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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION PATRICIA WAITE, Case No.: 5:13-cv-491-ACC-PRL Plaintiff, v. DIVERSIFIED CONSULTANTS, INC., Defendant. _____________________________/ DEFENDANT, DIVERSIFIED CONSULTANTS, INC.S, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS COMPLAINT COMES NOW, the Defendant DIVERSIFIED CONSULTANTS, INC. (hereinafter referred to as Defendant), by and through its undersigned counsel, and hereby files this its Answer and Affirmative Defenses to Plaintiffs Complaint and herein states as follows: 1. Admitted for purposes of claims identification and federal question jurisdiction;

otherwise denied. JURISDICTION AND VENUE 2. Denied as to the amount of alleged damages as jurisdiction is conferred based on

federal question jurisdiction and not by Florida Statutes. 3. Admitted for purposes of determination of federal jurisdiction and venue;

otherwise denied. 4. Unknown at this time therefore denied; Defendant demands strict proof thereof. FACTUAL ALLEGATIONS 5. 6. Admitted. Denied.

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7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

Denied. Admitted for purposes of jurisdiction and venue only. Denied. Admitted. Denied. Denied. Unknown at this time; therefore denied. Denied; Defendant demands strict proof thereof. Denied; Defendant demands strict proof thereof. Unknown at this time; therefore denied. Denied; Defendant demands strict proof thereof. Denied; Defendant demands strict proof thereof. Unknown at this time; therefore denied. Denied; Defendant demands strict proof thereof. Unknown at this time; therefore denied. Denied; Defendant demands strict proof thereof. Denied; Defendant demands strict proof thereof. Denied; Defendant demands strict proof thereof. Denied; Defendant demands strict proof thereof. Unknown at this time; therefore denied. Unknown at this time; therefore denied. Admitted. Denied; Defendant demands strict proof thereof.

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COUNT I (Violation of the TCPA) 30. Defendant incorporates Paragraphs one (1) through twenty-nine (29) above as if

fully stated herein. 31. Denied; Defendant demands strict proof thereof. COUNT II (Violation of the FCCPA) 32. Defendant incorporates Paragraphs one (1) through twenty-nine (29) above as if

fully stated herein. 33. Plaintiff. 34. 35. 36. 37. Denied; Defendant demands strict proof thereof. Denied; Defendant demands strict proof thereof. Denied; Defendant demands strict proof thereof. Denied; Defendant demands strict proof thereof. JURY DEMAND Defendant demands a trial by jury. AFFIRMATIVE DEFENSES First Affirmative Defense 1. Defendant affirmatively alleges that the Plaintiff provided prior express consent to Unknown at this time; therefore denied as to the applicability of the FCCPA to the

the original creditor during the course of the transaction which gave rise to the debt without subsequent revocation, and therefore Defendant is exempted from liability under the TCPA. Second Affirmative Defense

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2.

Defendant affirmatively alleges that the alleged actions of the Defendant and its

agents and employees are protected by the bona fide error defense pursuant to the Florid a Consumer Collection Practices Act, 559.55 et seq. since such actions or inactions, if they occurred, were not intentional and resulted from a bona fide error notwithstanding the Defendants maintenance of procedures reasonably adapted to avoid such errors. Third Affirmative Defense 3. Defendant affirmatively alleges that to the extent that any allegations exceed (2)

years under the Florida Consumer Collection Practices Act from the date of filing the Complaint, such claims or allegations are barred by the respective statute of limitations. Fourth Affirmative Defense 4. Defendant affirmatively alleges that the Debtor failed to mitigate their damages, if

any, in this case. Fifth Affirmative Defense 5. Defendant affirmatively alleges that the Plaintiff is not entitled to a claim for

punitive damages or enjoinder from violations under the Fair Debt Collection Practices Act. Sixth Affirmative Defense 6. Defendant affirmatively alleges that it lacked the requisite actual knowledge

under Section 559.72(9) Fla. Stat. Seventh Affirmative Defense 7. Defendant affirmatively alleges that Plaintiff failed to avail himself of the

statutory right to cease communications as provided by Section 1692c. by sending a written request to stop unwanted communications.

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Eighth Affirmative Defense 8. Defendant affirmatively alleges that the Plaintiff lacks standing to bring suit under

the FCCPA since the Plaintiff is not a debtor or alleged debtor as defined by the statute. Ninth Affirmative Defense 9. Defendant affirmatively alleges that the Defendant cannot be vicariously liable

under the TCPA for the actions of third party entities. Tenth Affirmative Defense 10. Defendant asserts that an automatic telephone dialing system as defined by the

TCPA was not employed in any communications with the Plaintiff. WHEREFORE, Defendant prays that the Complaint be dismissed with prejudice; that judgment be granted to Defendant and that relief request by Plaintiff be denied; that all costs be taxed to Plaintiff; and for such other and further relief as the Court deems just and proper. Respectfully submitted this 15th day of November, 2013.

Respectfully submitted, /s/ Ernest H. Kohlmyer, III Ernest H. Kohlmyer, III

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been electronically filed on November 15, 2013, via the Court Clerks CM/ECF system which will provide notice to the following: William Peerce Howard, Esquire, of the law firm Morgan & Morgan, P.A. at whoward@forthepeople.com; and Amanda J. Allen, Esquire of the law firm of Morgan & Morgan, P.A. at aallen@forthepeople.com.

/s/ Ernest H. Kohlmyer, III Ernest H. Kohlmyer, III Florida Bar No.: 110108 Urban, Thier, Federer & Chinnery, P.A. 200 S. Orange Avenue, Suite 2000 Orlando, FL 32801 Phone: (407) 245-8352 Fax: (407) 245-8361 Attorneys for Defendant