Escolar Documentos
Profissional Documentos
Cultura Documentos
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Civil Action and files his Defendant¶s Verified Answers, Responses, Defenses to
Counterclaim.
2. Plaintiff has not shown that Defendant¶s name, or any account number is
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³must be proven to a µpreponderance of the evidence¶
3. Plaintiff has not provided adequate evidence to show that there exists a valid
4. In accordance with the Fair Debt Collections Practices Act (FDCPA),
Plaintiff failed to respond to Defendant¶s two requests to have said debt validated
prejudice.
a hearing on the merits of the case, because Defendant¶s claims show the case has
no merit. It is the duty of the trial court to Rule on Motion to Dismiss at the
earliest convenience.
Rule 38. Motions and request for relief under the Civil
Practice Act.
No party or attorney shall be required to respond to a motion, «
prior to a scheduled hearing unless otherwise directed by the
court. « Where a party contends that the grant or denial of the
motion may require postponement of the hearing on the merits,
the motion should so state.
7. URMC Rule 40. Shows that Magistrate Courts do not favor preÎtrial
discovery, and Plaintiff has produced nothing to show that Defendant ever had a
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contract with Plaintiff. Without the required proof 2, there is no case.
8. Although Defendant realizes that Magistrate Court does not operate under the
same Rules and statutes as the Civil Practice Act; Defendant understands that when
a frivolous complaint has been filed, with the intent to intimidate, harass, and for
which there has been no sufficient evidence provided, and for which there is in fact
no claim, the Defendant may Move to have the case against him dismissed.
against defendant.
j0. Plaintiff, has subjected Defendant to a malicious, bad faith complaint seeking
unjust enrichment.
jj. The acts of the Plaintiff have caused Defendant harm, and unjustified costs.
j2. The Law Firm of Frederick J. Hanna & Associates, P.C. has a notorious
j3. The Law Firm of Frederick J. Hanna & Associates, P.C. has a notorious
³«some of the tactics firms use are already illegal, Cloud said.
³A lot of them are buying up µzombie debt.¶ It¶s old debt you
cannot collect anymore by normal means,´ Cloud said. ³It¶s
essentially debt renewal. To get you back on the hook they try to
intimidate and try to berate you.´
³The firm has an ³F´ rating with the BBB because of its
complaint history, including failing to respond to consumer
concerns, according to BBB records
4
(& +0/5+/ 6345/07
65+)+3+)65 /4+)80&: SPOTLIGHT WATCHING OUT
FOR YOUR SAFETY AND POCKETBOOK Complaints pile up against debt
collectors By ALISON YOUNG March j, 2009, attached ³'()*)+
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j7. Defendant has violated Fair Debt Collection Practices Act.
j8. Both Acts allow One Thousand Dollars ($j,000.00) for each occurrence to be
j9. Both Acts also allow for court costs and attorney¶s fees; although Defendant is
preceding pro se, he should be entitled to the costs of legal assistance obtained
before filing his answer, and costs for the time it took him to appear at the hearing.
2j. Plaintiffs brought a frivolous, vexatious action against the defendant, thereby
expense.
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24. Plaintiff failed, within five days of the first communication to comply with
If the initial communication to the debtor is a summons and complaint, it must
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2. One of the most important rights conferred by the FDCPA is the debtor's
eliminate the recurring problem of debt collectors dunning the wrong person or
comply with j692g. Êhomas v. Simpson & Cybak, 34 F.3d 696 (7th Cir. 2004);
Sprouse v. City Credits Co., j26 F.Supp.2d j083, j089 n. 8 (S.D.Ohio 2000)
(finding that a summons and complaint served in a state court action constitute
"initial communications" under the FDCPA); Romea v. Heiberger & Associates,
j63 F.3d jjj (2d Cir. j998) (statutory fiveÎday notice is ³communication´);
Mendus v. Morgan & Assoc., P.C., 994 P.2d 83 (Okla. App. j999)(summons is
³communication´); contra, Vega v. McKay, 3j F.3d j334, j33 (jjth Cir. 2003);
6
Sen.R. No. 9Î382, 9th Cong., jst. Sess., p. 4, reprinted in j977 USCCAN j69,
j698.
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different from the current creditor.
referenced in §j692g due to the fact that having filed suit without first a letter
setting forth that defendant had a right to validation or verification, Plaintiff then
27. It has been held that a single violation is sufficient to support judgment for
the consumer.8
29. The use of prior illegal acts has been held admissible to show knowledge
7
In Russell v. Equifax A.R.S., 74 F.3d 30, 3 (2d Cir. j996) the court held: A
notice is overshadowing or contradictory if it would make the least sophisticated
consumer uncertain as to her rights. It is not enough for a debt collection agency
simply to include the proper debt validation notice in a mailing to a consumer ÎÎ
Congress intended that such notice be clearly conveyed. See Swanson v. Southern
Or. Credit Serv., Inc., 869 F. 2d j222, j22 (9th Cir. j988) (per curiam). Here the
initial February notice failed to convey the validation information effectively. We
recognize there are many cunning ways to circumvent §j692g under cover of
technical compliance, see Miller v. Payco- General Am. Credits, Inc., 943 F.2d
482, 48 (4th Cir. j99j), but purported compliance with the form of the statute
should not be given sanction at the expense of the substance of the Act. Since the
language on the front of the notice overshadowed and contradicted the language on
the back of the notice, causing the validation notice to be ineffective, the February
notice violated § j692g as a matter of law.
8
Cacace v. Lucas, 77 F.Supp. 02, 0 (D.Conn. j990); Supan v. Medical
Bureau of Economics, Inc., 78 F.Supp. 304, 30 (D.Conn. j99j).
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and intent.9
8+3/0"/;/.&
3j. ³A debt collector who has violated any provision of the FDCPA is liable for
infliction of emotional distress are not applicable to actual damages under the
FDCPA´.jj
9
ioseph Êaylor Coal Co. v. Dawes, j22 Ill.App. 389 (j90), aff'd. 220 Ill. j47, 77
N.E. j3j (j906); _Edgar v. Fred iones Lincoln-Mercury, 24 F.2d j62, j67
(j0th Cir. j97; Eaves v. Penn, 87 F.2d 43, 463Î4 (j0th Cir. j978)(in civil
action for breach of fiduciary duty, evidence of breaches of fiduciary other than
one for which recovery was sought properly admitted to show intent); Welch v.
Barnett, 34 Okla. j66 j2 P. 472 (j9j2) (that five Indians willed property to the
same unrelated white men in different transactions is convincing proof that undue
influence and fraud were practiced on all); Barry v. Arrow Pontiac, Inc., j00 N.J.
7, 494 A.2d 804, 8j4 (j98).
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Actual damages include emotional distress. The debt collector may be held
"liable for any mental and emotional stress, embarrassment, and humiliation
caused" by improper debt collection activities. Kleczy v. First Federal Credit
Control, Inc., 2j Ohio App.3d 6, 486 N.E.2d 204, 207 (j984); Venes v.
Professional Service Bureau, Inc., 33 N.W.2d 67j (Minn. Ct. App. j984); Baez-
Martinez v. PMS, j997 U.S. Dist. LEXIS 33j4 (D.P.R. j997); McGrady v. Nissan
Motor Accep. Corp., 40 F.Supp. 2d j323 (M.D.Ala. j998); Carrigan v. Central
Adjustment Bureau, 02 F.Supp. 468 (N.D. Ga. j980); Rawlings v. Dovenmuehle
Mtge, Inc., 64 F.Supp.2d jj6 (M.D.Ala. j999).
jj
Smith v. Law Offices of Mitchell N. Kay, j24 B.R. j82, j8 (D.Del. j99j);
Howze v. Romano, 92Î644, j994 WL 827j62, j994 U.S. Dist. LEXIS 2047
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+/+3+641"/;/.&
34. ³In addition to actual damages, the consumer may be awarded µsuch
additional damages as the court may allow¶´ (j U.S.C.§j692k(a)(2)); and the
³consumer need not show any actual damages in order to recover statutory
damages´. j2
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nonÎdebts, as well as harassing innocent consumers about debts they do not owe.
Plaintiff filed a frivolous, complaint against the Defendant, there is no valid debt.
(D.Del. Dec. 9, j994); Crossley v. Lieberman, 90 B.R. 682 (E.D.Pa. j988), aff'd,
868 F.2d 66 (3d Cir. j989); Êeng v. Metropolitan Retail Recovery, 8j F.Supp.
6j, 68Î9 (E.D.N.Y. j994); Donahue v. NFS, Inc., 78j F.Supp. j88, j93Î4
(W.D.N.Y. j99j).
j2
Bartlett v. Heibl, supra; Baker v. G.C. Services Corp., 677 F.2d 77, 780Î8j
(9th Cir. j982); Harvey v. United Adjusters, supra, 09 F.Supp. j2j8 (D.Or.
j98j); Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724, 72 (D.Conn. j990);
Cacace v. Lucas, 77 F.Supp. 02 (D.Conn. j990); Riveria v. MAB Collections,
Inc., 682 F.Supp. j74, j77 (W.D.N.Y. j988); Kuhn v. Account Control Êechnol.,
86 F.Supp. j443, j40 (D.Nev. j994).
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the suit #09MSj0j68 filed against Defendant, plus whatever this Court feels is
fair and just compensation for the time taken to prepare the Defendant¶s filings,
Further, this Court must dismiss the Complaint with Prejudice against the
Defendant so that the Plaintiff will never be able to resurrect this false claim
By: _____________________________
JAMES E. MILLER, JR. Pro Se
j20 Louise Terrace, SW
Atlanta, GA 3033j
(404) 408Î079
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I, James E. Miller, Jr. under the penalty of perjury, state that I am over the
age of twentyÎone (2j), competent to testify in this matter, and attest to these
matters from first hand knowledge.
I have prepared, read, and Verified the foregoing Answer, Motions, and
Counterclaim and they are true and correct to the best of my knowledge, and
belief.
_____________________________
James E. Miller, Jr.
Sworn to and Subscribed Before me,
This jst day of July, 20j0
Seal
______________________________
NOTARY PUBLIC, State of Georgia
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I certify that I have this jst day of July, 20j0 served a true and correct copy
"&55)/4&1<
Frederick J Hanna & Associates, P.C.
j427 Roswell Rd
Marietta, GA 30062
_____________________________
JAMES E. MILLER, JR., Pro Se
j20 Louise Terrace, SW
Atlanta, GA 3033j
(404) 408Î079
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