FIRST AMENDED ANSWERS, DEFENSES AND

COUNTERCLAIMS
If you are sued by a collection agency or creditor, you will need to answer the summons and interrogatory.
Typically, the interrogatory will look like a questionnaire. In most courts, you can both answer the
interrogatory in your favor, as well as define any violations the collection agency may have incurred during
the collection of a debt from you. These violations will be defined in the form of counterclaims.

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF DESCHUTES

MIDLAND CREDIT MANAGEMENT )

Plaintiff ) Case No._____________________
Vs. )
) FIRST AMENDED ANSWERS,
<Your Name> ) DEFENSES AND
COUNTERCLAIMS
Defendant(s) )

Defendant, appearing pro se, for its reply to the Complaint of Midland Credit
Management (hereafter "Midland") states as follows: All Answers correspond to the
numbered paragraphs of the Complaint. All allegations of the Complaint are denied
unless expressly admitted herein.

ANSWERS

1. In response to paragraph #1, the Defendant disputes the alleged debt, as solicited
in paragraph #1 of the complaint.

2. In response to paragraph #2, the Complaint states legal conclusions to which no

response is necessary. However, to the extent that the Court may deem a response
to be necessary, defendant denies the allegation and demands strict proof thereof.

3. In response to paragraph #3, the Defendant is at this time without knowledge or

information sufficient to form a belief as to the truth of the allegation contained
therein, and on that basis generally and specifically denies the allegation contained
therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof
thereof.

4. In response to paragraph #4, to the extent a response is required, defendant is at

this time without knowledge or information sufficient to form a belief as to the truth
of the allegation contained therein, and on that basis generally and specifically
denies the allegation contained therein and leaves the Plaintiff to provide proof.
Defendant demands strict proof thereof.

DEFENSES
5. As and for a First Defense
Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint
and each cause of action therein fails to state facts sufficient to constitute a cause of
action against the Defendant for which relief can be granted.

6. As and for a Second Defense

Defendant alleges that this action is time-barred under § O.S. 12-95-2 of the laws of
Oklahoma.

7. As and for a Third Defense

Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant,
causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief
for damages.

8. As and for a Fourth Defense

Plaintiff's Complaint violates the statute of Frauds as the purported contract or
agreement falls within a class of contracts or agreements required to be in writing.
The purported contract or agreement alleged in the Complaint is not in writing and
signed by the Defendant or by some other person authorized by the Defendant and
who was to answer for the alleged debt, default or miscarriage of another person.

9. As and for a Fifth Defense

Defendant claims a Failure of Consideration as there has never been any exchange of
any money or item of value between the plaintiff and the Defendant.

10. As and for a Sixth Defense

Defendant claims Lack of Privity as Defendant has never entered into any contractual
or debtor/creditor arrangements with the Plaintiff.

11. As and for a Seventh Defense

Defendant alleges that the Complaint includes references to alleged agreements
made outside of the alleged written contract, violating the Parol Evidence Rule.

12. As and for an Eighth Defense

Plaintiff's Complaint fails to allege a valid assignment and there are no averments as
to the nature of the purported assignment or evidence of valuable consideration.

13. As and for a Ninth Defense

Plaintiff's complaint fails to allege whether or not the purported assignment was
partial or complete and there is no evidence that the purported assignment was bona
fide.

14. As and for a Tenth Defense

Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this
action or that the Assignor has conveyed all rights and control to the Plaintiff. The
record does not disclose this information and it cannot be assumed without creating
an unfair prejudice against the Defendant.

15. As and for an Eleventh Defense

The Plaintiff is not an Assignee for the purported agreement and no evidence appears
in the record to support any related assumptions.

16. As and for a Twelfth Defense

Defendant claims Accord and Satisfaction as Defendant alleges that the original
creditor accepted payment from a third party for the alleged debt, or a portion of the
alleged debt, or that the original creditor received other compensation in the form of
monies and/or credits.

17. As and for a Thirteenth Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the
Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a
dishonest or fraudulent manner with respect to the dispute at issue in this case.

18. As and for a Fourteenth Defense

Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in
person or otherwise the right to collect or receive payment of a claim for another, nor
to seek to make collection or obtain payment of a claim on behalf of another. The
Complaint fails to allege any exception or exemption to these requirements. The
Plaintiff is not any of the following: an attorney at law; a person regularly employed
on a regular wage or salary in the capacity of credit men or a similar capacity, except
as an independent contractor; a bank, including a trust department of a bank, a
fiduciary or a financing and lending institution; a common carrier; a title insurer or
abstract company while doing an escrow business; a licensed real estate broker; an
employee of a licensee; nor a substation payment office employed by or serving as
an independent contractor for public utilities.

19. As and for a Fifteenth Defense

Defendant alleges that Plaintiff's Complaint, and each cause of action therein is
barred by the Doctrine of Estoppel, specifically Estoppel in Pais.

20. As and for a Sixteenth Defense

Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands
for interest are usurious and violate state and federal laws.

21. As and for a Seventeenth Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged
claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the
alleged contract did not include such a provision, and there is no law that otherwise
allows them.

22. As and for an Eighteenth Defense

Plaintiff failed to comply with normal and accepted business practices.

23. As and for a Nineteenth Defense

Plaintiff’s claim is in violation of federal statute.

24. As and for a Twentieth Defense

Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that
assigned the claim to the Plaintiff waited too long to file this lawsuit, making if
difficult or impossible for the Defendant to find witnesses or evidence, or that
evidence necessary to provide for Defendant's defense has been lost or destroyed.

25. As and for a Twenty-first Defense

Plaintiff has no Fiduciary Duty.

26. As and for a Twenty-second Defense

Plaintiff has failed to name all necessary parties.

27. As and for a Twenty-third Defense

Plaintiff's alleged damages are the result of acts or omissions committed by non-
parties to this action over whom the Defendant has no responsibility or control.

28. As and for a Twenty-fourth Defense

Plaintiff's alleged damages are the results of acts or omissions committed by the
Plaintiff.

29. As and for a Twenty-fifth Defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would
result in Unjust Enrichment as the Plaintiff would receive more money than plaintiff is
entitled to receive.

30. As and for a Twenty-sixth Defense

Plaintiff's alleged damages are limited to real or actual damages only.

31. As and for a Twenty-seventh Defense

Defendant invokes the doctrines of Scienti et volenti non fit injuria and Damnum
absque injuria.

32. As and for a Twenty-eighth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses
and/or Counterclaims at a later date.

COUNTERCLAIMS

FIRST CAUSE OF ACTION

Statement of Facts
33. February 2, 2004, Defendant sent Midland, by way of certified mail, request for
validation of alleged debt, including a questionnaire about said debt and a request
for documentation. Request noted their agent, xxx, P.C. (hereafter “xxx”) was given
notice of same.

34. Similar letters and request for validation were sent to Midland by way of certified
mail on March 1, 2004 and March 22, 2004.

35. Up until the date of this filing, no attempt at validation was received from
Midland, yet through their agent, xxx, continued to collect on alleged debt.

Statement of Claim
36. In the entire course of its action, Plaintiff willfully and/or negligently violated
provisions of the Fair Debt Collection Practices Act (hereafter “FDCPA”) in the
following respects:
(a) by failing to cease collection of an alleged debt after the Defendant notified
Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC
1692g(b).

SECOND CAUSE OF ACTION

Statement of Facts
37. Defendant repeats and re-alleges each allegation in paragraphs 33-36 with like
effect as if fully repeated herein.

38. Defendant received notice from xxx dated December 16, 2004 stating Midland’s
account had been turned over to their office for collection. Said notice contained the
statement: “Unless you, within 30 days after receipt of this notice, dispute the
validity of the debt, or any portion thereof, we will assume the debt to be valid. If you
notify this law firm, xxx, P.C., in writing, within the 30 day period, that the debt, or
any portion thereof, is disputed, our law firm, xxx, P.C., will obtain verification of the
debt and mail a copy of the verification to you. Upon your written request within the
30 day period, our law firm, xxx, P.C., will also provide you with the name and
address of the original creditor, if different from the current creditor. This is a
communication from a debt collector. This communication is an attempt to collect a
debt and any information obtained from this communication will be used for that
purpose.”

39. Defendant received notice from xxx entitled “NOTICE – PAYMENT DUE” dated
January 2, 2004, which stated a payment of $50.00 was due on the 15th of each
month.

Statement of Claim

40. In the entire course of its action, Plaintiff willfully and/or negligently violated
provisions of the FDCPA in the following respects:

(a) by making a demand for payment by the 15th of the month, Plaintiff instilled a
false sense of urgency of payment. Since payment date was within the 30 day period,
Plaintiff overshadowed Defendant’s right to request validation within 30 days,
violating 15 USC 1692g(a)

THIRD CAUSE OF ACTION

Statement of Facts
41. Defendant repeats and re-alleges each allegation in paragraphs 33-36 and 38-40
with like effect as if fully repeated herein.

42. On January 6, 2004, Defendant sent xxx a notice of dispute and request for
validation of alleged debt. Defendant also enclosed a questionnaire regarding the
same.

43. Defendant received a notice from xxx, dated January 29, 2004, stating they had
completed the questionnaire and if Defendant wanted to resolve the account, to
contact the offices or they would proceed. Said questionnaire was completed and
included in communication.

44. On February 4, 2004, Defendant sent xxx a second request for validation and
documentation regarding alleged debt.

45. Defendant received notice from xxx, dated April 5, 2004, entitled “Midland Credit
vs. Defendant” and stating general information about alleged debt. Stapled to said
notice was an Affidavit which appeared to have been filed with the San Diego County
Clerk. It stated “Midland Credit Management Inc., Plaintiff, vs. Defendant,
Defendant.” A file number had been handwritten at the top.

46. As of the date on said notice, no case had been filed in San Diego County Court or
otherwise pertaining to alleged debt or between Midland Credit Management Inc and
Defendant.

Statement of Claim
47. In the entire course of its action, Plaintiff willfully and/or negligently violated
provisions of the FDCPA in the following respects:

(a) by using deceptive or misleading representation for collection of the alleged debt
and therefore violating 15 USC 1692e

(b) by falsely representing the legal status of the alleged debt and therefore violating
15 USC 1692e(2)(A)

(c) by sending written communication which falsely simulated a court-issued

document and therefore violating 15 USC 1692e(9)

(d) by falsely representing a document as legal process and therefore violating 15

USC 1692e(13)

FOURTH CAUSE OF ACTION

Statement of Facts
48. Defendant repeats and re-alleges each allegation in paragraphs 33-36, 38-40 and
42-47 with like effect as if fully repeated herein.

49. Defendant’s previously stated notice from xxx, dated December 16, 2003, noted
a Balance of $3,000.

50. Defendant’s previously stated notice from xxx, dated January 2, 2004, noted a
Balance of $3,500.

Statement of Claim

51. In the entire course of its action, Plaintiff willfully and/or negligently violated
provisions of the FDCPA in the following respects:
(a) By falsely representing the amount of the alleged debt and therefore violating 15
USC 1692e(2)(A)

FIFTH CAUSE OF ACTION

Statement of Facts
52. Defendant repeats and re-alleges each allegation in paragraphs 33-36, 38-40, 42-
47 and 49-51 with like effect as if fully repeated herein.

53. Defendant had asked for documents concerning alleged debt as validation on
three occasions.

54. Defendant received a notice from xxx, dated April 27, 2004, stating LBN was
awaiting the arrival of the file associated with alleged debt and that xxx would
forward a copy to Defendant upon its arrival. xxx did not send said file to Defendant.

55. On October 24, 2004, Defendant was served with Summons concerning alleged
debt.
Statement of Claim

56. In the entire course of its action, Plaintiff willfully and/or negligently violated
provisions of the FDCPA in the following respects:
(a) by failing to cease collection of an alleged debt after the Defendant notified xxx in
writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b).

SIXTH CAUSE OF ACTION

Statement of Facts
57. Defendant repeats and re-alleges each allegation in paragraphs 33-36, 38-40, 42-
47, 49-51 and 53-56 with like effects as if fully repeated herein.

58. Plaintiff and Plaintiff’s agent’s acts as described above were deceptive trade
practices and unfair trade practices and therefore violated the Oklahoma Consumer
Protection Act.

59. Plaintiff and Plaintiff’s agent’s acts as described above were done in bad faith and
therefore violated the Oklahoma Consumer Protection Act.

60. Plaintiff and Plaintiff’s agent’s acts as described above were unconscionable and
therefore violated the Oklahoma Consumer Protection Act.

NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF:

PRAYER FOR RELIEF:

61. A. For Defendant’s First Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000
or as so deemed by judge or jury ;
2) Statutory damages as specified in 15 USC 1692k in the amount of $1,000;

B. For Defendant’s Second Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000
or as so deemed by judge or jury;
2) Statutory damages as specified in 15 USC 1692k in the amount of $2,000;

C. For Defendant’s Third Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of
$20,000 or as so deemed by judge or jury;
2) Statutory damages as specified in 15 USC 1692k in the amount of $4,000;

D. For Defendant’s Fourth Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000
or as so deemed by judge or jury;
2) Statutory damages as specified in 15 USC 1692k in the amount of $1,000;

E. For Defendant’s Fifth Cause of Action

1) Punitive damages as specified in 23 O.S. Supp. 1995 §9.1 in the amount of $5,000
or as so deemed by judge or jury;
2) Statutory damages as specified in 15 USC 1692k in the amount of $2,000;

F. For Defendant’s Sixth Cause of Action

1) Statutory damages as specified in 15 O.S. Supp. 1999 §761.1 in the amount of
$16,000;

G. Actual damages in an amount to be determined by judge or jury;

H. Exemplary relief in an amount to be determined by judge or jury;

I. Injunctive relief;

J. Declaratory relief;

K. Any attorney fees if applicable;

L. costs;

M. That any and all contracts having balances owed to the Plaintiff by the Defendant
be declared null and void.

FURTHER, sayeth naught.

62. As a result of the above violations of the Oklahoma Consumer Protection Act,
Plaintiff’s and Plaintiff’s agent’s acts were unconscionable and Plaintiff is therefore
liable to the Defendant for damages in the amount of Sixteen Thousand Dollars (Two
Thousand Dollars ($2,000) per violation.)

63. Therefore, Defendant prays judgment in Defendant’s favor and asks relief in the
total amount of Twenty-Four Thousand Dollars ($24,000) plus any applicable
attorney’s fees.

63. That any and all contracts having balances owed to the Plaintiff by the Defendant
be declared null and void.

FURTHER, sayeth naught.

Dated: December 2, 2004

by
<Your Name>
<Your Address>

TO: xxx, P.C.

<Collection Agency’s Name>
<Collection Agency Address>