sallie mae answer

8/13/2019 Sallie Mae Answer

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case 4:13-cv-00070-PPS-PRC document 8 filed 10/18/13 page 1 of 11

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF INDIANALAFAYETTE DIVISIONDEBORAH HENADY-KORBA,

Plaintiff,vs. CAUSE NO.: 4:13-cv-00070-PPS-PRC

SALLIE MAE, INC.,Defendant.

DEFENDANT S ANSWER AND AFFIRMATIVEDEFENSES TO PLAINTIFF S COMPLAINT

Defendant, Sallie Mae, Inc. ( Defendant or Sallie Mae ), by counsel, hereby respondsto Plaintiff's Complaint for Damages, as follows:

PARTIES1 Plaintiff is an individual citizen and resident o the State o Indiana, County oTippecanoe, and City o Lafayette.ANSWER: Defendant admits that Plaintiff is an individual citizen and is without

sufficient knowledge or information to admit or deny the remaining allegations contained inparagraph 1 o Plaintiff's Complaint and, therefore, denies the same.

2 Defendant Sallie Mae solicits and transacts business within the State o Indiana,County o Tippecanoe, and is headquartered at 2001 Edmund Halley Dr., Reston, VA 20190.ANSWER: Defendant admits that it does business in the State o Indiana, County o

Tippecanoe, but denies the remaining allegations contained in paragraph 2 o Plaintiff'sComplaint.

3 This Court has subject matter jurisdiction pursuant to 47 U.S.C. 227(b)(3).


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ANSWER Defendant only admits that this Court has subject matter jurisdiction.Defendant denies that Plaintiff is entitled to any relief and denies all remaining allegationscontained in paragraph 3 o Plaintiffs Complaint.

FACTUAL ALLEGATIONS

4. Plaintiff has multiple federal student loans (hereafter Accounts ) serviced bySallie Mae.ANSWER Defendant admits that it services a Federal Direct Consolidation loan

obtained by Plaintiff, which was disbursed on April 17, 2013. Defendant denies the remainingallegations contained in paragraph 4 o Plaintiffs Complaint, including the use o the termAccounts to refer to the loan.

5. Within the last four 4) years, Plaintiff has received numerous collection callsfrom Sallie Mae's agents and/or employees to her cellular telephone number in an attempt tocollect upon the Accounts.ANSWER Denied. Further responding, Plaintiffs Federal Direct Consolidation loan

was disbursed on April17, 2013, and has not been delinquent since that time.6. On or around July 9, 2013, at approximately 12:28 p.m., Plaintiff instructed aSallie Mae representative, by the name o Kevin, to stop calling her cellular number.ANSWER Admitted.7. Despite Plaintiffs cease and desist request, Sallie Mae continued to placetelephone calls to Plaintiffs cellular telephone using an automatic dialing system and/or artificialor pre-recorded voice. Plaintiff received approximately one-hundred 1 00) calls after the ceaseand desist request and the calls are continuing.ANSWER Defendant denies the allegations contained in paragraph 7 o Plaintiffs

Complaint.8. Upon information and belief, Defendant maintains business records that show alltelephone calls placed to Plaintiffs cellular telephone number.ANSWER Defendant admits that it maintains records o calls placed to Plaintiff.

Defendant denies the remaining allegations contained in paragraph 8 o Plaintiffs Complaint.


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15. Defendant's conduct rose to the level of an incurable deceptive act as definedby I.C. 24-5-0.5-2(a)(8).

ANSWER: Defendant denies the allegations contained in paragraph 5 of Plaintiff'sComplaint.

COUNT I NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMERPROTECTION ACT 47 U.S.C. 227 et seq

16. Plaintiff incorporates the allegations contained in paragraphs 1 through 5 andfurther states as follows:ANSWER: Defendant restates its responses to paragraphs 1 through 5 of Plaintiff's

Complaint as if set forth in full herein.17. The foregoing acts and omissions of Defendant constitute numerous and multiplenegligent violations of the TPCA, including but not limited to each and every one of the abovecited provisions of 47 U.S. C. 227 et seqANSWER: Defendant denies the allegations contained in paragraph 17 of Plaintiff's

Complaint.18. As a result of Defendant's negligent violations of 47 U.S.C. 227 et seq.Plaintiff is entitled to an award of $500.00 statutory damages, for each and every violation,pursuant to 47 U.S.C. 227(b)(3)(B).ANSWER: Defendant denies the allegations contained in paragraph 8 of Plaintiff's

Complaint.COUNT II: KNOWING AND/OR WILLFUL VIOLATOINS OF THE TELEPHONE

CONSUMER PROTECTION ACT 47 U.S.C. 227 et seq19. Plaintiff incorporates the allegations contained in paragraphs 1 through 8 andfurther states as follows:ANSWER: Defendant restates its responses to paragraphs 1 through 8 of Plaintiff's

Complaint as if set forth in full herein.20. Even after Plaintiff placed Sallie Mae on notice that it did not have consent to callPlaintif f's cellular telephone number, Sallie Mae s agents and/or employees repeatedly continuedto use an automatic telephone dialing system and/or an artificial or prerecorded voice to makeand/or place telephone calls to Plaintiff's cellular telephone number.


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ANSWER: Defendant denies the allegations contained in paragraph 20 o PlaintiffsComplaint.

21. The foregoing acts and omissions o Defendant constitute numerous and multipleknowing and/or willful violations o the TCPA including but not limited to each and every oneo the above-cited provisions o 47 U.S.C. 227 et seq.

ANSWER: Defendant denies the allegations contained in paragraph 21 o PlaintiffsComplaint.

22. As a result o Defendant's knowing and/or willful violations o 47 U.S.C. 227 etseq. Plaintiff is entitled to treble damages up to 1,500.00 for each and every violation, pursuantto 47 U.S.C. 227(b)(3).

ANSWER: Defendant denies the allegations contained in paragraph 22 o PlaintiffsComplaint.COUNT III: NEGLIGENT VIOLATION OF THE INDIANA DECEPTIVE CONSUMER

SALES ACT Ind. ode 24-5-0.5 et seq23. Plaintiff incorporates the allegations contained in paragraphs 1 through 22 andfurther states as follows:ANSWER: Defendant restates its responses to paragraphs 1 through 22 o Plaintiffs

Complaint as i set forth in full herein.24. Each and every violation o the TCP A by Defendant constitutes a deceptive act, inviolation o the IDCSA, specifically Ind. Code 24-5-0.5-1(a)(19).ANSWER: Defendant denies the allegations contained in paragraph 24 o Plaintiffs

Complaint.25. As a result o Defendant's negligent violations o IDCSA, Plaintiff is entitled toan award o 500.00 in statutory damages, for each and every violation o the TCP A plus

reasonable attorney fees, pursuant to Ind. Code 24-5-0.504(a).ANSWER: Defendant denies the allegations contained in paragraph 25 o Plaintiffs

Complaint.

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COUNT IV: WILLFUL VIOLATION OF THE INDIANA DECEPTIVE CONSUMERSALES ACT Ind. ode 24-5-0.5-1 et seq

26 Plaintiff incorporates the allegations contained in paragraphs 1 through 25 andfmiher states as follows:ANSWER: Defendant restates its responses to paragraphs 1 through 25 o Plaintiffs

Complaint as i set forth in full herein.27 Even after Plaintiff placed Sallie Mae on written notice that it did not haveconsent to call Plaintiffs cellular telephone number, Sallie Mae's agents and/or employeesrepeatedly continued to use an automatic telephone dialing system and/or an artificial orprerecorded voice to make and/or place telephone calls to Plaintiffs cellular telephone numberanyway, in violation ofthe TCPA and the IDCSA.ANSWER: Defendant denies the allegations contained in paragraph 27 o Plaintiffs

Complaint.28 As a result o Defendant's willful deceptive acts, Plaintiff is entitled to doublestatutory damages not exceeding 1,000.00 for each and every violation ofiDCSA.ANSWER: Defendant denies the allegations contained in paragraph 28 o Plaintiffs

Complaint.

WHEREFORE, Plaintiff respectfully prays for judgment against the Defendants [sic], asfollows:A A judgment in the amount o 500.00 for each and every violation cited hereinplus any and all additional violations after the date o filing o this Complaint, pursuant to 4 7U.S.C. 227(b)(3)(B);B Treble damages in the amount o 1,500.00 for each and every violation citedherein plus any and all additional violations after the date o filing o this Complaint, pursuant to

47 u s c 227(b)(3);C A judgment in the amount o 500.00 for each and every violation cited hereinplus any and all violations after the date o filing this Complaint, pursuant to Ind. Code 24-5-0.5-4(a);D Double damages in the amount o 1,000.00 for each and every violation citedherein plus any and all additional violations after the date o filing this Complaint, pursuant toInd. Code 24-5-0.5-4(a)(2);


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E All costs, fees and expenses incurred in this case, including reasonable attorney'sfees, pursuant to Ind. Code 24-5-0.5-4(a).F Awarding Plaintiff any pre-judgment and post-judgment interest as may beallowed under the law; andG Such other relief as the Court deems just and proper.ANSWER Defendant denies that Plaintiff is entitled to any o the relief requested.

AFFIRMATIVE AND OTHER DEFENSES

Defendant further responds to the Complaint by stating that any allegation not expresslyadmitted herein is denied and, without assuming any burden o proof that would otherwise rest

with Plaintiff, Defendant asserts the following affirmative defenses:FIRST DEFENSE

Plaintiff has failed to state a claim upon which relief can be granted.SECOND DEFENSE

Defendant is informed and believes, and on that basis alleges, that Plaintiff is barred, inwhole or in part, from maintaining her alleged cause o action because she provided priorexpress consent within the meaning o the TCPA, 47 U.S.C. 227(b)(l)(A), for calls allegedlyplaced to her cell phone number by any alleged automatic telephone dialing system.

THIRD DEFENSE

Plaintiff is precluded from any recovery from Defendant for a willful and knowingviolation o the TCP A because any such violation (which Defendant denies occurred) would nothave been willful or knowing.

FOURTH DEFENSE

Plaintiffs claims are barred or diminished to the extent that Plaintiff lacks standing to suefor the claims alleged.


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FIFTH EFENSEPlainti ffs claims are barred in whole or in part by the applicable statute of limitations.

SIXTH EFENSEPlainti ffs claims are barred in whole or in part by the doctrine of unclean hands.

SEVENTH EFENSEPlainti ffs claims are barred in whole or in part due to waiver and/or consent.

EIGHTH EFENSElaintiffs claims are barred in whole or in part by the doctrine of laches.

NINTH EFENSElaintiffs claims are barred in whole or in part by estoppel.

TENTH EFENSEDefendant avers that laintiffs claims are barred by the doctrines of res judicata

settlement and compromise. Plaintiff is a Settlement Class Member in the proceeding entitledArthur et al. v. Sallie Mae Inc. Civ. A. No. 10-cv-00198-JLR on the docket ofthe United StatesDistrict Court for the Western District of Washington. Accordingly laintiffs claims in thisproceeding are barred in accordance with the Settlement Order and Final Judgment signed by thecourt on September 17 2012 the Final Judgment entered on September 17 2012 and theAmended Settlement Agreement signed by the parties in the action.

ELEVENTH EFENSE

Plaintiff is barred from recovery in that any damage sustained by Plaintiff was the directand proximate result of the independent intervening negligent and/or unlawful conduct ofindependent third parties or their agents and not any act or omission on the part ofDefendant.

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TWELFTH EFENSEDefendant alleges that the imposition o liability and/or statutory damages under the

TCP A s sought in the Complaint would violate provisions o the United States Constitution,including the Due Process Clause.

THIRTEENTH EFENSEOne or more o Plaintiffs claims are barred because Plaintiff failed to specifically aver

fraud.FOURTEENTH EFENSE

Plaintiffs IDCPA claim is barred because Defendant is not a debt collector.FIFTEENTH EFENSE

Plaintiffs IDCPA claim is barred because Defendant is not a supplier.SIXTEENTH EFENSE

Plaintiffs IDCPA claim is barred because she fails to allege a consumer transaction.SEVENTEENTH EFENSE

Plaintiffs IDCPA claim is barred because she fails to allege an incurable deceptive act.EIGHTEENTH EFENSE

Plaintiffs IDCPA claim is barred because she failed to provide notice and opportunity tocure.

NINETEENTH EFENSE

Plaintiffs IDCP A claim is barred to the extent Defendant s actions were required orexpressly permitted by federal or state law, rule or regulation.


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TWENTIETH DEFENSEPlaintiff s IDCP A claim is barred as any actions taken by Defendant were the result of a

bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoiderror.

RESERV TION OF DDITION L DEFENSESDefendant presently has insufficient knowledge or information upon which to form a

belief as to whether it may have additional, as yet unstated, defenses available. Defendantreserves its rights to assert additional defenses in the event discovery indicates it would beappropriate.

WHEREFORE, Defendant prays as follows:1 That Plaintiff takes nothing by this Action;2 That judgment be entered in favor ofDefendant; and3 For such other and further relief as the Court deems just and proper.

Respectfully submitted,OGLETREE, DEAKINS, NASH SMOAK STEWART, P.C.

By: s/ Bonnie L :MartinBonnie L Martin, Attorney No. 20248-18111 Monument Circle, Suite 4600Indianapolis, Indiana 46204Telephone: (317) 916-13 00Facsimile: (317) 916-907 6bonnie.martin@ogletreedeakins comAttorneys for DefendantSallie Mae, Inc.

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CERTIFIC TE OF SERVICEI hereby certify that on October 18, 2013, a copy of the foregoing Defendant s Answerand Affirmative Defenses to Plaintiff s Complaint was filed electronically. Notice of this filingwill be sent to the following parties by operation of the Court s CM/ECF system.

Melissa WilkesWILKES L W FIRMmwilkes@wilkes-law. com

s rBonnie

sallie mae answer

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