Preview
1 MICHAEL T. BEUSELINCK, SBN 251991
MICHAEL BEUSELINCK P.C.
2 490 43rd Street #37
Oakland, CA 94609
3 Telephone: (925) 800-3032
mike@lawmtb.com
4
Attorneys for Defendant
5 CNA EQUITY GROUP, INC.
(erroneously named as CNA EQUITIES GROUP, LLC)
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SANTA CRUZ
9
JASON NEEL, No. 22CV01758
10 (Unlimited Jurisdiction)
Plaintiff,
11 ANSWER TO FIRST AMENDED
vs. COMPLAINT
12
SUPERIOR LOAN SERVICING; ASSET
13 DEFAULT MANAGEMENT, INC.; Amended Complaint Filed: 10/11/2022
UNITED STATES REAL ESTATE
14 Demand exceeds $25,000
CORPORATION; CNA EQUITIES GROUP, Trial Date: None Set
15 LLC; AND RUSHMYFILE, BUSINESS
ENTITY FORM UNKNOWN, and VIGIL
16 REAL ESTATE, BUSINESS ENTITY
FORM UNKNOWN and DOES 1-50,
17 inclusive,
18 Defendants.
19
20
21 Defendant CNA EQUITY GROUP, INC., a California professional corporation (hereinafter
22 “Defendant”) hereby answers the First Amended Complaint filed by Plaintiff JASON NEEL
23 (hereinafter "Plaintiff") as follows:
24 GENERAL DENIAL
25 Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies generally and
26 specifically each and every allegation of the Complaint filed by Plaintiff, and the whole thereof.
27 Defendant further denies that the Plaintiff has been damaged in any sum or manner by reason of
28 any acts or omissions on the part of Defendant, or on the part of any of Defendant’s agents, servants, or
-1-
ANSWER TO COMPLAINT
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx
1 representatives, and so deny that Plaintiff is entitled to any relief.
2 SEPARATE AND ADDITIONAL AFFIRMATIVE DEFENSES
3 By alleging the Separate and Additional Affirmative Defenses set forth below, Defendant does
4 not agree or concede that it has the burden of proof or the burden of persuasion on any of these issues.
5 FIRST AFFIRMATIVE DEFENSE
6 (Failure to State a Cause of Action)
7 AS AND FOR A FIRST, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
8 ALLEGES:
9 The Complaint, and each purported cause of action therein, is barred, in whole or in part,
10 because the Complaint fails to allege facts sufficient to state or constitute a claim against the Defendant
11 and further fails to allege facts sufficient to entitle the Plaintiff to the relief sought, or to any other relief
12 whatsoever, from Defendant.
13 SECOND AFFIRMATIVE DEFENSE
14 (Failure to State a Cause of Action)
15 AS AND FOR A SECOND, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
16 ALLEGES:
17 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
18 constitute a cause of action for dependent adult financial abuse.
19 THIRD AFFIRMATIVE DEFENSE
20 (Failure to State a Cause of Action)
21 AS AND FOR A THIRD, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
22 ALLEGES:
23 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
24 constitute a cause of action for conversion.
25 FOURTH AFFIRMATIVE DEFENSE
26 (Failure to State a Cause of Action)
27 AS AND FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
28 ALLEGES:
-2-
ANSWER TO COMPLAINT
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx
1 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to
2 constitute a cause of action for aiding and abetting.
3 FIFTH AFFIRMATIVE DEFENSE
4 (Comparative Fault)
5 AS AND FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
6 ALLEGES:
7 Plaintiff was careless and negligent with respect to all matters alleged in the Complaint, and
8 thus was comparatively at fault and proximately caused his own damages. Accordingly, any damages
9 otherwise recoverable by Plaintiff if any there were, should be reduced in proportion to its own
10 negligence or fault.
11 SIXTH AFFIRMATIVE DEFENSE
12 (Failure to Mitigate Damages)
13 AS AND FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
14 ALLEGES:
15 Plaintiff failed to mitigate his damages. If Plaintiff’s damages are not completely barred,
16 Plaintiff’s recovery against this answering Defendant must be reduced to the extent that Plaintiff’s
17 damages, if any, were caused by Plaintiff’s failure to properly mitigate his damages and by freely,
18 voluntarily, and gratuitously incurring expenses, which he had no legal obligation to incur.
19 SEVENTH AFFIRMATIVE DEFENSE
20 (Statute of Limitations)
21 AS AND FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
22 ALLEGES:
23 The Complaint, and each alleged cause of action therein, is absolutely barred by all applicable
24 provisions of Code of Civil Procedure, including Sections 335.1, 337, 337.1, 337.15, 338, 339, 340,
25 343, and each of them; and by Uniform Commercial Code Sections 2607(3)(a), and 2725(1).
26 ///
27 ///
28 ///
-3-
ANSWER TO COMPLAINT
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx
1 EIGHTH AFFIRMATIVE DEFENSE
2 (Laches)
3 AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
4 ALLEGES:
5 Plaintiff has been guilty of unreasonable delay in commending and in prosecuting the subject
6 civil action, to the irreparable prejudice of the Defendant, and the Complaint, and each alleged cause of
7 action therein, is therefore absolutely barred by the equitable doctrine of laches.
8 NINTH AFFIRMATIVE DEFENSE
9 (Waiver)
10 AS AND FOR A NINTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
11 ALLEGES:
12 The Complaint, and each alleged cause of action therein, is absolutely barred by virtue of
13 Plaintiff’s knowing and voluntary waiver of any further obligations or liabilities of this answering
14 Defendant, if any there were.
15 TENTH AFFIRMATIVE DEFENSE
16 (Estoppel)
17 AS AND FOR A TENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
18 ALLEGES:
19 Plaintiff, by and through its conduct, acts and deeds, has caused Defendant to change position,
20 and to act to its detriment and prejudice. The Complaint, and each alleged cause of action therein, is
21 therefore absolutely barred by the equitable doctrine of estoppel.
22 ELEVENTH AFFIRMATIVE DEFENSE
23 (Unclean Hands)
24 AS AND FOR A ELEVENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
25 ALLEGES:
26 Plaintiff has been guilty of inequitable conduct with respect to the matters alleged in the
27 Complaint, and such inequitable conduct shall absolutely bar Plaintiff’s recovery herein under the
28 equitable doctrine of unclean hands.
-4-
ANSWER TO COMPLAINT
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx
1 TWELFTH AFFIRMATIVE DEFENSE
2 (Performance to Joint Creditors)
3 AS AND FOR AN TWELFTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
4 ALLEGES:
5 The Complaint, and each alleged cause of action therein, is absolutely barred by the provisions
6 of Civil Code Sections 1474, 1475, 1476, 1477, and each of them.
7 THIRTEENTH AFFIRMATIVE DEFENSE
8 (No Joint and Several Liability)
9 AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
10 ALLEGES:
11 The Complaint, and each alleged cause of action appearing therein, fails to state facts, or to
12 allege claims, which would impose joint and several liability for any of the damages claimed by any
13 party against this answering Defendant. Any liability of this answering Defendant, which liability is
14 expressly denied, would therefore be limited to those injuries, losses or damages, if any there were, for
15 which this answering Defendant’s actionable conduct, if any, was a primary contributing factor.
16 FOURTEENTH AFFIRMATIVE DEFENSE
17 (Consent/Permission)
18 AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
19 ALLEGES:
20 Prior to the time when Defendant is alleged to have committed the acts complained of Plaintiff
21 invited, gave permission to, and consented to the acts alleged in the Complaint. Each of the acts alleged
22 in the Complaint, which acts are expressly denied, was done within the scope of this consent and
23 permission.
24 FIFTEENTH AFFIRMATIVE DEFENSE
25 (Performance)
26 AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
27 ALLEGES:
28 Defendant performed, satisfied, and discharged all duties and obligations it may have owed to
-5-
ANSWER TO COMPLAINT
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx
1 Plaintiff arising out of any and all agreements, representations or contracts made by them or on their
2 behalf barring this action.
3 SIXTEENTH AFFIRMATIVE DEFENSE
4 (Privity)
5 AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
6 ALLEGES:
7 Plaintiff was not in privity of contract with this answering Defendant and said lack of privity
8 bars recovery herein upon any theory of warranty, or upon any other cause of action or theory which
9 requires privity as a required element.
10 SEVENTEENTH AFFIRMATIVE DEFENSE
11 (Plaintiff’s Breach)
12 AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
13 ALLEGES:
14 The Complaint, and each purported cause of action therein, is barred, in whole or in part,
15 because Plaintiff did not comply with the terms of the contract between the parties, by changing its
16 terms, thereby denying the Defendant benefits under the contract.
17 EIGHTEENTH AFFIRMATIVE DEFENSE
18 (Recoupment)
19 AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
20 ALLEGES:
21 Plaintiff’s recovery herein, if any, must be reduced by an amount equal to any set-off which the
22 Defendant is entitled to assert against the claims of Plaintiff or any other claimants, by reason of any
23 amounts paid, under applicable laws or statutes.
24 NINETEENTH AFFIRMATIVE DEFENSE
25 (Standing)
26 AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
27 ALLEGES:
28 The Complaint, and each cause of action therein, is barred because Plaintiff lacks standing to
-6-
ANSWER TO COMPLAINT
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx
1 assert such claims.
2 TWENTIETH AFFIRMATIVE DEFENSE
3 (No Reasonable Notice of Breach)
4 AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
5 ALLEGES:
6 The Complaint, and each alleged cause of action therein, is absolutely barred by the failure of
7 the Plaintiff to give this answering Defendant reasonable notice of the alleged breaches of contract or
8 other wrongful conduct as alleged in the Complaint.
9 TWENTY-FIRST AFFIRMATIVE DEFENSE
10 (Causation)
11 AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
12 ALLEGES:
13 Defendant’s conduct was not the cause in fact nor the proximate cause of any injury, loss, or
14 damage alleged by Plaintiff.
15 TWENTY-SECOND AFFIRMATIVE DEFENSE
16 (No Breach by Defendants)
17 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT DEFENSE,
18 DEFENDANT ALLEGES:
19 Plaintiff is not entitled to the money it is demanding because Defendant has done everything as
20 required by the contract.
21 TWENTY-THIRD AFFIRMATIVE DEFENSE
22 (Fault of Third Parties)
23 AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT DEFENSE, DEFENDANT
24 ALLEGES:
25 The Complaint, and each purported cause of action therein, is barred, in whole or in part, or any
26 recovery should be reduced, because named and/or unnamed third parties were careless, negligent or at
27 fault for the matters alleged in the Complaint; that said carelessness, negligence or fault of said named
28 and/or unnamed third parties proximately contributed to the happening of the incident and to the
-7-
ANSWER TO COMPLAINT
C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx
injuries, loss, and damage complained of by Plaintiff, if any; that should Plaintiff recover damages, then
Defendant is entitled to have the amount thereof abated, reduced, or eliminated to the extent that said
named and/or unnamed third parties caused or contributed to Plaintiff's injuries, if any.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Fault of Third Parties)
AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT DEFENSE,
DEFENDANT ALLEGES:
The Complaint, and each purported cause of action therein, is barred, in whole or in part, by the
doctrine of impracticability.
10 TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Right to Assert Additional Affirmative Defenses)
AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT DEFENSE,
13 DEFENDANT ALLEGES:
14 Defendant presently has insufficient knowledge or information upon which to form a belief as to
15 whether it may have additional, as yet unstated, affirmative defenses. Defendant hereby reserves its
right to assert additional affirmative defenses in the event that discovery indicates that additional
17 affirmative defenses are appropriate and to amend its Answer accordingly.
18 PRAYER FOR RELIEF
WHEREFORE, the Defendant prays for judgment as follows:
20 1. That the Plaintiff take nothing by reason of the Complaint, and that the same be dismissed
21 with prejudice on the merits;
22 2. For Defendant's costs of suit herein incurred;
23 3. For an award of Defendant's reasonable attorneys'ees herein incurred; and
24 4. For such other relief as the Court deems just and proper.
25 MICHAEL BEUSELINCK P.C.
26
Dated: November 25, 2022
27 MICHAEL T. BEUSELINCK
Attorney for Defendant
28 CNA EQUITY GROUP, INC.
ANSWER TO COMPLAINT
/Users/mikebeuselinck/Library/CloudStorage/Box-Box/Clients/Mulry - Mike/Jason Neel Civil Action/Pleadings/P-Answer.docx
Preview
1 MICHAEL T. BEUSELINCK, SBN 251991 MICHAEL BEUSELINCK P.C. 2 490 43rd Street #37 Oakland, CA 94609 3 Telephone: (925) 800-3032 mike@lawmtb.com 4 Attorneys for Defendant 5 CNA EQUITY GROUP, INC. (erroneously named as CNA EQUITIES GROUP, LLC) 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SANTA CRUZ 9 JASON NEEL, No. 22CV01758 10 (Unlimited Jurisdiction) Plaintiff, 11 ANSWER TO FIRST AMENDED vs. COMPLAINT 12 SUPERIOR LOAN SERVICING; ASSET 13 DEFAULT MANAGEMENT, INC.; Amended Complaint Filed: 10/11/2022 UNITED STATES REAL ESTATE 14 Demand exceeds $25,000 CORPORATION; CNA EQUITIES GROUP, Trial Date: None Set 15 LLC; AND RUSHMYFILE, BUSINESS ENTITY FORM UNKNOWN, and VIGIL 16 REAL ESTATE, BUSINESS ENTITY FORM UNKNOWN and DOES 1-50, 17 inclusive, 18 Defendants. 19 20 21 Defendant CNA EQUITY GROUP, INC., a California professional corporation (hereinafter 22 “Defendant”) hereby answers the First Amended Complaint filed by Plaintiff JASON NEEL 23 (hereinafter "Plaintiff") as follows: 24 GENERAL DENIAL 25 Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies generally and 26 specifically each and every allegation of the Complaint filed by Plaintiff, and the whole thereof. 27 Defendant further denies that the Plaintiff has been damaged in any sum or manner by reason of 28 any acts or omissions on the part of Defendant, or on the part of any of Defendant’s agents, servants, or -1- ANSWER TO COMPLAINT C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx 1 representatives, and so deny that Plaintiff is entitled to any relief. 2 SEPARATE AND ADDITIONAL AFFIRMATIVE DEFENSES 3 By alleging the Separate and Additional Affirmative Defenses set forth below, Defendant does 4 not agree or concede that it has the burden of proof or the burden of persuasion on any of these issues. 5 FIRST AFFIRMATIVE DEFENSE 6 (Failure to State a Cause of Action) 7 AS AND FOR A FIRST, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 8 ALLEGES: 9 The Complaint, and each purported cause of action therein, is barred, in whole or in part, 10 because the Complaint fails to allege facts sufficient to state or constitute a claim against the Defendant 11 and further fails to allege facts sufficient to entitle the Plaintiff to the relief sought, or to any other relief 12 whatsoever, from Defendant. 13 SECOND AFFIRMATIVE DEFENSE 14 (Failure to State a Cause of Action) 15 AS AND FOR A SECOND, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 16 ALLEGES: 17 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 18 constitute a cause of action for dependent adult financial abuse. 19 THIRD AFFIRMATIVE DEFENSE 20 (Failure to State a Cause of Action) 21 AS AND FOR A THIRD, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 22 ALLEGES: 23 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 24 constitute a cause of action for conversion. 25 FOURTH AFFIRMATIVE DEFENSE 26 (Failure to State a Cause of Action) 27 AS AND FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 28 ALLEGES: -2- ANSWER TO COMPLAINT C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx 1 The Complaint, and each alleged cause of action therein, fails to state facts sufficient to 2 constitute a cause of action for aiding and abetting. 3 FIFTH AFFIRMATIVE DEFENSE 4 (Comparative Fault) 5 AS AND FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 6 ALLEGES: 7 Plaintiff was careless and negligent with respect to all matters alleged in the Complaint, and 8 thus was comparatively at fault and proximately caused his own damages. Accordingly, any damages 9 otherwise recoverable by Plaintiff if any there were, should be reduced in proportion to its own 10 negligence or fault. 11 SIXTH AFFIRMATIVE DEFENSE 12 (Failure to Mitigate Damages) 13 AS AND FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 14 ALLEGES: 15 Plaintiff failed to mitigate his damages. If Plaintiff’s damages are not completely barred, 16 Plaintiff’s recovery against this answering Defendant must be reduced to the extent that Plaintiff’s 17 damages, if any, were caused by Plaintiff’s failure to properly mitigate his damages and by freely, 18 voluntarily, and gratuitously incurring expenses, which he had no legal obligation to incur. 19 SEVENTH AFFIRMATIVE DEFENSE 20 (Statute of Limitations) 21 AS AND FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 22 ALLEGES: 23 The Complaint, and each alleged cause of action therein, is absolutely barred by all applicable 24 provisions of Code of Civil Procedure, including Sections 335.1, 337, 337.1, 337.15, 338, 339, 340, 25 343, and each of them; and by Uniform Commercial Code Sections 2607(3)(a), and 2725(1). 26 /// 27 /// 28 /// -3- ANSWER TO COMPLAINT C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx 1 EIGHTH AFFIRMATIVE DEFENSE 2 (Laches) 3 AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 4 ALLEGES: 5 Plaintiff has been guilty of unreasonable delay in commending and in prosecuting the subject 6 civil action, to the irreparable prejudice of the Defendant, and the Complaint, and each alleged cause of 7 action therein, is therefore absolutely barred by the equitable doctrine of laches. 8 NINTH AFFIRMATIVE DEFENSE 9 (Waiver) 10 AS AND FOR A NINTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 11 ALLEGES: 12 The Complaint, and each alleged cause of action therein, is absolutely barred by virtue of 13 Plaintiff’s knowing and voluntary waiver of any further obligations or liabilities of this answering 14 Defendant, if any there were. 15 TENTH AFFIRMATIVE DEFENSE 16 (Estoppel) 17 AS AND FOR A TENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 18 ALLEGES: 19 Plaintiff, by and through its conduct, acts and deeds, has caused Defendant to change position, 20 and to act to its detriment and prejudice. The Complaint, and each alleged cause of action therein, is 21 therefore absolutely barred by the equitable doctrine of estoppel. 22 ELEVENTH AFFIRMATIVE DEFENSE 23 (Unclean Hands) 24 AS AND FOR A ELEVENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 25 ALLEGES: 26 Plaintiff has been guilty of inequitable conduct with respect to the matters alleged in the 27 Complaint, and such inequitable conduct shall absolutely bar Plaintiff’s recovery herein under the 28 equitable doctrine of unclean hands. -4- ANSWER TO COMPLAINT C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx 1 TWELFTH AFFIRMATIVE DEFENSE 2 (Performance to Joint Creditors) 3 AS AND FOR AN TWELFTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 4 ALLEGES: 5 The Complaint, and each alleged cause of action therein, is absolutely barred by the provisions 6 of Civil Code Sections 1474, 1475, 1476, 1477, and each of them. 7 THIRTEENTH AFFIRMATIVE DEFENSE 8 (No Joint and Several Liability) 9 AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 10 ALLEGES: 11 The Complaint, and each alleged cause of action appearing therein, fails to state facts, or to 12 allege claims, which would impose joint and several liability for any of the damages claimed by any 13 party against this answering Defendant. Any liability of this answering Defendant, which liability is 14 expressly denied, would therefore be limited to those injuries, losses or damages, if any there were, for 15 which this answering Defendant’s actionable conduct, if any, was a primary contributing factor. 16 FOURTEENTH AFFIRMATIVE DEFENSE 17 (Consent/Permission) 18 AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 19 ALLEGES: 20 Prior to the time when Defendant is alleged to have committed the acts complained of Plaintiff 21 invited, gave permission to, and consented to the acts alleged in the Complaint. Each of the acts alleged 22 in the Complaint, which acts are expressly denied, was done within the scope of this consent and 23 permission. 24 FIFTEENTH AFFIRMATIVE DEFENSE 25 (Performance) 26 AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 27 ALLEGES: 28 Defendant performed, satisfied, and discharged all duties and obligations it may have owed to -5- ANSWER TO COMPLAINT C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx 1 Plaintiff arising out of any and all agreements, representations or contracts made by them or on their 2 behalf barring this action. 3 SIXTEENTH AFFIRMATIVE DEFENSE 4 (Privity) 5 AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 6 ALLEGES: 7 Plaintiff was not in privity of contract with this answering Defendant and said lack of privity 8 bars recovery herein upon any theory of warranty, or upon any other cause of action or theory which 9 requires privity as a required element. 10 SEVENTEENTH AFFIRMATIVE DEFENSE 11 (Plaintiff’s Breach) 12 AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 13 ALLEGES: 14 The Complaint, and each purported cause of action therein, is barred, in whole or in part, 15 because Plaintiff did not comply with the terms of the contract between the parties, by changing its 16 terms, thereby denying the Defendant benefits under the contract. 17 EIGHTEENTH AFFIRMATIVE DEFENSE 18 (Recoupment) 19 AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 20 ALLEGES: 21 Plaintiff’s recovery herein, if any, must be reduced by an amount equal to any set-off which the 22 Defendant is entitled to assert against the claims of Plaintiff or any other claimants, by reason of any 23 amounts paid, under applicable laws or statutes. 24 NINETEENTH AFFIRMATIVE DEFENSE 25 (Standing) 26 AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 27 ALLEGES: 28 The Complaint, and each cause of action therein, is barred because Plaintiff lacks standing to -6- ANSWER TO COMPLAINT C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx 1 assert such claims. 2 TWENTIETH AFFIRMATIVE DEFENSE 3 (No Reasonable Notice of Breach) 4 AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 5 ALLEGES: 6 The Complaint, and each alleged cause of action therein, is absolutely barred by the failure of 7 the Plaintiff to give this answering Defendant reasonable notice of the alleged breaches of contract or 8 other wrongful conduct as alleged in the Complaint. 9 TWENTY-FIRST AFFIRMATIVE DEFENSE 10 (Causation) 11 AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 12 ALLEGES: 13 Defendant’s conduct was not the cause in fact nor the proximate cause of any injury, loss, or 14 damage alleged by Plaintiff. 15 TWENTY-SECOND AFFIRMATIVE DEFENSE 16 (No Breach by Defendants) 17 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT DEFENSE, 18 DEFENDANT ALLEGES: 19 Plaintiff is not entitled to the money it is demanding because Defendant has done everything as 20 required by the contract. 21 TWENTY-THIRD AFFIRMATIVE DEFENSE 22 (Fault of Third Parties) 23 AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT DEFENSE, DEFENDANT 24 ALLEGES: 25 The Complaint, and each purported cause of action therein, is barred, in whole or in part, or any 26 recovery should be reduced, because named and/or unnamed third parties were careless, negligent or at 27 fault for the matters alleged in the Complaint; that said carelessness, negligence or fault of said named 28 and/or unnamed third parties proximately contributed to the happening of the incident and to the -7- ANSWER TO COMPLAINT C:\Users\mikeb\Box\Clients\Mulry - Mike\Jason Neel Civil Action\Pleadings\P-Answer.docx injuries, loss, and damage complained of by Plaintiff, if any; that should Plaintiff recover damages, then Defendant is entitled to have the amount thereof abated, reduced, or eliminated to the extent that said named and/or unnamed third parties caused or contributed to Plaintiff's injuries, if any. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Fault of Third Parties) AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT ALLEGES: The Complaint, and each purported cause of action therein, is barred, in whole or in part, by the doctrine of impracticability. 10 TWENTY-FIFTH AFFIRMATIVE DEFENSE (Right to Assert Additional Affirmative Defenses) AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT DEFENSE, 13 DEFENDANT ALLEGES: 14 Defendant presently has insufficient knowledge or information upon which to form a belief as to 15 whether it may have additional, as yet unstated, affirmative defenses. Defendant hereby reserves its right to assert additional affirmative defenses in the event that discovery indicates that additional 17 affirmative defenses are appropriate and to amend its Answer accordingly. 18 PRAYER FOR RELIEF WHEREFORE, the Defendant prays for judgment as follows: 20 1. That the Plaintiff take nothing by reason of the Complaint, and that the same be dismissed 21 with prejudice on the merits; 22 2. For Defendant's costs of suit herein incurred; 23 3. For an award of Defendant's reasonable attorneys'ees herein incurred; and 24 4. For such other relief as the Court deems just and proper. 25 MICHAEL BEUSELINCK P.C. 26 Dated: November 25, 2022 27 MICHAEL T. BEUSELINCK Attorney for Defendant 28 CNA EQUITY GROUP, INC. ANSWER TO COMPLAINT /Users/mikebeuselinck/Library/CloudStorage/Box-Box/Clients/Mulry - Mike/Jason Neel Civil Action/Pleadings/P-Answer.docx