On December 26, 2018 a
Answer
was filed
involving a dispute between
Discover Bank,
and
Kathy J Porter,
for Other Matters - Consumer Credit (Card) Original Creditor Plaintiff
in the District Court of St. Lawrence County.
Preview
INDEX
FILED: ST. LAWRENCE COUNTY CLERK 01/17/2019 10:52 AM NO. EFCV-2018-0154452
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ST. LAWRENCE
________________________________________________
DISCOVER BANK, ANSWER
Plaintiff, Index No. EFCV-2018-0154452
vs.
KATHY J PORTER,
Defendant.
________________________________________________
Defendant KATHY J PORTER, 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:
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 ADMITS the allegation set forth in Paragraph 2.
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 DENIES the allegation set forth in Paragraph 4.
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.
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INDEX
FILED: ST. LAWRENCE COUNTY CLERK 01/17/2019 10:52 AM NO. EFCV-2018-0154452
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2019
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.
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.
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INDEX
FILED: ST. LAWRENCE COUNTY CLERK 01/17/2019 10:52 AM NO. EFCV-2018-0154452
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2019
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.
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 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.
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
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INDEX
FILED: ST. LAWRENCE COUNTY CLERK 01/17/2019 10:52 AM NO. EFCV-2018-0154452
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2019
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 it never 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
FILED: ST. LAWRENCE COUNTY CLERK 01/17/2019 10:52 AM NO. EFCV-2018-0154452
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2019
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/________________
Erica Francisco-Lau, Esq.
Attorney for Defendant
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 ST. LAWRENCE
CC: STEVEN P. BANN, ESQ.
ZWICKER & ASSOCIATES, P.C.
Attorneys for Plaintiff
100 Corporate Woods, Suite 230
Rochester, New York 14623
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Document Filed Date
January 17, 2019
Case Filing Date
December 26, 2018
Category
Other Matters - Consumer Credit (Card) Original Creditor Plaintiff
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INDEX FILED: ST. LAWRENCE COUNTY CLERK 01/17/2019 10:52 AM NO. EFCV-2018-0154452 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ST. LAWRENCE ________________________________________________ DISCOVER BANK, ANSWER Plaintiff, Index No. EFCV-2018-0154452 vs. KATHY J PORTER, Defendant. ________________________________________________ Defendant KATHY J PORTER, 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: 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 ADMITS the allegation set forth in Paragraph 2. 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 DENIES the allegation set forth in Paragraph 4. 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. 1 of 5 INDEX FILED: ST. LAWRENCE COUNTY CLERK 01/17/2019 10:52 AM NO. EFCV-2018-0154452 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2019 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. 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. 2 of 5 INDEX FILED: ST. LAWRENCE COUNTY CLERK 01/17/2019 10:52 AM NO. EFCV-2018-0154452 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2019 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. 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 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. 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 3 of 5 INDEX FILED: ST. LAWRENCE COUNTY CLERK 01/17/2019 10:52 AM NO. EFCV-2018-0154452 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2019 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 it never 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. 4 of 5 INDEX FILED: ST. LAWRENCE COUNTY CLERK 01/17/2019 10:52 AM NO. EFCV-2018-0154452 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 01/17/2019 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/________________ Erica Francisco-Lau, Esq. Attorney for Defendant 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 ST. LAWRENCE CC: STEVEN P. BANN, ESQ. ZWICKER & ASSOCIATES, P.C. Attorneys for Plaintiff 100 Corporate Woods, Suite 230 Rochester, New York 14623 5 of 5