`NYSCEF DOC. NO. 4
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`INDEX NO. 9001735
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`RECEIVED NYSCEF: 11/06/2023
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`Index No.: 9001735
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`ANSWER
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WYOMING
`____________________________________________
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`CAPITAL ONE, N.A. SUCCESSOR BY MERGER
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`TO CAPITAL ONE BANK (USA), N.A.,
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` -against-
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`DAVID WOOLLEY,
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` Plaintiff,
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` Defendant.
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`The Defendant, DAVID WOOLLEY (“Defendant”), by and through his attorneys, M.
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`CABRERA & ASSOCIATES, PC, as and for her Answer to the Complaint of CAPITAL ONE,
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`N.A. SUCCESSOR BY MERGER TO CAPITAL ONE BANK (USA), N.A., (“Plaintiff”) herein
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`states as follows:
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`AS AND FOR A FIRST CAUSE OF ACTION
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`1.
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`Defendant objects to the pleadings set forth in Paragraph 1 of the Complaint as it
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`is vague, overbroad, and sets forth multiple allegations of fact. As such Defendant is unable to
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`accurately responsively plead to the same. To the extent a response to the same is required
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`Defendant admits that he resides in the county in which this action has been filed and lacks
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`sufficient information or knowledge with which to admit or deny the remaining allegations.
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`2.
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`Defendant is without sufficient information or knowledge to admit or deny the
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`allegations set forth in Paragraphs 2 and 3 of the Complaint and thereby denies same, leaving
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`Plaintiff to its proofs.
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`3.
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`4.
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`Defendant denies the allegations set forth in Paragraphs 4 and 5 of the Complaint.
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`Defendant denies and balance due and is without sufficient information or
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`knowledge to admit or deny the remaining allegations set forth in Paragraphs 6, 7 and 8 of the
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`Complaint and thereby denies same, leaving Plaintiff to its proofs.
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`1 of 3
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`FILED: WYOMING COUNTY CLERK 11/06/2023 12:37 PM
`NYSCEF DOC. NO. 4
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`INDEX NO. 9001735
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`RECEIVED NYSCEF: 11/06/2023
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`5.
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`Complaint.
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`Defendant denies the allegations set forth in Paragraphs 9 and 10 of the
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`WHEREFORE, Defendant demands judgment against Plaintiff dismissing the First
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`Cause of Action of Plaintiff’s Complaint with prejudice in addition to any other relief which may
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`be deemed just and proper.
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`FIRST AFFIRMATIVE DEFENSE
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`The Complaint fails to state a claim upon which relief may be granted.
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`SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
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`Plaintiff’s claims are barred under the applicable statute of limitations.
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`THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
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`Plaintiff’s claims are barred by the doctrine of laches.
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`FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
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`Plaintiff’s claims are based on a contract of adhesion, and as such, public policy renders
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`all or portions of it unenforceable.
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`FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
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`Plaintiff’s claims are barred by the doctrines of waiver and estoppel.
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`SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
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`Plaintiff’s claims are based on a contract that is illusory and therefore unenforceable.
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`SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
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`Plaintiff’s calculation of interest is usurious or based on a rate that is greater than allowed
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`by law.
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`EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
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`Plaintiff failed to provide Defendant notice that she violated the contract or agreement
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`prior to bringing suit, so as to allow the Defendant to cure the violation, as required under the
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`contract or agreement.
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`2
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`2 of 3
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`FILED: WYOMING COUNTY CLERK 11/06/2023 12:37 PM
`NYSCEF DOC. NO. 4
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`INDEX NO. 9001735
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`RECEIVED NYSCEF: 11/06/2023
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`NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
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`Plaintiff failed to credit Defendant for money paid toward the debt which is the subject of
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`this lawsuit.
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`TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
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`Plaintiff failed to mitigate its damages.
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`ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
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`Plaintiff failed to comply with the applicable provisions of the Consumer Credit Fairness
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`Act.
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`WHEREFORE, Defendant demands judgment that the Court dismiss all counts of
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`Plaintiff’s complaint and grant the Defendant all other and further relief as may be deemed
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`equitable, just and proper.
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`Dated: November 6, 2023
`Goshen, New York
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`To: Rubin & Rothman, LLC
`1787 Veterans Highway
`Islandia, New York 11749
`Attorneys for the Plaintiff
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`M. CABRERA & ASSOCIATES, PC
`Attorneys for Defendant DAVID WOOLLEY
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`__William Y. Fowlkes________
`William Y. Fowlkes, Esq.
`2002 Route 17M, Suite 12
`Goshen, New York 10924
`Telephone:
`(845) 531-5474
`Facsimile:
`(845) 230-6645
`wfowlkes@mcablaw.com
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`3
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`3 of 3
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