Racick v. Dominion Law Associates

270 F.R.D. 228, 77 Fed. R. Serv. 3d 975, 2010 U.S. Dist. LEXIS 107105, 2010 WL 3928702
CourtDistrict Court, E.D. North Carolina
DecidedOctober 6, 2010
DocketNo. 5:10-CV-66-F
StatusPublished
Cited by26 cases

This text of 270 F.R.D. 228 (Racick v. Dominion Law Associates) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Racick v. Dominion Law Associates, 270 F.R.D. 228, 77 Fed. R. Serv. 3d 975, 2010 U.S. Dist. LEXIS 107105, 2010 WL 3928702 (E.D.N.C. 2010).

Opinion

ORDER

JAMES C. FOX, Senior District Judge.

This matter is before the court on Plaintiffs’ Motion to Strike Defendants’ Affirmative Defenses [DE-8].

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff Louis Racick (“Plaintiff’ or “Racick”) initiated this action on February 24, 2010, alleging one claim for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). Specifically, Plaintiff alleges that a non-party to this action, RAB Performance, sued a “Louis Racick” (“the Judgment Debtor”) in Kings County Civil Court in New York on a VISA credit card issued by First National Bank of Marin and obtained a judgment. Plaintiff contends that he is not the “Louis Racick” who is the Judgment Debtor in the New York action. Plaintiff alleges that on June 16, 2008, Defendants filed the foreign judgment on behalf of RAB Performance against Plaintiff in Cumberland County. According to Plaintiff, a Cumberland County deputy sheriff attempted to serve the judgment on him on June 17, 2008, but ultimately declined to make service once Plaintiff showed proof that his social security number did not match that of the Judgment Debtor.

Plaintiff also alleges that Defendants persisted in their attempts to collect money from him. He contends “[i]n or about February 2009,” he attempted to refinance his house and learned that Defendants had done nothing to release the judgment. Plaintiff alleges he also applied for credit to purchase a truck, but the lender would not lend to Plaintiff in his individual capacity because of the judgment listed on his credit report.

Plaintiff alleges that in March 2009 he called Defendants on different occasions to resolve the matter, but Defendant French would not call him back. He also alleges Defendant Dominion sent him a collection letter in March 2009, attempting to collect the debt that belongs to the Judgment Debt- or. Plaintiff contends he sent a letter, certified mail return receipt, to Defendant Dominion asking them to correct their error, but he received no response.

More than a year after Defendants filed the notice of foreign judgment, Plaintiff retained an attorney to contest the judgment in Cumberland County. Plaintiff contends that after his counsel filed a motion on his behalf, Defendants called Plaintiff to discuss the case. He contends that Defendants acted surprised to hear he had an attorney, despite having notice of the motions filed in the case. Eventually, Plaintiffs attorney moved to vacate the judgment, and the uncontested motion was allowed by the presiding state court judge on November 24, 2009, and the foreign judgment was stricken from the docket.

In the complaint, Plaintiff contends he is entitled to statutory damages, costs and attorney fees, as well as actual damages because of the “financial issues when he tried to refinance his house, anxiety, anger, frustration, emotional distress, inconvenience, missed work, attorney’s fees, and litigation [231]*231expenses incurred in defending himself against the unlawfully placed judgment.” Compl. [DE-l] ¶ 59.

Defendants filed their answer on April 9, 2010, and asserted thirteen affirmative defenses in their answer. The first affirmative defense consisted of the Defendants’ detailed responses to each of Plaintiffs allegations in the complaint. The remainder of the affirmative defenses are as follows:

SECOND DEFENSE
The Complaint fails to state a claim upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
THIRD DEFENSE
The plaintiff’s claims are barred under the applicable statutes of limitations and the same is pled as an absolute bar to the plaintiffs recovery.
FOURTH DEFENSE
Any violation of law by defendants, which is specifically denied, was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid any such error.
FIFTH DEFENSE
Even if the Court should find that defendant committed the FDCPA violation alleged by plaintiff in his Complaint, which is denied, said violation was de minimis and is not the type of violation for which the purpose and intent of the FDCPA was proscribed.
SIXTH DEFENSE
To the extent plaintiff is entitled to damages, which defendants deny, the plaintiffs recovery is limited to statutory limitations set forth in 15 U.S.C. § 1692[.]
SEVENTH DEFENSE
If plaintiff was injured or damaged, any and all such injury was a proximate result of the intervening and/or superseding acts and/or omissions of persons and/or entities not under the control of defendants.
EIGHTH DEFENSE
If plaintiff was injured or damaged, any and all injury or damage was as a proximate result of circumstances beyond the control of defendants.
NINTH DEFENSE
If plaintiff was injured or damaged, any and all such injury or damage was as a proximate result of the acts and/or omissions of persons and/or entities not under the control of defendants.
TENTH DEFENSE
If, in fact, defendants performed any wrongful acts, which is specifically denied, such acts were not performed knowingly, purposefully, with malicious purpose, in bad faith, intentionally, recklessly, willfully, or wantonly.
ELEVENTH DEFENSE
At all pertinent times, defendants acted in compliance with the Federal Trade Commission regulations, Federal Trade Commission staff commentary and letter commentaries, and/or Federal Trade Commission advisory opinions.
TWELFTH DEFENSE
Plaintiffs claims are barred by the doctrines of laches, waiver, and/or estoppel.
THIRTEENTH DEFENSE
Plaintiff failed to mitigate his damages.
FOURTEENTH DEFENSE
Defendants may specifically reserve their right to assert such other and affirmative defenses as the same may arise.
Answer [DE-5] at pp. 9-10.
On April 30, 2010, Plaintiff filed a motion to strike affirmative defenses pursuant to [232]*232Rule 12(f) of the Federal Rules of Civil Procedure. Plaintiff directly challenges nine of the affirmative defenses asserted by defendants, while also suggesting that the remaining defenses are deficient as well. Specifically, Plaintiff suggests that the plausibility standard set forth in Bell Atlantic Corp. v. Twombly,

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Cite This Page — Counsel Stack

Bluebook (online)
270 F.R.D. 228, 77 Fed. R. Serv. 3d 975, 2010 U.S. Dist. LEXIS 107105, 2010 WL 3928702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/racick-v-dominion-law-associates-nced-2010.