case 4:13-cv-00070-PPS-PRC document 8 filed 10/18/13 page 1 of 11

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA LAFAYETTE DIVISION DEBORAH HENADY-KORBA, Plaintiff, vs. SALLIE MAE, INC., Defendant.
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CAUSE NO.: 4:13-cv-00070-PPS-PRC

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT

Defendant, Sallie Mae, Inc. ("Defendant" or "Sallie Mae"), by counsel, hereby responds to Plaintiff's Complaint for Damages, as follows:
PARTIES

1. Plaintiff is an individual citizen and resident of the State of Indiana, County of Tippecanoe, and City of Lafayette.
ANSWER:

Defendant admits that Plaintiff is an individual citizen and is without

sufficient knowledge or information to admit or deny the remaining allegations contained in paragraph 1 of Plaintiff's Complaint and, therefore, denies the same. 2. Defendant Sallie Mae solicits and transacts business within the State of Indiana, County of Tippecanoe, and is headquartered at 2001 Edmund Halley Dr., Reston, VA 20190.
ANSWER:

Defendant admits that it does business in the State of Indiana, County of

Tippecanoe, but denies the remaining allegations contained in paragraph 2 of Plaintiff's Complaint. 3. This Court has subject matter jurisdiction pursuant to 47 U.S.C. 227(b)(3).

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ANSWER:

Defendant only admits that this Court has subject matter jurisdiction.

Defendant denies that Plaintiff is entitled to any relief and denies all remaining allegations contained in paragraph 3 of Plaintiffs Complaint.
FACTUAL ALLEGATIONS

4. Sallie Mae.

Plaintiff has multiple federal student loans (hereafter "Accounts") serviced by Defendant admits that it services a Federal Direct Consolidation loan

ANSWER:

obtained by Plaintiff, which was disbursed on April 17, 2013. Defendant denies the remaining allegations contained in paragraph 4 of Plaintiffs Complaint, including the use of the term "Accounts" to refer to the loan. 5. Within the last four (4) years, Plaintiff has received numerous collection calls from Sallie Mae's agents and/or employees to her cellular telephone number in an attempt to collect upon the Accounts.
ANSWER:

Denied. Further responding, Plaintiffs Federal Direct Consolidation loan

was disbursed on April17, 2013, and has not been delinquent since that time. 6. On or around July 9, 2013, at approximately 12:28 p.m., Plaintiff instructed a Sallie Mae representative, by the name of Kevin, to stop calling her cellular number.
ANSWER:

Admitted.

7. Despite Plaintiffs cease and desist request, Sallie Mae continued to place telephone calls to Plaintiffs cellular telephone using an automatic dialing system and/or artificial or pre-recorded voice. Plaintiff received approximately one-hundred (1 00) calls after the cease and desist request and the calls are continuing.
ANSWER:

Defendant denies the allegations contained in paragraph 7 of Plaintiffs

Complaint. 8. Upon information and belief, Defendant maintains business records that show all telephone calls placed to Plaintiffs cellular telephone number.
ANSWER:

Defendant admits that it maintains records of calls placed to Plaintiff.

Defendant denies the remaining allegations contained in paragraph 8 of Plaintiffs Complaint.

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9. Plaintiff believes and alleges that during the aforementioned telephone calls, Defendant intended to use an "automatic telephone dialing system" and/or "prerecorded voice" as prohibited by 47 U.S.C. 227(b)(1)(A).
ANSWER:

Defendant denies the allegations contained in paragraph 9 of Plaintiffs

Complaint. 10. Plaintiff believes and alleges that during the aforementioned telephone calls, Defendant intended to use an "automatic telephone dialing system" and/or "prerecorded voice" as prohibits by 47 U.S.C. 227(b)(1)(A).
ANSWER:

Defendant denies the allegations contained in paragraph 10 of Plaintiffs

Complaint. 11. Plaintiff believes and alleges that these telephone calls were not made for emergency purposes as defined in 47 U.S.C. 227(b)(1)(A)(i).
ANSWER:

Defendant admits that calls to Plaintiff were not made for emergency

purposes, but denies the remaining allegations contained in paragraph 11 of Plaintiffs Complaint. 12. Plaintiff believes and alleges that she did not provide "express consent" allowing Defendant to place telephone calls to her cellular telephone number pursuant to 47 U.S.C. 227(b)(1 )(A), and any consent, if it existed, was expressly revoked.
ANSWER:

Defendant denies the allegations contained in paragraph 12 of Plaintiffs

Complaint. 13. The credit transactions that occurred between Plaintiff and Defendant are "consumer transactions" as defined by I. C. 24-5-0.5-2(a)(1).
ANSWER:

Defendant denies the allegations contained in paragraph 13 of Plaintiffs

Complaint. 14. Defendant is a "supplier" as defined by I.C. 24-5-0.5-2(a)(3). Defendant denies the allegations contained in paragraph 14 of Plaintiffs

ANSWER:

Complaint.

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15. Defendant's conduct rose to the level of an "incurable deceptive act" as defined by I.C. 24-5-0.5-2(a)(8).

ANSWER:
Complaint.

Defendant denies the allegations contained in paragraph 15 of Plaintiff's

COUNT I: NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. 227 et seq.
16. Plaintiff incorporates the allegations contained in paragraphs 1 through 15 and further states as follows:

ANSWER:

Defendant restates its responses to paragraphs 1 through 15 of Plaintiff's

Complaint as if set forth in full herein. 17. The foregoing acts and omissions of Defendant constitute numerous and multiple negligent violations of the TPCA, including but not limited to each and every one of the abovecited provisions of 47 U.S. C. 227 et seq.

ANSWER:
Complaint.

Defendant denies the allegations contained in paragraph 17 of Plaintiff's

18. As a result of Defendant's negligent violations of 47 U.S.C. 227 et seq., Plaintiff is entitled to an award of $500.00 statutory damages, for each and every violation, pursuant to 47 U.S.C. 227(b)(3)(B).

ANSWER:
Complaint.

Defendant denies the allegations contained in paragraph 18 of Plaintiff's

COUNT II: KNOWING AND/OR WILLFUL VIOLATOINS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. 227 et seq.
19. Plaintiff incorporates the allegations contained in paragraphs 1 through 18 and further states as follows:

ANSWER:

Defendant restates its responses to paragraphs 1 through 18 of Plaintiff's

Complaint as if set forth in full herein. 20. Even after Plaintiff placed Sallie Mae on notice that it did not have consent to call Plaintiff's cellular telephone number, Sallie Mae's agents and/or employees repeatedly continued to use an automatic telephone dialing system and/or an artificial or prerecorded voice to make and/or place telephone calls to Plaintiff's cellular telephone number.

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ANSWER:

Defendant denies the allegations contained in paragraph 20 of Plaintiffs

Complaint. 21. The foregoing acts and omissions of Defendant constitute numerous and multiple knowing and/or willful violations of the TCPA, including but not limited to each and every one of the above-cited provisions of 47 U.S.C. 227 et seq.
ANSWER:

Defendant denies the allegations contained in paragraph 21 of Plaintiffs

Complaint. 22. As a result of Defendant's knowing and/or willful violations of 47 U.S.C. 227 et seq., Plaintiff is entitled to treble damages up to $1,500.00 for each and every violation, pursuant to 47 U.S.C. 227(b)(3).
ANSWER:

Defendant denies the allegations contained in paragraph 22 of Plaintiffs

Complaint.
COUNT III: NEGLIGENT VIOLATION OF THE INDIANA DECEPTIVE CONSUMER SALES ACT, Ind. Code 24-5-0.5, et seq.

23. Plaintiff incorporates the allegations contained in paragraphs 1 through 22 and further states as follows:
ANSWER:

Defendant restates its responses to paragraphs 1 through 22 of Plaintiffs

Complaint as if set forth in full herein. 24. Each and every violation of the TCPA by Defendant constitutes a deceptive act, in violation of the IDCSA, specifically Ind. Code 24-5-0.5-1(a)(19).
ANSWER:

Defendant denies the allegations contained in paragraph 24 of Plaintiffs

Complaint. 25. As a result of Defendant's negligent violations of IDCSA, Plaintiff is entitled to an award of $500.00 in statutory damages, for each and every violation of the TCP A plus reasonable attorney fees, pursuant to Ind. Code 24-5-0.504(a).
ANSWER:

Defendant denies the allegations contained in paragraph 25 of Plaintiffs

Complaint.

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COUNT IV: WILLFUL VIOLATION OF THE INDIANA DECEPTIVE CONSUMER SALES ACT, Ind. Code 24-5-0.5-1 et seq.

26. Plaintiff incorporates the allegations contained in paragraphs 1 through 25 and fmiher states as follows:
ANSWER:

Defendant restates its responses to paragraphs 1 through 25 of Plaintiffs

Complaint as if set forth in full herein. 27. Even after Plaintiff placed Sallie Mae on written notice that it did not have consent to call Plaintiffs cellular telephone number, Sallie Mae's agents and/or employees repeatedly continued to use an automatic telephone dialing system and/or an artificial or prerecorded voice to make and/or place telephone calls to Plaintiffs cellular telephone number anyway, in violation ofthe TCPA and the IDCSA.
ANSWER:

Defendant denies the allegations contained in paragraph 27 of Plaintiffs

Complaint. 28. As a result of Defendant's willful deceptive acts, Plaintiff is entitled to double statutory damages not exceeding $1,000.00 for each and every violation ofiDCSA.
ANSWER:

Defendant denies the allegations contained in paragraph 28 of Plaintiffs

Complaint.

WHEREFORE, Plaintiff respectfully prays for judgment against the Defendants [sic], as follows: A. A judgment in the amount of $500.00 for each and every violation cited herein plus any and all additional violations after the date of filing of this Complaint, pursuant to 47 U.S.C. 227(b)(3)(B); B. Treble damages in the amount of $1,500.00 for each and every violation cited herein plus any and all additional violations after the date of filing of this Complaint, pursuant to 47 u.s.c. 227(b)(3); C. A judgment in the amount of $500.00 for each and every violation cited herein plus any and all violations after the date of filing this Complaint, pursuant to Ind. Code 24-50.5-4(a); D. Double damages in the amount of $1,000.00 for each and every violation cited herein plus any and all additional violations after the date of filing this Complaint, pursuant to Ind. Code 24-5-0.5-4(a)(2);

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E. All costs, fees and expenses incurred in this case, including reasonable attorney's fees, pursuant to Ind. Code 24-5-0.5-4(a). F. Awarding Plaintiff any pre-judgment and post-judgment interest as may be allowed under the law; and G. Such other relief as the Court deems just and proper. Defendant denies that Plaintiff is entitled to any of the relief requested.
AFFIRMATIVE AND OTHER DEFENSES

ANSWER:

Defendant further responds to the Complaint by stating that any allegation not expressly admitted herein is denied and, without assuming any burden of proof that would otherwise rest with Plaintiff, Defendant asserts the following affirmative defenses:
FIRST DEFENSE

Plaintiff has failed to state a claim upon which relief can be granted.
SECOND DEFENSE

Defendant is informed and believes, and on that basis alleges, that Plaintiff is barred, in whole or in part, from maintaining her alleged cause of action because she provided "prior express consent" within the meaning of the TCPA, 47 U.S.C. 227(b)(l)(A), for calls allegedly placed to her cell phone number by any alleged automatic telephone dialing system.
THIRD DEFENSE

Plaintiff is precluded from any recovery from Defendant for a willful and knowing violation of the TCPA because any such violation (which Defendant denies occurred) would not have been willful or knowing.
FOURTH DEFENSE

Plaintiffs claims are barred or diminished to the extent that Plaintiff lacks standing to sue for the claims alleged.

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FIFTH DEFENSE Plaintiffs claims are barred, in whole or in part, by the applicable statute of limitations. SIXTH DEFENSE Plaintiffs claims are barred, in whole or in part, by the doctrine of unclean hands. SEVENTH DEFENSE Plaintiffs claims are barred, in whole or in part, due to waiver and/or consent. EIGHTH DEFENSE Plaintiffs claims are barred, in whole or in part, by the doctrine of laches. NINTH DEFENSE Plaintiffs claims are barred, in whole or in part, by estoppel. TENTH DEFENSE Defendant avers that Plaintiffs claims are barred by the doctrines of res judicata, settlement and compromise. Plaintiff is a Settlement Class Member in the proceeding entitled

Arthur, et al. v. Sallie Mae, Inc., Civ. A. No. 10-cv-00198-JLR on the docket ofthe United States
District Court for the Western District of Washington. Accordingly, Plaintiffs claims in this proceeding are barred in accordance with the Settlement Order and Final Judgment signed by the court on September 17, 2012, the Final Judgment entered on September 17, 2012, and the Amended Settlement Agreement signed by the parties in the action. ELEVENTH DEFENSE Plaintiff is barred from recovery in that any damage sustained by Plaintiff was the direct and proximate result of the independent, intervening, negligent and/or unlawful conduct of independent third parties or their agents, and not any act or omission on the part of Defendant.

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TWELFTH DEFENSE

Defendant alleges that the imposition of liability and/or statutory damages under the TCPA as sought in the Complaint would violate provisions of the United States Constitution, including the Due Process Clause.
THIRTEENTH DEFENSE

One or more of Plaintiffs claims are barred because Plaintiff failed to specifically aver fraud.
FOURTEENTH DEFENSE

Plaintiffs IDCPA claim is barred because Defendant is not a debt collector.

FIFTEENTH DEFENSE

Plaintiffs IDCPA claim is barred because Defendant is not a supplier.

SIXTEENTH DEFENSE

Plaintiffs IDCPA claim is barred because she fails to allege a consumer transaction.
SEVENTEENTH DEFENSE

Plaintiffs IDCPA claim is barred because she fails to allege an incurable deceptive act.
EIGHTEENTH DEFENSE

Plaintiffs IDCPA claim is barred because she failed to provide notice and opportunity to cure.
NINETEENTH DEFENSE

Plaintiffs IDCP A claim is barred to the extent Defendant's actions were required or expressly permitted by federal or state law, rule or regulation.

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TWENTIETH DEFENSE

Plaintiff's IDCP A claim is barred as any actions taken by Defendant were the result of a

bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid
error.
RESERVATION OF ADDITIONAL DEFENSES

Defendant presently has insufficient knowledge or information upon which to form a belief as to whether it may have additional, as yet unstated, defenses available. Defendant

reserves its rights to assert additional defenses in the event discovery indicates it would be appropriate. WHEREFORE, Defendant prays as follows: 1. 2.
3.

That Plaintiff takes nothing by this Action; That judgment be entered in favor of Defendant; and For such other and further relief as the Court deems just and proper. Respectfully submitted,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART,

P.C.

By: s/ (Bonnie L. :Martin Bonnie L. Martin, Attorney No. 20248-18 111 Monument Circle, Suite 4600 Indianapolis, Indiana 46204 Telephone: (317) 916-13 00 Facsimile: (317) 916-907 6

bonnie. martin@ogletreedeakins. com

Attorneys for Defendant Sallie Mae, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that on October 18, 2013, a copy of the foregoing Defendant's Answer and Affirmative Defenses to Plaintiff's Complaint was filed electronically. Notice of this filing will be sent to the following parties by operation of the Court's CM/ECF system. Melissa Wilkes
WILKES LAW FIRM

mwilkes@wilkes-law. com

s! rBonnie . <Jrtartin
16185353.1 16231858.1

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