PHL_A #1663421 v1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN MITCHELL, :

:

Plaintiff, :

: CIVIL ACTION NO. 02-4442

v. :

:

EXPERIAN INFORMATION :

SOLUTIONS, INC.; CBA :

INFORMATION SERVICES; :

BP/CITIBANK SD; CAPITAL ONE :

BANK; CROSS COUNTRY BANK; :

DELL FINANCIAL SERVICES; :

ORCHARD BANK; PROVIDIAN :

FINANCIAL, :

:

Defendants. :

PROVIDIAN NATIONAL BANK, N.A.’S ANSWER TO PLAINTIFF'S COMPLAINT

Defendant Providian National Bank, N.A. (hereafter “Providian”), misidentified 

in plaintiff’s complaint as “Providian Financial,” by its undersigned attorneys, for its answer to 

plaintiff's complaint, says:

PRELIMINARY STATEMENT

1. Providian admits that plaintiff purports to assert the claims set forth in 

paragraph 1 of plaintiff’s complaint but denies that plaintiff is entitled to relief under any of 

those claims and specifically denies that Providian acted wrongfully or harmed plaintiff in any 

manner.

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JURISDICTION AND VENUE

2-3. The averments contained in paragraphs 2 and 3 of plaintiff’s complaint set 

forth a legal conclusion and, therefore, Providian denies the averments as stated. To the extent 

paragraphs 2 and 3 set forth factual averments, Providian does not contest the jurisdiction of this 

Court or the venue of this action.

PARTIES

4-11. The averments contained in paragraphs 4 through 11 of plaintiff’s 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 4 through 11 set forth factual averments, Providian lacks knowledge or 

information sufficient to form a belief as to the truth of the averments and, therefore, denies the 

averments.

12. The averments contained in paragraph 12 of plaintiff’s complaint set forth 

a legal conclusion and, therefore, Providian denies the averments as stated. To the extent 

paragraph 9 sets forth factual averments, Providian admits that it is a national banking 

association and has offices in Tilton, New Hampshire, but denies the remaining factual

averments.

FACTUAL ALLEGATIONS

13-15. The averments contained in paragraphs 13 through 15 of plaintiff's 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 13 through 15 set forth factual averments, Providian denies the 

averments.

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16-21. Providian lacks knowledge or information sufficient to form a belief as to 

the truth of the averments contained in paragraphs 16 through 21 of plaintiff's complaint and, 

therefore, denies those averments.

22-24. The averments contained in paragraphs 22 through 24 of plaintiff's 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 22 through 24 set forth factual averments, Providian denies the 

averments.

25. Providian lacks knowledge or information sufficient to form a belief as to 

the truth of the averments contained in paragraph 25 of plaintiff's complaint and, therefore, 

denies those averments.

26. The averments contained in paragraph 26 of plaintiff's complaint set forth 

a legal conclusion and, therefore, Providian denies the averments as stated. To the extent 

paragraph 26 sets forth factual averments, Providian lacks knowledge or information sufficient to 

form a belief as to the truth of the averments and, therefore, denies those averments.

27-30. The averments contained in paragraphs 27 through 30 of plaintiff's 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 27 through 30 set forth factual averments, Providian denies the 

averments.

31. The averments contained in paragraph 31 of plaintiff's complaint set forth 

a legal conclusion and, therefore, Providian denies the averments as stated. To the extent 

paragraph 31 sets forth factual averments, Providian lacks knowledge or information sufficient to 

form a belief as to the truth of the averments and, therefore, denies those averments.

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32-33. The averments contained in paragraphs 32 and 33 of plaintiff's complaint 

set forth legal conclusions and, therefore, Providian denies the averments as stated. To the extent 

paragraphs 32 and 33 set forth factual averments, Providian denies the averments.

CLAIMS

COUNT ONE - FCRA

(Plaintiff v. Experian and CBA)

34. Providian incorporates by reference its previous responses as though fully 

set forth herein.

35-39. The averments contained in paragraphs 35 through 39 of plaintiff’s 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 35 through 39 set forth factual averments, Providian lacks knowledge 

or information sufficient to form a belief as to the truth of the averments and, therefore, denies 

the averments.

COUNT TWO - FCRA

(Plaintiff v. Citibank, Capital One, Cross Country, Providian, Orchard and Providian)

40. Providian incorporates by reference its previous responses as though fully 

set forth herein.

41. The averments contained in paragraph 41 of plaintiff's complaint set forth 

a legal conclusion and, therefore, Providian denies the averments as stated.

42-43. The averments contained in paragraphs 42 and 43 of plaintiff’s complaint 

set forth legal conclusions and, therefore, Providian denies the averments as stated. To the extent 

paragraphs 42 and 43 set forth factual averments, Providian denies the averments.

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COUNT THREE - DEFAMATION

(Plaintiff v. Experian and CBA)

44. Providian incorporates by reference its previous responses as though fully 

set forth herein.

45-54. The averments contained in paragraphs 45 through 54 of plaintiff’s 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 44 through 54 set forth factual averments, Providian lacks knowledge 

or information sufficient to form a belief as to the truth of the averments and, therefore, denies 

the averments.

COUNT FOUR - DEFAMATION

(Plaintiff v. Citibank, Capital One, Cross Country, Providian, Orchard and Providian)

55. Providian incorporates by reference its previous responses as though fully 

set forth herein.

56-64. The averments contained in paragraphs 56 through 64 of plaintiff’s 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 56 through 64 set forth factual averments, Providian denies the 

averments.

COUNT FIVE- CPL

(Plaintiff v. Experian and CBA)

65. Providian incorporates by reference its previous responses as though fully 

set forth herein.

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66-69. The averments contained in paragraphs 66 through 69 of plaintiff’s 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 66 through 69 set forth factual averments, Providian lacks knowledge 

or information sufficient to form a belief as to the truth of the averments and, therefore, denies 

the averments.

COUNT SIX - NEGLIGENCE

(Plaintiff v. Experian and CBA)

70. Providian incorporates by reference its previous responses as though fully 

set forth herein.

71-73. The averments contained in paragraphs 71 through 73 of plaintiff’s 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 71 through 73 set forth factual averments, Providian lacks knowledge 

or information sufficient to form a belief as to the truth of the averments and, therefore, denies 

the averments.

COUNT SEVEN - NEGLIGENCE

(Plaintiff v. Citibank, Capital One, Cross Country, Providian, Orchard and Providian)

74. Providian incorporates by reference its previous responses as though fully 

set forth herein.

75-77. The averments contained in paragraphs 75 through 77 of plaintiff’s 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 75 through 77 set forth factual averments, Providian denies the 

averments.

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COUNT EIGHT – INVASION OF PRIVACY/FALSE LIGHT

(Plaintiff v. Experian and CBA)

78. Providian incorporates by reference its previous responses as though fully 

set forth herein.

79-81. The averments contained in paragraphs 79 through 81 of plaintiff’s 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 79 through 81 set forth factual averments, Providian lacks knowledge 

or information sufficient to form a belief as to the truth of the averments and, therefore, denies 

the averments.

COUNT NINE – INVASION OF PRIVACY/FALSE LIGHT

(Plaintiff v. Citibank, Capital One, Cross Country, Providian, Orchard and Providian)

82. Providian incorporates by reference its previous responses as though fully 

set forth herein.

83-85. The averments contained in paragraphs 83 through 85 of plaintiff’s 

complaint set forth legal conclusions and, therefore, Providian denies the averments as stated. 

To the extent paragraphs 83 through 85 set forth factual averments, Providian denies the 

averments.

JURY TRIAL DEMAND

86. Providian admits that plaintiff purports to demand a trial by jury. To the 

extent plaintiff asserts that he is entitled to a trial by jury, the assertion sets forth a legal 

conclusion and, therefore, Providian denies the averments as stated.

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AFFIRMATIVE DEFENSES

First Defense

Plaintiff fails to state a claim upon which relief can be granted.

Second Defense

Providian did not commit any wrongful, illegal or inappropriate acts.

Third Defense

Plaintiff’s claims are barred by the applicable statute of limitations.

Fourth Defense

Providian is immune, in whole or in part, from plaintiff’s claims.

Fifth Defense

Any statements made by Providian were true at the time they were made.

Sixth Defense

Any statements made by Providian were privileged at the time they were made.

Seventh Defense

Plaintiff’s claims are pre-empted, in whole or in part.

Eighth Defense

Plaintiff did not suffer any damages as a result of the conduct of Providian.

Ninth Defense

Plaintiff failed to mitigate his damages.

Tenth Defense

To the extent plaintiff suffered damages, none being admitted, they were caused 

by third persons over which Providian exercised no control.

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WHEREFORE, Providian National Bank, N.A. demands judgment in its favor 

and against plaintiff, together with such other relief, including costs and attorneys’ fees as the 

Court deems just and proper.

Respectfully submitted,

BALLARD SPAHR ANDREWS & INGERSOLL, LLP

By: _______________________________________

John K. Semler, Jr., Esquire

1735 Market Street, 51st Floor

Philadelphia, PA 19103-7599

215-864-8121

215-864-9283 (Fax)

Attorneys for Providian National Bank, N.A.

Dated: September 9, 2002

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CERTIFICATE OF SERVICE

I, John K. Semler, Jr., Esquire hereby certify that I have caused a true and correct 

copy of Providian National Bank, N.A.’s Answer to Plaintiff’s Complaint to be served this date, 

by first class mail, upon:

Mark D. Mailman, Esquire

Francis & Mailman, P.C.

Land Title Building, 19th Floor

Philadelphia, PA 19110

Dated: September 9, 2002 _____________________________________

John K. Semler, Jr.

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