Free Answer to Complaint - District Court of California - California

Case 4:07-cv-05006-CW

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Filed 10/23/2007

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1 Mark E. Ellis - 127159 Kimberly E. Lewellen - 243663
2 ELLIS, COLEMAN, POIRIER, LAVOIE, & STEINHEIMER LLP

555 University Avenue, Suite 200 East
3 Sacramento, CA 95825

Tel: (916) 283-8820
4 Fax: (916) 283-8821
5 Attorneys for Defendants

NATIONAL RECOVERY, INCORPORATED AND GLENNA RAY
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UNITED STATES DISTRICT COURT U.S. DISTRICT COURT, NORTHERN DISTRICT OF CALIFORN
SAN FRANCISCO/OAKLAND DIVISION

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11 GUILLERMINA LAWRENCE"

Case No.: C07 05006 CW

12 Plaintiff,
13 v.
14 NATIONAL RECOVERY INCORPORATED and GLENNA RAY"
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DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT
DEJ1AND FOR JURY TRIAL

Defendants.
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Defendants NATIONAL RECOVERY INCORPORATED and GLENNA RAY hereby respond
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to plaintifts Complaint as follows:
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1.

As to paragraph one, Defendants deny each and every allegation therein.

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2.

As to paragraph two, Defendants admit that 15 D.S.C. § 1692 states the quoted

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language.
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"0

.) .

As to paragraph three, Defendants possess insufficient information to admit or deny,

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and, hence, they deny each and every allegation therein.
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4. As to paragraph four, Defendants deny each and every allegation therein.

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5. As to paragraph five, Defendants possess insufficient information to admit or deny, and,

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hence, they deny each and every allegation therein.
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6. As to paragraph six, Defendants admit these allegations.

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7.
8.

As to paragraph seven, Defendants admit this allegation.

As to paragraph eight, Defendants admit the allegation in the first sentence; Defendants

4 lack information or belief sufficient to admit or deny this allegation, and, hence, they deny the
5 allegation in the second sentence in this paragraph.

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9.

As to paragraph nine, Defendants admit this allegation, Defendants lack information or

7 belief suffcient to admit or deny this allegation, and, hence, they deny the allegation.

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10.

As to paragraph ten, Defendants lack information or belief sufficient to admit or deny

9 these allegations, and, hence, they deny the allegations.

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11. 12.

As to paragraph eleven

As to paragraph twelve, Defendants lack information or belief suffcient to admit or

12 deny this allegation, and, hence, they deny the allegation.

13 13. As to paragraph thirteen, Defendants lack information or belief sufficient to admit or
14 II deny this allegation, and, hence, they deny the allegation in this paragraph.
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15 14. As to paragraph fourteen, Defendants lack information or belief sufficient to admit or
16 deny this allegation, and, hence, they deny the allegation in this paragraph.
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15.

As to paragraph fifteen, Defendants lack information or belief suffcient to admit or

18 deny this allegation, and, hence, they deny the allegation in this paragraph.
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16.

As to paragraph sixteen, Defendants lack information or belief sufficient to admit or

20 deny this allegation, and, hence, they deny the allegation in this paragraph.
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17.

As to paragraph seventeen, Defendants lack information or belief suffcient to admit or

22 deny this allegation, and, hence, they deny the allegation sentence in this paragraph.
23 18.
19.

As to paragraph eighteen, Defendants deny the allegation. As to paragraph nineteen, Defendants deny the allegation.

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20.

As to paragraph twenty, Defendants lack information or belief suffcient to admit or

26 deny this allegation, and, hence, they deny the allegation in this paragraph. 27

21.

As to paragraph twenty one, Defendants lack information or belief sufficient to admit or

28 deny this allegation, and, hence, they deny the allegation in this paragraph.
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22.

As to paragraph twenty two, Defendants lack information or belief sufficient to admit or

2 deny this allegation, and, hence, they deny the allegation in this paragraph.
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23.

As to paragraph twenty three, Defendants lack information or belief suffcient to admit

4 or deny this allegation, and, hence, they deny the allegation in this paragraph.
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24.

As to paragraph twenty four, Defendants lack information or belief sufficient to admit

6 or deny this allegation, and, hence, they deny the allegation in this paragraph.
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25.
26. 27.

As to paragraph twenty five, Defendants deny the allegation. As to paragraph twenty six, Defendants deny the allegation.

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As to paragraph twenty seven, Defendants deny the allegation.
As to paragraph twenty eight, Defendants deny the allegation.

28.
29.

As to paragraph twenty nine, Defendants lack information or belief sufficient to admit

12 or deny this allegation, and, hence, they deny the allegation in this paragraph.
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30. 31.

As to paragraph thirty, Defendants deny the allegation.

141 151
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As to paragraph thirty, Defendants incorporate each and every response above.
As to paragraph thirty two, Defendants deny the allegation.
As to paragraph thirty three, Defendants deny the allegation. As to paragraph thirty four, Defendants deny the allegation.

32.
33. 34. 35. 36. 37. 38.

As to paragraph thirty five, Defendants deny the allegation.
As to paragraph thirty six, Defendants deny the allegation.

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As to paragraph thirty seven, Defendants incorporate each and every response above.
As to paragraph thirty eight, Defendants deny the allegation.
As to paragraph thirty nine, Defendants deny the allegation.

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39.

40. 41. 42. 43.
44.

As to paragraph forty, Defendants deny the allegation.
As to paragraph forty one, Defendants deny the allegation. As to paragraph forty two, Defendants deny the allegation.

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As to paragraph forty three, Defendants deny the allegation.

As to paragraph forty four, as stated, Defendants cannot admit nor deny the allegation.

28 As to plaintift s prayer for relief, Defendants deny that plaintiff is entitled to any damages or
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recovery at alL.
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Pursuant to Federal Rule of Civil Procedure 8(c), Defendants set forth the following matters

constituting an avoidance or affrmative defense:

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FIRST AFFIRMATIVE DEFENSE
30. Defendants allege that the Complaint, and each cause of action contained therein, fails
to state facts sufficient to constitute a cause of action.

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SECOND AFFIRMATIVE DEFENSE
31. Defendants allege that the Complaint, and each cause of action therein, is barred by the
applicable statute of limitations.

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THIRD AFFIRMATIVE DEFENSE
32. Defendants allege that Plaintiff herself was negligent, careless, and/or committed

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intentional acts, in and about the matters alleged in the Complaint, and said negligence, carelessness
and/or intentional acts caused and/or contributed to her injuries and/or damages.

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FOURTH AFFIRMATIVE DEFENSE

33. Defendants allege that other persons and parties were careless and/or negligent, and/or
committed intentional acts, and that this carelessness, negligence, or these intentional acts proximately

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contributed to the happening of the incidents referred to in the Complaint, and to the extent said
negligence, carelessness and/or intentional acts caused and/or contributed to injuries and/or damages,
then the damages alleged against this Defendant should be reduced or eliminated.

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FIFTH AFFIRMATIVE DEFENSE
34. Defendants allege that Plaintiff failed and neglected to use reasonable care to protect
her and to minimize and/or mitigate the losses and/or damages asserted in the complaint.

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SIXTH AFFIRMATIVE DEFENSE
35. Defendants allege that all of

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belief

their actions were taken in good faith and with a reasonable

that such actions were legal, appropriate and necessary.

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SEVENTH AFFIRMATIVE DEFENSE
36. Defendants allege that they have no civil

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liability under the FDCPA, 15 D.S.C. § 1692,

et seq., or Rosenthal FDCPA, pursuant to 15 D.S.C. § 1692k(c) and Civil Code §§ 1788.30(d), (e) and
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(g) as any violation was unintentional and resulted from the maintenance of procedures reasonably
adopted to avoid any such violation, the Defendants have "cured" any purported violation, and Plaintiff
herself violated the provisions of the Rosenthal Act.

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EIGHTH AFFIRMATIVE DEFENSE
37. Defendants allege that Plaintiffs Complaint, and each and every cause of action therein,

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is barred by the communication privilege embodied either in Civil Code § 47(c), or arising under
federal and state common law.

NINTH AFFIRMATIVE DEFENSE
38. Defendants allege that Plaintifts Complaint (and the causes of action alleged therein) is

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barred because Defendants' actions were taken in reasonable reliance upon information provided by its

client pursuant to Ducrest v. Alco Collections, Inc. (M.D. La. 1999) 931 F.Supp. 459, 462, and Hulse
v. Ocwin (D. Or. 2002) 195 F.Supp.2d 1188, 1210.

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TENTH AFFIRMATIVE DEFENSE
39. Defendants allege that Plaintifts Complaint, and each and every cause of action therein,

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is barred by the doctrine of unclean hands.

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ELEVENTH AFFIRMATIVE DEFENSE
40. Defendants allege it is entitled to a setoff under Code of Civil Procedure § 431.70

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against any damages to which Plaintiff claims an entitlement based upon Plaintift s outstanding
obligation.

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TWELFTH AFFIRMATIVE DEFENSE
41. Defendants allege that the representations or statements made by Defendant was true,
accurate at the time made, and/or otherwse were made in good faith and with a reasonable belief as to
their truth, validity and accuracy.

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THIRTEENTH AFFIRMATIVE DEFENSE
42. Defendants allege that statutory and common law immunities apply to the acts and/or

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omissions complained of in the Complaint on fie herein.

FOURTEENTH AFFIRMATIVE DEFENSE
43. Defendants allege that Plaintifts Complaint, and each and every cause of action therein,
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1 is barred by the doctrine of estoppel and/or waiver.

2 FIFTEENTH AFFIRMATIVE DEFENSE
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44.

Defendants allege that any acts attributed to this Defendant were performed in good

4 faith in conformity with advisory opinions of the Federal Trade Commission pursuant to 15 U.S.C.
5 § l692k( e), or in conformance with California law.

6 SIXTEENTH AFFIRMATIVE DEFENSE
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45.

Defendants hereby allege the following affirmative defenses, including, but not limited

8 to, those set forth in Federal Rule of Civil Procedure S(c), so as not to waive them at this time:

9 assumption of risk, contributory negligence, duress, failure of consideration, fraud, illegality, license,

10 failure to join an indispensable party, and abatement.

11 SEVENTEENTH AFFIRMATIVE DEFENSE
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46.

Defendants presently have insufficient knowledge or information on which to form a

13 belief as to whether Defendants may have additional, as yet unstated, defenses available. Defendant
14 reserves herein the right to assert additional defenses in the event discovery indicates that they would

15 be appropriate.

16 WHEREFORE, Defendants pray for:
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1.

That Plaintiff takes nothing from these answering Defendants by her Complaint;
That Defendants be awarded judgment in this action;
For attorney's fees incurred herein, pursuant to statute;

2.
3.

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4.
5.

For costs of suit incurred herein; and

F or such other and further relief as the Court deems proper.

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Dated: October 23, 2007
Ellis, Coleman, Poirier, La V oie, & Steinheimer LLP

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By /s/ Mark E. Ells
Mark E. Ellis Attorney for Defendant(s)

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NATIONAL RECOVERY, INCORPORATED AND RAY GLENNA

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