merrick bank (frank j hannah) v stegeman stegeman's counterclaim
DESCRIPTION
Merrick Bank sent Frank J Hannah and asses to collect $12,000 + from James. We countersued, for treble damages $54,000+. Hearing was August 12, 2010=Mutual Dismissal. Attorney remarked that he didn't think anyone else would be trying to collect on that debt, especially after seeing the counterclaim they are presented with.TRANSCRIPT
IN THE MAGISTRATE COURT OF DEKALB COUNTYSTATE OF GEORGIA
MERRICK BANK CORP.Plaintiff
vs.
JAMES B. STEGEMAN,Defendant
CIVIL ACTION
FILE NO.: 10-M-844169
DEFENDANT’S VERIFIED:
ANSWERS, RESPONSES, DEFENSES TO COMPLAINT;
DEFENDANT’S COUNTERCLAIM;
DEFENDANT’S MOTION TO DISMISS WITH PREJUDICE
COMES NOW, James B. Stegeman, named Defendant in the above listed
Civil Action and files his Defendant’s Verified Answers, Responses, Defenses to
Complaint; Defendant’s Counterclaim; and Defendant’s Motion to Dismiss With
Prejudice.
I. ANSWERS, RESPONSES AND DEFENSES
1. Defendant denies the debt in it’s entirety.
2. Plaintiff’s attached document does not show Defendant’s name, address, or
proposed account number anywhere on the attached documents.
3. Had Plaintiff followed the rules of FDCPA, Defendant would have received in
the mail a letter allowing thirty (30) days to dispute the debt and ask for
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validation of the debt.
4. Defendant was not allowed such leisure of opportunity to write the Plaintiff’s
attorneys and request validation.
5. Plaintiff has not shown that Defendant is associated in any way with the claim
or the attached evidence1.
6. Plaintiff has not provided adequate evidence2 to show that there exists a valid
debt between Mr. Stegeman and Plaintiff.
7. The only way to show satisfactory evidence of such debt, Defendant in the
request for validation letter, in accordance with 15 U.S.C. §1692; Title 18
U.S.C. §802 et. seq.; and 15 U.S.C. 1601 et., seq. would have made requests
not limited to the following information along with an Affidavit signed in
Accordance with Title 28 U.S.C. §1746 within thirty (30) days:
(1) A copy of any signed agreement alleged debot/claimant has made with debt collector, or other verifiable proof that debtor/claimant has a contractual obligation to pay debt collector.
(2) A copy of the Original promissory note/agreement, the original for my own, and a judge’s inspection.
(3) Account and general ledger showing the full accounting of the alleged obligation, such as: FR2046 balance sheet (OMB
1 “must be proven to a ‘preponderance of the evidence’2 Plaintiff attaches a document on which MERRICK BANK is handwritten in on one end, and has three (3) columns, in which the document is set up in landscape fashion, with ¶ 1 starting on the far right hand side of the document, ¶ 22 in the middle column, and ¶16 in the left hand column. Plaintiff has never seen this document, or one like it at anytime during his lifetime.
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#s 2046, 2049, 2099), 1099 OID report, S-3/A registration statement, 424-B5 prospectus, RC-S & RC-B call schedules; as well as a complete payment history documented from original creditor. 3
(4) Verified specifically, name(s) of person(s) assigned as Trustee to handle Corporation’s affairs and to be held accountable for the actions of the Corporation. (CFO & subordinates responsible for debt collections)
(5) Verification that as a third party debt collector, you have not purchased evidence of the alleged debt and are proceeding with collection activity in the name of the original maker of the not.4
8. Plaintiff does not show the dates in which there was supposed to be a
relationship, contractual or otherwise between the plaintiff and Defendant.
9. Plaintiff has failed to state a claim for which relief can granted
10. Defendant objects to sufficiency of process.
11. Defendant objects to personal jurisdiction and subject matter jurisdiction
12. Defendant objects to venue; and claims the court lacks jurisdiction.
Rule 35. Objections to process, jurisdiction or venue.
Objections to sufficiency of process, service of process, personal jurisdiction or venue must be raised at the time of filing the answer or are waived. Where a valid objection to personal jurisdiction or venue was not raised when the answer was filed and thus is waived, the court may nevertheless in the interest of justice transfer the case to another Georgia court having
3 This requirement established by Fields v. Wilber Law Firm, Donald L. Wilber, and Kenneth Wilber USCA-02-C-007, (7th Cir. 2004). 4 The responses to a letter such as the one that Defendant would have sent had the Plaintiff followed the debt collection laws, and sent him a letter before filing suit, the responses by the collecting attorney, would have had to be a Verified Response to be valid.
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jurisdiction if the present court is an inconvenient forum and the transfer would not unduly prejudice the opposing party. Objections to subject matter jurisdiction are never waived.
No special formula shall be required to raise an issue of jurisdiction or venue. In addition to answers explicitly raising the issue of lack of jurisdiction or venue, any motion to transfer or answer stating that the action was filed in the wrong court or asking that the case be transferred to another court, or words to that effect, shall be sufficient to raise an objection to jurisdiction or venue.
13. Improper Venue
Rule 36. Transfer/change of venue.
In all cases where it is determined by the court that the court in which a case is pending lacks jurisdiction, or venue, or both, that court shall transfer the case in accordance with Article VI, Sec. 1, Paragraph 8, of the 1983 Constitution of the State of Georgia, or where this rule is not applicable, dismiss said case without prejudice.
II. MOTION TO DISMISS WITH PREJUDICE
14. Defendant Moves for an immediate Order dismissing the case(s) with
prejudice.
15. 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
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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.
13. URMC Rule 40. Shows that Magistrate Courts do not favor pre-trial
discovery, and Plaintiff has produced nothing to show that Defendant ever had a
contract with Plaintiff. Without the required proof 5, there is no case.
Rule 40. Pre-trial discovery.
Use of O.C.G.A. §§ 9-11-26 through 9-11-37 for purposes of pre-trial discovery in the magistrate court is not favored…
14. 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.
15. Furthermore, Defendant is 100% federally disabled and receives only
Supplemental Security Income to live on. “Exhibit 1”
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
16. Plaintiff, without actual knowledge or proof of a debt, filed a frivolous action
against defendant.
17. Plaintiff, has subjected Defendant to a malicious, bad faith complaint seeking
unjust enrichment.
5 “must be proven to a ‘preponderance of the evidence’
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18. The acts of the Plaintiff have caused Defendant harm, and unjustified costs.
19. The Law Firm of Frederick J. Hanna & Associates, P.C. have a notorious
reputation for attempting to collect on debts that don’t exist 6:
“The Georgia Governor's Office of Consumer Affairs has been 4investigating …the debt collection firm of Frederick J. Hanna & Associates … unscrupulous tactics …abusive tendencies and deceit to collect money that is owed …intimidate consumers who don't have anything owing.”
“Consumer 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 co-operate”
“According to Hanna, he would be willing to allow the consumer office to review only some specific files…”
“While 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.”
90. The Law Firm of Frederick J. Hanna & Associates, P.C. has a notorious
reputation for abusive collection practices7
“…some of the tactics firms use are already illegal, Cloud said. “A lot of them are buying up ‘zombie debt.’ It’s old debt you cannot collect anymore by normal means,” Cloud said. “It’s
6 See Legal Daily News Feature Debt Collection Firm's Collection Tactics Under Scrutiny by Christine Cristiano published March 19, 2009, attached as “Exhibit A”7 The Atlanta Journal-Constitution article: SPOTLIGHT WATCHING OUT FOR YOUR SAFETY AND POCKETBOOK Complaints pile up against debt collectors By ALISON YOUNG March 15, 2009, attached “Exhibit B”
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essentially debt renewal. To get you back on the hook they try to intimidate and try to berate you.”
“The firm has an “F” rating with the BBB because of its complaint history, including failing to respond to consumer concerns, according to BBB records
21. Defendant has suffered by virtue of Plaintiff’s actions, and inactions.
22. Plaintiff has subjected Defendant to: embarrassment, humiliation, irritability,
anxiety, nervousness, fear and worry;
23. Defendant has violated Georgia Fair Business Practices Act
24. Defendant has violated Fair Debt Collection Practices Act
25. Both Acts allow One Thousand Dollars ($1,000.00) for each occurrence to be
granted the party who the violations harmed.
26. Both Acts also allow for court costs and attorney’s fees; although Defendant is
proceeding 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.
DEFENDANT’S COUNTERCLAIM
27. Defendant reiterates and incorporates sections 1 thru 26 above, and any
unnumbered paragraphs, or general paragraphs, as fully as if completely restated
herein.
28. Defendant is a disabled adult, thereby protected under O.C.G.A. 30-5-1
through 30-5-10 Georgia’s Disabled and Elder Persons Protection Act.
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29. Exploitation, is considered a form of abuse8.
30. Plaintiffs brought a frivolous, vexatious action against the defendant, thereby
exploited and caused Defendant harm, embarrassment, humiliation, unjustified
time and expense.
COUNT ONE VIOATIONS OF FDCPA §1692
31. Defendant reiterates and incorporates sections 1 thru 30 above, as fully as if
completely restated herein.
32. The Summons and Complaint is the first communication Plaintiff’s
representative has had with the Defendant.
33. Plaintiff failed, within five days of the first communication to comply with
Federal Debt Collection Practices Act.9
34. One of the most important rights conferred by the FDCPA is the debtor's
8 O.C.G.A. §30-5-3 (1) 'Abuse' means the willful infliction of …mental anguish, …or the willful deprivation of essential services to a disabled adult or elder person.
O.C.G.A. §30-5-3(8) 'Essential services' means…legal services necessary to safeguard the disabled adult’s …rights and resources and to maintain the physical and mental well-being of such person.
O.C.G.A. §30-5-3(9) 'Exploitation' means the illegal or improper use of a disabled adult or elder person or that person’s resources for another’s profit or advantage.9 If the initial communication to the debtor is a summons and complaint, it must comply with 1692g. Thomas v. Simpson & Cybak, 354 F.3d 696 (7th Cir. 2004); Sprouse v. City Credits Co., 126 F.Supp.2d 1083, 1089 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, 163 F.3d 111 (2d Cir. 1998) (statutory five-day notice is “communication”); Mendus v. Morgan & Assoc., P.C., 994 P.2d 83 (Okla. App. 1999)(summons is “communication”); contra, Vega v. McKay, 351 F.3d 1334, 1335 (11th Cir. 2003);
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right to "validation" or "verification" of a debt under § 1692g. "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." 10
Under 15 U.S.C. §1692g:
(a) Within five days after the initial communication .., a debt collector shall, …send the consumer a written notice containing -(1) the amount of the debt;(2) the name of the creditor …owed;(3) a statement that unless …, within thirty days …, disputes the validity of the debt, …the debt will be assumed to be valid …;(4) a statement that if the consumer notifies… in writing within the thirty-day period that the debt, …is disputed, the debt collector will obtain verification … will be mailed to the consumer by the debt collector; and(5) a statement that, upon the consumer's written request within the thirty-day period, …will provide the consumer with the name and address of the original creditor….
35. Plaintiff violated §1692 by failing to provide Defendant with an address in
the initial communication.11
36. It has been held that A single violation is sufficient to support judgment for
10 Sen.R. No. 95-382, 95th Cong., 1st. Sess., p. 4, reprinted in 1977 USCCAN 1695, 1698.11 A debt collector violates §1692g by failing to provide its address so that the debtor can exercise his right to validate the debt. Failure to include the collector's address violates §1692g even if the complete text of the §1692g notice is provided and nothing requires action in less than 30 days. Cortez v. Trans Union Corp., 94 C 7705, 1997 WL 7568, 1997 U.S. Dist. LEXIS 31 (N.D. Ill. Jan. 3, 1997); Wegmans Food Markets, Inc. v. Scrimpsher, 17 B.R. 999, 1014 (Bankr. N.D.N.Y. 1982) ("The absence of a return address on a debt collector's notices effectively nullifies the consumer's rights set out in 15 U.S.C 1692g, which arise from a consumer's written notification to the debt collector"; emphasis in original)
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the consumer.12
37. A debt collector who has violated any provision of the FDCPA is liable for
actual damages, 15 U.S.C. §1692k(a)(1).
38. Actual damages include emotional distress. The debt collector may be held
“liable for any mental and emotional stress, embarrassment, and humiliation.
Kleezy v. First Federal Credit Control, Inc., 21 Ohio App.3d 56, 486 N.E.2d, 204,
207 (1984); Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671 (Minn.
Ct. App. 1984); Baez-Martinez v. PMS, 1997 U.S. Dist. LEXIS 3314 (D.P.R.
1997); McGrady v. Nissan Motor Accep. Corp., 40 F.Supp. 2d 1323 (M.D.Ala.
1998); Carrigan v. Central Adjustment Bureau, 502 F.Supp. 468 (N.D. Ga.
1980); Rawlings v. Dovenmuehle Mtge, Inc., 64 F.Supp.2d 1156 (M.D.Ala. 1999)
39. State law requirements regarding the proof of intentional or negligent
infliction of emotional distress are not applicable to actual damages under the
FDCPA. Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 185 (D.Del.
1991); Howze v. Romano, 92-644, 1994 WL 827162, 1994 U.S. Dist. LEXIS
20547 (D.Del. Dec. 9, 1994); Crossley v. Lieberman, 90 B.R. 682 (E.D.Pa. 1988),
aff'd, 868 F.2d 566 (3d Cir. 1989); Teng v. Metropolitan Retail Recovery, 851
F.Supp. 61, 68-9 (E.D.N.Y. 1994); Donahue v. NFS, Inc., 781 F.Supp. 188, 193-4
(W.D.N.Y. 1991).
12 Cacace v. Lucas, 775 F.Supp. 502, 505 (D.Conn. 1990); Supan v. Medical Bureau of Economics, Inc., 785 F.Supp. 304, 305 (D.Conn. 1991).
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40. The consumer is entitled to actual damages, statutory damages, and
attorney’s fees (15 U.S.C. §1692k(a)).
38. The use of prior illegal acts has been held admissible to show knowledge
and intent.13
39. Defendant demands a judgment against the Plaintiff for Five thousand
Dollars ($5000.00) each time Defendant has to appear in Court for this matter
A. Actual Damages
40. Defendant reiterates and incorporates sections 1 thru 39 above, all
unnumbered paragraphs and general paragraphs, as fully as if completely restated
herein.
41. “A debt collector who has violated any provision of the FDCPA is liable for
actual damages”. (15 U.S.C. §1692k(a)(1)).14
13 Joseph Taylor Coal Co. v. Dawes, 122 Ill.App. 389 (1905), aff'd. 220 Ill. 147, 77 N.E. 131 (1906); _Edgar v. Fred Jones Lincoln-Mercury, 524 F.2d 162, 167 (10th Cir. 1975; Eaves v. Penn, 587 F.2d 453, 463-4 (10th Cir. 1978)(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. 166 125 P. 472 (1912) (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., 100 N.J. 57, 494 A.2d 804, 814 (1985). 14 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., 21 Ohio App.3d 56, 486 N.E.2d 204, 207 (1984); Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671 (Minn. Ct. App. 1984); Baez-Martinez v. PMS, 1997 U.S. Dist. LEXIS 3314 (D.P.R. 1997); McGrady v. Nissan Motor Accep. Corp., 40 F.Supp. 2d 1323 (M.D.Ala. 1998); Carrigan v. Central
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42. Because Defendant is disabled, and is a member of a protected class of
persons, and lacks the ability to recover from damages done to him by the Plaintiff
and their counsel, Defendant further demands judgment in his favor in the amount
of the purported credit limit of the account, plus interest and fees.
43. Three times the alleged claim amount of Twelve Thousand One Hundred
One Dollar and seventy-three cents ($12,101.73) x 3 = Thirty Six Thousand, Three
Hundred Five Dollars and nineteen cents ($36,305.19).
44. “State law requirements regarding the proof of intentional or negligent
infliction of emotional distress are not applicable to actual damages under the
FDCPA”.15
B. Statutory Damages
45. Defendant reiterates and incorporates sections 1 thru 44 above, any
unnumbered paragraphs, and general paragraphs, as fully as if completely restated
herein.
46. “In addition to actual damages, the consumer may be awarded ‘such
additional damages as the court may allow’” (15 U.S.C. §1692k(a)(2)); and the
Adjustment Bureau, 502 F.Supp. 468 (N.D. Ga. 1980); Rawlings v. Dovenmuehle Mtge, Inc., 64 F.Supp.2d 1156 (M.D.Ala. 1999). 15 Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 185 (D.Del. 1991); Howze v. Romano, 92-644, 1994 WL 827162, 1994 U.S. Dist. LEXIS 20547 (D.Del. Dec. 9, 1994); Crossley v. Lieberman, 90 B.R. 682 (E.D.Pa. 1988), aff'd, 868 F.2d 566 (3d Cir. 1989); Teng v. Metropolitan Retail Recovery, 851 F.Supp. 61, 68-9 (E.D.N.Y. 1994); Donahue v. NFS, Inc., 781 F.Supp. 188, 193-4 (W.D.N.Y. 1991).
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“consumer need not show any actual damages in order to recover statutory
damages”. 16
C. Punitive Damages
47. Because of Defendant’s protected class status, and the injuries he has been
subjected to by Plaintiff’s failure to follow protection statutes, Defendant is
entitled to punitive damages.
48. Defendant demands punitive damages in the amount of Eighteen Thousand
One Hundred Fifty-Two Dollars and fifty-nine cents ($18,152.59); or an amount
set by the Court which the Court considers fair and just.
CONCLUSION AND DEMAND FOR RELIEF
Plaintiff, is notoriously known for abusive practices, including attempting to
collect on non-debts, 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 Fifty-Four Thousand Four Hundred
Fifty Seven Dollars and seventy-eight cents ($54,457.87) for the suit filed against
16 Bartlett v. Heibl, supra; Baker v. G.C. Services Corp., 677 F.2d 775, 780-81 (9th Cir. 1982); Harvey v. United Adjusters, supra, 509 F.Supp. 1218 (D.Or. 1981); Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724, 725 (D.Conn. 1990); Cacace v. Lucas, 775 F.Supp. 502 (D.Conn. 1990); Riveria v. MAB Collections, Inc., 682 F.Supp. 174, 177 (W.D.N.Y. 1988); Kuhn v. Account Control Technol., 865 F.Supp. 1443, 1450 (D.Nev. 1994).
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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 13th day of July, 2010,
By: _____________________________JAMES B. STEGEMAN, Pro Se
821 Sheppard RdStone Mountain, GA 30083
(404) 300-9782
VERIFICATION
I, James B. Stegeman, under the penalty of perjury, state that I am over the
age of twenty-one (21), competent to testify in this matter, and attest to these
matters from first hand knowledge.
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I have prepared, read, and caused to be Verified the foregoing Answer,
Motions, and Counterclaim and they are true and correct to the best of my
knowledge, and belief.
_____________________________James B. Stegeman
Sworn to and Subscribed Before me, this 13th day of July, 2010
Seal
______________________________JANET DIANE MCDONALD, NOTARY PUBLIC, State of Georgia
CERTIFICATE OF SERVICE
I certify that I have this 13th day of July, 2010 served a true and
correct copy of the foregoing Defendant’s Verified Answers, Responses, Defenses
to Complaint; Defendant’s Motion to Dismiss With Prejudice; and Defendant’s
Counterclaim upon the Plaintiff by causing to be deposited with USPS First Class
Mail, proper postage affixed, addressed to the legal counsel on record as follows:
Dennis E. HarveyFrederick J Hanna & Ass., P.C.1427 Roswell RdMarietta, GA 30062 _____________________________
JAMES B. STEGEMAN, Pro Se821 Sheppard Rd
Stone Mountain, GA 30083(404) 300-9782
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