Preview
FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM INDEX NO. 001083-2019
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020
Mary F. Strickland , County Clerk
Livingston County Government Center
6 Court Street, Room 201
fl A ÏÏ Geneseo, New York 14454
182' ~
(585) 243-7010 Fax (585) 243-7928
Livingston County Clerk Recording Page
Received From: Return To:
JOSHUA COLIN RESNICK JOSHUA COLIN RESNICK
11 BROADWAY SUITE 960 11 BROADWAY SUITE 960
NEW YORK, NY 10004 NEW YORK, NY 10004
Document Type: CIVIL ACTION - MISC Document Desc: ANSWER
Plaintiff Defendant
MARINER FINANCE, LLC WEED SALLY A.
Recorded Information:
State of New York
Index #: 001083-2019
County of Livingston
EFiling through NYSCEF
Livingston County Clerk
This sheet constitutesthe Clerk's endoreement required by section 319 of the Real Property Law ofthe State ofNew York
AKB
Do Not
1 ofDetach
6
Index
INDEX #
NO.: 001083-2019
001083-2019
FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF LIVINGSTON
MARINER FINANCE, LLC., ANSWER
Plaintiff, Index No. 001083-2019
vs.
SALLY A. WEED,
Defendant(s).
Defendant, SALLY A. WEED, by and through her attorneys, Law Offices of Robert S.
Gitmeid & Assoc., PLLC, without waiving any affirmative defenses, as and for an Answer to the
Plaintiff's Complaint, states the following upon information and belief:
AS TO FIRST CAUSE OF ACTION
1. Defendant lacks knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in Paragraph 1 and, therefore, DENIES the allegations on
that basis.
2. Defendant lacks knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in Paragraph 2 and, therefore, DENIES the allegations on
that basis.
3. Defendant lacks knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in Paragraph 3 and, therefore, DENIES the allegations on
that basis.
4. Defendant lacks knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in Paragraph 4 and, therefore, DENIES the allegations on
that basis.
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Index NO.
INDEX #: 001083-2019
001083-2019
FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020
5. Defendant lacks knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in Paragraph 5 and, therefore, DENIES the allegations on
that basis.
6. Defendant lacks knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in Paragraph 6 and, therefore, DENIES the allegations on
that basis.
AFFIRMATIVE DEFENSES
First Affirmative Defense
The Complaint fails to state a claim against Defendant upon which relief can be granted.
Second Affirmative Defense
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.
Third Affirmative Defense
Defendant alleges that the amounts claimed by Plaintiff are inflated to include improper
charges and late payment fees inappropriately charged by Plaintiff. The Defendant submits that
these charges created an unconscionable contract and that allowing Plaintiff to collect these
amounts would be inequitable and against public policy.
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Index NO.
INDEX #: 001083-2019
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FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020
Fourth Affirmative Defense
Defendant contends that Plaintiff charged excessive interest, late fees and penalties. As a
result of the excessive amounts charged by Plaintiff, Defendant is unable to reduce the debt,
making performance of any obligation impossible.
Fifth Affirmative Defense
This action is barred by the statute of limitations.
Sixth Affirmative Defense
Plaintiff's claims are barred by estoppel, unclean hands, and waiver.
Seventh Affirmative Defense
Defendant did not breach any duty or obligation allegedly owed to Plaintiff.
Eighth Affirmative Defense
Plaintiff's claims are barred by its failure to satisfy all conditions precedent.
Ninth Affirmative Defense
Plaintiff failed, refused and/or neglected to take reasonable steps to mitigate Plaintiff's
damages, if any, thus barring or diminishing any recovery by Plaintiff against Defendants.
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Index NO.
INDEX #: 001083-2019
001083-2019
FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020
Tenth Affirmative Defense
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 and
any amount unless itis 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.
Eleventh Affirmative Defense
Plaintiff's claims are barred by the doctrine of laches due to Plaintiff's unreasonable and
inexcusable delay which caused substantial prejudice and injury to Defendant.
Twelfth Affirmative Defense
The contract entered into between the parties was based on Usury and is therefore
unenforceable.
Thirteenth Affirmative Defense
Plaintiff engaged in improper service of process since itnever served defendant
personally or through a permissible substitute method as required under CPLR 308.
Fourteenth Affirmative Defense
Defendant reserves the right to assert additional defenses as discovery progresses.
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Index NO.
INDEX #: 001083-2019
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FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020
PRAYER FOR RELIEF
WHEREFORE, the Defendant prays for relief from this Honorable Court as follows:
A. That the Plaintiff takes nothing by way of this Complaint,
B. To dismiss the Complaint with prejudice based upon the admissions, denials, and
defenses as alleged herein,
C. To award the Defendant's costs, and
D. To award the Defendant such other and further relief as this Court deems just and
equitable.
Respectfully Submitted,
/s/
Joshua Resnick, Esq.
. Attorney for Defendant(s)
Law Offices of Robert S. Gitmeid
& Assoc., PLLC
11 Broadway, Suite 960
New York, NY 10004
Tel: (212) 226-5081
Fax: (212) 208-2591
TO: CLERK
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF LIVINGSTON
CC: ROBERT B. GITLIN, ESQ
Attorney for Plaintiff
16 East Main Street, Suite 210
Rochester, New York 14614
(585) 325-5343
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FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM INDEX NO. 001083-2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020 Mary F. Strickland , County Clerk Livingston County Government Center 6 Court Street, Room 201 fl A ÏÏ Geneseo, New York 14454 182' ~ (585) 243-7010 Fax (585) 243-7928 Livingston County Clerk Recording Page Received From: Return To: JOSHUA COLIN RESNICK JOSHUA COLIN RESNICK 11 BROADWAY SUITE 960 11 BROADWAY SUITE 960 NEW YORK, NY 10004 NEW YORK, NY 10004 Document Type: CIVIL ACTION - MISC Document Desc: ANSWER Plaintiff Defendant MARINER FINANCE, LLC WEED SALLY A. Recorded Information: State of New York Index #: 001083-2019 County of Livingston EFiling through NYSCEF Livingston County Clerk This sheet constitutesthe Clerk's endoreement required by section 319 of the Real Property Law ofthe State ofNew York AKB Do Not 1 ofDetach 6 Index INDEX # NO.: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF LIVINGSTON MARINER FINANCE, LLC., ANSWER Plaintiff, Index No. 001083-2019 vs. SALLY A. WEED, Defendant(s). Defendant, SALLY A. WEED, by and through her attorneys, Law Offices of Robert S. Gitmeid & Assoc., PLLC, without waiving any affirmative defenses, as and for an Answer to the Plaintiff's Complaint, states the following upon information and belief: AS TO FIRST CAUSE OF ACTION 1. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 1 and, therefore, DENIES the allegations on that basis. 2. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 2 and, therefore, DENIES the allegations on that basis. 3. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 3 and, therefore, DENIES the allegations on that basis. 4. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 4 and, therefore, DENIES the allegations on that basis. 2 of 6 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020 5. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 5 and, therefore, DENIES the allegations on that basis. 6. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 6 and, therefore, DENIES the allegations on that basis. AFFIRMATIVE DEFENSES First Affirmative Defense The Complaint fails to state a claim against Defendant upon which relief can be granted. Second Affirmative Defense 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. Third Affirmative Defense Defendant alleges that the amounts claimed by Plaintiff are inflated to include improper charges and late payment fees inappropriately charged by Plaintiff. The Defendant submits that these charges created an unconscionable contract and that allowing Plaintiff to collect these amounts would be inequitable and against public policy. 3 of 6 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020 Fourth Affirmative Defense Defendant contends that Plaintiff charged excessive interest, late fees and penalties. As a result of the excessive amounts charged by Plaintiff, Defendant is unable to reduce the debt, making performance of any obligation impossible. Fifth Affirmative Defense This action is barred by the statute of limitations. Sixth Affirmative Defense Plaintiff's claims are barred by estoppel, unclean hands, and waiver. Seventh Affirmative Defense Defendant did not breach any duty or obligation allegedly owed to Plaintiff. Eighth Affirmative Defense Plaintiff's claims are barred by its failure to satisfy all conditions precedent. Ninth Affirmative Defense Plaintiff failed, refused and/or neglected to take reasonable steps to mitigate Plaintiff's damages, if any, thus barring or diminishing any recovery by Plaintiff against Defendants. 4 of 6 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020 Tenth Affirmative Defense 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 and any amount unless itis 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. Eleventh Affirmative Defense Plaintiff's claims are barred by the doctrine of laches due to Plaintiff's unreasonable and inexcusable delay which caused substantial prejudice and injury to Defendant. Twelfth Affirmative Defense The contract entered into between the parties was based on Usury and is therefore unenforceable. Thirteenth Affirmative Defense Plaintiff engaged in improper service of process since itnever served defendant personally or through a permissible substitute method as required under CPLR 308. Fourteenth Affirmative Defense Defendant reserves the right to assert additional defenses as discovery progresses. 5 of 6 Index NO. INDEX #: 001083-2019 001083-2019 FILED: LIVINGSTON COUNTY CLERK 01/23/2020 12:39 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/23/2020 PRAYER FOR RELIEF WHEREFORE, the Defendant prays for relief from this Honorable Court as follows: A. That the Plaintiff takes nothing by way of this Complaint, B. To dismiss the Complaint with prejudice based upon the admissions, denials, and defenses as alleged herein, C. To award the Defendant's costs, and D. To award the Defendant such other and further relief as this Court deems just and equitable. Respectfully Submitted, /s/ Joshua Resnick, Esq. . Attorney for Defendant(s) Law Offices of Robert S. Gitmeid & Assoc., PLLC 11 Broadway, Suite 960 New York, NY 10004 Tel: (212) 226-5081 Fax: (212) 208-2591 TO: CLERK SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF LIVINGSTON CC: ROBERT B. GITLIN, ESQ Attorney for Plaintiff 16 East Main Street, Suite 210 Rochester, New York 14614 (585) 325-5343 6 of 6