Preview
FILED: ONEIDA COUNTY CLERK 01/11/2024 06:22 PM INDEX NO. EFCA2023-003171
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONEIDA
X
AMERICAN EXPRESS NATIONAL BANK,
VERIFIED ANSWER WITH
Plaintiff AFFIRMATIVE
-against- DEFENSES
Index No. EFCA2023-003171
DALE GOGGIN AKA DALE A GOGGIN,
Defendant
X
Defendant, DALE GOGGIN AKA DALE A GOGGIN (“Defendant”), by the undersigned
attorney, respondsto the Complaint of Plaintiff, AMERICAN EXPRESS NATIONAL BANK
(“Plaintiff”), as follows:
IN ANSWERING THE COMPLAINT
1. Defendant lacks the knowledge or information necessary to form a belief as to the
truth or veracity of the allegations set forth in Paragraph 1 of the Complaint, and, therefore,
DENIES the allegations on that basis.
2. In response to Paragraph 2 of the Complaint, Defendant ADMITS to residing in
ONEIDA County, New York.
3. Defendant lacks the knowledge or information necessary to form a belief as to the
truth or veracity of the allegations set forth in Paragraph 3 of the Complaint, and, therefore,
DENIES the allegations on that basis. Defendant demands Plaintiff provide proof and
substantiation through an admissible affidavit that Defendant entered into an agreement with
Plaintiff regarding the referenced agreement.
4. Defendant lacks the knowledge or information necessary to form a belief as to the
truth or veracity of the allegations set forth in Paragraph 4 of the Complaint, and, therefore,
DENIES the allegations on that basis. Defendant demands Plaintiff provide proof and
substantiation through an admissible affidavit that Defendant entered into an agreement with
Plaintiff regarding the referenced agreement allegedly ending in 1006 and incurred a balance for
the amount alleged to be in due Paragraph 4 of the Complaint.
5. Without evidentiary proof, Defendant lacks the knowledge or information
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necessary to form a belief as to the truth or veracity of the allegations set forth in Paragraph 5 of
the Complaint, and, therefore, DENIES the allegations on that basis. Defendant demands proof of
the referenced “most recent monthly statement” on the account through an admissible affidavit
along with respective statement. Moreover, Defendant disputes the alleged balance owed, as it is
Plaintiff who breached the agreement and rendered the contract unenforceable and in turn
unbreachable. For example, Defendant alleges that the amounts claimed by Plaintiff are inflated
to include improper charges and late payment fees inappropriately charged by Plaintiff. Defendant
submits that these charges created an unconscionable contract and that allowing Plaintiff to collect
these amounts would be inequitable, against public policy, and constitute unjust enrichment.
6. Without evidentiary proof, Defendant lacks the knowledge or information
necessary to form a belief as to the truth or veracity of the allegations set forth in Paragraph 6 of
the Complaint, and, therefore, DENIES the allegations on that basis. Defendant demands proof of
the final payment date on the account through an admissible affidavit along with respective
statement. Defendant notes the momentous development that the statute of limitations has recently
been shortened to three years by CPLR § 214-i.[1]. Defendant demands proof of said statement in
admissible form.
7. Defendant DENIES the allegations set forth in Paragraph 7 of the Complaint as to
Defendant’s alleged breach and the alleged amount due. It is Defendant’s position that Plaintiff
breached the subject contract by means of including but not limited to inflating to include improper
charges and late payment fees. Defendant submits that these charges created an unconscionable
contract and that allowing Plaintiff to collect these amounts would be inequitable, against public
policy, and constitute unjust enrichment.
8. Defendant DENIES the allegations set forth in Paragraph 8 of the Complaint as to
Defendant’s alleged breach and Plaintiff having made the referenced statements available to
Defendant, and, therefore, DENIES the allegations on that basis. For example, Defendant alleges
that the amounts claimed by Plaintiff are inflated to include improper charges and late payment
fees inappropriately charged by Plaintiff. Defendant submits that these charges created an
unconscionable contract and that allowing Plaintiff to collect these amounts would be inequitable,
against public policy, and constitute unjust enrichment. As to the charge-off statement, Defendant
demands proof in admissible form that the referenced charge-off statement was in fact made
available to Defendant and in what capacity. Defendant requests a true and accurate copy of the
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charge-off statement referenced in Paragraph 8 of the Complaint along with first-class mailing
documentation. Moreover, Defendant demands proof of the final payment date on the account
through an admissible affidavit along with respective statement.
9. Defendant challenges the authenticity, foundation, and thus admissibility of all
documents attached to Paragraph 9 of the Complaint, and, therefore, DENIES the allegations on
that basis. Defendant also requests a reasonable opportunity to investigate the referenced
document's authenticity and accuracy.
AS AND FOR DEFENDANT’S AFFIRMATIVE DEFENSES
10. Defendant disputes the alleged debt in its entirety.
11. The Court lacks jurisdiction over Defendant and/or this action has not been properly
commenced for, among other reasons, Plaintiff's failure to properly serve Defendant and its failure
to comply with CPLR §§ 305, 306-a, 306-b and/or 308.
12. This action is time-barred under the Statute of Limitations, as Plaintiff has not
sufficiently alleged or proven when Defendant made his last payment.
13. Plaintiff’s Complaint fails to state a claim against Defendant upon which relief can
be granted. Each cause of action therein fails to state facts sufficient to constitute a cause of action
against Defendant for which relief can be granted. The Complaint also fails to state a cause of
action because it does not specify which lawgoverns the purported interest rate.
14. Defendant denies the amounts claimed by Plaintiff and the remaining allegations.
Defendant demands that Plaintiff verifies the alleged debt and provides a detailed accounting of
all alleged purchases, charges, credits, offsets and payments to the alleged account. Plaintiff has
wholly failed to attach documentation providing that a binding agreement was entered into by
Plaintiff and Defendant.
15. Defendant alleges that the amounts claimed by Plaintiff are inflated to include
improper charges and late payment fees inappropriately charged by Plaintiff. Defendant submits
that these charges created an unconscionable contract and that allowing Plaintiff to collect these
amounts would be inequitable, against public policy, and constitute unjust enrichment.
16. Plaintiff’s claims are barred by estoppel, unclean hands, and waiver.
17. Defendant did not breach any duty or obligation allegedly owed to Plaintiff.
18. Plaintiff’s claims are barred by its failure to satisfy all conditions precedent.
19. Plaintiff failed, refused and/or neglected to take reasonable steps to mitigate
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Plaintiff’sdamages, if any, thus barring or diminishing any recovery by Plaintiff against Defendant.
20. Plaintiff’s claims are barred by the doctrine of laches due to Plaintiff’s
unreasonable andinexcusable delay, which caused substantial prejudice and injury to Defendant.
21. The contract entered between the parties was based on Usury and is therefore
unenforceable.
22. Plaintiff is barred under the Fair Debt Collection Practices Act, 15 U.S.C. §
1692f(1) and other relevant state and federal statutes, from collecting any interest andany amount
unless it is expressly authorized by the agreement creating the alleged debt or permitted by law.
Plaintiff has failed to attach proper documentation to verify such interest is permitted under the
applicable rules.
23. This action cannot be prosecuted because Plaintiff violated consumer-protection-
related regulations promulgated by the New York State Department of Financial Services.
24. Upon information and belief, Plaintiff did not comply with the Truth-in-Lending
Act.
RESERVATION OF RIGHTS
25. Defendant hereby gives notice to Plaintiff, as stated in this Answer, that Defendant
lacks sufficient knowledge or information upon which to form a belief as to the truth of certain
allegations contained in the complaint, or specific knowledge of actions on Plaintiff's part or others
that contributed to or caused Plaintiff's alleged damages. Until Defendant's rights of disclosure are
availed of it cannot be determined whether the above affirmative defenses will be asserted at
trial.
26. Defendant reserves the right to assert additional affirmative defenses and to
supplement, alter or change this Answer upon receipt of information and more definitive facts and
upon undertaking further discovery.
WHEREFORE, Defendant respectfully requests an Order of this Court dismissing the
Complaint in all respects and denying Plaintiff all relief requested therein, and such other relief as
the Court deems fitting and proper.
Dated: January 11, 2024
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Hilton, New York
Yours, etc.
Stephanie Rowe Turner, Esq.
Attorney Reg. Number: 5433503
Attorney for Defendant
263 Burritt Road
Hilton, New York 14468
585-943-4056
ATTORNEY VERIFICATION
STATE OF NEW YORK )
) SS.:
COUNTY OF MONROE )
Stephanie Rowe Turner, Esq., being a duly licensed attorney in the State of New York and
counsel of record for Defendant, affirms the following under penalties of perjury pursuant to CPLR
2106:
I have been assigned to defend the within proceeding and I am acquainted with the facts. I
have personally examined the exhibits annexed to and or itemized in the foregoing Answer and
records relating to this case.
I have read the foregoing Answer. The same is true to my knowledge, except as to those
matters alleged on information and belief, and as to those matters, I believe them to be true.
This verification is made by me pursuant to CPLR Section 3020(d)(3) because Defendant
is not in the county where I have my office. Deponent furthers says that the grounds of the belief
as to all matters in the VERIFIED ANSWER not stated to be upon his knowledge are based upon
conversations with the Defendant and a review of writings relevant to this action.
Dated: January 11, 2024
Hilton, New York
_______________________________
Stephanie Rowe Turner, Esq.
Attorney Reg. Number: 5433503
Attorney for Defendant
263 Burritt Road
Hilton, New York 14468
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/11/2024
585-943-4056
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Preview
FILED: ONEIDA COUNTY CLERK 01/11/2024 06:22 PM INDEX NO. EFCA2023-003171 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/11/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONEIDA X AMERICAN EXPRESS NATIONAL BANK, VERIFIED ANSWER WITH Plaintiff AFFIRMATIVE -against- DEFENSES Index No. EFCA2023-003171 DALE GOGGIN AKA DALE A GOGGIN, Defendant X Defendant, DALE GOGGIN AKA DALE A GOGGIN (“Defendant”), by the undersigned attorney, respondsto the Complaint of Plaintiff, AMERICAN EXPRESS NATIONAL BANK (“Plaintiff”), as follows: IN ANSWERING THE COMPLAINT 1. Defendant lacks the knowledge or information necessary to form a belief as to the truth or veracity of the allegations set forth in Paragraph 1 of the Complaint, and, therefore, DENIES the allegations on that basis. 2. In response to Paragraph 2 of the Complaint, Defendant ADMITS to residing in ONEIDA County, New York. 3. Defendant lacks the knowledge or information necessary to form a belief as to the truth or veracity of the allegations set forth in Paragraph 3 of the Complaint, and, therefore, DENIES the allegations on that basis. Defendant demands Plaintiff provide proof and substantiation through an admissible affidavit that Defendant entered into an agreement with Plaintiff regarding the referenced agreement. 4. Defendant lacks the knowledge or information necessary to form a belief as to the truth or veracity of the allegations set forth in Paragraph 4 of the Complaint, and, therefore, DENIES the allegations on that basis. Defendant demands Plaintiff provide proof and substantiation through an admissible affidavit that Defendant entered into an agreement with Plaintiff regarding the referenced agreement allegedly ending in 1006 and incurred a balance for the amount alleged to be in due Paragraph 4 of the Complaint. 5. Without evidentiary proof, Defendant lacks the knowledge or information 1 of 6 FILED: ONEIDA COUNTY CLERK 01/11/2024 06:22 PM INDEX NO. EFCA2023-003171 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/11/2024 necessary to form a belief as to the truth or veracity of the allegations set forth in Paragraph 5 of the Complaint, and, therefore, DENIES the allegations on that basis. Defendant demands proof of the referenced “most recent monthly statement” on the account through an admissible affidavit along with respective statement. Moreover, Defendant disputes the alleged balance owed, as it is Plaintiff who breached the agreement and rendered the contract unenforceable and in turn unbreachable. For example, Defendant alleges that the amounts claimed by Plaintiff are inflated to include improper charges and late payment fees inappropriately charged by Plaintiff. Defendant submits that these charges created an unconscionable contract and that allowing Plaintiff to collect these amounts would be inequitable, against public policy, and constitute unjust enrichment. 6. Without evidentiary proof, Defendant lacks the knowledge or information necessary to form a belief as to the truth or veracity of the allegations set forth in Paragraph 6 of the Complaint, and, therefore, DENIES the allegations on that basis. Defendant demands proof of the final payment date on the account through an admissible affidavit along with respective statement. Defendant notes the momentous development that the statute of limitations has recently been shortened to three years by CPLR § 214-i.[1]. Defendant demands proof of said statement in admissible form. 7. Defendant DENIES the allegations set forth in Paragraph 7 of the Complaint as to Defendant’s alleged breach and the alleged amount due. It is Defendant’s position that Plaintiff breached the subject contract by means of including but not limited to inflating to include improper charges and late payment fees. Defendant submits that these charges created an unconscionable contract and that allowing Plaintiff to collect these amounts would be inequitable, against public policy, and constitute unjust enrichment. 8. Defendant DENIES the allegations set forth in Paragraph 8 of the Complaint as to Defendant’s alleged breach and Plaintiff having made the referenced statements available to Defendant, and, therefore, DENIES the allegations on that basis. For example, Defendant alleges that the amounts claimed by Plaintiff are inflated to include improper charges and late payment fees inappropriately charged by Plaintiff. Defendant submits that these charges created an unconscionable contract and that allowing Plaintiff to collect these amounts would be inequitable, against public policy, and constitute unjust enrichment. As to the charge-off statement, Defendant demands proof in admissible form that the referenced charge-off statement was in fact made available to Defendant and in what capacity. Defendant requests a true and accurate copy of the 2 of 6 FILED: ONEIDA COUNTY CLERK 01/11/2024 06:22 PM INDEX NO. EFCA2023-003171 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/11/2024 charge-off statement referenced in Paragraph 8 of the Complaint along with first-class mailing documentation. Moreover, Defendant demands proof of the final payment date on the account through an admissible affidavit along with respective statement. 9. Defendant challenges the authenticity, foundation, and thus admissibility of all documents attached to Paragraph 9 of the Complaint, and, therefore, DENIES the allegations on that basis. Defendant also requests a reasonable opportunity to investigate the referenced document's authenticity and accuracy. AS AND FOR DEFENDANT’S AFFIRMATIVE DEFENSES 10. Defendant disputes the alleged debt in its entirety. 11. The Court lacks jurisdiction over Defendant and/or this action has not been properly commenced for, among other reasons, Plaintiff's failure to properly serve Defendant and its failure to comply with CPLR §§ 305, 306-a, 306-b and/or 308. 12. This action is time-barred under the Statute of Limitations, as Plaintiff has not sufficiently alleged or proven when Defendant made his last payment. 13. Plaintiff’s Complaint fails to state a claim against Defendant upon which relief can be granted. Each cause of action therein fails to state facts sufficient to constitute a cause of action against Defendant for which relief can be granted. The Complaint also fails to state a cause of action because it does not specify which lawgoverns the purported interest rate. 14. Defendant denies the amounts claimed by Plaintiff and the remaining allegations. Defendant demands that Plaintiff verifies the alleged debt and provides a detailed accounting of all alleged purchases, charges, credits, offsets and payments to the alleged account. Plaintiff has wholly failed to attach documentation providing that a binding agreement was entered into by Plaintiff and Defendant. 15. Defendant alleges that the amounts claimed by Plaintiff are inflated to include improper charges and late payment fees inappropriately charged by Plaintiff. Defendant submits that these charges created an unconscionable contract and that allowing Plaintiff to collect these amounts would be inequitable, against public policy, and constitute unjust enrichment. 16. Plaintiff’s claims are barred by estoppel, unclean hands, and waiver. 17. Defendant did not breach any duty or obligation allegedly owed to Plaintiff. 18. Plaintiff’s claims are barred by its failure to satisfy all conditions precedent. 19. Plaintiff failed, refused and/or neglected to take reasonable steps to mitigate 3 of 6 FILED: ONEIDA COUNTY CLERK 01/11/2024 06:22 PM INDEX NO. EFCA2023-003171 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/11/2024 Plaintiff’sdamages, if any, thus barring or diminishing any recovery by Plaintiff against Defendant. 20. Plaintiff’s claims are barred by the doctrine of laches due to Plaintiff’s unreasonable andinexcusable delay, which caused substantial prejudice and injury to Defendant. 21. The contract entered between the parties was based on Usury and is therefore unenforceable. 22. Plaintiff is barred under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692f(1) and other relevant state and federal statutes, from collecting any interest andany amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify such interest is permitted under the applicable rules. 23. This action cannot be prosecuted because Plaintiff violated consumer-protection- related regulations promulgated by the New York State Department of Financial Services. 24. Upon information and belief, Plaintiff did not comply with the Truth-in-Lending Act. RESERVATION OF RIGHTS 25. Defendant hereby gives notice to Plaintiff, as stated in this Answer, that Defendant lacks sufficient knowledge or information upon which to form a belief as to the truth of certain allegations contained in the complaint, or specific knowledge of actions on Plaintiff's part or others that contributed to or caused Plaintiff's alleged damages. Until Defendant's rights of disclosure are availed of it cannot be determined whether the above affirmative defenses will be asserted at trial. 26. Defendant reserves the right to assert additional affirmative defenses and to supplement, alter or change this Answer upon receipt of information and more definitive facts and upon undertaking further discovery. WHEREFORE, Defendant respectfully requests an Order of this Court dismissing the Complaint in all respects and denying Plaintiff all relief requested therein, and such other relief as the Court deems fitting and proper. Dated: January 11, 2024 4 of 6 FILED: ONEIDA COUNTY CLERK 01/11/2024 06:22 PM INDEX NO. EFCA2023-003171 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/11/2024 Hilton, New York Yours, etc. Stephanie Rowe Turner, Esq. Attorney Reg. Number: 5433503 Attorney for Defendant 263 Burritt Road Hilton, New York 14468 585-943-4056 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) SS.: COUNTY OF MONROE ) Stephanie Rowe Turner, Esq., being a duly licensed attorney in the State of New York and counsel of record for Defendant, affirms the following under penalties of perjury pursuant to CPLR 2106: I have been assigned to defend the within proceeding and I am acquainted with the facts. I have personally examined the exhibits annexed to and or itemized in the foregoing Answer and records relating to this case. I have read the foregoing Answer. The same is true to my knowledge, except as to those matters alleged on information and belief, and as to those matters, I believe them to be true. This verification is made by me pursuant to CPLR Section 3020(d)(3) because Defendant is not in the county where I have my office. Deponent furthers says that the grounds of the belief as to all matters in the VERIFIED ANSWER not stated to be upon his knowledge are based upon conversations with the Defendant and a review of writings relevant to this action. Dated: January 11, 2024 Hilton, New York _______________________________ Stephanie Rowe Turner, Esq. Attorney Reg. Number: 5433503 Attorney for Defendant 263 Burritt Road Hilton, New York 14468 5 of 6 FILED: ONEIDA COUNTY CLERK 01/11/2024 06:22 PM INDEX NO. EFCA2023-003171 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/11/2024 585-943-4056 6 of 6