Answer Response No FeeCal. Super. - 6th Dist.December 7, 2020BARRON & NEWBURGER, P.C. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200V37391 6 Santa Clara - Civil TIMOTHY P. JOHNSON (BAR NO. 66333) Electronically Filed BARRON &NEWBURGER, P.C. by Superior Court of CA, 1970 OLD TUSTIN AVENUE, SECOND FLOOR County of Santa Clara, SANTA ANA, CALIFORNIA 92705 on 6/4/2021 4:44 PM TELEPHONE: (714) 832-1 170 Reviewed By: R. Walker FACSIMILEI (714) 832-1 179 case #Zocv37391 6 E-MAIL: tjohnson@bn-lawyers.com Envelope: 6587322 Attorneys for Defendants Velocity Investments, LLC and Velocity Portfolio Group, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA DAVID CHAI, individually and on behalf of Case No. 20CV3739 1 6 all others similarly situated, (Unlimited Civil Case) Plaintiff, vs. ANSWER TO COMPLAINT BY VELOCITY INVESTMENTS, LLC VELOCITY INVESTMENTS, LLC, a New Jersey limited liability company; VELOCITY PORTFOLIO GROUP, INC., a Delaware corporation; and DOES 1 through 10, inclusive, Defendants. Defendant Velocity Investments, LLC (“Defendant”) answers Plaintiff’s Complaint as follows: Pursuant t0 the California Code of Civil Procedure § 431.30, Defendant generally and specifically denies each and every allegation contained in said Complaint, and the Whole thereof, and further denies that Plaintiff has been damaged in any sum 0r sums whatsoever, or at all. ANSWER TO COMPLAINT _ 1 _ Case N0. 20CV373916 BARRON & NEWBURGER, P.C. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AFFIRMATIVE DEFENSE Defendant asserts that, upon information and belief, arbitration may be the appropriate venue for plaintiff’s claims, as Defendant may possess certain arbitration rights based 0n one or more contracts entered into by Plaintiff, and, as a result, this matter may be precluded from proceeding before this court. SECOND AFFIRMATIVE DEFENSE Defendant acted in good faith at all times in its dealings With Plaintiff, and if any conduct by Defendant is found t0 be unlawful, which Defendant expressly denies, such conduct was not willful. THIRD AFFIRMATIVE DEFENSE Defendant asserts the defense 0f setoff against Plaintiff. Where two opposing claims arise out of separate transactions between the same parties, “setoff’ is the equitable right of one party t0 offset his debt by the amount 0f its claim against the other party. “The right of setoff (also called offset) allows entities that owe each other money t0 apply their mutual debts against each other, thereby avoiding the ‘absurdity of making A pay B when B owes A.” Citizens Bank of Maryland V. Strumpf, 516 U.S. 16, 18 (1995), quoting Studley V. Boylston Nat’l Bank, 229 U.S. 523, 528 (1913). FOURTH AFFIRMATIVE DEFENSE Any Violations 0f law, if any occurred, resulted from a bona fide error despite the maintenance of procedures reasonably adopted t0 avoid any such error. FIFTH AFFIRMATIVE DEFENSE Plaintiff’s request for injunctive relief and any other equitable remedies sought in the Complaint are barred because Plaintiff has an adequate remedy at law. SIXTH AFFIRMATIVE DEFENSE Defendant denies that Plaintiff is entitled to or should recover statutory damages as alleged or in any amount at all. SEVENTH AFFIRMATIVE DEFENSE Defendant has a negative net worth, accordingly, a class claim is not appropriate since it is ANSWER TO COMPLAINT -2- Case No. 20CV373916 BARRON & NEWBURGER, P.C. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not a superior or best available method t0 address any purported class claims. WHEREFORE, Defendant prays that Plaintiff takes nothing in this action; that the Court award Defendant its reasonable fees and costs, and that it be granted all such other and further relief, at law or in equity, as to which it may be justly entitled. Dated: June 4, 2021 BARRON & NEWBURGER, P.C. By /s/ Timothy P. Johnson TIMOTHY P. JOHNSON Attorneys for Defendants Velocity Investments, LLC and Velocity Portfolio Group, Inc. ANSWER TO COMPLAINT -3- Case No. 20CV373916 BARRON & NEWBURGER, P.C. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF 0F SERVICE BY MAIL C.C.P. §1013(a), C.R.C. 2003(3), 2005(1) STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County 0f Orange, State 0f California. I am over the age of 18 and not a party to the within action; my business address is 1970 Old Tustin Avenue, Second Floor, Santa Ana, California 92705. On June 4, 2021, I served the foregoing document described as ANSWER TO COMPLAINT BY VELOCITY INVESTMENTS, LLC 0n all interested parties in this action by: placing _ the original _ a true copy thereof enclosed in sealed envelopes addressed as follows: X BY E-MAIL addressed as follows: fred.schwinn@sjconsumerlaw.com; raeon.roulston@sjconsumerlaw.com; matthew.salmonsen@sjconsumerlaw.com BY MAIL. I am "readily familiar" with the firm's practice 0f collection and processing correspondence for mailing. Under that practice, it would be deposited With the U. S. Postal Service on the same day with postage thereon fully prepaid at Santa Ana, California, in the ordinary course 0f business. I am aware that 0n motion 0f the party served, service is presumed invalid if postal cancellation date 0r postage meter date is more than one day after date 0f deposit for mailing in affidavit. BY OVERNIGHT DELIVERY: I enclosed said document(s) in an envelope 0r package-provided by the overnight service carrier and addressed to the persons at the addresses listed 1n the Service List. I placed the envelope or package for collection and overnight delivery at an office or regularly utilized drop box of the overnight service carrier or delivered such document(s) t0 a courier 0r driver authorized by the overnight service carrier t0 receive documents. L STATE: I declare under penalty of perjury, under the laws of the State 0f California, that the foregoing is true and correct. FEDERAL: I declare that I am employed in the office of a member 0f the Bar 0f this Court, at whose direction the service was made. EXECUTED on June 4, 2021, at Santa Ana, California. /s/ Timothy P. Johnson_ TIMOTHY P. JOHNSON ANSWER TO COMPLAINT -4- Case No. 20CV373916