FILED: WESTCHESTER COUNTY CLERK 07/21/2023 11:49 AM INDEX NO.

61486/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/21/2023

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER
-----------------------------------------------------------X
LVNV FUNDING, LLC, Index No.: 61486/2023

Plaintiff,
-against- ANSWER
(with counterclaims)
KENNETH GORI,

Defendant.
-----------------------------------------------------------X

Defendant Kenneth Gori (“Defendant”), by and through his attorney Jesse Langel, Esq.,

answering the complaint of the plaintiff LVNV Funding, LLC (“Plaintiff”) respectfully alleges

the following:

ANSWERING THE COMPLAINT

1. Defendant admits he resides in Westchester County but denies having knowledge or

information sufficient to form a belief as to the truth of each other allegation in Paragraph 1.

2. The defendant denies each and every allegation in Paragraphs 2, 3, 4, 5, 6, 7, 8 and 9.

FIRST AFFIRMATIVE DEFENSE

3. The court lacks personal jurisdiction over the defendant. The action not been properly

commenced for, among other reasons, plaintiff’s failure to properly serve defendant and its

failure to comply with CPLR §§ 305, 306-a and/or 306-b. Plaintiff failed to properly serve the

defendant in compliance with the CPLR.

SECOND AFFIRMATIVE DEFENSE

4. The cause of action that plausibly pleads an account stated claim is unsubstantiated by

facts and evidence.

THIRD AFFIRMATIVE DEFENSE

5. The complaint fails to state a cause of action.

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FOURTH AFFIRMATIVE DEFENSE

6. The plaintiff's claim based on an alleged electronic promissory note is invalid because the

defendant did not provide a valid, legally binding signature as required by applicable laws and

regulations.

FIFTH AFFIRMATIVE DEFENSE

7. The plaintiff lacks standing. The alleged debt was not legally assigned. Furthermore, the

plaintiff and its purported predecessor-in-interest failed to properly notify the defendant of the

assignment of the alleged debt. LVNV Funding, LLC lacks capacity to bring a lawsuit because it

failed to provide sufficient evidence or documentation to establish that it is a legally registered

and authorized entity eligible to pursue legal actions. The plaintiff must demonstrate that it has

the necessary legal standing to sue, which includes meeting the requirements for corporate

existence and proper authorization. LVNV Funding, LLC lacks standing to bring a lawsuit as it

has not adequately demonstrated that it is the rightful holder of the alleged debt or has the legal

right to enforce the debt in question. The plaintiff must provide valid documentation, such as a

complete chain of assignment, to establish its standing as the rightful owner and holder of the

debt. LVNV Funding, LLC lacks capacity to sue due to non-compliance with applicable

licensing and regulatory requirements. If the plaintiff operates as a debt collector or debt buyer, it

must comply with relevant state and federal laws governing debt collection and debt buying

practices. Failure to meet these requirements may result in a lack of capacity to initiate legal

proceedings.

SIXTH AFFIRMATIVE DEFENSE

8. The plaintiff is not legally permitted to import usurious interest rates.

SEVENTH AFFIRMATIVE DEFENSE

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9. Plaintiff and its assignors have committed violations of good faith and fair dealing.

Plaintiff and its assignors failed to exchange or maintain reasonably accurate and current

information, and Plaintiff failed to validate the debt in response to the defendant’s demand for

validation, which was made telephonically. Defendant will demand contemporaneously the call

log that reflects that demand. Because of that disregard of the defendant’s rights, and Plaintiff’s

failure to conduct a meaningful attorney review, Defendant was sued unfairly with defending

against an insufficiently pled complaint.

EIGHTH AFFIRMATIVE DEFENSE

10. The defendant paid all or part of the debt sued for.

NINTH AFFIRMATIVE DEFENSE

11. LVNV Funding, LLC's claim is based on an unenforceable or invalid contract. The

agreement on which the plaintiff relies is void or unenforceable due to violations of relevant

laws, lack of proper documentation, or failure to meet essential contractual elements.

Consequently, the plaintiff should be precluded from seeking relief.

TENTH AFFIRMATIVE DEFENSE

12. The plaintiff has commenced suit outside of the statute of limitations.

FIRST COUNTERCLAIM
(Violations of NYGBL § 349)

13. The defendant repeats and re-alleges and incorporates by references the foregoing

paragraphs.

14. NYGBL § 349 declares unlawful deceptive acts or practices in the conduct of any

business, trade or commerce, or in the furnishing of any service in this state.

15. The acts and omissions by plaintiff that constitute deceptive acts and practices under

NYGBL § 349 include but are not limited to:

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a) Plaintiff sued Defendant in an incorrect address without having validated the debt or the
correct address for Defendant. The defendant is prejudiced because of the time restraint
and the extra attorneys’ fees incurred for seeking dismissal of the case.

b) The plaintiff lacks standing. The alleged debt was not legally assigned. Furthermore, the
plaintiff and its purported predecessor-in-interest failed to properly notify the defendant of
the assignment of the alleged debt. LVNV Funding, LLC lacks capacity to bring a lawsuit
because it failed to provide sufficient evidence or documentation to establish that it is a
legally registered and authorized entity eligible to pursue legal actions. The plaintiff must
demonstrate that it has the necessary legal standing to sue, which includes meeting the
requirements for corporate existence and proper authorization. LVNV Funding, LLC lacks
standing to bring a lawsuit as it has not adequately demonstrated that it is the rightful holder
of the alleged debt or has the legal right to enforce the debt in question. The plaintiff must
provide valid documentation, such as a complete chain of assignment, to establish its
standing as the rightful owner and holder of the debt. LVNV Funding, LLC lacks capacity
to sue due to non-compliance with applicable licensing and regulatory requirements. If the
plaintiff operates as a debt collector or debt buyer, it must comply with relevant state and
federal laws governing debt collection and debt buying practices. Failure to meet these
requirements may result in a lack of capacity to initiate legal proceedings.

c) The plaintiff's claim based on an alleged electronic promissory note is invalid because the
defendant did not provide a valid, legally binding signature as required by applicable
laws and regulations.

d) Bringing a cause of action against the defendant pursuant to an alleged credit agreement
without having obtained, or the ability to obtain, admissible proof of any such agreement.

e) Bringing an account stated claim against the defendant without having obtained, or the
ability to obtain, admissible proof and/or any personal knowledge that any account
statements were mailed to or received by the defendant.

f) Attempting to collect on an assigned account when the defendant had not been notified of
any assignment.

g) Commencing a lawsuit for an allegedly assigned debt without a valid assignment actually
having taken place.

h) Attempting to collect amounts allegedly due without any indication how the amounts
were calculated.

i) Attempting to collect amounts, including contractual interest, without admissible proof of

legal authority to collect the same.

j) Suing the defendant and, upon information and belief, violating New York State Law
regarding champerty.

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k) In failing to conduct a meaningful attorney review.1

16. At all times material to this counterclaim, plaintiff’s deceptive acts and practices that

gave rise to the claims herein occurred while plaintiff was engaging in its business of collecting

or attempting to collect, directly or indirectly, debts owed or due or asserted to be owed or due

another.

17. Plaintiff’s acts and practices have been entirely directed at consumers and plaintiff’s acts

have broad impact on the New York consuming public.

18. Upon information and belief, plaintiff commences thousands of debt collection lawsuits

per month against New York consumers.

19. Plaintiff’s collection activities are part of a recurring practice against large numbers of

consumers in furtherance of its business model of increasing debt volume while decreasing the

cost of each case, thus increasing profitability.

20. Plaintiff’s offending collection practices have the capacity and tendency to deceive and

mislead a significant percentage of New York consumers. These practices are especially

damaging to consumer debtors because constitutional rights of due process are violated resulting

in the unlawful deprivation of property of New York’s poorest communities.

21. The conduct complained of occurred during, and in furtherance of, plaintiff’s for-profit

business enterprise of collecting or attempting to collect, directly or indirectly, debts owed or due

or asserted to be owed or due another.

22. The deceptive acts and practices alleged constitute violations of NYGBL § 349

independent of any violation of any other law.

1
Miller v. Upton, Cohen & Slamowitz, 687 F. Supp. 2d 86 (E.D.N.Y. 2009).

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23. The deceptive acts and practices mislead reasonable consumers acting reasonably under

the circumstances.

24. As a result of these violations of NYGBL § 349, defendant has suffered pecuniary and

non-pecuniary harm and is therefore entitled to actual damages, punitive damages of up to

$1,000, attorney’s fees and costs.

SECOND COUNTERCLAIM
(Violations of the Fair Debt Collection Practices Act (“FDCPA”))

25. Defendant is a natural person who resides in New York.

26. Defendant is a “consumer” as defined by 15 U.S.C. § 1692(a)(3) of the FDCPA.

27. Plaintiff is a foreign limited liability company that is regularly engaged in the collection

of debts in the state of New York.

28. Plaintiff’s principal place of business is located on its summons.

29. The principal purpose of Plaintiff is the collection of debts using the instrumentalities of

interstate commerce, including mails and telephone, and Plaintiff regularly collects or attempts to

collect, directly or indirectly, debts owed or due or asserted to be owed or due to another.

30. Plaintiff is a “debt collector” as defined by 15 U.S.C. § 1692a(6) of the FDCPA.

31. The alleged debt at issue arose out of a transaction used primarily for personal, family or

household purposes, and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).

32. The plaintiff has used false, deceptive and misleading means to collect a debt in violation

of §§ 1692d, 1692e, 1692f, and 1692g by:

a) Plaintiff sued Defendant in an incorrect address without having validated the debt or the
correct address for Defendant. The defendant is prejudiced because of the time restraint
and the extra attorneys’ fees incurred for seeking dismissal of the case.

b) The plaintiff lacks standing. The alleged debt was not legally assigned. Furthermore, the
plaintiff and its purported predecessor-in-interest failed to properly notify the defendant of
the assignment of the alleged debt. LVNV Funding, LLC lacks capacity to bring a lawsuit

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because it failed to provide sufficient evidence or documentation to establish that it is a

legally registered and authorized entity eligible to pursue legal actions. The plaintiff must
demonstrate that it has the necessary legal standing to sue, which includes meeting the
requirements for corporate existence and proper authorization. LVNV Funding, LLC lacks
standing to bring a lawsuit as it has not adequately demonstrated that it is the rightful holder
of the alleged debt or has the legal right to enforce the debt in question. The plaintiff must
provide valid documentation, such as a complete chain of assignment, to establish its
standing as the rightful owner and holder of the debt. LVNV Funding, LLC lacks capacity
to sue due to non-compliance with applicable licensing and regulatory requirements. If the
plaintiff operates as a debt collector or debt buyer, it must comply with relevant state and
federal laws governing debt collection and debt buying practices. Failure to meet these
requirements may result in a lack of capacity to initiate legal proceedings.

c) The plaintiff's claim based on an alleged electronic promissory note is invalid because the
defendant did not provide a valid, legally binding signature as required by applicable
laws and regulations.

d) Bringing a cause of action against the defendant pursuant to an alleged credit agreement
without having obtained, or the ability to obtain, admissible proof of any such agreement.

e) Bringing an account stated claim against the defendant without having obtained, or the
ability to obtain, admissible proof and/or any personal knowledge that any account
statements were mailed to or received by the defendant.

f) Attempting to collect on an assigned account when the defendant had not been notified of
any assignment.

g) Commencing a lawsuit for an allegedly assigned debt without a valid assignment actually
having taken place.

h) Attempting to collect amounts allegedly due without any indication how the amounts
were calculated.

i) Attempting to collect amounts, including contractual interest, without admissible proof of

legal authority to collect the same.

j) Suing the defendant and, upon information and belief, violating New York State Law
regarding champerty.

k) In failing to conduct a meaningful attorney review.2

2
Miller v. Upton, Cohen & Slamowitz, 687 F. Supp. 2d 86 (E.D.N.Y. 2009).

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33. The plaintiff violated § 1692g for failing to provide to defendant rights to validate the

alleged debt.

34. As a result of the above violations of the FDCPA, plaintiff is liable to defendant for

defendant’s actual damages, statutory damages, costs and attorney’s fees.

35. Defendant suffered pecuniary damages, including attorneys’ fees.

36. Defendant’s actual non-pecuniary damages are ongoing.

WHEREFORE, the defendant Kenneth Gori demands judgment dismissing the

complaint, awarding the defendant judgment on its counterclaim, and costs, interest and

disbursements.

Dated: New York, NY

July 20, 2023
________________________
Jesse Langel, Esq.
The Langel Firm
Attorney for Defendant
30 Wall Street, 8th Floor
New York, NY 10005
T: 646-290-5600

To: Forster & Garbus, LLP

Attorneys for Plaintiffs
2950 Express Drive South, Suite 100
Islandia, NY 11749
T: 631-393-8368

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SUPREME COURT OF THE STATE OF NEW

YORK
COUNTY OF WESTCHESTER Index No.: 61486/2023
-----------------------------------------------------------X
LVNV FUNDING, LLC,

Plaintiff,
-against-

KENNETH GORI,

Defendant.
-----------------------------------------------------------X

ATTORNEY’S AFFIRMATION OF SERVICE

I, Jesse Langel, Esq., do hereby affirm that I served the following documents:
1) Answer; and 2) Defendant’s First Set of Combined Discovery Demands on plaintiff’s counsel
on July 20, 2023 by depositing true copies thereof in a post-paid wrapper in an official
depository under the official care and custody of the U.S. Postal Service within New York State
addressed to the plaintiff’s attorneys (and by facsimile):

Forster & Garbus, LLP

Attorneys for Plaintiff
2950 Express Drive South, Suite 100
Islandia, NY 11749
T: 631-393-8368

_______________________
Jesse Langel, Esq.
The Langel Firm
Attorney for Defendant
30 Wall Street, 8th Floor
New York, NY 10005
T: 646-290-5600

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER
-----------------------------------------------------------X Index No.: 61486/2023
LVNV FUNDING, LLC,

Plaintiff,
-against-

KENNETH GORI,

Defendant.
-----------------------------------------------------------X

JESSE LANGEL, ESQ.

The Langel Firm

Attorney for Defendant
30 Wall Street, 8th Floor
New York, NY 10005
T: 646-290-5600

ANSWER WITH DEMANDS

Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an attorney admitted to practice in the

courts of New York State, certifies that, upon information and belief and reasonable inquiry, (1)
the contentions contained in the annexed document are not frivolous and that (2) if the annexed
documents in an initiating pleading, (i) the matter was not obtained through illegal conduct, or
that if it was, the attorney or other persons responsible for the illegal conduct are not
participating in the matter or sharing in any fee earned therefrom and that (ii) if the matter
involves potential claims for personal injury or wrongful death, the matter was not obtained in
violation of 22 NYCRR 1200.41-a.

Dated: July 20, 2023 Signature: Jesse Langel, Esq.

Printed name: Jesse Langel, Esq.

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