Free Answer to Complaint - District Court of California - California

Case 3:07-cv-02263-BEN-WMC

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Debbie P. Kirkpatrick, Esq. (SBN 207112) Sessions, Fishman, Nathan & Israel, L.L.P. 3667 Voltaire Street San Diego, CA 92106 Tel: 619/758-1891 Fax: 619/222-3667 [email protected] Attorney for Defendant NCO Financial Systems, Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA DR. PAUL MARK BENTLEY, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 07-CV 2263 BEN (WMC) NCO FINANCIAL SYSTEMS, INC.'S ANSWER TO COMPLAINT FOR DAMAGES

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vs. NCO FINANCIAL SYSTEMS, INC.,

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Defendant.

Defendant, NCO Financial Systems, Inc. (hereinafter "NCO"), for itself alone, responds to the complaint filed by plaintiff, DR. PAUL MARK BENTLEY, as follows: INTRODUCTION 1. NCO denies any and all damages, liability and wrongful conduct to the

extent alleged in ¶ 1. NCO lacks sufficient information to answer the remaining allegations contained in ¶ 1, and based thereon denies the same. 2. NCO denies any and all damages, liability and wrongful conduct to the

extent alleged in ¶ 2. NCO lacks sufficient information to answer the remaining allegations contained in ¶ 2, and based thereon denies the same.

Answer of NCO Financial Systems, Inc. to Complaint 1

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3.

NCO denies any and all damages, liability and wrongful conduct to the

extent alleged in ¶ 3. NCO lacks sufficient information to answer the remaining allegations contained in ¶ 3, and based thereon denies the same. 4. NCO denies any and all damages, liability and wrongful conduct to the

extent alleged in ¶ 4. NCO lacks sufficient information to answer the remaining allegations contained in ¶ 4, and based thereon denies the same. 5. 6. NCO denies the allegations contained in ¶ 5. NCO denies the allegations contained in ¶ 6 to the extent liability or

wrongdoing is alleged and to the extent plaintiff seeks to join unnamed defendants through said allegations. JURISDICTION AND VENUE 7. 8. NCO admits the allegations contained in ¶ 7 for jurisdiction purposes only. NCO admits plaintiff claims violations of the Rosenthal Fair Debt

Collection Practices Act (California Civil Code §§ 1788-1788.32) and the Fair Debt Collection Practices Act (15 U.S.C. §§ 1692 et seq.), but NCO denies any and all damages, liability and wrongful conduct to the extent alleged in ¶ 8. NCO lacks sufficient information to answer the remaining allegations contained in ¶ 8, and based thereon denies the same. 9. 10. NCO admits the allegations contained in ¶ 9 for jurisdiction purposes only. NCO admits the allegations contained in ¶ 10 for venue purposes only. PARTIES 11. NCO lacks sufficient information to answer the allegations contained in ¶

11, and based thereon denies the same. 12. NCO lacks sufficient information to answer the allegations contained in

¶ 12, and based thereon denies the same. 13. 14. NCO admits the allegations contained in ¶ 13. NCO admits that when it acts as a debt collector as defined by 15 U.S.C. §

1692a(6) its conduct may be governed by the applicable provisions of that statutes.
Answer of NCO Financial Systems, Inc. to Complaint 2

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NCO further admits it engages in the business of debt collection and that its principal business is debt collection related services. Except as specifically admitted, NCO denies the remaining allegations contained in ¶ 14. 15. NCO admits that when it acts as a debt collector as defined by Cal. Civil

Code § 1788.2 its conduct may be governed by the applicable provisions of that statutes. NCO further admits it engages in the business of debt collection and that its principal business is debt collection related services. Except as specifically admitted, NCO denies the remaining allegations contained in ¶ 15. 16. NCO lacks sufficient information to answer the allegations contained in ¶

16, and based thereon denies the same. FACTUAL ALLEGATIONS 17. NCO lacks sufficient information to answer the allegations contained in ¶

17, and based thereon denies the same. 18. 19. NCO admits the allegations contained in ¶ 18. NCO admits NCO Portfolio Management, Inc., placed MBNA account

XXXX-XXXX-XXXX-7913 with NCO for collection on or about May 12, 2004. NCO lacks sufficient information to answer the remaining allegations contained in ¶ 19, and based thereon denies the same. 20. NCO lacks sufficient information to answer the allegations contained in ¶

20, and based thereon denies the same. 21. NCO lacks sufficient information to answer the allegations contained in ¶

21, and based thereon denies the same. 22. NCO lacks sufficient information to answer the allegations contained in ¶

22, and based thereon denies the same. 23. NCO lacks sufficient information to answer the allegations contained in ¶

23, and based thereon denies the same. 24. NCO admits NCO Portfolio Management, Inc., placed MBNA account

XXXX-XXXX-XXXX-7913 with NCO for collection on or about May 12, 2004. NCO
Answer of NCO Financial Systems, Inc. to Complaint 3

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lacks sufficient information to answer the remaining allegations contained in ¶ 19, and based thereon denies the same. 25. NCO admits its records reflect correspondence was sent to plaintiff on

about April 10, 2007 and avers the original of said correspondence is the best evidence of its contents. Except as specifically admitted, NCO denies the remaining allegations contained in ¶ 25. 26. NCO admits its records reflect correspondence was sent to plaintiff on

about April 10, 2007 and avers the original of said correspondence is the best evidence of its contents and refers all matters of law to the court. Except as specifically admitted, NCO denies the remaining allegations contained in ¶ 26. 27. 28. 29. NCO denies the allegations contained in ¶ 27. NCO denies the allegations contained in ¶ 28. NCO lacks sufficient information to answer the allegations contained in ¶

29, and based thereon denies the same. 30. NCO lacks sufficient information to answer the allegations contained in ¶

30, and based thereon denies the same. 31. NCO lacks sufficient information to answer the allegations contained in ¶

31, and based thereon denies the same. 32. NCO lacks sufficient information to answer the allegations contained in ¶

32, and based thereon denies the same. 33. NCO lacks sufficient information to answer the allegations contained in ¶

33, and based thereon denies the same. 34. NCO lacks sufficient information to answer the allegations contained in ¶

34, and based thereon denies the same. 35. 36. 37. NCO denies the allegations contained in ¶ 35. NCO denies the allegations contained in ¶ 36. NCO denies the allegations contained in ¶ 37.

Answer of NCO Financial Systems, Inc. to Complaint 4

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38.

NCO admits it initiated arbitration with the National Arbitration Forum.

Except as specifically admitted, NCO denies the remaining allegations contained in ¶ 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. NCO denies the allegations contained in ¶ 39. NCO denies the allegations contained in ¶ 40. NCO denies the allegations contained in ¶ 41. NCO denies the allegations contained in ¶ 42. NCO denies the allegations contained in ¶ 43. NCO denies the allegations contained in ¶ 44. NCO denies the allegations contained in ¶ 45. NCO denies the allegations contained in ¶ 46. NCO admits its records reflect correspondence was received from plaintiff

on about June 28, 2007 and avers the original of said correspondence is the best evidence of its contents. Except as specifically admitted, NCO denies the remaining allegations contained in ¶ 47. 48. NCO lacks sufficient information to answer the allegations contained in ¶

48, and based thereon denies the same. 49. NCO lacks sufficient information to answer the allegations contained in ¶

49, and based thereon denies the same. 50. NCO admits it sent correspondence to plaintiff on or about June 29, 2007

and avers the original of said correspondence is the best evidence of its contents. Except as specifically admitted, NCO denies the remaining allegations contained in ¶ 50. 51. NCO admits the National Arbitration Forum sent correspondence to the

parties on or about July 2, 2007 and avers the original of said correspondence is the best evidence of its contents. Except as specifically admitted, NCO denies the remaining allegations contained in ¶ 51. 52. NCO lacks sufficient information to answer the allegations contained in ¶

52, and based thereon denies the same.

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53.

NCO admits the National Arbitration Forum sent correspondence to the

parties on or about November 2, 2007 and avers the original of said correspondence is the best evidence of its contents. Except as specifically admitted, NCO denies the remaining allegations contained in ¶ 53. 54. 55. 56. 57. 58. 59. 60. 61. NCO denies the allegations contained in ¶ 54. NCO denies the allegations contained in ¶ 55. NCO denies the allegations contained in ¶ 56. NCO denies the allegations contained in ¶ 57. NCO denies the allegations contained in ¶ 58. NCO denies the allegations contained in ¶ 59. NCO denies the allegations contained in ¶ 60. NCO denies the allegations contained in ¶ 61. CAUSES OF ACTION CLAIMED BY PLAINTIFF COUNT I VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. § 1692 ET SEQ. 62. forth in full. 63. 64. NCO denies the allegations contained in ¶ 63. NCO denies the allegations contained in ¶ 64 and further specifically denies NCO incorporates by reference all of the above paragraphs as though set

that plaintiff is entitled to damages in any amount whatsoever. COUNT II VIOLATION OF THE ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT Cal. Civ. Code §§ 1788-1788.32 (RFDCPA) 65. forth in full. 66. NCO denies the allegations contained in ¶ 66. NCO incorporates by reference all of the above paragraphs as though set

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67.

NCO denies the allegations contained in ¶ 67 and further specifically denies

that plaintiff is entitled to damages in any amount whatsoever. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE As a first affirmative defense, NCO alleges plaintiff's Complaint should be dismissed because the various causes of action fail to state claims upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE As a second affirmative defense, NCO alleges, pursuant to 15 U.S.C. § 1692k(c), to the extent that a violation(s) is established, any such violation(s) was not intentional and resulted from a bona fide error notwithstanding maintenance of procedures reasonably adapted to avoid any such error. THIRD AFFIRMATIVE DEFENSE As a third affirmative defense, NCO alleges, pursuant to California Civil Code § 1788.30(e), to the extent that a violation(s) is established, any such violation(s) was not intentional and resulted notwithstanding maintenance of procedures reasonably adapted to avoid any such violation. WHEREFORE, NCO respectfully requests that: 1. 2. 3. Plaintiff take nothing by way of his Complaint; Judgment of dismissal be entered in favor of NCO; NCO be awarded costs and attorney's fees it has incurred in defending this lawsuit. 4. NCO be granted such other and further relief as the Court deems just and proper. Dated: 1/22/08 Sessions, Fishman, Nathan & Israel, LLP __/s/ Debbie P. Kirkpatrick__________ Debbie P. Kirkpatrick Attorney for Defendant NCO Financial Systems, Inc.
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