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COMES NOW, James E. Miller, Jr., named Defendant in the above listed

Civil Action and files his Defendant¶s Verified Answers, Responses, Defenses to

Complaint; Defendant¶s Motion to Dismiss With Prejudice; and Defendant¶s

Counterclaim.

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j. Defendant denies the debt in its entirety.

2. Plaintiff has not shown that Defendant¶s name, or any account number is

associated with the Defendant and the claimed, attached evidencej.

j
³must be proven to a µpreponderance of the evidence¶
3. Plaintiff has not provided adequate evidence to show that there exists a valid

debt between Mr. Miller and Plaintiff.

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

and/or verified prior to filing a lawsuit. &&'()*)+,-



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. Defendant Moves for an immediate Order dismissing the case(s) with

prejudice.

6. Pursuant to URMC Rule 38. Defendant¶s Motion to Dismiss, would postpone

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

Î2Î
contract with Plaintiff. Without the required proof 2, there is no case.

Rule 40. PreÎtrial discovery.


Use of O.C.G.A. §§ 9ÎjjÎ26 through 9ÎjjÎ37 for purposes of
preÎtrial discovery in the magistrate court is not favored«

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.

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9. Plaintiff, without actual knowledge or proof of a debt, filed a frivolous action

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

reputation for attempting to collect on debts that don¶t exist 3:

³The Georgia Governor's Office of Consumer Affairs has been


investigating «the debt collection firm of Frederick J. Hanna &
Associates « unscrupulous tactics «abusive tendencies and
deceit to collect money that is owed «intimidate consumers
2
³must be proven to a µpreponderance of the evidence¶
3
See &./0"/)01 &2 &/+34& Debt Collection Firm's Collection Tactics Under
Scrutiny by Christine Cristiano published March j9, 2009, attached as ³'()*)+-
Î3Î
who don't have anything owing.´
³Consumer Affairs is investigating the firm's consumer disputes,
collection practices, and has inquired as to the procedures in
place for the validation of outstanding debts. Frederick J. Hanna
& Associates has refused to coÎoperate´
³According to Hanna, he would be willing to allow the consumer
office to review only some specific files«´
³While the FTC said timely payment of debts is important, it said
the law needs changes to better ensure that collectors are going
after the right people for the right amounts of money. The law
also needs to mandate that collectors give consumers better
information about their legal rights.´

j3. The Law Firm of Frederick J. Hanna & Associates, P.C. has a notorious

reputation for abusive collection practices4.

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

j4. Defendant has suffered by virtue of Plaintiff¶s actions, and inactions.

j. Plaintiff has subjected Defendant to: embarrassment, humiliation, irritability,

anxiety, nervousness, fear and worry;

j6. Defendant has violated Georgia Fair Business Practices Act

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

granted the party who the violations harmed.

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.

"  " #



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20. Defendant reiterates and incorporates sections j thru 24 above, as fully as if

completely restated herein.

2j. Plaintiffs brought a frivolous, vexatious action against the defendant, thereby

causing Defendant harm, embarrassment, humiliation, unjustified time and

expense.


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9:

22. Defendant reiterates and incorporates sections j thru 2j above, as fully as if

completely restated herein.

23. The Summons and Complaint is the first communication Plaintiff¶s

representative has had with the Defendant.

24. Plaintiff failed, within five days of the first communication to comply with

Federal Debt Collection Practices Act.


If the initial communication to the debtor is a summons and complaint, it must
ÎÎ
2. One of the most important rights conferred by the FDCPA is the debtor's

right to "validation" or "verification" of a debt under § j692g. "This provision will

eliminate the recurring problem of debt collectors dunning the wrong person or

attempting to collect debts which the consumer has already paid." 6

Under j U.S.C. §j692g:


(a) Within five days after the initial communication with a
consumer in connection with the collection of any debt, a debt
collector shall, unless the following information is contained in
the initial communication or the consumer has paid the debt,
send the consumer a written notice containing ÎÎ
(j) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after
receipt of notice, disputes the validity of the debt, or any portion
thereof, the debt will be assumed to be valid by the debt
collector;
(4) a statement that if the consumer notifies the debt collector in
writing within the thirtyÎday period that the debt, or any portion
thereof, is disputed, the debt collector will obtain verification of
the debt or a copy of a judgment against the consumer and a
copy of such verification or judgment will be mailed to the
consumer by the debt collector; and
() a statement that, upon the consumer's written request within
the thirtyÎday period, the debt collector will provide the
consumer with the name and address of the original creditor, if

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.

Î6Î
different from the current creditor.

26. Plaintiff has violated the ³consumer confusion´, or ³overshadowing´7

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

sent letters about resolving the matter; see attached ³Exhibit B´

27. It has been held that a single violation is sufficient to support judgment for

the consumer.8

28. The consumer is entitled to actual damages, statutory damages, and

attorney¶s fees (j U.S.C. §j692k(a)).

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).

Î7Î
and intent.9

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30. Defendant reiterates and incorporates sections j thru 36 above, as fully as if

completely restated herein.

3j. ³A debt collector who has violated any provision of the FDCPA is liable for

actual damages´. (j U.S.C. §j692k(a)(j)).j0

32. ³State law requirements regarding the proof of intentional or negligent

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).
j0
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
Î8Î
 +/+3+641"/;/.&

33. Defendant reiterates and incorporates sections j thru 32 above, as fully as if

completely restated herein.

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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Plaintiff, known for abusive practices, including attempting to collect on

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.

In order to prevent manifest injustice, this Court must find in favor of

Defendant¶s Counterclaim in the amount of Two Thousand Dollars ($2,000.00) for

(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).

Î9Î
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,

and to appear at the hearing.

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

against her again.

Respectfully Submitted, this jst day of July, 20j0,

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

Î j0 Î

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I certify that I have this jst day of July, 20j0 served a true and correct copy

of the foregoing Defendant¶s Verified Answers, Responses, Defenses to

Complaint; Defendant¶s ; Defendant¶s Motion to Dismiss With Prejudice; and

Defendant¶s Counterclaim upon the Plaintiff by Overnight Mail with signature

required, addressed to the legal counsel on record as follows:

"&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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