IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

WINN BROWN, : Case No. 3:17-CV-00397

Plaintiff, : Judge Thomas M. Rose

v.

TRUEACCORD CORP., et al.,

Defendants.

ANSWER OF DEFENDANT SILVER CLOUD FINANCIAL, INC. 

Now comes Defendant Silver Cloud Financial, Inc. ("Silver Cloud"), by and through the

undersigned counsel, and for its Answer to Plaintiff Winn Brown's ("Brown") Complaint states:

FIRST DEFENSE 

1. Paragraph 1 of the Complaint states Brown's characterization of the Complaint

and the law, to which no response is required. To the extent a response is required, Silver Cloud

denies the allegations in Paragraph 1.

JURISDICTION AND VENUE 

2. Silver Cloud denies the allegations in Paragraph 2 of the Complaint.

PARTIES 

3. Silver Cloud denies the allegations in Paragraph 3 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth of the same.

4. Silver Cloud denies the allegations in Paragraph 4 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth of the same.

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5. In response to Paragraph 5 of the Complaint, Silver Cloud admits its mailing

address is 635 East Hwy 20, C, Upper Lake, California 95485, and denies the remaining

allegation in Paragraph 5.

6. Paragraph 6 of the Complaint states a legal conclusion to which no response is

required. To the extent a response is required, Silver Cloud denies the allegations in Paragraph

6.

7. Paragraph 7 of the Complaint states a legal conclusion to which no response is

required. To the extent a response is required, Silver Cloud denies the allegations in Paragraph

7.

FACTUAL ALLEGATIONS 

8. In response to Paragraph 8 of the Complaint, Silver Cloud admits Defendant

TrueAccord Corp. ("TAC") attempted to collect a debt owed to Silver Cloud by Plaintiff.

9. Silver Cloud denies the allegations in Paragraph 9 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth of the same.

10. Silver Cloud denies the allegations in Paragraph 10 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth of the same.

11. In response to Paragraph 11 of the Complaint, Silver Cloud states that any

statements purportedly made in an agreement speak for themselves. Further, Silver Cloud denies

that it made any statements in any written settlement agreement between Silver Cloud and

Brown. Silver Cloud denies the remaining allegations in Paragraph 11 for lack of knowledge or

information sufficient to form a belief as to the truth of the same.

12. Silver Cloud denies the allegations in Paragraph 12 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth of the same.

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13. Silver Cloud denies the allegations in Paragraph 13 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth of the same.

14. In response to Paragraph 14 of the Complaint, Silver Cloud denies that it

"accepted" and "deposited" any payments. Silver Cloud denies the remaining allegations in

Paragraph 14 for lack of knowledge or information sufficient to form a belief as to the truth of

the same.

15. Silver Cloud denies the allegations in Paragraph 15 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth of the same.

16. Silver Cloud denies the allegations in Paragraph 16 of the Complaint.

17. Paragraph 17 of the Complaint states a legal conclusion to which no response is

required. To the extent a response is required, Silver Cloud denies the allegations in Paragraph

17.

18. Silver Cloud denies the allegations in Paragraph 18 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth of the same.

19. In response to Paragraph 19 of the Complaint, Silver Cloud denies any of its

agents, servants, and/or employees, who were acting within the scope and course of their

employment, and under the direct supervision and control of Silver Cloud, had any connection to

the events described in Brown's Complaint. Silver Cloud denies the remaining allegations in

Paragraph 19 for lack of knowledge or information sufficient to form a belief as to the truth of

the same.

20. In response to Paragraph 20 of the Complaint, Silver Cloud denies that any

actions of its agents, servants and/or employees were malicious, intentional, willful, reckless,

negligent, or in wanton disregard for federal law and the rights of Brown. Silver Cloud denies

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the remaining allegations in Paragraph 20 for lack of knowledge or information sufficient to

form a belief as to the truth of the same.

21. Silver Cloud denies the allegations in Paragraph 21 of the Complaint.

FIRST CLAIM FOR RELIEF

22. Silver Cloud incorporates its responses to Paragraphs 1 through 21 of the

Complaint as if fully set forth herein.

23. In response to Paragraph 23 of the Complaint, Silver Cloud denies that it made

any written statements acknowledging a settlement agreement or that any such agreement was

supported by consideration. Silver Cloud denies the remaining allegations in Paragraph 23 for

lack of knowledge or information sufficient to form a belief as to the truth of the same.

24. In response to Paragraph 24 of the Complaint, Silver Cloud denies it "accepted

and cashed" any payments. Silver Cloud denies the remaining allegations in Paragraph 24 of the

Complaint for lack of knowledge or information sufficient to form a belief as to the truth of the

same.

25. Silver Cloud denies the allegations in Paragraph 25 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth of the same.

26. Silver Cloud denies the allegations in Paragraph 26 of the Complaint.

27. Silver Cloud denies the allegations in Paragraph 27 of the Complaint for lack of

knowledge or information sufficient to form a belief as to the truth of the same.

SECOND CLAIM FOR RELIEF 

28. Silver Cloud incorporates its responses to Paragraphs 1 through 27 of the

Complaint as if fully set forth herein.

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29. Paragraph 29 of the Complaint sets forth no allegation against Silver Cloud and

therefore no response is required. Further, Paragraph 29 states a legal conclusion and therefore

no response is required. To the extent a response is required, Silver Cloud denies the allegations

in Paragraph 29 of the Complaint.

30. In response to Paragraph 30 of the Complaint, Silver Cloud states the Fair Debt

Collection Practices Act, 15 U.S.C. § 1692e(10), speaks for itself and therefore no response is

required. To the extent a response is required, Silver Cloud denies the allegations in Paragraph

30.

31. Paragraph 31 of the Complaint sets forth no allegation against Silver Cloud and

therefore no response is required. To the extent a response is required, Silver Cloud denies the

allegations in Paragraph 31 of the Complaint.

32. Paragraph 32 of the Complaint sets forth no allegation against Silver Cloud and

therefore no response is required. To the extent a response is required, Silver Cloud denies the

allegations in Paragraph 32 of the Complaint.

33. To the extent not specifically admitted herein, Silver Cloud denies each and every

allegation in Brown's Complaint.

34. Silver Cloud denies that Brown is entitled to any of the relief sought in the prayer

for relief at the end of the Complaint.

AFFIRMATIVE DEFENSES 

In order to preserve its defenses and pending the completion of discovery, Silver Cloud

submits the following affirmative defenses:

FIRST AFFIRMATIVE DEFENSE 

Brown's Complaint fails to state a cause of action upon which relief can be granted.

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SECOND AFFIRMATIVE DEFENSE 

Venue may not be proper.

THIRD AFFIRMATIVE DEFENSE 

This Court lacks subject matter jurisdiction to adjudicate claims against Silver Cloud

because Silver Cloud is entitled to tribal immunity.

FOURTH AFFIRMATIVE DEFENSE 

This Court lacks personal jurisdiction to adjudicate claims against Silver Cloud because

Silver Cloud is entitled to tribal immunity.

FIFTH AFFIRMATIVE DEFENSE 

Brown's claims against Silver Cloud fail for lack of privity of contract.

SIXTH AFFIRMATIVE DEFENSE 

Brown's claims are barred by the doctrines of unclean hands, waiver, laches, and/or

estoppel.

SEVENTH AFFIRMATIVE DEFENSE 

Brown's claims against Silver Cloud fail for lack of consideration.

EIGHTH AFFIRMATIVE DEFENSE 

Brown failed to mitigate damages and losses, and therefore any alleged damages, which

Silver Cloud denies exists, must be barred or reduced accordingly.

NINTH AFFIRMATIVE DEFENSE 

Should a contract exist between Brown and Silver Cloud, which is expressly denied,

Silver Cloud's performance under the contract is excused due to the Brown's breach of contract

and failure to perform.

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TENTH AFFIRMATIVE DEFENSE 

Brown's claims are subject to setoff against monies owed to Silver Cloud by Brown.

ELEVENTH AFFIRMATIVE DEFENSE 

Plaintiff failed to attach a copy of the contracts/documents it relies upon to support its

claims.

TWELFTH AFFIRMATIVE DEFENSE 

Silver Cloud reserves the right to raise and assert additional affirmative defenses to the

claims alleged in Brown's Complaint as they become known or are revealed during the course of

discovery and/or trial herein.

WHEREFORE, Silver Cloud requests that Brown's Complaint be dismissed with

prejudice and that Silver Cloud be awarded its costs and fees as well as any other relief to which

it is entitled and/or the Court deems appropriate.

Respectfully Submitted,

/s/ William M. Mattes 

William M. Mattes (#0040465) (Trial Attorney)

Justin M. Burns (#0093686)

Dinsmore & Shohl LLP

191 W. Nationwide Blvd., Suite 300

Columbus, Ohio 43215

(614) 628-6880 — Phone

(614) 628-6890 — Fax

bill.mattes@dinsmore.com;

justin.burns@dinsmore.com

Attorneys for Defendant Silver Cloud Financial,

Inc.

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that a copy of the foregoing document, Answer of

Defendant Silver Cloud Financial, Inc., was served upon the parties by the Court's CM/ECF

service to all counsel of record on this Stn day of January, 2018.

12191888v1

/s/ William M. Mattes

William M. Mattes (#0040465)

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