On December 03, 2022 a
Answer
was filed
involving a dispute between
Lvnv Funding Llc,
and
Kimberly Driscoll
Aka Kimberly M Driscoll,
for Other Matters - Consumer Credit (Card) Debt Buyer Plaintiff
in the District Court of Herkimer County.
Preview
FILED: HERKIMER COUNTY CLERK 12/23/2022 10:27 AM INDEX NO. EF2022-109991
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF HERKIMER
LVNV FUNDING LLC,
Plaintiff, DEFENDANT’S ANSWER
-vs-
Index No.: EF2022-109991
KIMBERLY DRISCOLL A/K/A KIMBERLY M
DRISCOLL ,
Defendant.
Defendant KIMBERLY DRISCOLL A/K/A KIMBERLY M DRISCOLL as and for an
Answer to the Complaint of Plaintiff, by and through counsel, Graham & Borgese, LLP, responds
as follows:
AS TO THE ALLEGATIONS
1. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “1” of Plaintiff’s Complaint.
2. Defendant admits to the residence allegation contained in paragraph “2” of the
Complaint.
3. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “3” of Plaintiff’s Complaint.
4. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “4” of Plaintiff’s Complaint.
AS TO THE FIRST CAUSE OF ACTION
5. Defendant repeats and re-states the answers contained in paragraphs “1” through
“4” above and set forth herein at length.
6. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “6” of Plaintiff’s Complaint.
7. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “7” of Plaintiff’s Complaint.
8. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “8” of Plaintiff’s Complaint.
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FILED: HERKIMER COUNTY CLERK 12/23/2022 10:27 AM INDEX NO. EF2022-109991
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2022
9. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “9” of Plaintiff’s Complaint.
10. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “10” of Plaintiff’s Complaint.
11. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “11” of Plaintiff’s Complaint.
12. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “12” of Plaintiff’s Complaint.
13. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “13” of Plaintiff’s Complaint.
14. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “14” of Plaintiff’s Complaint.
15. Denies knowledge or information sufficient to form a belief as to the allegation
contained in paragraph “15” of Plaintiff’s Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
16. That this action is barred by the applicable statute of limitations.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
17. That the court lacks personal jurisdiction over the Defendant and or subject matter
jurisdiction in this controversy.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
18. That Plaintiff's first cause of action fails to state a claim upon which relief can be
granted.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
19. That Plaintiff has failed to mitigate its damages.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
20. That Plaintiff's claims are barred for failure to allege specific transactions on the
account relating to the alleged debt.
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FILED: HERKIMER COUNTY CLERK 12/23/2022 10:27 AM INDEX NO. EF2022-109991
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2022
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
21. That Plaintiff's claims are barred by the Statute of Frauds.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
22. That Plaintiff's claims are barred by the doctrine of unclean hands.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
23. That Plaintiff's claims are barred by the doctrine of laches.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
24. That Plaintiff's claims are barred by the doctrine of estoppel.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
25. That Plaintiff lacks standing to bring this action against Defendant.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
26. That the balance Plaintiff states is due and owing is incorrect.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
27. Plaintiff’s claims are barred by the doctrine of unjust enrichment, as Plaintiff would
receive more money than Plaintiff is otherwise entitled to receive, if any, by collection the amount
sought in its complaint.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
28. Plaintiff’s claims must be dismissed because the calculation of the alleged balance
is incorrect and there has been improper application of credits and/or offsets. The burden shifts to
Plaintiff to prove that said charges are correct and authorized.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
29. Plaintiff’s claims must be dismissed because the alleged charges are disputed,
incorrect and unauthorized. The burden shifts to Plaintiff to prove that said charges are correct and
authorized.
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FILED: HERKIMER COUNTY CLERK 12/23/2022 10:27 AM INDEX NO. EF2022-109991
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2022
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
30. Defendant reserves the right to assert additional defenses as Plaintiff's claims are
clarified during litigation.
WHEREFORE, Defendant respectfully requests that the Complaint be dismissed with
prejudice and that Defendant be awarded reasonable attorney's fees and the costs of this action and
motion and for such other and further relief as to the court seems just and proper.
Dated: December 23, 2022 _________________________
Frank J. Borgese, Esq.
Graham & Borgese, LLP
Attorneys for Defendant
Please send all correspondence to:
Graham & Borgese, LLP
1695 Empire Blvd., Suite 140
Webster, New York 14580
888.668.9071
TO: Pressler, Felt & Warshaw, LLP
Attorneys for the Plaintiff
305 Broadway, Suite 802
New York, NY 10007
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Document Filed Date
December 23, 2022
Case Filing Date
December 03, 2022
Category
Other Matters - Consumer Credit (Card) Debt Buyer Plaintiff
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Preview
FILED: HERKIMER COUNTY CLERK 12/23/2022 10:27 AM INDEX NO. EF2022-109991 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF HERKIMER LVNV FUNDING LLC, Plaintiff, DEFENDANT’S ANSWER -vs- Index No.: EF2022-109991 KIMBERLY DRISCOLL A/K/A KIMBERLY M DRISCOLL , Defendant. Defendant KIMBERLY DRISCOLL A/K/A KIMBERLY M DRISCOLL as and for an Answer to the Complaint of Plaintiff, by and through counsel, Graham & Borgese, LLP, responds as follows: AS TO THE ALLEGATIONS 1. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “1” of Plaintiff’s Complaint. 2. Defendant admits to the residence allegation contained in paragraph “2” of the Complaint. 3. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “3” of Plaintiff’s Complaint. 4. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “4” of Plaintiff’s Complaint. AS TO THE FIRST CAUSE OF ACTION 5. Defendant repeats and re-states the answers contained in paragraphs “1” through “4” above and set forth herein at length. 6. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “6” of Plaintiff’s Complaint. 7. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “7” of Plaintiff’s Complaint. 8. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “8” of Plaintiff’s Complaint. 1 of 4 FILED: HERKIMER COUNTY CLERK 12/23/2022 10:27 AM INDEX NO. EF2022-109991 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2022 9. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “9” of Plaintiff’s Complaint. 10. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “10” of Plaintiff’s Complaint. 11. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “11” of Plaintiff’s Complaint. 12. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “12” of Plaintiff’s Complaint. 13. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “13” of Plaintiff’s Complaint. 14. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “14” of Plaintiff’s Complaint. 15. Denies knowledge or information sufficient to form a belief as to the allegation contained in paragraph “15” of Plaintiff’s Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 16. That this action is barred by the applicable statute of limitations. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 17. That the court lacks personal jurisdiction over the Defendant and or subject matter jurisdiction in this controversy. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 18. That Plaintiff's first cause of action fails to state a claim upon which relief can be granted. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 19. That Plaintiff has failed to mitigate its damages. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 20. That Plaintiff's claims are barred for failure to allege specific transactions on the account relating to the alleged debt. 2 of 4 FILED: HERKIMER COUNTY CLERK 12/23/2022 10:27 AM INDEX NO. EF2022-109991 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2022 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 21. That Plaintiff's claims are barred by the Statute of Frauds. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 22. That Plaintiff's claims are barred by the doctrine of unclean hands. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 23. That Plaintiff's claims are barred by the doctrine of laches. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 24. That Plaintiff's claims are barred by the doctrine of estoppel. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 25. That Plaintiff lacks standing to bring this action against Defendant. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 26. That the balance Plaintiff states is due and owing is incorrect. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 27. Plaintiff’s claims are barred by the doctrine of unjust enrichment, as Plaintiff would receive more money than Plaintiff is otherwise entitled to receive, if any, by collection the amount sought in its complaint. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 28. Plaintiff’s claims must be dismissed because the calculation of the alleged balance is incorrect and there has been improper application of credits and/or offsets. The burden shifts to Plaintiff to prove that said charges are correct and authorized. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 29. Plaintiff’s claims must be dismissed because the alleged charges are disputed, incorrect and unauthorized. The burden shifts to Plaintiff to prove that said charges are correct and authorized. 3 of 4 FILED: HERKIMER COUNTY CLERK 12/23/2022 10:27 AM INDEX NO. EF2022-109991 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2022 AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 30. Defendant reserves the right to assert additional defenses as Plaintiff's claims are clarified during litigation. WHEREFORE, Defendant respectfully requests that the Complaint be dismissed with prejudice and that Defendant be awarded reasonable attorney's fees and the costs of this action and motion and for such other and further relief as to the court seems just and proper. Dated: December 23, 2022 _________________________ Frank J. Borgese, Esq. Graham & Borgese, LLP Attorneys for Defendant Please send all correspondence to: Graham & Borgese, LLP 1695 Empire Blvd., Suite 140 Webster, New York 14580 888.668.9071 TO: Pressler, Felt & Warshaw, LLP Attorneys for the Plaintiff 305 Broadway, Suite 802 New York, NY 10007 4 of 4