so they will settle at terns you can live with, if you were so inclined, or give up on the case because it is going to cost them a lot of time and money to take it the distance.

 

Throwing in every affirmative defense possible, which most of us did the first time, just makes them think you are going to be an easy mark because you just found this list on the internet and have no clue what you are doing.  They probably get dozens of those type of answers every week but getting an answer that has the correct format, information and affirmative defenses is probably rare even if answered by an attorney as your talk with the attorney shows.

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@Public Enemy

 

I agree with you.  If a particular defense would not apply to you case, by including that defense, it might tend to show that you didn't bother to learn the meaning of that defense.   The statute of frauds is an example.  Unless your state laws require a credit card account to be in writing and signed by you, then that defense won't apply.  You have to study your state's laws on the issue.

 

If you want to play dumb, I guess it could work to include a bunch of defenses.  But if you want to show that you're researching and preparing, including everything but the kitchen sink won't convey your efforts.  However, whether or not a JDB attorney would be impressed with your efforts enough to consider dismissing is anyone's guess.

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I have a slightly different take on the issue of Affirmative Defenses. I certainly would not suggest throwing everything up against the wall to see what sticks. My experiences in court, while not that of an attorney, included 2 cases, one stretching 6 years, the other 3. I won both thanks to the incredible help of this board, its members and moderators. I believe I went before a total of 10 different Judges. What I found was I was negotiating with the Judges more than the Plaintiff. It's important to note my cases were not credit card cases, and the larger of the two disputes was with a large national bank over an alleged business line of credit and personal guarantee. I was battling alleged original creditors, not junk debt buyers who are often several acquisitions removed from the original creditor who frequently do not have records to support their claims. However, there are still some good analogies.

 

Regarding Affirmative Defenses, I plead 14, clearly botched several, and used a few more that were not by definition Affirmative Defenses. What I managed to do was educate the Judge from a layman's point of view what I believe occurred. The Plaintiff objected, with a well plead Motion to Strike all of my Affirmative Defenses. Their Motion made my day, because it fairly pointed out in each instance where I did not plead correctly. Basically, they educated me. This gave me an opportunity to file a Leave to Amend that I nailed fairly well - the Judge struck 6 and left me with 8. What I'm leading to is Judges will need their own victory (its human nature), but appear to be impartial. So one party walks away with a victory - a defense going forward, and the other party has their victory, striking defenses that did not fall within the law. Looking back would I have looked better if I only plead 10, and was left with 5 or 6? Perhaps. However, the Judge could see that despite some poorly plead defenses what I was trying to convey to the court. She then gave me an opportunity to fix it - just as she gave the Plaintiff an opportunity to prove their case and amend their complaint.

 

Regarding the statute of frauds, only the original poster knows if a fraud was committed here. I don't believe the issue of a signed credit card contract is the only determining factor in pleading fraud. In one case I had a backdated, photo shopped invoice that had transaction dates that could not have occurred on the dates claimed per proof in my possession, and was evidence of fraud. The contract wasn't fraudulent, but the invoices were falsified. In the other, I had the Plaintiff's Annual Report admitting they were subject to litigation for improperly using Affidavits and Notaries that were signed but the records they were attesting to were never examined by the signor. I also had a several fraudulent transactions by the bank itself. They literally cooked the books. So I had proof to go this route. When I appeared before Judge #1 in the case, in an accusatory and intimidating fashion he asked me to back up my claims. I could point blank explain it and provide proof. I had also attached two pending federal class actions over debt instruments through the same bank where fraud was plead. Those cases supported my claims.

 

The last thing any litigant should do is plead the statute of frauds without thoroughly thinking through the issue, having evidence to back up their claim, and be ready when a Judge asks specific questions. On this subject, simply Google "Unifund fraud" or Unifund class action" or "Pilot Receivables Management fraud" or "Pilot Receivables Management class action" and you'll see numerous instances where parties in this case have been sued for fraud in what appear to be similar circumstances. The alleged original creditor here, Citibank, was the original creditor in a credit card collection fraud class action with junk debt buyer Midland. While not the same parties as this case, I think its a useful case to look at:  http://stopforeclosurefraud.com/2011/08/16/robo-affidavit-class-action-settles-for-5-2-million-midland-funding-v-brent/

 

I think there's room for a balanced approach here. I agree that copying and pasting Affirmative Defenses and putting them in an Answer is a recipe for trouble. The original poster needs to understand each one plead, and be ready in court to back them up in the event a Judge begins asking questions. 

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@Determined1

 

In most, if not all, states, the statute of frauds only applies to agreements/contracts in which the contract must be signed by the party to charged (consumer/defendant).  If the law does not require a credit card agreement to be signed, then the statute of frauds will not apply.

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@BV80, I can't claim to be 100% certain of this issue in every state, but I have to believe there are other types of frauds relating to credit card accounts than just those where a contract has been signed. Please indulge me in this hypothetical example, however, no need to take time to cite various state laws. I am speaking of these issues in a general sense.

 

Let's say a junk debt buyer buys an alleged credit card account, sells it to another, then to a third entity who then tries to collect through litigation. For the purpose of this example, the JDB has no documentation to prove the original debts existence and no signed contract. However, the JDB creates an Affidavit to attest to the validity of the debt, which is back dated before the date they even acquired the account. The signature on the Affidavit is forged. The notary's stamp is expired. They attach the final alleged charge off "bank statement" but it was created by the JDB photocopying the bank's logo on a newly created invoice that states the amount of the debt they are suing for. The JDB is not licensed nor bonded as a debt collector in the state they seek collection in, nor registered with that state's department of corporations or secretary of state. Last but not least, in the course of litigation, the Plaintiff JDB alters their original evidence in an attempt to cover up their original misdeeds.

 

No signed credit contract exists, yet how can this not be fraud?

 

 

P.S. My "hypothetical" example was altered slightly to protect the guilty.

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@Determined1

 

A forged affidavit and credit card statement would be fraud.  However, in a credit card case, they wouldn't fall under the statute of frauds.   A CA's failure to be licensed and bonded, if required, I don't think would be fraud.  It would simply be a violation of state law. 

 

The statute of frauds is described in each state's laws.  They usually require certain types of contracts to be signed.  If a particular contract provided for under that law is not signed, it's not enforceable.  

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@Determined1

 

A forged affidavit and credit card statement would be fraud.  However, in a credit card case, they wouldn't fall under the statute of frauds.   A CA's failure to be licensed and bonded, if required, I don't think would be fraud.  It would simply be a violation of state law. 

 

The statute of frauds is described in each state's laws.  They usually require certain types of contracts to be signed.  If a particular contract provided for under that law is not signed, it's not enforceable.  

 

This is great @BV80, thanks! You learn something new everyday. :-)  So the "statute of frauds" does not equal "fraud."  In my example, "Fraud" is an appropriate Affirmative Defense, but not the "Statute of Frauds." 

 

 

P.S. This changes how I responded to you in another thread debating JDB's, credit card agreements, and fraud. While I was referring to fraud statutes, you were referring to the statute of frauds!

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@Determined1

 

I don't know that the Statute of Frauds doesn't involve any kind of fraud at all.   Only an attorney would know that.  However, to claim the statute for any reason, it would have to involve a contract that's required to be signed.

 

I also don't know which affirmative defense would apply to forged or altered documents that were created just for the sake of the lawsuit. 

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@

 

I just lost my lawsuit with DNG (same plaintiff and OC) and declared BK as a result, but I'm not saying that will happen to you.  I WILL say, however, that the amount they are suing you for will dictate how hard they will hang on to this case.

 

Oregon's mandatory arbitration is almost a guaranteed win for the plaintiff/JDB/DNG, so they really have nothing to lose by looking over your answer and pleadings and just shrugging them off as they move forward with their case.  Not saying you shouldn't fight, of course, but they are not easily intimidated by the defendant's pro se efforts, even if it looks like you intend to fight them.

 

I assume your case has not been assigned to an arbitrator yet.  It will be soon.  I was served on April 8 of last year and an arbitrator was assigned by June 1st, even before the discovery stage was completed.  They filed an MSJ on me by July 5th, I think, and that's what the arbitrator was hearing and deciding upon at the beginning of August.  The arbitrator was lovely and polite, and a civil rights attorney as well, so I thought I might have a chance, but I lost, as my attorney I was consulting with predicted would happen.

 

I applied for a trial de novo, which is always granted, and they promptly filed a new MSJ, which I beat - my only victory!!  My lawyer, who is a longtime adversary of DNG, stepped in to represent me right before trial, and, perhaps just to attack him personally, actually flew in a witness from Citibank.  The judge took that as a sign that he should let in all of their hearsay documents and the case was decided against me.

 

I only tell you all of this to shed some light on what might happen.  I did everything right, I think, but with the interest (illegal, which they were NOT granted by the judge) added on, they were looking at 15k in their pocket.  So, there is something to be said for the amount they are suing you for, and as JDBs go, I am saddened by the fact that they don't seem as inept as some others I read about on this board. 

 

My only advice, really, especially if they file an MSJ against you, is that I had the opportunity to oppose their MSJ twice, and the short and sweet version I had the second time around was more successful and better tailored to be read by a judge.  My first was 15 pages long and I packed it full of everything, and for the second one I picked the three strongest arguments against their documents - statements, bill of sale, affidavits, and it was much better.  The kitchen sink approach might work for some judges but I'm pretty sure the edited version was legally more sound.

 

Good luck!

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Hello, 

I just messaged you, I hope you get it. I am really interested in talking to you.

 

Also, can you tell me if you're complaint was with this exact party? Meaning, was Pilot mentioned in you're complaint as well.
Unifund CCr, LLC assignee of Pilot Receivables Management LLC
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Yes, all the same. 

 

When I pointed out, in my MSJ hearing with the arbitrator, that the link/assignment of the OC account between Pilot and Unifund could not be proven by the documents they produced in discovery, the JDB lawyer said "all of PR's accounts are assigned to Unifund." And the arbitrator said "ok" above my objections.  I guess all you have to say is that it's true, and then it's true.

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