Answer Limited Up to 10KCal. Super. - 6th Dist.May 3, 2021PLD-C-010 ATTORNEY 0R PARTY WITHOUT ATTORNEY (NAME AND ADDRESS); TELEPHONE- (403) 799‘7553 FOR counwss ONLY Elsa M Klavinger ' 560 Avalani Ave. Apt #3 San Jose, CA 951 33 ATrORNEv FOR (NAME); In Pro Per Insert name of court judicial district or branch court. if any. and post oflioe and street address: Superior Court of California, County of Santa Clara 191 N. First Street San Jose. CA 95113 Limited Civil Case PLAINTIFF: Camel 0m Bank (USA). NA DEFENDANT: Efsa M Klavinger ANSWER-contract CASE NUMBER;E To COMPLAINT 0F (name): Capital One Bank (USA), N.A. 21cv381226 .E To CRoss-COMPLAINT (name): 1. This pleading. inciuding attachments and exhibits. consists of the following number of pages: X . 2. DEFENDANT (name): Elsa M Klavinger answers the complaint or cross-complaint as follows: 3. Check ONLY ONE of the next two boxes: a. E Defendant generally denies each statement of lhe complaint or cross-complaint. (Do not check this box ifthe verified complaint or cross-complaint demands more than $1,000.) b. E Defendant admits that all of the statements of the complaint or cross-complaint are tme EXCEPT: (1) Defendant claims the following statements are false (use paragraph numbers or explain): E 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): E Continued on Attachment 311(2). If this fon'n is used to answer a cuss-wmplaint. plaintiff means cross-complainanl and defendant means a‘oss-defendanL . Page 1 of 2 Form Approved for Optionai Use Coda of cavn Procedure, § 42512 Judicial Comdl or Califomia ANSWER-Contract wwwloomrscagov PLD~C-010 [Reva Janum'y 1. MY] , PLD-C-010 SHORT TITLE: CASE NUMBER Capital One Bank (USA). NA. vs. Elsa M Klavinger a I CV3?/g&,w ANSWER-Contract 4. E AFFIRMATIVE DEFENSES Defendant alleges the following additional reasons that plaintiff is not entitled to recover anything: E Continued on Attachment 4. 5. E: Other 6. DEFENDANT PRAYS a. that plaintiff take nothing. b. m for costs of suit. c. E Other (specify): £15k M HEAUfl-NdEZ K/fla/Nq‘ 6K £644.. "“"7 HMMGM'QH”WW (Typeww’mtname) {Simamreofpanyoraflovmn ’ PLM - 010 [Rem January 1, 2007] ANSWER contract P898 2 of2 For your proteption and privacy, please press the Clear This Form button after you have printed the form. lL Clesargthiiféfflfi; I' Priritihis form I LSaiIe this form I Attachment 4 - AFFIRMATIVE DEFEN§E§ Check buxes that apply to your case and complete appropn’ate text b0xes. These defenses are not an exhaustive list of defenses that may be raised, and shouid not be considered t0 construe |ega| advice or be used as a substitute for your own research or the advice of an attorney. M Ambiguig: The defendant assers that the plaintiff dld not dearly state the amount or Issues in thls case, making it difficult'for the defendant‘to respond. The defendant requeststhat the court grant leave to amend this Answer to a1low additional defenses once additional Information is discovered that will allow any additional defenses to be known by the defendant D Failu e S t ‘a C - ' ' The defendant assert that the plaintiff has failed to state an essential element for one or more of its causes of action, specifically: D Breach of Contract D The plaintiff is not the original creditor and did not state D who the original owner of the account was. D it is now me legal owner of thls account and has a right to sue on it. D The plalntiff did not state the date the contract was entered Into. D The pIainUff dld not state the date the contract was breached or otherwise not complied with. D “me plaintiff failed to adequately describe the material terms of the contract or attach a copy of the contract as an exhibit to the complaint. D Other: DvCommon Counts D The plaintlff 1's not the orlginai aedltor, and did not state: D who the original owner of the account was. D It is now the legal owner of this account and has the right to sue unit. D Other: D Fraud U The plaintiff failed to spedficaliy allege the representafions that supposedly constituted the fraud. D The plaintiff failed to specifically allege the p‘erson or persons who made the supposedly fraudulent representations 0r promises. D Other: D Other: D ain; The defendant asserts that recovery invthls case ls barred by the statute of limitations as the time, as follows: D Written ContractIOpen Book Account/Acoount sated (California Law)- the Plaintiff has waited more than 4 years from the date of breach or last action of the defendant before filing mis sult, and recovery ls therefore barred under Code of Clvil Procedure §§337-337a. D Oral Contract (California Law)- the Plaintiff has waited more than 2 years from the date of breach or last action of the defendant before fillng thls suit, and recovery is therefore barred under Code of Civil Procedure §339. D Written ContractIOpen Book Acoount/Acoount Stated (Delaware Law)- “me writtei'l contract between the plaintiff or plaintiff’s assignor and the defendant contains a choice of law provision requiring all matters to be decided under the faws of Delaware. Pursuant to Delaware Code Ann. Tut. 10 §8106, the plaintist time to flle this lawsuit expired three years afler the date of breach or Iast actlvlty by the defendant. D Fraud- 111a plaintiff has waited more than three years from the date of the wrongdoing alleged, and is D therefore any claim for fraud has expired pursuant Code of Civil Procedure §338. " Other- Affirmative Defenses Attachment rev. 11/20/2012 A Page |_ofL D Laches: The defendant asserts that the plaintiff has waited an unreasonably long time to file this laWsuit, and the defendant’s ability to defend this lawsuit has been severely prejudiced due to this unreasonabledelay by denying him or her access to D documents or other physical evidence; D witnesses; E a reasonably fresh recollection of the events giving rise to this lawsuit; D Other- D Breach of Contract by Plaintiff: The defendant asserts that the pfaintiff failed to comply with the terms of the contract by: E] changing the terms of the contract without the consent of the defendant; D failing to provide credit for the payments made by the defendant;D agreeing to change the original contract, but then failing to honor the new agreement; D'failing to make payments under the Insurance plan purchased by the defendant; D breaching the implied warranty of good faith and fair dealing by acting unreasonably, denying the benefits of the contact t0 the defendant; D Other- D No Breach by Defendant: The defendant asserts that he or she performed all duties owed under the“ contact other than any duties which were prevented or excused, and therefore never bread1ed the agreement. D Discharge b1 Bankrug’ tg- 11 U.S.C. § 362(a1: The defendant asse‘r’rs that he or she has filed for bankruptCy, and included the alleged debt in the bankruptcy. The case number of the bankruptcy is: andD the bankruptcy is pending. The defendant asks that the court stay/suspend the plaintist action until the bankruptcy case is over. , D the debt upon which this lawsuit is based was discharged by this bankruptcy. Defendant asks that this case be dismissed. D Failure to Mitiqate Damages: The defendant asserts that the plaintiff has failed to take reasonable steps to reduce or minimize the damages experienced. Specifically, the plaintiff has _D refused t0 accept a reasonable full settlement offered by the defendant, and by refusing this-reasonable settlement has incurred additionai Interest, attorney fees, and court costs unnecessarily;D unreasonably delayed the filing of this lawsuit and by such delay has experienced contractual interest, attorney fees, and court costs that would not have otherwise been experienced had reasonable diligence been exercised; v E failed to exercise reasonable diligence in failing to re-rent me subject property, or re-sefl the subject assets; Other- D Lack of Privig: Thedefendant asserts that there Is no contractual relationship or agreement between the plaintiff, or the plaintist assignor and the defendant, spedfially: D the defendant never entered into the contract or agreement aileged in the Complaint;D the defendant is the victim of identity theft, and the account, contact, or agreement was créated without the defendant’s knowledge or consent; D the plaintiff is not the original creditor, and the defendant lacks any evidence to eStablish that the plaintiff is the assignee of the account or debt; U'the plaintiff subsequently assigned its rights under the agreement to a subsequent party, and has therefore transferred privity to this third party; D Other- Affirmative Defenses Attachment arev. 11/20/2012 ‘ Page __ of_Lg_ D Waiver: The defendant asserts that the plaintiff has through representations or actions waived its right to sue, and therefore cannot sustain this action. D Eguitable Estoggel: The defendant asserts that the plainu‘ff specifically represented to the defendant the following: The defendant reasonably relied upon this representation to his or her detriment and now asks the court to decide this ase as if this representation were true. D Res JudicataiCollateral Estopgel: The defendant asserts that the issues in this case were decidéd previously in another court case involving the same Issues and parties, and that the piaintiff is unabterto seek a different result in this C656. D Unjust Enrichment: The defendant asserts that the plaintiff is seeking to recover more than plaintiff is entitled to recover in this case, and award of the judgment sought by the plaintiff would unjusfly enrich the plaintiff. D Statute of Frauds: The defendant asserts mat the plaintiff is suing under a theory of an oral contract, but suchan oral contract would be unenforceable because it is required t0 be in writing pursuant to Civil Code §1624(a)(1-7). D Parol Evidence Rule: The defendant asserts that the written agreement between the parties was intended to be the full agreement between the parties, and that the p'laintiff cannot present any‘evidence not in writing to establish any terms of the centract not in the written agreement. D Satisfaction: "me defendant asserts that the account, debt, or contract has already been satisfied, the plaintiff having received: ' D full satisfaction as the defendant has paid all that Is owed under the agreement D accord and satisfaction as the plaintiff has agreed to settle for less than the amount owed, and the defendant has paid this amount. D Substantial Comgliance: The defendant asserts that he or she substanfially complied with the contract, leaving only a small part of the contract undone, and that as a result awarding the judgment sought by the plaintiff would be unjust and unfair. D Prevgeption of Performance: Tne defendant asserm that the plaintiff prevented the defendant from performing under the contract as defined under Civil Code §1511, in that the plaintiff: U refused to accept payment by the defendant, excusing the defendant from performance. U refused t0 accept payment in full of the entire amount owed to the plaintiff, excusing the defendant from all amounts owed. E refused to allow the defendant to provide the goods or services agreed upon. Other- D Anticigatog Regudi'ation: The defendant asserts that the plaintiff 0r plaintiff's assignor, 0r a person acting on behalf of the pfainfiff or plaintiff's assignor stated that the plaintiff would not perform under the contract, and therefore no further payment or performance was required by the defendant. D Cancellation of Contract: The defendant asserts that the contract was mutually cancelled by the defendant and the plaintiff or plaintist assignor, and accordingly any duties owed by either party were excused. D Rescis‘sioaneturn of Goods or Schrig: The defendant asserts that on 0r about he or she promptly returned to the plaintiff'or plaintiff's assignor what was received under the contract under the condition that the plaintiff or plaintiff’s assignor cancel the obligation, and therefore rescinded the contract as described in" Civil Code §1691. I B Fraud. Deceit, or Misregresentation by Plaintiff: The defendant asserts that the plaintiff or plaintiff’s assignor obtained the defendant’s consent to the contract or transaction through fraud, deceit, or misrepresentation by the plaintiff or plaintiff’s asstgnor, and that as a result the contract Is invalid. Affirmative Defenses Attachment rev. 11/20/2012 Pagei of £2 E] Incagacig: The defendant asserts that he or she was under the age of 18, or mentally or physically incapacitated or disabled 1n such a way that prevented him or her from having the legal capacity t0 enter. into the contract, rendering the contract invalid. D Lack of Consideration: The defendant asserts that he or she did not receive the goods or services promised. D Failure of Consideration: The defendant asserts that me goods or services provided by the plaintiff or the plaintiff’s assignor were substanfially Inferior to the standard of the industry or what was promised such that any further payment by the defendant would be unconscionable. D Failure of Condition Precedent: Tne defendant asserts that his or her performance under the contract or agreement was conditioned upon the plaintiff first performing, or another act or condition to occur, that such performance, act, or condition never took place, and that as a result the defendant was never obligated to perform. See Ovil Code §1498. D Tragslation of Contragg: The defendant asserts that the contract Is a consumer contract and was negotiated with the plaintiff or plaintiff’s assignor, or the representative for that person orsentity in U Spanish D Chine'se D TagalogD Wetnamese or D Korean, however the plaintiff or plaintiff’s assignor violated CiviI Code §1632 by failing to provide a copy of the written contract in this language as required. The defendant revokes and canceis the contract, and asserts that no collech’on under the contract is permitted. D Quantum Meruit: The defendant asserts that me piaintiff is only entitled to receive payment for the goods or services actually provided or the fair market value of the goods or services provided because: D the plaintiff or plaintiff's assignor faHed to completely provide the goods or services agreed upon, and is only entitjed to receive payment for the portion of the goods 0r services provided. D the price of the goods or services were not negotiated and/or agreed upon between the parties in advance, and the pfaintiff Is therefore only entitled to recover the fair market value 0f the goods or services provided D Offset: The defendant asserts that the plaintiff or plaintiff’s assignor owes money or other valuable consideration to the defendant, or has not prOperly credited payments made, and that as a result the defendant owes less than the amount claimed by me plaintiff. B Usum: The defendant asserts that the contract or agreement is subject to California law, ls not subject to an exception, and the plaintiff seeks an interest rate higher than permitted under California law, and is merEfore not entitled to recover interest See Civil Code §§1914.12-1, 196.12-2. D No Damage to Plaintiff: The defendant asser’rs that even if the plaintiff's other allegations are tme, the plaintiff did not suffer any damages (economic loss). D Novation: With the plaintiff or plaintiff’s assignor's knowledge and consent, the contract was modified to substitute another person or entity in place of the defendant, and that no further obligation is owed by the defendant. D Lack of Stagding: The defendant asSerts that the plaintiff or the person acting on behalf of this pIainfifi‘ does not have standing to bring this case. Specifically: VD the plaintiff is a corporation, limited liability company or some other form of business entity, however the person filing this complaint a nature? person who is not an attorney. A corporation, LLC or other business entity cannot act in pro per, and must be represented by counsel. D the plaintiff is not who the defendant entered into the contract with, and did not state that it is the legal owner of the alleged debt and has a right to bring this case, or failed to attach any agreement that shows it ls the legal owner of the debt and has a right to bring this case. D Unclean Hands: The defendant asserts that the plaintiff has committed a wrongdoing, and this lawsuit is attempting to benefit fro'm fiwis wrongdoing. Affirmative Defenses Attachment qrev. 11f20/2012 Page_ ofJ2 D Imgroper Notice of Breach: The defendant asserts that the contract or agreement required the plaintiff 0r the plaintiff’s assignor to provide nou‘ce of any breach to the defendant and allow him or her the opportunity to remedy the breach prior to the initiation of any legal proceedings, and the plaintiff or plaintiff’s assignor failed to provide such notice. D DuresslUndue Influence: The defendant asserts that the plaintiff forced him or her to enter intojfiwe contract against his or her wilt by taking unfair advantage of the defendant’s mental state/incapacity or by using threats of force. D Lack of Acceptance: The defendant asserts that no contract was formed because he or shé never- explicitly or through his or her actions accepted the contract 01' certain terms of the contract. U Frustration of Purpose: The defendant asserts that an unexpected event or occurrence happened which totally destroyed the items or goods, or prevented the defendant from receiving the goods or services, such that enforcement of the contract would not allow the parties t0 each receive the benefit of their bargain. D No Deficieng Judgment Permitted: The defendant asserts that me plaintiff seeks in this lawsuit to collect for a deficiency on a loan protected by collateral, and that no defitienqz is permitted because: D the loan was a first mortgage for the purchase of real property, and the plaintiff or plaintiff’s-assignor non~ judiciafly foreclosed on this property, and under Code of Civil Procedure §726 is not entitled to a deficiency.D the IOan was secured by a motor vehide that was repossessed by the pIaintjfi, but the plaintiff or plaintiff's assignor failed to D send a notice of intention to sell the vehicle as required under Civil Code §2983.2. D include In the notice of intention to sell that the defendant had a right to redeem the motor vehide by paying In full the indebtedness evidenced by the contract until the expiration of 15 days from the date of giving or mailing the notice with an itemization of the contract baIance and of any delinquency, collection 0r repossession costs and fees and setting forth me computation or estimate of the amount 0f any qedit for unearned finance charges or canceHed insurance as of the date of the notice (Civil Code §2983.2(a)(1)). D include In the notice of intention to seII that the defendant had a conditional right to reinstate the contract until the expiration of 15 days from the date of giving or mailing of the notice and all conditions required to reinstate, or that there is no right of reinstatement and the reasons why the defendant has no right of reinstatement (Civil Code §2983.2(a)(2)). _D include in the notice of intention to sell that, upon written request, the seller or holder shall ex‘tend for an additional 10 days the redemption period, or if entitled to the-conditjonal right of reinstatement, both the redemption and reinstatement periods, or provide me proper form for applying for the extension (Civil Code §2983.2(a)(3)). D include in the notice of intention to sell the place at which the motor vehide will be returned upon redemption or reinstatement (Civil Code §2983.2(a)(4)). D include in the notice the name and address of the person or office to whom payment shall be made (Civil Code §2983.2(a)(5)). D state in the notice of intenfion to seli the seller's or holder's intent to dispose of the-motor vehicle upon the expiration of 15 days from the date of glving or mailing of the notice (Civil Code §2983.2(a)(6)).D inform the defendant in the notice that upon written request the seller or holder will furnish a written accounting regarding the disposition of the motor vehicle, and that this request must be personally served or sent'first class mail, postage prepaid, or certified mail, return receipt requested, to a person or office and address designated, by the seller or holder. (Civil Code §2983.2(a)(7)). ' D include in the notice 0f intention to sell in at least 10 point bold type as folfows: "NOTICE. YOU MAY BE SUBJECI' TO SUIT AND LIABILITY IF THE AMOUNT OBTAINED UPON DISPOSITION OF THE VEHICLE IS INSUFFICIENT TO PAY THE CONTRACT BALANCE AND ANY OTHER AMOUNTS DUE." (Civil Code §2983.2(a)(8)). tD inform the defendant in the notice of intention to sell that upon disposition of the motor vehicle, he or she would be liable for the deficiency balance pius interest at the contract rate, or at the legal rate of interest pursuant t0 Civil Code §3289 if there is no contract rate 0f interest, from the date of disposition of the motor vehicle to the date of entry of judgment (Civil Code §2983.2(a)(9)).D sell the vehicle in a commercially reasonable manner. D sell the vehicle, and instead appropriated the vehicle for the plaintiff‘s or plaintiff‘s assignor‘s personal use and benefit. Affirmative Defenses Attachment rev. 11/20/2012 Pageiofk D Recoggment; The plaintiff Debt Collecflon Agency and/or its Attorney who regulady collects debt for it are subject to the Rosenthal Fair Debt Collection Act (“RFDCA”)- Civil Code §1788 er. seq. and/or the California Business and Profasions Code §6077.5 et. seq.) By violating mese laws, as listed beIow, it must pay back any out-of-pod
