UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

WILDFIRE CREDIT UNION, a )

Michigan credit union, )

)

Plaintiff, ) Case No. 14-cv-14359

)

v. ) HON. THOMAS L. LUDINGTON

)

FISERV, INC., a Wisconsin ) HON. PATRICIA T. MORRIS,

corporation, also known as ) MAGISTRATE JUDGE

FISERV SOLUTIONS, INC., )

)

Defendant. )

PLAINTIFF’S ANSWER AND AFFIRMATIVE DEFENSES

TO COUNTERCLAIM OF FISERV SOLUTIONS, INC.

PLAINTIFF’S ANSWER TO

COUNTERCLAIM OF FISERV SOLUTIONS, INC.

Plaintiff/Counter-Defendant Wildfire Credit Union (“Wildfire”), by 

and through its counsel, hereby states for its answer to the 

Counterclaim of Fiserv Solutions, Inc. (“Fiserv Solutions”) as follows:

PARTIES

1. Admitted.

2. Wildfire is without knowledge or information sufficient to 

form a belief as to the truth of the allegations set forth in paragraph 2 

of the Counterclaim. Wildfire believes that the assertion in paragraph 

Case 1:14-cv-14359-TLL-PTM ECF No. 21 filed 02/17/15 PageID.420 Page 1 of 10
- 2 -

2 of the Counterclaim regarding Fiserv being a “global leader” relates 

to defendant Fiserv, Inc., not Fiserv Solutions.

JURISDICTION

3. Admitted.

FACTUAL ALLEGATIONS

4. Wildfire admits that representatives of Wildfire met with 

representatives of defendant Fiserv, Inc. in October, 2012 regarding 

defendant Fiserv, Inc.’s desire to provide Wildfire with financial 

services technology products, but denies as untrue the remaining 

allegations set forth in paragraph 4 of the Counterclaim.

5. Wildfire denies as untrue the allegations set forth in 

paragraph 5 of the Counterclaim.

6. Wildfire denies as untrue the allegations set forth in 

paragraph 6 of the Counterclaim.

7. Wildfire denies as untrue the allegations set forth in 

paragraph 7 of the Counterclaim. The documents speak for 

themselves, and do not state that Wildfire agreed to pay early 

termination fees if Wildfire terminated the DNA portions of the Master 

Agreement (or certain other products or services thereunder) before 

the contractually-agreed term expired. 

Case 1:14-cv-14359-TLL-PTM ECF No. 21 filed 02/17/15 PageID.421 Page 2 of 10
- 3 -

8. Admitted.

9. Wildfire denies as untrue the allegations set forth in 

paragraph 9 of the Counterclaim.

10. Wildfire admits that Benecke sent the letter attached as 

Exhibit 10 to its complaint, but denies that Wildfire was even able to 

go “live” with DNA, as set forth in paragraph 10 of the Counterclaim.

11. Admitted.

12. Wildfire denies as untrue the allegations set forth in 

paragraph 12 of the Counterclaim.

13. Wildfire denies as untrue the allegations set forth in 

paragraph 13 of the Counterclaim.

14. Wildfire denies as untrue the allegations set forth in 

paragraph 14 of the Counterclaim.

15. Wildfire denies as untrue the allegations set forth in 

paragraph 15 of the Counterclaim.

CLAIM FOR RELIEF

BREACH OF CONTRACT

16. Wildfire incorporates its answers to paragraphs 1 through 

15 of the Counterclaim as if fully realleged herein.

Case 1:14-cv-14359-TLL-PTM ECF No. 21 filed 02/17/15 PageID.422 Page 3 of 10
- 4 -

17. Wildfire admits that it was a party to the Master 

Agreement, and further states that the Master Agreement speaks for 

itself, and imposed contractual duties and obligations on Fiserv.

18. Wildfire denies as untrue the allegations set forth in 

paragraph 18 of the Counterclaim.

19. Wildfire denies as untrue the allegations set forth in 

paragraph 19 of the Counterclaim.

20. Wildfire denies as untrue the allegations set forth in 

paragraph 20 of the Counterclaim.

21. Wildfire denies as untrue the allegations set forth in 

paragraph 21 of the Counterclaim.

22. Wildfire denies as untrue the allegations set forth in 

paragraph 22 of the Counterclaim.

WHEREFORE, counter-defendant Wildfire Credit Union 

respectfully requests that this Court dismiss the Counterclaim with 

prejudice and with costs and attorneys fees awarded to counterdefendant for having to defend against the Counterclaim.

Case 1:14-cv-14359-TLL-PTM ECF No. 21 filed 02/17/15 PageID.423 Page 4 of 10
- 5 -

Respectfully submitted,

/s/ Cindy Rhodes Victor

CINDY RHODES VICTOR (P33613)

MICHAEL A. KUS (P27186)

JEFFREY S. HOROWITZ (P66251)

Kus Ryan & Associates PLLC

2851 High Meadow Circle

Suite 120

Auburn Hills, Michigan48326

(248) 364-3090

cvictor@victorfirm.com

mkus@krslaw.biz

jhorowitz@krslaw.biz

Attorneys for Plaintiff

Wildfire Credit Union

Dated: February 17, 2015

PLAINTIFF’S AFFIRMATIVE DEFENSES

TO COUNTERCLAIM OF FISERV SOLUTIONS, INC.

Plaintiff/Counter-Defendant Wildfire Credit Union (“Wildfire”), by 

and through its counsel, hereby states for its affirmative defenses to 

the Counterclaim of Fiserv Solutions, Inc. (“Fiserv Solutions”) as

follows:

1. Fiserv Solutions has failed to state a claim against 

Wildfire upon which relief can be granted.

2. Some or all of Fiserv Solutions’ claims are barred, in 

whole or in part, by the express terms of the parties’ Master 

Agreement.

Case 1:14-cv-14359-TLL-PTM ECF No. 21 filed 02/17/15 PageID.424 Page 5 of 10
- 6 -

3. Fiserv Solutions is not entitled to relief because it did not 

provide Wildfire with written notice of the alleged material breach.

4. Fiserv Solutions’ claims are barred, in whole or in part, by 

its own material breaches and/or the material breaches of Fiserv, Inc.

of the Master Agreement, such that Wildfire is excused from any 

further performance under the Master Agreement.

5. Wildfire performed as required by the Master Agreement, 

while Fiserv, Inc. and/or Fiserv Solutions failed to perform its or their 

obligations under the Master Agreement.

6. Some or all of the claims against Wildfire are barred, in 

whole or in part, by the doctrine of waiver.

7. Some or all of the claims against Wildfire are barred, in 

whole or in part, by the consent and/or satisfaction of Fiserv Solutions 

and/or Fiserv, Inc.

8. Fiserv Solutions has failed to mitigate the damages it 

asserts it has.

9. Fiserv Solutions has not suffered any damages which 

were caused by Wildfire or for which Wildfire is liable.

10. The conduct of which Fiserv Solutions complains is not 

the proximate cause of Fiserv Solutions’ damages, if any.

Case 1:14-cv-14359-TLL-PTM ECF No. 21 filed 02/17/15 PageID.425 Page 6 of 10
- 7 -

11. Some or all of the claims against Wildfire are barred, in 

whole or in part, by the doctrine of unjust enrichment.

12. Some or all of the claims against Wildfire are barred, in 

whole or in part, by the doctrine of unclean hands.

13. Some or all of the claims against Wildfire are barred, in 

whole or in part, by the doctrine of laches.

14. Some or all of the claims against Wildfire are barred, in 

whole or in part, by the doctrine of equitable estoppel.

15. Some or all of the claims against Wildfire are barred, in 

whole or in part, by the doctrine of recoupment and setoff.

16. Some or all of the claims against Wildfire are barred, in 

whole or in part, by the doctrine of contributory negligence.

17. Some or all of the claims against Wildfire are barred, in 

whole or in part, by the doctrine of assumption of risk.

18. At all times, Wildfire acted in good faith and with clean 

hands.

19. Wildfire owed no duty to Fiserv Solutions.

20. Fiserv Solutions is not a named party in this action and 

thus cannot at this junction in the litigation assert a counterclaim 

against Wildfire.

Case 1:14-cv-14359-TLL-PTM ECF No. 21 filed 02/17/15 PageID.426 Page 7 of 10
- 8 -

Wildfire reserves the right to amend this Answer to assert such 

other affirmative defenses as may become apparent through 

discovery or otherwise.

Respectfully submitted,

/s/ Cindy Rhodes Victor

CINDY RHODES VICTOR (P33613)

MICHAEL A. KUS (P27186)

JEFFREY S. HOROWITZ (P66251)

Kus Ryan & Associates PLLC

2851 High Meadow Circle

Suite 120

Auburn Hills, Michigan48326

(248) 364-3090

cvictor@victorfirm.com

mkus@krslaw.biz

jhorowitz@krslaw.biz

Attorneys for Plaintiff

Wildfire Credit Union

Dated: February 17, 2015

Case 1:14-cv-14359-TLL-PTM ECF No. 21 filed 02/17/15 PageID.427 Page 8 of 10
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

WILDFIRE CREDIT UNION, a )

Michigan credit union, )

)

Plaintiff, ) Case No. 14-cv-14359

)

v. ) HON. THOMAS L. LUDINGTON

)

FISERV, INC., a Wisconsin ) HON. PATRICIA T. MORRIS,

corporation, also known as ) MAGISTRATE JUDGE

FISERVSOLUTIONS, INC., )

)

Defendant. )

CERTIFICATE OF SERVICE

I hereby certify that on the 17th day of February, 2015, I 

electronically filed the foregoing Plaintiff’s Answer and Affirmative 

Defenses to Counterclaim of Fiserv Solutions, Inc., with this 

Certificate of Service, with the Clerk of the Court using the ECF 

system which will send notification of such filing to all counsel of 

record.

__/s/ Steven R. McCollum

Steven R. McCollum

Kus Ryan & Associates, PLLC

2851High Meadow Circle, Suite 120

Dated: February 17, 2015 Auburn Hills, Michigan 48326

(248) 364-3090

Case 1:14-cv-14359-TLL-PTM ECF No. 21 filed 02/17/15 PageID.428 Page 9 of 10
- 2 -

smccollum@krslaw.biz

Case 1:14-cv-14359-TLL-PTM ECF No. 21 filed 02/17/15 PageID.429 Page 10 of 10