AnswerCal. Super. - 3rd Dist.June 10, 2021Daniel S. March. Ksq. (SBN106854) LITIGATION PRACTICE GROUP PC 17542 E. 17'" Street, Suite 100 Tustin, CA 92780 Tel: (949) 715.0644 Fax: (949) 415.7816 Email: dan liti ation ractice ou .com Attorneys for Defendant, GREG D SHULER SUPERIOR COURT OF THK STATE OF CALIFORNIA COUNTY OF PLACER - BILL SANTUCCI JUSTICE CENTER 10 12 13 14 CAPITAL ONE, N.A. Plaintiff, vs. GREG D SHULER Defendant, Case No.: M-CV-0079309 ANSWER TO COMPLAINT Action Filed: 06/10/2021 15 16 17 18 19 20 21 22 23 24 25 27 28 COMES NOW DEFENDANT, GREG D SHULER, and answers the unverified Complaint Pursuant to California Civil Code Procedure I'l 431.30 (d), this answering Defendant, denies generally, and specifically, each and every allegation contained in the Complaint, the whole thereof, and each and every cause of action thereof. Defendant further denies that Complaint suffered damages in the sum or sums alleged, or in any other sum or sums, or at all, by reason of any act, or breach or omission on the part of this answering Defendant. FIRST AFFIRMATIVE DEFENSE (Violation of the FEDERAL TRUTH IN LENDING ACT) 1. Defendant alleges as a separate and distinct affirmative defense that Plaintiff, and/or predecessor in interest violated the FEDERAL TRUTH IN LENDING ACT (TILA) in that it/they practiced unfair credit billing, unfair credit card practices, high-pressure sales, misrepresentations, and or failure to disclose credit costs and terms. ANSWER TO COMPLAINT 10 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 SECOND AFFIRMATIVE DEFENSE (Violations of Fair Debt Collection Practices Act 15 USC 1692 et scq (FDCPA) 2. Defendant alleges as a separate and distinct affirmative defense that Plaintiff, and/or its predecessor in interest violated one or more of the sections of the FDCPA, which may include: The use of misrepresentation regarding the purported amount owed. [15 USC 1692e] sS 807(2) (a) Adding on any extra fees that original credit or loan agreement does not permit [15 USC 1692f] II 808(1) the use of repeated calls as harassment. [15 USC 1692d] II 806(5) The use of obscene, profane or abusive language as harassment [15 USC 1692d] II 806(2) the use of collection calls during unpermitted hours. [15 USC 1692c] I'I 805(a) (1) Th ftl tt fl h g,~ih,tkp phy, jhl ruin credit when the collector cannot or does not intend to take the action. [15 USC 1692e] II 807(5) The practice of informing certain third parties about the purported debt. [15 USC 1692c] II 805(b) The practice of contacting a third party more than once regarding defendant's location unless it has reason to believe the information previously provided is false. [15 USC 1692b] II 804(1) The practice of contacting the alleged debtor at work knowing his or her employer doesn't approve of these calls. [15 USC 1692c] ('I 805(a) (3) Within five days of the collector's initial communication, failing to send a notice includes the amount of the debt, name of the creditor, and notice of your right to dispute the debt within 30 days. [15 USC 1692g] ) 809(a) THIRD AFFIRMATIVE DEFENSE (Violation of the Fair Credit Reporting Act) 28 ANSWER TO COMPLAINT 10 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 3. Defendant alleges as a separate and distinct affirmative defense that Plaintiff, and/or its predecessor in interest violated one or more sections of the FCRA. FOURTH AFFIRMATIVE DEFENSE TO ALL ACTIONS (Accord and Satisfaction) 4. Defendant alleges as a separate and distinct affirmative defense that Plaintiff, and/or its predecessor in interest entered into an accord and satisfaction with Defendant. FIFTH AFFIRMATIVE DEFENSE (Violation of the California Uniform Electronic Transactions Act) 5. Defendant alleges as a separate and distinct affirmative defense that Plaintiff, and/or its predecessor in interest violated the California Electronic Transaction Act, and/or the alleged agreement was not in compliance and violate of the terms of the CUETA California Civil Code Sections 1633-1-1633.17 SIXTH AFFIRMATIVE DEFENSE (Plaintiff lacks standing to sue) 6. This plaintiff lacks standing to sue this defendant and is not a proper party in interest. SEVENTH AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 7. Defendant alleges as a separate and distinct affirmative defense that the complaint, and each and every cause of action therein, fails to state facts sufficient to constitute a cause of action against this answering defendant. EIGHTH AFFIRMATIVE DEFENSE (Waiver) 8. Defendant alleges as a separate and distinct affirmative defense, that Plaintiffhas waived, in whole or in part, its claims for relief set forth in the Complaint. ANSWER TO COMPLAINT NINTH AFFIRMATIVE DEFENSE TO ALL ACTIONS (Estoppel) 10 12 13 15 16 17 18 20 21 22 23 24 25 26 27 28 9. Defendant alleges as a separate and distinct affirmative defense, that Plaintiff is precluded and prevented from recovery on any cause of action alleged in the complaint by express, or implied estoppel. TENTH AFFIRMATIVE DEFENSE (Failure of consideration) 10. Defendant alleges as a separate and distinct affirmative defense, that there has been a lack of adequate consideration to form the contract in question, if any, in that this answering defendant has not received any consideration from plaintiff, any named party hereto, or any othe third party. ELEVENTH AFFIRMATIVE DEFENSE TO ALL ACTIONS (Prior Material Breach) 11. Defendant alleges as a separate and distinct affirmative defense, that performance under said agreement(s), if any, on his part, is completely excused as a result ofplaintiff s prior material breach of contract and failure to perform conditions precedent. TWELFTH AFFIRMATIVE DEFENSE TO ALL ACTIONS (Statute of Limitations) 12. Defendant alleges as a separate and distinct affirmative defense, that plaintiff's complaint is barred by the applicable Statute of Limitations. THIRTEENTH AFFIRMATIVE DEFENSE TO ALL ACTIONS (Right to Assert Further or Additional Affirmative Defenses) 13. This answering defendant presently have insufficient knowledge or information upon which to form a belief as to whether he has additional, as yet unstated, affirmative defenses ANSWER TO COMPLAINT 1 available. Defendant reserves herein the right to assert additional affirmative defenses in the event discovery indicates that they would be appropriate. FOURTEENTH AFFIRMATIVE DEFENSE TO ALL ACTIONS (Failure to Mitigate Damages) 14. Defendant alleges as a separate and distinct affirmative defense, that if Plaintiffs received any injuries and/or damages as a result of the incident complained ofherein, plaintiff proximately caused, aggravated and/or failed to take proper action to mitigate and/or reduce 9 alleged injuries or damages. Specifically, plaintiff defendant has wrongfully denied and or interfered with defendants'ights desire and ability to sell, divest or hansfer their interest in the 11 subject property interest. 12 WHEREFORE, this answering defendant prays judgment against plaintiff as 13 follows: 15 16 17 18 19 1. That plaintiff takes nothing by reason of this complaint. 2. For reasonable attorney fees, 3. For costs of suit; and, 4. For such other and further relief as the Court deems just and proper. 20 21 22 23 Date: , 2021 DANIEL S. MARCH, KSQ Attorney for Defendant, Greg D Shuler 24 25 27 28 ANSWER TO COMPLAINT State of California Count o Placer PROOF OF SERVICE CAPITAL ONE, N.A. VS GREG D SHULER ss: 10 13 15 16 18 20 21 23 24 25 27 28 I am employed in the County of Placer, State of California. I am over the age of 18 and not a party to the within action. My business address is 17291 IRVINE BLVD., SUITE 101, TUSTIN, CA 92780 On - -~j~-y-~-- -I- - - I served the following document: ANSWER TO COMPLAINT on the interested parties at the following addresses as indicated below: 8 (VIA US MAIL) I enclosed the document(s) in a sealed envelope or package addressed to the person(s) to be served and deposited the same in the mail at Newport Beach, California, with postage thereon fully prepaid. I am readily familiar with the finn's business practice of collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited with the U.S. Postal Service in the ordinary course of business. I am aware that on motion, service is presumed invalid ifpostal cancellation date or postage meter date is more than I day a(ter date of deposit for mailing in affidavit. HUNT & HENRIQUES, ATTORNEYS AT Attorney for CAPITAL ONE, N.A. LAW 7017 REALM DRIVE, SAN JOSE, CA 95119 CI (VIA FEDERAL EXPRESS) I enclosed the document(s) in an envelope or package provided by an overnight delivery carrier addressed to the person(s) to be served and deposited the same in the drop box at Newport Beach, California, for priority overnight next day delivery. 0 (VIA PERSONAL SERVICE) I delivered such document(s) by hand to the offices of the person(s) to be served. H ONLY BY ELECTRONIC TRANSMISSION. Onlv bv e-mailing the docmnent(s) to the persons at the e-mail address(es) listed based on notice provided that during the Coronavdrus (COVID-19) pandemic, and CRC Emerzencv rule 12(b)(1) this office will be working remotelv, not able to send physical mail as usual, and is therefore using only electronic mail, while still calculatina deadlines based on regular mail service. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. 0 (STATE') I declare under penalty ofperjury under the laws of the State of California that the above is true and correct. 0 (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty ofperjury under the laws of the United States of America that the above is true and conect. yr'/C / Executed on -&i/ &-/-, 2021. At Tustin, California. I 2 MAWBy. J2 Omar Zagha ANSWER TO COMPLAINT
