[Names of attorneys]

1 [Attorneys' business address]

[City, State Zip]
2 [Telephone]
[Fax]
3 [electronic mail]
4 Attorney for the Defendant
5 IN THE SOUTH MOUNTAIN JUSTICE COURT OF THE STATE OF ARIZONA
6 IN AND FOR THE COUNTY OF MARICOPA
7

8 ) Case No.: CC2010536388RC

CAPITAL ONE BANK (USA), N.A., )
9 ) ANSWER WITH DEFENSES
Plaintiff, )
10 )
vs. )
11 )
ROLANDA DANIEL, et. al., )
12 )
Defendant. )
13

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The Defendant ROLANDA DANIEL (“Defendant”) answers the complaint filed by the
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Plaintiff CAPITAL ONE BANK (USA), N.A. (“Plaintiff”) as follows:
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ANSWER
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1. The Defendant admits that she is a resident of this county but denies the
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remaining allegations contained in paragraph 1.
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2. The allegations contained in paragraph 2 are denied.
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3. The allegations contained in paragraph 3 are denied.
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4. The allegations contained in paragraph 4 are denied.
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5. The allegations contained in paragraph 5 are denied.
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6. The allegations contained in paragraph 6 are denied.
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7. The allegations contained in paragraph 7 are denied.
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8. The allegations contained in paragraph 8 are denied.
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9. The Defendant restates her answers to paragraphs 1 through 8.
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10. The allegations contained in paragraph 10 are denied.
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11. The allegations contained in paragraph 11 are denied.

ANSWER WITH DEFENSES - 1

 1 12. The allegations contained in paragraph 12 are denied.
2 13. The allegations contained in paragraph 13 are denied.
3 14. The Defendant restates her answers to paragraphs 1 through 13.
4 15. The allegations contained in paragraph 15 are denied.
5 16. The allegations contained in paragraph 16 are denied.
6 17. The allegations contained in paragraph 7 are denied.
7 AFFIRMATIVE DEFENSES
8 COUNT I
FIRST DEFENSE
9

10 18. The Plaintiff is the originator of the credit card receivable arising from the

11 Defendant’s alleged use of Capital One Bank (USA) NA credit card accounts. The books and
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records of the Plaintiff will show that the Plaintiff sold all title and interest to the receivable to
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Banc of America Consumer Card Services, LLC. Accordingly, the Plaintiff lacks standing to
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bring the claim.
15

16 SECOND DEFENSE

17 19. The Plaintiff is the originator of the credit card receivable arising from the
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Defendant’s alleged use of FIA Card Services, NA. branded credit card accounts. The books and
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records of the Plaintiff will show that the Plaintiff sold all title and interest to the receivable to
20

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the Capital One Multi-asset Execution Trust. Accordingly, the Plaintiff suffered no legal

22 damages as a result of any default in payment by the Defendant.

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THIRD DEFENSE
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20. The sole consideration for the alleged promise to pay on the credit card described
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in the complaint was the Plaintiff’s promise to lend the Defendant U.S. $7,894.77 (seven
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27 thousand eight hundred ninety-four United States dollars and 77/100) or advance U.S.

28 $7,894.77 (seven thousand eight hundred ninety-four United States dollars and 77/100) to third

ANSWER WITH DEFENSES - 2

 parties. The books and records maintained by the Plaintiff will show that the Plaintiff did not
1

2 lend the sum to Defendant or advance the sum to any third parties.

3 FOURTH DEFENSE
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21. The Plaintiff does not have the authority to sue in this action because the
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receivable arising from the alleged use of the credit card account is owned by the Capital One
6

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Multi-asset Execution Trust and the Plaintiff is not the Trustee of the Capital One Multi-asset

8 Execution Trust.
9 FIFTH DEFENSE
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22. 12 C.F.R. §226.5(a)(1) (2009) requires that the material terms of a credit card
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contract be clear, conspicuous and in writing. The Plaintiff is required to incorporate or attach to
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13 the pleadings the credit card contract serving as the basis of a claim on a credit card account.

14 SIXTH DEFENSE
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23. The Plaintiff did not suffer legal damages as a result of the Defendant’s alleged
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claim. Upon information and belief, the books and records of the Plaintiff will show that when
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the Plaintiff sold all right, title and interest to the receivable (debt) to the Capital One Multi-asset
18

19 Execution Trust the Plaintiff recorded a “gain on sale”. The gain on sale represents the actual

20 dollar amount the Plaintiff sold the credit card receivable plus a “servicing asset” representing
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fees collected by the Plaintiff for servicing the asset. Thus, the books and records of the Plaintiff
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will show that the Plaintiff received an amount greater than the amount being sued upon.
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Accordingly, the Plaintiff suffered no legal damages as a result of the Defendant’s alleged breach

25 of the credit card agreement.

26 WHEREFORE, the Defendant prays that Count I be dismissed with prejudice and that
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the Plaintiff be ordered to pay Defendant a reasonable attorneys’ fee.
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ANSWER WITH DEFENSES - 3

 COUNT II
1

2 FIRST DEFENSE

3 24. The Plaintiff is the originator of the credit card receivable arising from the
4
Defendant’s alleged use of Capital One Bank (USA) NA credit card accounts. The books and
5
records of the Plaintiff will show that the Plaintiff sold all title and interest to the receivable to
6

7
Banc of America Consumer Card Services, LLC. Accordingly, the Plaintiff lacks standing to

8 bring the claim.

9 SECOND DEFENSE
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25. The Plaintiff is the originator of the credit card receivable arising from the
11
Defendant’s alleged use of FIA Card Services, NA. branded credit card accounts. The books and
12

13 records of the Plaintiff will show that the Plaintiff sold all title and interest to the receivable to

14 the Capital One Multi-asset Execution Trust. Accordingly, the Plaintiff suffered no legal
15
damages as a result of any default in payment by the Defendant.
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THIRD DEFENSE
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26. The sole consideration for the alleged promise to pay on the credit card described
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19 in the complaint was the Plaintiff’s promise to lend the Defendant U.S. $7,894.77 (seven

20 thousand eight hundred ninety-four United States dollars and 77/100) or advance U.S.
21
$7,894.77 (seven thousand eight hundred ninety-four United States dollars and 77/100) to third
22
parties. The books and records maintained by the Plaintiff will show that the Plaintiff did not
23

24
lend the sum to Defendant or advance the sum to any third parties.

25 FOURTH DEFENSE
26 27. The Plaintiff does not have the authority to sue in this action because the
27
receivable arising from the alleged use of the credit card account is owned by the Capital One
28

ANSWER WITH DEFENSES - 4

 Multi-asset Execution Trust and the Plaintiff is not the Trustee of the Capital One Multi-asset
1

2 Execution Trust.

3 FIFTH DEFENSE
4
28. 12 C.F.R. §226.5(a)(1) (2009) requires that the material terms of a credit card
5
contract be clear, conspicuous and in writing. The Plaintiff is required to incorporate or attach to
6

7
the pleadings the credit card account beginning with a $0.00 balance and ending with the amount

8 allegedly due on the account and not the lump sum balance due.
9 SIXTH DEFENSE
10
29. The Plaintiff did not suffer legal damages as a result of the Defendant’s alleged
11
claim. Upon information and belief, the books and records of the Plaintiff will show that when
12

13 the Plaintiff sold all right, title and interest to the receivable (debt) to the Capital One Multi-asset

14 Execution Trust the Plaintiff recorded a “gain on sale”. The gain on sale represents the actual
15
dollar amount the Plaintiff sold the credit card receivable plus a “servicing asset” representing
16
fees collected by the Plaintiff for servicing the asset. Thus, the books and records of the Plaintiff
17
will show that the Plaintiff received an amount greater than the amount being sued upon.
18

19 Accordingly, the Plaintiff suffered no legal damages.

20 SEVENTH DEFENSE
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30. The claim “Account Stated” is an implied theory of liability. The Plaintiff should
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not be entitled to fall back on an implied theory of liability simply because it cannot prove its
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breach of contract claim.

25 WHEREFORE, the Defendant prays that Count II be dismissed with prejudice and that
26 the Plaintiff be ordered to pay Defendant a reasonable attorneys’ fee.
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ANSWER WITH DEFENSES - 5

 Dated:
1
[Attorney’s Name]
2 [Attorney’s Address]
[City, State Zip]
3
CERTIFICATE OF SERVICE
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5 I certify that I have served a copy of the foregoing answer with defenses by first class

6 mail postage prepaid to: Jennifer Weidle, 64 East Broadway Road, Suite 255 Tempe, AZ 85282
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this day of November, 2010.
8

9
Dated:
10 [Attorney’s Name]
11
[Attorney’s Address]
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15 _______________________________________________________________________________
_______________________________________________________________________________
16 [City, State Zip]
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ANSWER WITH DEFENSES - 6