Preview
FILED: YATES COUNTY CLERK 09/19/2023 11:07 AM INDEX NO. 2023-5198
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/19/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF YATES
X
DISCOVER BANK,
Plaintiff, INDEX NUMBER: 2023-5198
-against-
ANN MULVANEY, ANSWER AND AFFIRMATIVE
Defendant, DEFENSES
X
Defendant, ANN MULVANEY, by and through attorney, William van Zyverden, and in
answer to the Plaintiff's complaint states as follows:
1. Answering paragraph #1, Defendant denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained therein so Defendant denies the same.
2. Answering paragraph #2, Defendant admits the allegations contained therein.
3. Answering paragraph #3, Defendant denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained therein so Defendant denies the same.
4. Answering paragraph #4, Defendant denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained therein so Defendant denies the same.
5. Answering paragraph #5, Defendant denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained therein so Defendant denies the same.
6. Answering paragraph #6, Defendant denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained therein so Defendant denies the same.
7. Answering paragraph #7, Defendant denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained therein so Defendant denies the same.
8. Answering paragraph #8, Defendant denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained therein so Defendant denies the same.
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FILED: YATES COUNTY CLERK 09/19/2023 11:07 AM INDEX NO. 2023-5198
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/19/2023
9. Answering paragraph #9, Defendant denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained therein so Defendant denies the same.
WHEREFORE, Defendant prays that this Honorable court dismiss the Plaintiff's complaint
with prejudice, enter a judgment of no cause of action, deny all relief sought thereunder, plus
award costs and attorney fees so wrongfully sustained.
AFFIRMATIVE DEFENSES
NOW COMES the Defendant, ANN MULVANEY, by and through attorney, William van
Zyverden, and for the Affirmative Defenses to the Plaintiff's complaint, states as follows:
1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiffs Complaint and
each cause of action claimed therein fails to state facts sufficient to constitute a cause of action
against the Defendant for which relief can be granted.
2. Defendant alleges that this action is time-barred under the applicable statute of limitations.
3. Plaintiff lacks standing to bring this action as it is not the true owner in fact of the alleged
underlying obligation, and therefore this action should be dismissed for failure to prosecute said
action in the name of the real party in interest, and accordingly the court lacks subject matter
jurisdiction in the case at bar.
4. Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant,
causing Plaintiffs injury to its own self, therefore Plaintiff is barred from seeking relief for
damages.
5. Plaintiffs 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.
6. 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.
7. Defendant claims Lack of Privity as Defendant has never entered into any contractual or
debtor/creditor arrangements with the Plaintiff.
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NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/19/2023
8. Defendant alleges that the Complaint includes references to alleged agreements made
outside of the alleged written contract, violating the Parole Evidence Rule.
9. 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.
10. 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.
1 1. The Plaintiff is not an Assignee for the purported agreement, and no evidence appears in
the record to support any related assumptions.
12. 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 fonn of monies and/or credits.
13. 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.
14. Defendant alleges that Plaintiff s Complaint, and each cause of action therein is barred
by the Doctrine of Estoppel, specifically Estoppel in Pais.
15. Defendant alleges that Plaintiff s actions are precluded, whereas Plaintiff s demands for
interest are usurious and violate state and federal laws.
16. Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to
attorneys'
Plaintiff is not entitled to reimbursement of fees because the alleged contract did not
include such a provision, and there is no law that otherwise allows them.
17. 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 it difficult or
impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide
for Defendants defense has been lost or destroyed.
18. Plaintiff has failed to name all necessary parties and the real parties in interest.
19. Plaintiff s alleged damages are the result of acts or omissions committed by the Plaintiff.
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20. Defendant alleges that the granting of the Plaintiffs demand in the Complaint would
result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled
to receive.
21. Plaintiffs alleged damages are limited to real or actual damages only.
22. Defendant invokes the doctrines of Scienti et volenti non fit injuria (a person who
knowledgeably consents to legal wrong has no legal right) and Damnum absque injuria (harm
without injury).
23. The Federal Truth-in-Lending Act requires a written agreement setting forth the material
terms for the issuance of any credit card. Plaintiff has failed to allege or attached the mandated
written agreement.
24. Plaintiff has failed to attach to the complaint (or set forth the verbatim language of) the
alleged contract and assignment between the parties hereto.
25. The defendant has never signed any cardholder agreement or any other document to
establish the account that is the subject matter of this action and therefore is not liable for these
charges.
26. Plaintiff is in violation of Article 9 (§9-406) of the Uniform Commercial Code by failing
to provide a copy of the alleged contract and assignment to the defendant and thereby is not
entitled to the payments for which it complains.
27. The Plaintiff's claim is barred by the mistake, inadvertence, excusable neglect and
surprise of the Defendant herein.
28. Defendant did not receive the disclosures and notices required under 12 C.F.R. §
226.9(c)(2) regarding Defendant's account. Defendant is entitled to a setoff or recoupment of all
interest charged. The allegations in this paragraph are made on information and belief and,
therefore, are either likely to have evidentiary support or will be withdrawn or corrected if
reasonable opportunity for further investigation or discovery indicates insufficient evidentiary
support.
29. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or
Counterclaims at a later date.
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NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/19/2023
WHEREFORE, Defendant prays that this Honorable Court dismiss the Plaintiff's
complaint with prejudice, enter a judgment of no action, plus award costs and attorney fees so
wrongfully sustained.
Dated: /6 foZ½ //.2/m, &
W LLIAM VA ÉYVERDEN (#5415211)
emming & sssociates, P.C.
ttorneys for Defendant
2312 Park Ave., Ste. 100 Tustin, CA 92782
1-844-869-0999
Fax: 714-443-0201
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Preview
FILED: YATES COUNTY CLERK 09/19/2023 11:07 AM INDEX NO. 2023-5198 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/19/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF YATES X DISCOVER BANK, Plaintiff, INDEX NUMBER: 2023-5198 -against- ANN MULVANEY, ANSWER AND AFFIRMATIVE Defendant, DEFENSES X Defendant, ANN MULVANEY, by and through attorney, William van Zyverden, and in answer to the Plaintiff's complaint states as follows: 1. Answering paragraph #1, Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained therein so Defendant denies the same. 2. Answering paragraph #2, Defendant admits the allegations contained therein. 3. Answering paragraph #3, Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained therein so Defendant denies the same. 4. Answering paragraph #4, Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained therein so Defendant denies the same. 5. Answering paragraph #5, Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained therein so Defendant denies the same. 6. Answering paragraph #6, Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained therein so Defendant denies the same. 7. Answering paragraph #7, Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained therein so Defendant denies the same. 8. Answering paragraph #8, Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained therein so Defendant denies the same. 1 1 of 5 FILED: YATES COUNTY CLERK 09/19/2023 11:07 AM INDEX NO. 2023-5198 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/19/2023 9. Answering paragraph #9, Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained therein so Defendant denies the same. WHEREFORE, Defendant prays that this Honorable court dismiss the Plaintiff's complaint with prejudice, enter a judgment of no cause of action, deny all relief sought thereunder, plus award costs and attorney fees so wrongfully sustained. AFFIRMATIVE DEFENSES NOW COMES the Defendant, ANN MULVANEY, by and through attorney, William van Zyverden, and for the Affirmative Defenses to the Plaintiff's complaint, states as follows: 1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiffs Complaint and each cause of action claimed therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. 2. Defendant alleges that this action is time-barred under the applicable statute of limitations. 3. Plaintiff lacks standing to bring this action as it is not the true owner in fact of the alleged underlying obligation, and therefore this action should be dismissed for failure to prosecute said action in the name of the real party in interest, and accordingly the court lacks subject matter jurisdiction in the case at bar. 4. Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiffs injury to its own self, therefore Plaintiff is barred from seeking relief for damages. 5. Plaintiffs 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. 6. 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. 7. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. 2 2 of 5 FILED: YATES COUNTY CLERK 09/19/2023 11:07 AM INDEX NO. 2023-5198 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/19/2023 8. Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule. 9. 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. 10. 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. 1 1. The Plaintiff is not an Assignee for the purported agreement, and no evidence appears in the record to support any related assumptions. 12. 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 fonn of monies and/or credits. 13. 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. 14. Defendant alleges that Plaintiff s Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais. 15. Defendant alleges that Plaintiff s actions are precluded, whereas Plaintiff s demands for interest are usurious and violate state and federal laws. 16. Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to attorneys' Plaintiff is not entitled to reimbursement of fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them. 17. 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 it difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendants defense has been lost or destroyed. 18. Plaintiff has failed to name all necessary parties and the real parties in interest. 19. Plaintiff s alleged damages are the result of acts or omissions committed by the Plaintiff. 3 3 of 5 FILED: YATES COUNTY CLERK 09/19/2023 11:07 AM INDEX NO. 2023-5198 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/19/2023 20. Defendant alleges that the granting of the Plaintiffs demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive. 21. Plaintiffs alleged damages are limited to real or actual damages only. 22. Defendant invokes the doctrines of Scienti et volenti non fit injuria (a person who knowledgeably consents to legal wrong has no legal right) and Damnum absque injuria (harm without injury). 23. The Federal Truth-in-Lending Act requires a written agreement setting forth the material terms for the issuance of any credit card. Plaintiff has failed to allege or attached the mandated written agreement. 24. Plaintiff has failed to attach to the complaint (or set forth the verbatim language of) the alleged contract and assignment between the parties hereto. 25. The defendant has never signed any cardholder agreement or any other document to establish the account that is the subject matter of this action and therefore is not liable for these charges. 26. Plaintiff is in violation of Article 9 (§9-406) of the Uniform Commercial Code by failing to provide a copy of the alleged contract and assignment to the defendant and thereby is not entitled to the payments for which it complains. 27. The Plaintiff's claim is barred by the mistake, inadvertence, excusable neglect and surprise of the Defendant herein. 28. Defendant did not receive the disclosures and notices required under 12 C.F.R. § 226.9(c)(2) regarding Defendant's account. Defendant is entitled to a setoff or recoupment of all interest charged. The allegations in this paragraph are made on information and belief and, therefore, are either likely to have evidentiary support or will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support. 29. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date. 4 4 of 5 FILED: YATES COUNTY CLERK 09/19/2023 11:07 AM INDEX NO. 2023-5198 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/19/2023 WHEREFORE, Defendant prays that this Honorable Court dismiss the Plaintiff's complaint with prejudice, enter a judgment of no action, plus award costs and attorney fees so wrongfully sustained. Dated: /6 foZ½ //.2/m, & W LLIAM VA ÉYVERDEN (#5415211) emming & sssociates, P.C. ttorneys for Defendant 2312 Park Ave., Ste. 100 Tustin, CA 92782 1-844-869-0999 Fax: 714-443-0201 5 5 of 5