MIDLAND CREDIT MANAGEMENT,



FIRST AMENDED ANSWERS, DEFENSES AND COUNTERCLAIMS

If you are sued by a collection agency or creditor, you will need to answer the summons and interrogatory. Typically, the interrogatory will look like a questionnaire. In most courts, you can both answer the interrogatory in your favor, as well as define any violations the collection agency may have incurred during the collection of a debt from you. These violations will be defined in the form of counterclaims. Replace YOUR OWN state statues if you want to reference such things.

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF DESCHUTES

MIDLAND CREDIT MANAGEMENT )

Plaintiff ) Case No._____________________

Vs. )

) FIRST AMENDED ANSWERS,

) DEFENSES AND COUNTERCLAIMS

Defendant(s) )

Defendant, appearing pro se, for its reply to the Complaint of Midland Credit Management (hereafter "Midland") states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. In response to paragraph #1, the Defendant disputes the alleged debt, as solicited in paragraph #1 of the complaint.

2. In response to paragraph #2, the Complaint states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof.

3. In response to paragraph #3, the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

4. In response to paragraph #4, to the extent a response is required, defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

DEFENSES

5. As and for a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6. As and for a Second Defense

Defendant alleges that this action is time-barred under § O.S. 12-95-2 of the laws of Oregon.

7. As and for a Third Defense

Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

8. As and for a Fourth Defense

Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

9. As and for a Fifth Defense

Defendant claims a Failure of Consideration as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

10. As and for a Sixth Defense

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

11. As and for a Seventh Defense

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parol Evidence Rule.

12. As and for an Eighth Defense

Plaintiff's Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

13. As and for a Ninth Defense

Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

14. As and for a Tenth Defense

Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

15. As and for an Eleventh Defense

The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

16. As and for a Twelfth Defense

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

17. As and for a Thirteenth Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

18. As and for a Fourteenth Defense

Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements. The Plaintiff is not any of the following: an attorney at law; a person regularly employed on a regular wage or salary in the capacity of credit men or a similar capacity, except as an independent contractor; a bank, including a trust department of a bank, a fiduciary or a financing and lending institution; a common carrier; a title insurer or abstract company while doing an escrow business; a licensed real estate broker; an employee of a licensee; nor a substation payment office employed by or serving as an independent contractor for public utilities.

19. As and for a Fifteenth Defense

Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais.

20. As and for a Sixteenth Defense

Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

21. As and for a Seventeenth Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

22. As and for an Eighteenth Defense

Plaintiff failed to comply with normal and accepted business practices.

23. As and for a Nineteenth Defense

Plaintiff’s claim is in violation of federal statute.

24. As and for a Twentieth Defense

Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence, or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

25. As and for a Twenty-first Defense

Plaintiff has no Fiduciary Duty.

26. As and for a Twenty-second Defense

Plaintiff has failed to name all necessary parties.

27. As and for a Twenty-third Defense

Plaintiff's alleged damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control.

28. As and for a Twenty-fourth Defense

Plaintiff's alleged damages are the results of acts or omissions committed by the Plaintiff.

29. As and for a Twenty-fifth Defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment as the Plaintiff would receive more money than plaintiff is entitled to receive.

30. As and for a Twenty-sixth Defense

Plaintiff's alleged damages are limited to real or actual damages only.

31. As and for a Twenty-seventh Defense

Defendant invokes the doctrines of Scienti et volenti non fit injuria and Damnum absque injuria.

32. As and for a Twenty-eighth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

COUNTERCLAIMS

FIRST CAUSE OF ACTION

Statement of Facts

33. February 2, 2004, Defendant sent Midland, by way of certified mail, request for validation of alleged debt, including a questionnaire about said debt and a request for documentation. Request noted their agent, xxx, P.C. (hereafter “xxx”) was given notice of same.

34. Similar letters and request for validation were sent to Midland by way of certified mail on March 1, 2004 and March 22, 2004.

35. Up until the date of this filing, no attempt at validation was received from Midland, yet through their agent, xxx, continued to collect on alleged debt.

Statement of Claim

36. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act (hereafter “FDCPA”) in the following respects:

(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b).

SECOND CAUSE OF ACTION

Statement of Facts

37. Defendant repeats and re-alleges each allegation in paragraphs 33-36 with like effect as if fully repeated herein.

38. Defendant received notice from xxx dated December 16, 2004 stating Midland’s account had been turned over to their office for collection. Said notice contained the statement: “Unless you, within 30 days after receipt of this notice, dispute the validity of the debt, or any portion thereof, we will assume the debt to be valid. If you notify this law firm, xxx, P.C., in writing, within the 30 day period, that the debt, or any portion thereof, is disputed, our law firm, xxx, P.C., will obtain verification of the debt and mail a copy of the verification to you. Upon your written request within the 30 day period, our law firm, xxx, P.C., will also provide you with the name and address of the original creditor, if different from the current creditor. This is a communication from a debt collector. This communication is an attempt to collect a debt and any information obtained from this communication will be used for that purpose.”

39. Defendant received notice from xxx entitled “NOTICE – PAYMENT DUE” dated January 2, 2004, which stated a payment of $50.00 was due on the 15th of each month.

Statement of Claim

40. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:

(a) by making a demand for payment by the 15th of the month, Plaintiff instilled a false sense of urgency of payment. Since payment date was within the 30 day period, Plaintiff overshadowed Defendant’s right to request validation within 30 days, violating 15 USC 1692g(a)

THIRD CAUSE OF ACTION

Statement of Facts

41. Defendant repeats and re-alleges each allegation in paragraphs 33-36 and 38-40 with like effect as if fully repeated herein.

42. On January 6, 2004, Defendant sent xxx a notice of dispute and request for validation of alleged debt. Defendant also enclosed a questionnaire regarding the same.

43. Defendant received a notice from xxx, dated January 29, 2004, stating they had completed the questionnaire and if Defendant wanted to resolve the account, to contact the offices or they would proceed. Said questionnaire was completed and included in communication.

44. On February 4, 2004, Defendant sent xxx a second request for validation and documentation regarding alleged debt.

45. Defendant received notice from xxx, dated April 5, 2004, entitled “Midland Credit vs. Defendant” and stating general information about alleged debt. Stapled to said notice was an Affidavit which appeared to have been filed with the San Diego County Clerk. It stated “Midland Credit Management Inc., Plaintiff, vs. Defendant, Defendant.” A file number had been handwritten at the top.

46. As of the date on said notice, no case had been filed in San Diego County Court or otherwise pertaining to alleged debt or between Midland Credit Management Inc and Defendant.

Statement of Claim

47. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:

(a) by using deceptive or misleading representation for collection of the alleged debt and therefore violating 15 USC 1692e

(b) by falsely representing the legal status of the alleged debt and therefore violating 15 USC 1692e(2)(A)

(c) by sending written communication which falsely simulated a court-issued document and therefore violating 15 USC 1692e(9)

(d) by falsely representing a document as legal process and therefore violating 15 USC 1692e(13)

FOURTH CAUSE OF ACTION

Statement of Facts

48. Defendant repeats and re-alleges each allegation in paragraphs 33-36, 38-40 and 42-47 with like effect as if fully repeated herein.

49. Defendant’s previously stated notice from xxx, dated December 16, 2003, noted a Balance of $3,000.

50. Defendant’s previously stated notice from xxx, dated January 2, 2004, noted a Balance of $3,500.

Statement of Claim

51. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:

(a) By falsely representing the amount of the alleged debt and therefore violating 15 USC 1692e(2)(A)

FIFTH CAUSE OF ACTION

Statement of Facts

52. Defendant repeats and re-alleges each allegation in paragraphs 33-36, 38-40, 42-47 and 49-51 with like effect as if fully repeated herein.

53. Defendant had asked for documents concerning alleged debt as validation on three occasions.

54. Defendant received a notice from xxx, dated April 27, 2004, stating LBN was awaiting the arrival of the file associated with alleged debt and that xxx would forward a copy to Defendant upon its arrival. xxx did not send said file to Defendant.

55. On October 24, 2004, Defendant was served with Summons concerning alleged debt.

Statement of Claim

56. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects:

(a) by failing to cease collection of an alleged debt after the Defendant notified xxx in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b).

SIXTH CAUSE OF ACTION

Statement of Facts

57. Defendant repeats and re-alleges each allegation in paragraphs 33-36, 38-40, 42-47, 49-51 and 53-56 with like effects as if fully repeated herein.

58. Plaintiff and Plaintiff’s agent’s acts as described above were deceptive trade practices and unfair trade practices and therefore violated the Oklahoma Consumer Protection Act.

59. Plaintiff and Plaintiff’s agent’s acts as described above were done in bad faith and therefore violated the Oklahoma Consumer Protection Act.

60. Plaintiff and Plaintiff’s agent’s acts as described above were unconscionable and therefore violated the Oklahoma Consumer Protection Act.

NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF:

PRAYER FOR RELIEF:

61. A. For Defendant’s First Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury ;

2) Statutory damages as specified in 15 USC 1692k in the amount of $1,000;

B. For Defendant’s Second Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury;

2) Statutory damages as specified in 15 USC 1692k in the amount of $2,000;

C. For Defendant’s Third Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $20,000 or as so deemed by judge or jury;

2) Statutory damages as specified in 15 USC 1692k in the amount of $4,000;

D. For Defendant’s Fourth Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury;

2) Statutory damages as specified in 15 USC 1692k in the amount of $1,000;

E. For Defendant’s Fifth Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000 or as so deemed by judge or jury;

2) Statutory damages as specified in 15 USC 1692k in the amount of $2,000;

F. For Defendant’s Sixth Cause of Action

1) Statutory damages as specified in 15 O.S. Supp. 1999 §761.1 in the amount of $16,000;

G. Actual damages in an amount to be determined by judge or jury;

H. Exemplary relief in an amount to be determined by judge or jury;

I. Injunctive relief;

J. Declaratory relief;

K. Any attorney fees if applicable;

L. costs;

M. That any and all contracts having balances owed to the Plaintiff by the Defendant be declared null and void.

FURTHER, sayeth naught.

62. As a result of the above violations of the Oklahoma Consumer Protection Act, Plaintiff’s and Plaintiff’s agent’s acts were unconscionable and Plaintiff is therefore liable to the Defendant for damages in the amount of Sixteen Thousand Dollars (Two Thousand Dollars ($2,000) per violation.)

63. Therefore, Defendant prays judgment in Defendant’s favor and asks relief in the total amount of Twenty-Four Thousand Dollars ($24,000) plus any applicable attorney’s fees.

63. That any and all contracts having balances owed to the Plaintiff by the Defendant be declared null and void.

FURTHER, sayeth naught.

Dated: December 2, 2011

by

TO: xxx, P.C.

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