Thank you in advance for any and all help!
1. Who is the named plaintiff in the suit?
- Capital One Bank (USA), N.A.
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
- Hunt & Henriques
3. How much are you being sued for?
4. Who is the original creditor? (if not the Plaintiff)
5. How do you know you are being sued? (You were served, right?)
- Summon served
6. How were you served? (Mail, In person, Notice on door)
- In person (to my husband, not to me)
7. Was the service legal as required by your state?
- I don't know (Can someone tell me if having summons served to my husband is legal?
8. What was your correspondence (if any) with the people suing you before you think you were being sued?
- They had sent a dunning notice
- I requested DV they complied within statutory time.
- They sent an intent to sue letter
- They initiated negotiations for mutual settlement, and gave me until April 10 to respond, but filed the lawsuit on April 5. When I called to finalize negotiations on April 10, I was told they had already filed suit, so I did not follow through on the negotiations.
- Received summons on April 27.
9. What state and county do you live in?
- California, San Diego
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
- September 2015
11. What is the SOL on the debt?
- 4 years in California
12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name)
- Complaint filed: 04/05/17; Summons & Complaint served: 04/27/17
- Summons Filed 04/05/17
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
14. Did you request debt validation before the suit was filed? (Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.)
15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming.
- 30 days (May 26)
16. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or on an open book account, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment.
- Common counts
17. Is the complaint "verified"? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.
- No. The complaint is not verified.
18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?
19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
There is no evidence with the summons or complaint.
It is completely normal for no one to EVER actually read your Answer document, especially a clerk. The paper just goes into a folder. I believe it is just a formality that lets the court and plaintiff know if you accepted or denied the claims and triggers a court date to be scheduled and mailed to you. Did you file the MTC also ?
From the case cited above:
A legal representative, defined in its broadest sense, is one who stands in place of another and represents the interests of another; a person who oversees the legal affairs of another. Black's Law Dictionary 807 (5th ed. 1979). An attorney is an agent or one who is appointed and authorized to act in the place or stead of another. Id., at 117. In considering the ordinary and usual meaning of the words used in this statute, an interpretation that an attorney may be a legal representative is not unreasonable. See Regents of Univ. of N.M. v. Fireman's Fund Ins. Co., 103 N.M. 709, 711, 712 P.2d 1371, 1373 (1986).
The issue is not the law firm's debt collector status. The issue is whether or not it can be compelled to arbitrate. The firm is correct that it's not a signatory to the agreement.
Case law shows that it's possible for non signatories to compel signatories to arbitrate; however, it's not as easy for signatories (you) to force non signatories to arbitrate.
The arbitration provision of the agreement may include the words "representatives" or "agents". As I previously stated, you need to know how "representatives" would be defined. For instance, an independent sales representative represents a company on an ongoing basis. He has to learn about the company's products in order to approach potential clients and garner business for that company.
Another example is a law firm who is hired to represent the company in ALL legal matters. That law firm speaks for the company in all legal matters.
In this case, unless shown otherwise, Machol only represents the plaintiff in debt collection lawsuits. Otherwise, it has nothing to do with the credit card company's business.
Contracts are a state issue. You need to research case law from your state AND the governing state named in the agreement.
Here's case law from your state. It may or may not apply depending upon the details in the cited ruling, but I'd use it.
"An attorney is an agent or one who is appointed and authorized to act in the place or stead of another." Regents of Univ. of New Mexico v. Lacey, 764 P.2d 873, 875 (N.M. 1988) (citing Black's Law Dictionary 117 (5th ed. 1979). "A legal representative, defined in its broadest sense, is one who stands in place of another and represents the interests of another; a person who oversees the legal affairs of another." Id.