Free Answer to Complaint - District Court of California - California

Case 3:08-cv-01141-WQH-WMC

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1 TOMIO B. NARITA (SBN 156576) 2 SIMMONDS & NARITA LLP

ROBIN M. BOWEN (SBN 230309) 44 Montgomery Street, Suite 3010 Telephone: (415) 283-1000 [email protected]

3 San Francisco, CA 94104-4816 4 Facsimile: (415) 352-2625 5 [email protected] 6 Attorneys for Defendant 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Unifund Assignee of Palisades Collection, LLC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA WILLIAM P. PETERS, Plaintiff, vs. UNIFUND ASSIGNEE OF PALISADES COLLECTION, LLC, Defendant. ) CASE NO. 08CV1141 WQH WMc ) ) ) ANSWER TO COMPLAINT ) ) ) ) ) ) ) ) ) ) ) )

PETERS V. UNIFUND ASSIGNEE OF PALISADES COLLECTION, LLC (CASE NO. 08CV1141 W QH W Mc) ANSW ER TO COMPLAINT

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Defendant UNIFUND ASSIGNEE OF PALISADES COLLECTION, LLC

2 ("Defendant") hereby submits the following Answer to the Complaint filed in this 3 action by plaintiff WILLIAMS P. PETERS ("Plaintiff"): 4

1.

In answering Paragraph 1 of the Complaint, Defendant avers that the

5 contents of the Fair Debt Collection Practices Act, 15 U.S.C § 1692 et seq. (the 6 "FDCPA") are self-explanatory. Except as herein admitted, the remaining 7 allegations of Paragraph 1 are denied. 8

2.

In answering Paragraph 2 of the Complaint, Defendant avers that the

9 contents of the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. 10 Code § 1788 et seq. (the "Rosenthal Act") are self-explanatory. Except as herein 11 admitted, the remaining allegations of Paragraph 2 are denied. 12 13

3. 4.

Denied. Defendant avers that no response to Paragraph 3 of the Complaint is

14 required of it. 15

5.

In answering Paragraph 5 of the Complaint, Defendant admits that

16 Plaintiff alleges that jurisdiction of this Court arises pursuant to 28 U.S.C. § 1331 17 and 15 U.S.C. § 1692k(d), and that supplemental jurisdiction over Plaintiff's state 18 law claims arises under 28 U.S.C. § 1367. Except as herein admitted, the remaining 19 allegations of Paragraph 5 are denied. 20 21

6. 7.

Denied. In answering Paragraph 7 of the Complaint, Defendant admits that it

22 conducts interstate business with residents of the Southern District of California and 23 that Plaintiff alleged that personal jurisdiction is established. Except as herein 24 admitted, the remaining allegations of Paragraph 7 are denied. 25

8.

In answering Paragraph 8 of the Complaint, Defendant admits that

26 Plaintiff alleges that venue in this judicial district is proper pursuant to 28 U.S.C. § 27 1391. Except as herein admitted, the remaining allegations of Paragraph 8 are 28 denied.
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9.

In answering Paragraph 9 of the Complaint, Defendant admits, on

2 information and belief, that Plaintiff is a natural person who resides in the State of 3 California. Defendant further admits that Plaintiff is obligated to pay a financial 4 obligation. Defendant lacks sufficient knowledge to form a belief as to whether the 5 financial obligation at issue was incurred primarily for personal, family or household 6 use, and therefore can neither admit nor deny whether Plaintiff qualifies as a 7 "consumer" as defined by the FDCPA, 15 U.S.C. § 1692a(3) and on that basis, 8 denies the allegation. Except as herein admitted, the remaining allegations of 9 Paragraph 9 are denied. 10

10.

In answering Paragraph 10 of the Complaint, Defendant admits, on

11 information and belief, that Plaintiff is a natural person. Defendant lacks sufficient 12 knowledge to form a belief as to whether the financial obligation at issue was 13 incurred primarily for personal, family or household use, and therefore can neither 14 admit nor deny whether the financial obligation at issue qualifies as a "consumer 15 debt" as defined by the Rosenthal Act, Cal. Civ. Code § 1788.2(f) nor whether 16 Plaintiff qualifies as a "debtor" as defined by the Rosenthal Act, Cal. Civ. Code § 17 1788.2(h) and on that basis, denies the allegations. Except as herein admitted, the 18 remaining allegations of Paragraph 10 are denied. 19

11.

In answering Paragraph 11 of the Complaint, Defendant admits that it is

20 a New York general partnership with its principal place of business located in 21 Cincinnati, Ohio. Except as herein admitted, the remaining allegations of Paragraph 22 11 are denied. 23

12.

In answering Paragraph 12 of the Complaint, Defendant admits that it

24 uses the mail and instruments of interstate commerce to conduct its business. 25 Defendant further admits that it has, at times, acted as a "debt collector" as defined 26 by the FDCPA, 15 U.S.C. § 1692a(6). Except as herein admitted, the remaining 27 allegations of Paragraph 12 are denied. 28
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13.

In answering Paragraph 13 of the Complaint, Defendant admits that it

2 has, at times, acted as a "debt collector" as defined by the Rosenthal Act, Cal. Civ. 3 Code § 1788.2(c). Except as herein admitted, the remaining allegations of Paragraph 4 13 are denied. 5

14.

In answering Paragraph 14 of the Complaint, Defendant lacks sufficient

6 knowledge to form a belief as to whether the financial obligation at issue was 7 incurred primarily for personal, family or household use, and therefore can neither 8 admit nor deny whether the financial obligation at issue was incurred through a 9 "consumer credit transaction" as defined by the Rosenthal Act, Cal. Civil Code § 10 1788.2(e) nor whether this action therefore arises from a "consumer debt" or 11 "consumer credit" as defined by the Rosenthal Act, Cal. Civ. Code § 1788.2(f). 12 Except as herein admitted, the remaining allegations of Paragraph 14 are denied. 13

15.

Defendant lacks sufficient knowledge to form a belief as to the

14 allegations of Paragraph 15 of the Complaint and on that basis, denies them. 15

16.

In answering Paragraph 16 of the Complaint, Defendant admits that it

16 conducts interstate business with residents of the State of California. Except as 17 herein admitted, the remaining allegations of Paragraph 16 are denied. 18

17.

In answering Paragraph 17 of the Complaint, Defendant admits that

19 Plaintiff incurred a financial obligation to Citibank before June 1, 2007. Defendant 20 admits that this financial obligation is a "debt" as defined by the Rosenthal Act, Cal. 21 Civ. Code § 1788.2(d). Defendant lacks sufficient knowledge to for a belief as to 22 whether the financial obligation at issue was incurred primarily for personal, family 23 or household use, and therefore can neither admit nor deny whether the financial 24 obligation at issue qualifies as a "consumer debt" as defined by the Rosenthal Act, 25 Cal. Civ. Code § 1788.2(f). Except as herein admitted, the remaining allegations of 26 Paragraph 17 are denied. 27

18.

Defendant lacks sufficient knowledge to form a belief as to the

28 allegations of Paragraph 18 of the Complaint and on that basis, deny them.
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19.

In answering Paragraph 19 of the Complaint, Defendant admits that

2 Plaintiff failed to make the minimum monthly payments on his Citibank credit card 3 account and that he defaulted on the account. Except as herein admitted, the 4 remaining allegations of Paragraph 19 are denied. 5

20.

In answering Paragraph 20 of the Complaint, Defendant admits that

6 Plaintiff's financial obligation at issue was assigned to Defendant for collection. 7 Except as herein admitted, the remaining allegations of Paragraph 20 are denied. 8

21.

In answering Paragraph 21 of the Complaint, Defendant admits that it

9 has, at times, purchased defaulted accounts for which it has paid less than the total 10 value of the amount owing on the account. Defendant further admits that it has, at 11 times, filed lawsuits in an attempt to collect the financial obligations incurred on the 12 accounts that it has purchased. Except as herein admitted, the remaining allegations 13 of Paragraph 21 are denied. 14 15 16

22. 23. 24.

Denied. Denied. In answering Paragraph 24 of the Complaint, Defendant admits that it

17 filed a complaint against Plaintiff entitled Unifund Assignee of Palisades Collection, 18 LLC v. William P. Peters, et al., case number 7-2007-00067595-CL-CL-CTL in the 19 Superior Court of California, County of San Diego (the "Underlying Action"), the 20 contents of which are self-explanatory. Except as herein admitted, the remaining 21 allegations of Paragraph 24 are denied. 22 23 24 25 26

25. 26. 27. 28. 29.

Denied. Denied. Denied. Denied. In answering Paragraph 29 of the Complaint, Defendant admits that it

27 caused a request for dismissal without prejudice of the Underlying Action to be filed 28
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1 on or about June 12, 2008. Except as herein admitted, the remaining allegations of 2 Paragraph 29 are denied. 3 4 5

30. 31. 32.

Denied. Denied. Defendant incorporates by reference paragraphs 1 through 31 above, as

6 if fully set forth herein. 7 8 9

33. 34. 35.

Denied. Denied. Defendant incorporates by reference paragraphs 1 through 34 above, as

10 if fully set forth herein. 11 12 13 14 15

36. 37.

Denied. Denied.

AFFIRMATIVE DEFENSES As and for separate affirmative defenses to the Complaint, Defendant alleges

16 as follows: 17 18 19 20

FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) The allegations of the Complaint fail to state a claim against Defendant upon

21 which relief can be granted. 22 23 24 25

SECOND AFFIRMATIVE DEFENSE (Statute of Limitations/Laches) The purported claims set forth in the Complaint are barred in whole or in part

26 by the applicable statutes of limitation and/or the equitable doctrine of laches. 27 // 28
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THIRD AFFIRMATIVE DEFENSE (Bona Fide Error) To the extent that any violation of law occurred, which Defendant expressly

4 denies, said violation was not intentional and resulted from a bona fide error 5 notwithstanding the maintenance by Defendant of procedures reasonably adapted to 6 avoid any such error. 7 8 9 10

FOURTH AFFIRMATIVE DEFENSE (Unclean Hands) The allegations in the Complaint and relief requested are on information and

11 belief barred in whole or in part by the doctrine of unclean hands. 12 13 14 15

FIFTH AFFIRMATIVE DEFENSE (No Wilful Conduct) Defendant acted in good faith at all times in its dealings with Plaintiff, and if

16 any conduct by Defendant is found to be unlawful, which Defendant expressly 17 denies, such conduct was not willful and should not give rise to liability. 18 19 20 21

SIXTH AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiff, although under a legal obligation to do so, has failed to take

22 reasonable steps to mitigate any alleged damages that he may have and is therefore 23 barred from recovering damages, if any, from Defendant. 24 // 25 // 26 // 27 // 28 //
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SEVENTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff has waived his rights, if any, to recover the relief he seeks in the

4 Complaint based upon his own conduct and admissions with respect to the financial 5 obligation at issue. 6 7 8 9

EIGHTH AFFIRMATIVE DEFENSE (Good Faith) Defendant has, at all material times with respect to Plaintiff, acted in good

10 faith in an effort to comply fully with all relevant federal and state laws. 11 12 13 14

NINTH AFFIRMATIVE DEFENSE (Apportionment) Without admitting that any damages exist, if damages were suffered by

15 Plaintiff as alleged in the Complaint, those damages were proximately caused by and 16 contributed by persons other than Defendant. The liability, if any exists, of 17 Defendant and/or any responsible parties, named or unnamed, should be apportioned 18 according to their relative degrees of fault, and the liability of Defendant should be 19 reduced accordingly. 20 21 22 23

TENTH AFFIRMATIVE DEFENSE (Supervening Cause) The causes of action in the Complaint are barred, in whole or in part, to the

24 extent that any injury or loss sustained was caused by intervening or supervening 25 events over which Defendant had or has no control. 26 // 27 // 28 //
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ELEVENTH AFFIRMATIVE DEFENSE (Equitable Indemnity) To the extent that Plaintiff has suffered any damage as a result of any alleged

4 act or omission of Defendant, which Defendant denies, Defendant is entitled to 5 equitable indemnity according to comparative fault from other persons and/or entities 6 causing or contributing to such damages, if any. 7 8 9 10

TWELFTH AFFIRMATIVE DEFENSE (Setoff) To the extent that Plaintiff has suffered any damage as a result of any alleged

11 act or omission of Defendant, which Defendant denies, Defendant is, on information 12 and belief, entitled to a setoff in the amount Plaintiff owes on his unpaid account, 13 including any recoverable interest and attorneys' fees. 14 15 16 17

THIRTEENTH AFFIRMATIVE DEFENSE (Compulsory Counterclaim) All of the claims asserted by Plaintiff in the Complaint are barred as a matter

18 of law because they are compulsory counterclaims which should have been, but were 19 not, asserted by Plaintiff against Defendant in the Underlying Action between these 20 parties. The claims are barred as a matter of law under controlling Ninth Circuit 21 authority and pursuant to California law. 22 23 24 25

FOURTEENTH AFFIRMATIVE DEFENSE (Litigation Privilege) The actions of Defendant complained of in the Complaint constitute

26 communications that were made in good faith and in anticipation of or in connection 27 with ongoing litigation and claims are therefore barred, in whole or in part, by the 28 California litigation privilege and/or the Noerr-Pennington Doctrine.
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FIFTEENTH AFFIRMATIVE DEFENSE (First Amendment) Defendant's conduct is protected under the First Amendment of the United

4 States Constitution and the California Constitution. Plaintiff's proposed 5 interpretation of provisions of the FDCPA and the Rosenthal Act must be rejected as 6 it would place an unreasonable restraint upon Defendant's First Amendment rights, 7 thereby raising serious constitutional issues. 8 9 10

WHEREFORE, Defendant requests judgment as follows: 1. That Plaintiff takes nothing by the Complaint, which should be dismissed

11 with prejudice. 12 13 14

2. That Defendant recover from Plaintiff costs according to proof. 3. That Defendant recover attorneys' fees according to proof. 4. That the Court orders such other further reasonable relief as the Court may

15 deem just and proper. 16 17 DATED: July 30, 2008 18 19 20 21 22 23 24 25 26 27 28
PETERS V. UNIFUND ASSIGNEE OF PALISADES COLLECTION, LLC (CASE NO. 08CV1141 W QH W Mc) ANSW ER TO COMPLAINT

SIMMONDS & NARITA LLP TOMIO B. NARITA ROBIN M. BOWEN

By:

/s/Robin M. Bowen Robin M. Bowen Attorneys for Defendant Unifund Assignee of Palisades Collection, LLC

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PROOF OF SERVICE

I, Robin M. Bowen, hereby certify that: I am employed in the City and County of San Francisco, California. I am over

5 the age of eighteen years and not a party to this action. My business address is 44 6 Montgomery Street, Suite 3010, San Francisco, California 94104-4816. I am counsel 7 of record for the defendant in this action. 8

On July 30, 2008, I caused the ANSWER TO COMPLAINT to be served

9 upon the parties listed below via the Court's Electronic Filing System: 10 11 VIA ECF 12 Joshua Swigart

13 Counsel for Plaintiff 14

[email protected] I declare under penalty of perjury under the laws of the State of California that

15 the foregoing is true and correct. Executed at San Francisco, California on this 30th 16 day of July, 2008. 17 18 19 20 21 22 23 24 25 26 27 28
PETERS V. UNIFUND ASSIGNEE OF PALISADES COLLECTION, LLC (CASE NO. 08CV1141 W QH W Mc) ANSW ER TO COMPLAINT

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/s/Robin M. Bowen Robin M. Bowen Attorneys for Defendant Unifund Assignee of Palisades Collection, LLC

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