Defendants_answer_first_appearanceResponseCal. Super. - 6th Dist.May 31, 201818CV329169 Santa Clara - Civil PLD-C-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (NAME AND ADDRESS): TELEPHONE: (310) 709-396 . : LY: Stanley R. Apps, Esq., California Bar No. 309425 09) El ctronically File Of Counsel, Law Offices of Robert S. Gitmeid, P.C. by Superior Court of CA, 3707 Poinciana Drive, No. 81 County of Santa Clara, Santa Clara, CA 95051 18 6:22 AM ATTORNEY FOR (NAME): JUAN TORRES a a Fang Insert name of court, judicial district or branch court, if any, and post office and street address: Superior Court of California, County of Santa Clara : Re Downtown Courthouse nvelope: 191 North First Street San Jose, CA 95113 PLAINTIFF: CAPITAL ONE BANK (USA), N.A. DEFENDANT: JUAN TORRES ANSWER—Contract EEA TO COMPLAINT OF (name): CAPITAL ONE BANK (USA), N.A. 18CV329169 [| TO CROSS-COMPLAINT (name): 1. This pleading, including attachments and exhibits, consists of the following number of pages: 5 2. DEFENDANT (name): JUAN TORRES answers the complaint or cross-complaint as follows: 3. Check ONLY ONE of the next two boxes: a. Defendant generally denies each statement of the complaint or cross-complaint. (Do not check this box if the verified complaint or cross-complaint demands more than $1,000.) b. [__] Defendant admits that all of the statements of the complaint or cross-complaint are true EXCEPT: (1) Defendant claims the following statements are false (use paragraph numbers or explain): [J Continued on Attachment 3.b.(1). (2) Defendant has no information or belief that the following statements are true, so defendant denies them (use paragraph numbers or explain): [1 continued on Attachment 3.b.(2). If this form is used to answer a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant. Page 1 of 2 Form Approved for Optional Use ANSWER—Contract Code of Civil Procedure, § 425.12 Judicial Council of California www.courtinfo.ca.gov PLD-C-010 [Rev. January 1, 2007] . Fang PLD-C-010 SHORT TITLE: CASE NUMBER: CAPITAL ONE BANK (USA), N.A. v. TORRES 18CV329169 ANSWER—Contract 4. AFFIRMATIVE DEFENSES Defendant alleges the following additional reasons that plaintiff is not entitled to recover anything: First Affirmative Defense (Uncertainty): As a first separate and distinct affirmative defense, the Complaint, and purported claims for relief therein, are uncertain, ambiguous and unintelligible, in that the Complaint does not allege with sufficient specificity the grounds upon which the answering Defendant is alleged to be responsible, in whole or in part, for the conduct alleged therein. Second Affirmative Defense (Lack of Standing): As a second separate and distinct affirmative defense, Plaintiff did not enter into an open book account and/or account stated with Defendant, and Plaintiff failed to provide a copy of an agreement that shows it is legal owner of the alleged debt and has a legal right to bring this cause to collect the debt. Third Affirmative Defense (Failure to State a Cause of Action): As a third separate and distinct affirmative defense, Plaintiff has failed to state a cause of action upon which relief may be granted. Continued on Attachment 4. 5. [__] Other 6. DEFENDANT PRAYS a. that plaintiff take nothing. b. for costs of suit. c. [J other (specify): (Type or print name) & of party or attorgey?” PLD-C - 010 [Rev. January 1, 2007] Page 2 of 2 ANSWER—Contract 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 BANK OF AMERICA, N.A. v. TORRES Case No.: 18CV329169 ATTACHMENT 4 Fourth Affirmative Defense (Lack of Assent to Account Stated): As a fourth separate and distinct affirmative defense, Plaintiff cannot prove the elements of a claim for account stated, because Defendant did not assent or agree, either expressly or by implication, that the final credit card billing statement is correct as rendered. Fifth Affirmative Defense (Claim for Account Stated May Not be Predicated Upon Breach of an Express Contract): As a fifth separate and distinct affirmative defense, Plaintiff cannot maintain a claim for account stated, because under California law a debt predicated upon the breach of an express contract cannot be the basis for an account stated. Moore v. Bartholomae Corp. (1945) 69 Cal.App.2d 474, 477. Sixth Affirmative Defense (Claim for Open Account May Not be Predicated Upon an Express Contract): As a sixth separate and distinct affirmative defense, Plaintiff cannot maintain a claim for open account, because there is an express contract between the parties. Durkin v. Durkin (1955) 133 Cal. App.2d 283, 290. Defendant does not agree to treat any money owed under an express contract as items in an open account. Seventh Affirmative Defense (No Open Book Account Was Kept in a Reasonably Permanent Form in the Regular Course of Business by Plaintiff) As a seventh separate and distinct affirmative defense, Plaintiff cannot maintain a claim for open account, because Plaintiff did not keep an open book account in a reasonably permanent from in the regular course of Plaintiff’s business. 3 DEFENDANT JUAN TORRES’ ANSWER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 Eighth Affirmative Defense (Breach of Contract by Plaintiff or Plaintiff’s Predecessor in Interest): As an eighth separate and distinct affirmative defense, Plaintiff is partially or entirely barred from recovery based on Plaintiff and/or Plaintiff's predecessor in interest’s failure(s) to follow the terms of the contract between the parties. Ninth Affirmative Defense (Unclean Hands): As a ninth separate and distinct affirmative defense, Plaintiff is barred from recovery because Plaintiff is attempting to benefit from its own wrongdoing. Tenth Affirmative Defense (No Damage to Plaintiff): As a tenth separate and distinct affirmative defense, Plaintiff is barred from recovery because no damage was sustained or suffered by Plaintiff. Eleventh Affirmative Defense (Failure of Validation of Debts): As an eleventh separate and distinct affirmative defense, Plaintiff is barred from recovery, in whole or in part, due to failure to comply with legal requirements of 15 United States Code § 1692g. Twelfth Affirmative Defense (Unjust Enrichment): As a twelfth separate and distinct affirmative defense, Plaintiff is barred from recovery, in whole or in part, because Plaintiff would receive more money than it deserves and be unjustly enriched thereby, if Plaintiff were to prevail. Thirteenth Affirmative Defense (Failure to Mitigate Damages): As a thirteenth separate and distinct affirmative defense, Plaintiff is not entitled to an award of interest or attorney's fees, due to Plaintiff's unreasonable failure to mitigate damages, including but not limited to Plaintiff’s refusal of a reasonable settlement offer by Defendant and/or failure to try to obtain a reasonable settlement with Defendant. 4 DEFENDANT JUAN TORRES’ ANSWER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 Fourteenth Affirmative Defense (Violation of Rosenthal Act): As a fourteenth separate and distinct affirmative defense, Plaintiff is barred from recovery, in whole or in part, due to failure to comply with legal requirements of the Rosenthal Fair Debt Collection Act, codified at California Civil Code section 1788 et seq. Fifteenth Affirmative Defense (Violation of Fair Debt Collection Practices Act): As a fifteenth separate and distinct affirmative defense, Plaintiff is barred from recovery, in whole or in part, due to failure to comply with legal requirements of the Fair Debt Collection Practices Act, codified at United States Code section 1692 et seq. Sixteenth Affirmative Defense (Right to Amend): As a sixteenth separate and distinct affirmative defense, Defendant alleges that he has no independent knowledge, as of the time of filing this Answer, of the full extent of the facts that allegedly constitute the causes of action in Plaintiff’s Complaint, and based thereon hereby respectfully requests leave of Court to amend this Answer to include and assert those affirmative defenses that are revealed during the course of discovery. 5 DEFENDANT JUAN TORRES’ ANSWER TO COMPLAINT PROOF OF SERVICE I. the undersigned, declare: I am a resident of California, over the age of 18 years, and not a party to this civil action. My business address is 3707 Poinciana Drive, No. 81, Santa Clara, CA 95051. On July 24, 2018, I caused to be served in the manner indicated below the attached: DEFENDANT JUAN TORRES’ ANSWER TO COMPLAINT. “ BY UNITED STATES MAIL: I enclosed the document in a sealed package and personally caused it to be mailed via the United States Postal Service first class mail to Plaintiff at the below address: Devin Jacobsen, Esq. Hunt & Henriques, Attorneys at Law 151 Bernal Road, Suite 8 San Jose, CA 95119-1306 I declare under penalty of perjury that the above is true and correct. Executed this 24th day of July, 2018, at Santa Clara, California. 2 Stanley R. Apps PROOF OF SERVICE
