Preview
JOSEPH G. SWEENEY (SBN 268475)
Law Offices of Joseph G. Sweeney, PC
700 Larkspur Landing Circle Suite 199 7/10/2020
Larkspur, California 94939
Telephone: (510) 545-9307
Facsimile: (510) 573-2860
Email: joe sweeney-calaw.corn
Attorney for Defendants;
Charles W Cornell, aka Charles Cornell, an individual
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SUPERIOR COURT OF THK STATE OF CALIFORNIA
COUNTY OF BUTTE
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American Express National Bank Case No. 20CV00760
12 DEFENDANT CHARLES W CORNELL,
Plaintiff, AKA CHARLES CORNELL, AN
vs. INDIVIDUAL ANSWER
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TO PLAINTIFF'S UNVERIFIED
1 ti
COMPLAINT
Charles W Cornell, aka Charles Cornell, an
individual Action Filed: March 13, 2020
Defendants.
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Defendant Charles W Cornell, aka Charles Cornell, an individual (herein after "Defendant*')
answers the unverified Complaint of Plaintiff American Express National Bank
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(herein after "Plaintiff') as follows:
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GENERAL DENIAL
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Pursuant to California Code of Civil Procedure section 431.30(d), Defendant denies,
generally and specifically, each and every allegation contained in the Complaint, and Defendant
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further denies that Plaintiffhas been injured in anyway, form or matter, or is entitled to any of
the sums mentioned whatsoever and prayed for in its unverified Complaint, in any amount, or at
all.
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Defendant Answer to Platatltrs Cotnptai ~ t
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2 AFFIRMATIVE DEFENSES
3 In further response to the Complaint, and as separate and distinct affirmative defenses,
this answering Defendant alleges as follows:
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FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)
AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering Defendant alleges that Plaintiff's Complaint, and each cause of action therein,
8 fails to state facts sufficient to constitute any cause of action.
SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations)
AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering Defendant alleges that Plaintiff's Complaint is barred by the applicable statute of
limitations, including but not limited to, those enumerated in California Code of Civil Procedure
Sections 312 through 365.
13
THIRD AFFIRMATIVE DEFENSE
14 (Waiver)
AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
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this answering Defendant alleges that the relief sought by Plaintiff is barred due to the acts,
conduct, and omissions of Plaintiff which constitute waiver.
17 FOURTH AFFIRMATIVE DEFENSE
(Estoppel)
AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering Defendant alleges that the relief sought by Plaintiff is barred due to the acts,
conduct, and omissions of Plaintiff which constitute estoppel.
20
FIFTH AFFIRMATIVE DEFENSE
(Laches)
22 AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering Defendant alleges that the relief sought by Plaintiff is barred due to the acts,
conduct, and omissions of Plaintiff which constitute laches.
SIXTH AFFIRMATIVE DEFENSE
25 (Unclean Hands)
AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering Defendant alleges that the relief sought by Plaintiff is barred due to the acts,
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conduct, and omissions of Plaintiff which constitute unclean hands
28 SEVENTH AFFIRMATIVE DEFENSE
Defendant Answer to Plaintilrs Complaint
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2
(Unjust Enrichment)
AS AND FOR A SEVENTII, SEPARATE AND DISTINCT AFFIRMATIVE
2 DEFENSE, this answering Defendant alleges that Plaintiff's Complaint, and each cause of action
contained therein, is barred because Plaintiff would be unjustly enriched by receipt of'any
recovery prayed for in the Complaint.
EIGHTH AFFIRMATIVE DEFENSE
8 (Justification and Privilege)
AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that any of Defendant's conduct towards Plaintiff
was justified and privileged.
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8 NINTH AFF'IRMATIVE DEFENSE
(Contribution)
AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
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this answering Defendant al leges that any loss or damage suffered by Plaintiff was caused in
whole or in part, by Plaintiff's own conduct, acts or omissions.
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TENTH AFFIRMATIVE DEFENSE
(Mistake of Fact)
AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering Defendant alleges that Plaintiff is barred from recovery on the basis that Plaintiffs
or Defendants were ignorant or mistaken of material facts.
ELEVENTH AFFIRMATIVE DEFENSE
(Statute of Frauds)
AS AND FOR A ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, the answering Defendant alleges that the Causes of'Action alleged in the Complaint
are barred by thc Statute of Frauds because the agreement complained of in the Complaint is not
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reflected in an executed writing.
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TWELFTH AFFIRMATIVE DEFENSE
20 (Substantial Performance)
AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE
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DEFENSE, this answering Defendant alleges that Defendant has substantially performed all of
thc conditions, covenants and promises required to be performed within the contract.
23 THIRTEENTH AFFIRMATIVE DEFENSE
(Lack of Privity)
AS AND FOR A TIIIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that there is no contractual relationship or
agreement between the Plaintiff or the PlaintifF s assignor and the Defendant.
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FOURTEENTH AFFIRMATIVE DEFENSE
(Failure of Conditions Precedent)
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Defendant Answer to Plaintiff's Complaint
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AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
1
DEFENSE, this answering Defendant alleges that Plaintiff's Complaint is barred because
2 conditions precedent to performance by Defendant were never satisfted or performed.
3 FIFTEENTH AFFIRMATIVE DEFENSE
(Brcach of Contract)
AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that to the extent that Plaintiff contends that any
covenant or condition of any agreement vtrith Defendant was breached and that said breach of
failure of performance was a cause of damage to Plaintiff, Defendant's performance of same was
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excused by Plaintiff's own breach/failure to perform.
8 SIXTEENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
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DEFENSE, this answering Defendant alleges that I'laintiff's Complaint is barred because
Plaintiff has failed to mitigate the amount of its damages.
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SEVENTEENTH AFFIRMATIVE DEFENSE
(Accord ttk Satisfaction)
AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that the account, debt, or contract has already been
satisfied.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Lack of Standing)
AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that the Plaintiff or the person actin on behalf of
this Plaintiff does not have standing to bring this case.
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NINETEENTH AFFIRMATIVE DEFENSE
(Fraud)
20 AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that Plaintiff's cannot recover because of the fraud
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committed by Plaintiff.
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TWENTIETH AFFIRMATIVE DEFENSE
23 (Unfair Business Practices)
AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that Plaintiff itself was engaged in Unfair Business
25 Practices.
26 TWENTY- FIRST AFFIRMATIVE DEFENSE
(Misappropriation)
AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
28 DEFENSE, this answering Defendant alleges that plaintiff was engaged in Misappropriation at
Defendant answer to platntitrs Complaint
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the detriment of the Defendants about the matters complained of; and Misappropriation
1
contributed to the happening of the Claims complained of, and the damages sustained, if any.
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3 TWENTY-SECOND AFFIRMATIVE DEFENSE
(Offset)
AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that Plaintiff's claims are subject to offset based on
the acts and wrongdoings of Plaintiff.
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TWENTY- THIRD AFFIRMATIVE DEFENSE
(ModiRication)
AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that the contract in question, if any, was modified
by the parties, and that Plaintiff is barred from recovery on the unmodified original contract, if
10 any, by reason of said modification.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Substituted Contract)
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AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
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DEFENSE, this answering Defendant alleges that a new contract were substituted in place of the
original contract, if any, and that Plaintiffs are barred from recovery on the original contract, if
any.
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TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Agreement is Not Fully Integrated)
AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that if there presently exists or ever existed any or
all of the alleged rights, claims or obligations which Plaintiff seeks byway of their Complaint,
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said claims or obligations are unenforceable because the written agreement, if any, is not fully
19 integrated.
20 TWENTY-SIXTH AFFIRMATIVE DEFENSE
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(Substantial or Partial Performance/Divisibility)
AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
22 DEFENSE, this answering Defendant alleges that the contract alleged in the complaint, if any,
has been substantially and/or partially performed, and as such is subject to divisibility.
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(In Pari Delicto)
25 AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answeiing Defendant alleges that the Plaintiffs herein and each and every cause
of action in the Complaint are barred because Plaintiffs have engaged in acts and courses of
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conduct which rendered them in pari delicto.
28 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
nefendant Answer to Plaintin"a Complaint
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(Anticipatory Repudiation)
AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that the Plaintiffs breached their contract, if any,
with Defendants, and that by reason of'said breach of contract, Defendants have been excused to
of their duties to perform all obligations set forth in said contract.
TWENTY-NINTH AFFIRMATIVE DEFENSE
5 (Violation of Fair Debt Collection Practices Act)
AS AND FOR A TWENTY NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering Defendant alleges that the Plaintiffs are not entitled to any recovery
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as their actions violated the Fair Debt Collection Practices Act.
8 THIRTIETH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTIETI-I, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, with regard to Plaintiff's Prayer for Relief', this answering Defendant denies that
such relief is either appropriate or justified in the circumstances of this case.
PRAYER FOR RELIEF
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WHEREFORE, Defendant prays for judgment against Plaintiffs, as follows:
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That Plaintiff take nothing by way of its Complaint and that the Complaint be
dismissed in its entirety with prejudice;
2. That Defendant be awarded costs of suit incurred herein;
3. That this Court grant Defendant such additional and further relief as the Court deems
just and proper.
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LAW OFFICES OF JOSEPH C. SWKKNEY, PC
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n t +7(e/70
23 Attorney for Defendant
Charles W Cornell, aka Charles Cornell, an individual
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Defendant Answer tn plaintiff's Complaint
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PROOF OF SERVICE
I iun a resident of the County of Marin, State of California. I am over the age of 18 and I
am not a party to the within action. My business address is 700 Larkspur Landing Circle Suite
199 Larkspur, CA 94939
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On {f7j'ZQ I served the following document(s): DEFENDANT CHARLES W
CORNEI L, AKA CHARLES CORNELL, AN INDIVIDUAL ANSWER
TO PLAINTIFF'S UNVERIFIED COMPLAINT
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The foregoing documents were served by the following means;
(BY U.S. MAIL) I enclosed the doctnnents in a sealed envelope or package addressed to
the person(s) listed below and placed the envelope for collection and mailing following
our ordinary business practices. I am "readily familiar" with the firm's practice for
8 collection and processing correspondence for mailing. Under that practice, it would be
deposited with the U.S. Postal Service on that same day with postage thereon fidly
9 prepaid at Novato, California in the ordinary course of business.
10 (BY EMAIL) I caused the documents to be sent to the person(s) listed below at the
corresponding email address(es). I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
unsuccessful.
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Executed on 7f(of'Zo
t
at Novato, California.
I declare under penalty of perjury under the laws of the State of California that the above
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is true and correct. I declare that I am employed in the office of a member of the bar of this court
at whose direction the service was made.
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18
ney
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SERVICE, LIST
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22 Spencer Penuela
Michael k Associates, PC
23 555 St. Charles Drive, Suite 204
Thousand Oaks, CA 91360
Counsel for Plaintiff
American Express National Bank
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nefendsnt Answer tu rtsintift"s Cutnplnint
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Preview
JOSEPH G. SWEENEY (SBN 268475) Law Offices of Joseph G. Sweeney, PC 700 Larkspur Landing Circle Suite 199 7/10/2020 Larkspur, California 94939 Telephone: (510) 545-9307 Facsimile: (510) 573-2860 Email: joe sweeney-calaw.corn Attorney for Defendants; Charles W Cornell, aka Charles Cornell, an individual 7 SUPERIOR COURT OF THK STATE OF CALIFORNIA COUNTY OF BUTTE 10 American Express National Bank Case No. 20CV00760 12 DEFENDANT CHARLES W CORNELL, Plaintiff, AKA CHARLES CORNELL, AN vs. INDIVIDUAL ANSWER 13 TO PLAINTIFF'S UNVERIFIED 1 ti COMPLAINT Charles W Cornell, aka Charles Cornell, an individual Action Filed: March 13, 2020 Defendants. 17 18 19 Defendant Charles W Cornell, aka Charles Cornell, an individual (herein after "Defendant*') answers the unverified Complaint of Plaintiff American Express National Bank 21 (herein after "Plaintiff') as follows: 22 GENERAL DENIAL 23 Pursuant to California Code of Civil Procedure section 431.30(d), Defendant denies, generally and specifically, each and every allegation contained in the Complaint, and Defendant 25 further denies that Plaintiffhas been injured in anyway, form or matter, or is entitled to any of the sums mentioned whatsoever and prayed for in its unverified Complaint, in any amount, or at all. 28 Defendant Answer to Platatltrs Cotnptai ~ t — 1 2 AFFIRMATIVE DEFENSES 3 In further response to the Complaint, and as separate and distinct affirmative defenses, this answering Defendant alleges as follows: 5 FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that Plaintiff's Complaint, and each cause of action therein, 8 fails to state facts sufficient to constitute any cause of action. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that Plaintiff's Complaint is barred by the applicable statute of limitations, including but not limited to, those enumerated in California Code of Civil Procedure Sections 312 through 365. 13 THIRD AFFIRMATIVE DEFENSE 14 (Waiver) AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 15 this answering Defendant alleges that the relief sought by Plaintiff is barred due to the acts, conduct, and omissions of Plaintiff which constitute waiver. 17 FOURTH AFFIRMATIVE DEFENSE (Estoppel) AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that the relief sought by Plaintiff is barred due to the acts, conduct, and omissions of Plaintiff which constitute estoppel. 20 FIFTH AFFIRMATIVE DEFENSE (Laches) 22 AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that the relief sought by Plaintiff is barred due to the acts, conduct, and omissions of Plaintiff which constitute laches. SIXTH AFFIRMATIVE DEFENSE 25 (Unclean Hands) AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that the relief sought by Plaintiff is barred due to the acts, 7 conduct, and omissions of Plaintiff which constitute unclean hands 28 SEVENTH AFFIRMATIVE DEFENSE Defendant Answer to Plaintilrs Complaint — 2 (Unjust Enrichment) AS AND FOR A SEVENTII, SEPARATE AND DISTINCT AFFIRMATIVE 2 DEFENSE, this answering Defendant alleges that Plaintiff's Complaint, and each cause of action contained therein, is barred because Plaintiff would be unjustly enriched by receipt of'any recovery prayed for in the Complaint. EIGHTH AFFIRMATIVE DEFENSE 8 (Justification and Privilege) AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that any of Defendant's conduct towards Plaintiff was justified and privileged. 7 8 NINTH AFF'IRMATIVE DEFENSE (Contribution) AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 8 this answering Defendant al leges that any loss or damage suffered by Plaintiff was caused in whole or in part, by Plaintiff's own conduct, acts or omissions. 11 TENTH AFFIRMATIVE DEFENSE (Mistake of Fact) AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that Plaintiff is barred from recovery on the basis that Plaintiffs or Defendants were ignorant or mistaken of material facts. ELEVENTH AFFIRMATIVE DEFENSE (Statute of Frauds) AS AND FOR A ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, the answering Defendant alleges that the Causes of'Action alleged in the Complaint are barred by thc Statute of Frauds because the agreement complained of in the Complaint is not 18 reflected in an executed writing. 19 TWELFTH AFFIRMATIVE DEFENSE 20 (Substantial Performance) AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE 21 DEFENSE, this answering Defendant alleges that Defendant has substantially performed all of thc conditions, covenants and promises required to be performed within the contract. 23 THIRTEENTH AFFIRMATIVE DEFENSE (Lack of Privity) AS AND FOR A TIIIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that there is no contractual relationship or agreement between the Plaintiff or the PlaintifF s assignor and the Defendant. 26 27 FOURTEENTH AFFIRMATIVE DEFENSE (Failure of Conditions Precedent) 28 Defendant Answer to Plaintiff's Complaint — 3 AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 1 DEFENSE, this answering Defendant alleges that Plaintiff's Complaint is barred because 2 conditions precedent to performance by Defendant were never satisfted or performed. 3 FIFTEENTH AFFIRMATIVE DEFENSE (Brcach of Contract) AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that to the extent that Plaintiff contends that any covenant or condition of any agreement vtrith Defendant was breached and that said breach of failure of performance was a cause of damage to Plaintiff, Defendant's performance of same was 7 excused by Plaintiff's own breach/failure to perform. 8 SIXTEENTH AFFIRMATIVE DEFENSE (Failure to Mitigate) AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 8 DEFENSE, this answering Defendant alleges that I'laintiff's Complaint is barred because Plaintiff has failed to mitigate the amount of its damages. 11 SEVENTEENTH AFFIRMATIVE DEFENSE (Accord ttk Satisfaction) AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that the account, debt, or contract has already been satisfied. EIGHTEENTH AFFIRMATIVE DEFENSE (Lack of Standing) AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that the Plaintiff or the person actin on behalf of this Plaintiff does not have standing to bring this case. 18 NINETEENTH AFFIRMATIVE DEFENSE (Fraud) 20 AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that Plaintiff's cannot recover because of the fraud 21 committed by Plaintiff. 22 TWENTIETH AFFIRMATIVE DEFENSE 23 (Unfair Business Practices) AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that Plaintiff itself was engaged in Unfair Business 25 Practices. 26 TWENTY- FIRST AFFIRMATIVE DEFENSE (Misappropriation) AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE 28 DEFENSE, this answering Defendant alleges that plaintiff was engaged in Misappropriation at Defendant answer to platntitrs Complaint — 4 the detriment of the Defendants about the matters complained of; and Misappropriation 1 contributed to the happening of the Claims complained of, and the damages sustained, if any. 2 3 TWENTY-SECOND AFFIRMATIVE DEFENSE (Offset) AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that Plaintiff's claims are subject to offset based on the acts and wrongdoings of Plaintiff. 6 TWENTY- THIRD AFFIRMATIVE DEFENSE (ModiRication) AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that the contract in question, if any, was modified by the parties, and that Plaintiff is barred from recovery on the unmodified original contract, if 10 any, by reason of said modification. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Substituted Contract) 12 AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE 13 DEFENSE, this answering Defendant alleges that a new contract were substituted in place of the original contract, if any, and that Plaintiffs are barred from recovery on the original contract, if any. 15 TWENTY-FIFTH AFFIRMATIVE DEFENSE (Agreement is Not Fully Integrated) AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that if there presently exists or ever existed any or all of the alleged rights, claims or obligations which Plaintiff seeks byway of their Complaint, 18 said claims or obligations are unenforceable because the written agreement, if any, is not fully 19 integrated. 20 TWENTY-SIXTH AFFIRMATIVE DEFENSE 21 (Substantial or Partial Performance/Divisibility) AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE 22 DEFENSE, this answering Defendant alleges that the contract alleged in the complaint, if any, has been substantially and/or partially performed, and as such is subject to divisibility. 23 TWENTY-SEVENTH AFFIRMATIVE DEFENSE (In Pari Delicto) 25 AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answeiing Defendant alleges that the Plaintiffs herein and each and every cause of action in the Complaint are barred because Plaintiffs have engaged in acts and courses of 27 conduct which rendered them in pari delicto. 28 TWENTY-EIGHTH AFFIRMATIVE DEFENSE nefendant Answer to Plaintin"a Complaint — 5 (Anticipatory Repudiation) AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that the Plaintiffs breached their contract, if any, with Defendants, and that by reason of'said breach of contract, Defendants have been excused to of their duties to perform all obligations set forth in said contract. TWENTY-NINTH AFFIRMATIVE DEFENSE 5 (Violation of Fair Debt Collection Practices Act) AS AND FOR A TWENTY NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering Defendant alleges that the Plaintiffs are not entitled to any recovery 7 as their actions violated the Fair Debt Collection Practices Act. 8 THIRTIETH AFFIRMATIVE DEFENSE AS AND FOR A THIRTIETI-I, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, with regard to Plaintiff's Prayer for Relief', this answering Defendant denies that such relief is either appropriate or justified in the circumstances of this case. PRAYER FOR RELIEF 12 WHEREFORE, Defendant prays for judgment against Plaintiffs, as follows: 13 That Plaintiff take nothing by way of its Complaint and that the Complaint be dismissed in its entirety with prejudice; 2. That Defendant be awarded costs of suit incurred herein; 3. That this Court grant Defendant such additional and further relief as the Court deems just and proper. 18 19 LAW OFFICES OF JOSEPH C. SWKKNEY, PC 20 n t +7(e/70 23 Attorney for Defendant Charles W Cornell, aka Charles Cornell, an individual 25 27 28 Defendant Answer tn plaintiff's Complaint — 6 PROOF OF SERVICE I iun a resident of the County of Marin, State of California. I am over the age of 18 and I am not a party to the within action. My business address is 700 Larkspur Landing Circle Suite 199 Larkspur, CA 94939 3 On {f7j'ZQ I served the following document(s): DEFENDANT CHARLES W CORNEI L, AKA CHARLES CORNELL, AN INDIVIDUAL ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT 5 The foregoing documents were served by the following means; (BY U.S. MAIL) I enclosed the doctnnents in a sealed envelope or package addressed to the person(s) listed below and placed the envelope for collection and mailing following our ordinary business practices. I am "readily familiar" with the firm's practice for 8 collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fidly 9 prepaid at Novato, California in the ordinary course of business. 10 (BY EMAIL) I caused the documents to be sent to the person(s) listed below at the corresponding email address(es). I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 12 13 Executed on 7f(of'Zo t at Novato, California. I declare under penalty of perjury under the laws of the State of California that the above 15 is true and correct. I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. 17 18 ney 20 SERVICE, LIST 21 22 Spencer Penuela Michael k Associates, PC 23 555 St. Charles Drive, Suite 204 Thousand Oaks, CA 91360 Counsel for Plaintiff American Express National Bank 26 27 28 nefendsnt Answer tu rtsintift"s Cutnplnint — 7