Carillo-Lozano v. Iq Data International, Inc.

Western District of Texas, txwd-5:2019-cv-00627

ANSWER to [1] Complaint. Attorney Lee H. Staley added to party IQ Data International, Inc.(pty:dft) by IQ Data International, Inc.

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1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JULIO CARILLO-LOZANO § § V. § CIVIL ACTIN NO. 5:19-CV-627 § I.Q. DATA INTERNATIONAL, INC. § DEFENDANT I.Q. DATA INTERNATIONAL, INC.'S ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL COMPLAINT Defendant I.Q. Data International, Inc. ("Defendant"), by and through its undersigned counsel, by way of its Original Answer with affirmative defenses to the Original Complaint ("Complaint") of Plaintiff Julio Carillo-Lozano ("Plaintiff"), states as follows: INTRODUCTION 1. The allegations of Paragraph 1 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 1 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 2. The allegations of Paragraph 2 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 2 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 3. The allegations of Paragraph 3 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 3 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 1 4. The allegations of Paragraph 4 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 4 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. JURISDICTION AND VENUE 5. Defendant does not contest the Court's jurisdiction. 6. Defendant does not contest the Court's jurisdiction 7. Defendant is not contesting venue. PARTIES 8. The allegations of Paragraph 8 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 8 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 9. Defendant admits the allegations in Paragraph 9 of the Complaint. 10. Defendant admits the allegations in Paragraph 10 of the Complaint. 11. Defendant admits the allegations in Paragraph 11 of the Complaint. FACTS 12. Upon information and belief, Defendant admits the allegations in Paragraph 12 of the Complaint. 13. Upon information and belief, Defendant admits the allegations in Paragraph 13 of the Complaint. 14. Defendant lacks sufficient knowledge to admit or deny the allegations in paragraph 14 of the Complaint. However, to the extent Paragraph 14 alleges Defendant 2|P age 1 committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 15. Upon information and belief, Defendant admits the allegations in Paragraph 15 of the Complaint. 16. Upon information and belief, Defendant admits the allegations in Paragraph 16 of the Complaint. 17. Defendant admits the allegations in Paragraph 17 of the Complaint. 18. Defendant admits the general substance of the allegations in Paragraph 18 of the Complaint. 19. Defendant denies the allegations Paragraph 19 of the Complaint as worded. However, Defendants admits that based on information and belief, Plaintiff ultimately paid off the entirety of his debt to the creditor. 20. Defendant denies the allegations Paragraph 20 of the Complaint as worded. However, Defendants admits that based on information and belief, Plaintiff ultimately paid off the entirety of his debt to the creditor. 21 Defendant admits that after Plaintiff made his final payment on his debt, Defendant timely updated the credit reporting to reflect that the debt had been paid. To the extent Paragraph 21 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 22. Defendant denies the allegations of Paragraph 22 of the Complaint to the extent Paragraph 22 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, as Defendant timely updated the credit reporting to reflect that the debt had been paid. Specifically, on May 14, 2019, Defendant received 3|P age 1 Plaintiff's written notice of dispute; and on May 15, 2019, Defendant closed the account as paid "in full" and updated the credit reporting to be closed and deleted. 23. Defendant denies the allegations of Paragraph 23 of the Complaint. 24. Defendant lacks sufficient information to admit or deny when Plaintiff sent the letter disputing the debt. However, Defendant admits that it received Plaintiff's written notice of dispute on May 14, 2019 and that Defendant updated the credit reporting to be closed and deleted on May 15, 2019. 25. Defendant denies the allegations of Paragraph 25 of the Complaint to the extent Paragraph 25 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, as Defendant timely closed the account as paid in full and timely updated the credit reporting to be closed and deleted.in full. Specifically, on May 14, 2019, Defendant received Plaintiff's written notice of dispute, claiming that he had paid the remainder of his debt directly to his creditor; and on May 15, 2019, Defendant closed the account as paid in full and updated the credit reporting to be closed and deleted. 26. Defendant denies the allegations of Paragraph 26 of the Complaint to the extent Paragraph 26 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, as Defendant timely closed the account as paid in full and timely updated the credit reporting to be closed and deleted.in full. Specifically, on May 14, 2019, Defendant received Plaintiff's written notice of dispute, claiming that he had paid the remainder of his debt directly to his creditor; and on May 15, 2019, Defendant closed the account as paid in full and updated the credit reporting to be closed and deleted. 4|P age 1 FIRST CAUSE OF ACTION – FAIR DEBT COLLECTION PRACTICES ACT 27. The allegations of Paragraph 27 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 27 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 28. The allegations of Paragraph 28 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 28 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 29. The allegations of Paragraph 29 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 29 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 30. The allegations of Paragraph 30 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 30 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 31. Defendant denies the allegations of Paragraph 31 of the Complaint in their entirety. SECOND CAUSE OF ACTION – TEXAS FINANCE CODE CHAPTER 392 32. The allegations of Paragraph 32 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 32 alleges 5|P age 1 Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 33. The allegations of Paragraph 33 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 33 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 34. The allegations of Paragraph 34 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 34 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 35. The allegations of Paragraph 35 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 35 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 36. The allegations of Paragraph 36 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 36 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 37. The allegations of Paragraph 37 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 37 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 6|P age 1 38. The allegations of Paragraph 38 of the Complaint are conclusions of law or legal propositions to which no response is required. However, to the extent Paragraph 38 alleges Defendant committed wrongful acts and/or violated the FDCPA or the Texas Debt Collection Act in regard to Plaintiff, Defendant denies same. 39. Defendant denies the allegations of Paragraph 39 of the Complaint in their entirety. ANSWER TO PRAYER FOR RELEIF Defendant states that no answer is required to Plaintiff's prayer for relief. To the extent an answer is required; Defendant denies the allegations in the prayer for relief and Paragraphs a-f contained therein and deny that Plaintiff has any basis for obtaining any relief from Defendant, as requested in his Complaint or otherwise. AFFIRMATIVE DEFENSES Defendant alleges and asserts the following affirmative and other defenses in answer to the allegations to the complaint, undertaking the burden of proof only as to those defenses deemed affirmatively defenses by law, regardless of how the defenses are denominated below. 1. As the factual allegations on which Plaintiff primarily grounds his legal claims are clearly and demonstrably false, Defendant asserts that Plaintiff brought the claims in his Complaint under the FDCPA and/or TDCA in bad faith and/or for the purpose of harassment; accordingly, Defendant is entitled to an award of attorneys' fees and costs pursuant to 15 U.S.C. § 1692k(a)(3). 2. Additionally and/or alternatively, Plaintiff's Complaint, and each cause of action contained therein, fails to state facts sufficient to constitute a valid cause of action against Defendant. 7|P age 1 3. Additionally and/or alternatively, Defendant asserts that the causes of action alleged in Plaintiff's Complaint are barred, in whole or in part, by the doctrines of estoppel, waiver, laches, unclean hands, and other equitable doctrines. 4. Additionally and/or alternatively, Defendant asserts that it did not engage in any actionable conduct under the FDCPA, TDCA, and/or DTPA and clearly did not engage in any conduct that was outrageous, intentional and malicious or done with reckless disregard with respect to Plaintiff. Defendant also alleges that it never engaged in any knowing, willful or fraudulent conduct with respect to Plaintiff. 5. Additionally and/or alternatively, Plaintiff's damages, if any, are a result of his failure to take reasonable steps to mitigate his alleged damages. Accordingly, Plaintiff is not entitled to recover any damages, or any recovery awarded should be reduced by the amount of damages which reasonably could have been avoided. 6. Additionally and/or alternatively, the Complaint, and each cause of action alleged therein against Defendant, is barred because Defendant was privileged and justified, by statute and by common law, in making the alleged statements and representations, if any, including but not limited to statutes 15 U.S.C. § 1692k(c). 7. Additionally and/or alternatively, assuming arguendo that this Defendant violated any provision of the FDCPA or TDCA as alleged in the Complaint, which presupposition Defendant vehemently denies, such violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. 8. Additionally and/or alternatively, Defendant and its agents, if any, acted reasonably and in good faith at all times material herein, based on all relevant facts and 8|P age 1 circumstances known by them at the time they so acted; Defendant asserts that it acted lawfully and within its legal rights, with a good faith belief in the exercise of those rights, and in the furtherance of legitimate business purpose. Further, Defendant acted in good faith in the honest belief that the acts, conduct and communications, if any, of Defendant were justified under the circumstances based on information reasonably available to this answering Defendant, including reliance on information provided by the creditor. Accordingly, Plaintiff is barred from any recovery in this action. 9. Defendant would show that Plaintiff's damages, if any, were not caused by Defendant, but were caused, in whole or in part, by the acts and/or omissions of Plaintiff, third parties, instrumentalities, and/or other factors over whom/which Defendant had no right of control and for whom/which Defendant is and was not responsible. To the extent that Plaintiff suffered any damages as a result of such parties or instrumentalities, such conduct was the intervening and superseding cause of any such damages, which conduct breaks the causal chain between Defendant and the event sued upon. 10. Additionally and/or alternatively, any damages that Plaintiff may recover against Defendant in this Action must be offset against all amounts owed to Defendant. 11. Additionally and/or alternatively, Defendant substantially complied with the statute at issue. 12. Additionally and/or alternatively, Plaintiff suffered no damages or injury. RESERVATION OF RIGHTS Defendant reserves the right to amend its answer and claims herein by adding additional parties, affirmative defenses, counterclaims, cross-claims, and/or third party claims, as additional investigation, discovery or circumstances warrant. 9|P age 1 DEFENDANT'S PRAYER FOR RELIEF WHEREFORE, Defendant prays as follows: 1. That Plaintiff take nothing by the Complaint. 2. That the Complaint be dismissed with prejudice; and 3. That judgment be entered in favor of Defendant, and against Plaintiff, on all counts in which claims have been asserted against Defendant, for its attorneys' fees and costs incurred herein, and for such further relief as the court deems just and equitable. Respectfully submitted, By: /s/ Lee H. Staley Lee H. Staley Attorney-In-Charge State Bar No. 24027883 Federal Bar No. 30072 Staley.L@wssllp.com ATTORNEYS FOR DEFENDANT I.Q. DATA INTERNATIONAL, INC. COUNSEL: Winget, Spadafora & Schwartzberg, LLP Two Riverway, Suite 725 Houston, Texas 77056 Telephone: 713-343-9200 Facsimile: 713-343-9201 10 | P a g e 1 CERTIFICATE OF SERVICE I certify that on the 25th day of June, 2019, a true and correct copy of the foregoing was served was served via the Court's ECF system, which constitutes service on all parties. William M. Clanton Law Office of Bill Clanton PC 926 Chulie Drive San Antonio, TX 78216 bill@clantonlawoffice.com /s/ Lee H. Staley Lee H. Staley 11 | P a g e