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VaMember

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  1. I have started a new topic with a new title as I am in a new part of the process. As those who have seen my other thread may remember, I am being sued in Virginia by Discover Card for about $3,000.00. The plaintiff's counsel has submitted their Bill of Particulars, and I have submitted my Grounds of Defense. The trial is in just over one month. So far, I have not heard anything from anyone after submitting my Grounds of Defense, so I am looking for advice on the next steps. The plaintiff's affidavit (and the lawsuit itself) has a significant error in it (not just a simple typo or something like that), so my main plan is to discredit the affiant based on that, and therefore send the affidavit and the credit card statements on their way. I'm not sure if I should post the details of what the error is in case there are any "unwelcome eyes" reading this board. My main question is at what point I should attack the affidavit/affiant? Should I file a motion to dismiss the affidavit/plaintiff's exhibits ASAP, or should I wait until trial? I don't want to give them a chance to correct anything, but I also want to make sure I get a chance to get the material dismissed. I don't recall seeing anything about this in the rules of civil procedure for Virginia that I have read so far. I did find a couple of resources that perhaps someone who is more familiar with legal procedures can point out to me the relevant sections of: http://lis.virginia.gov/cgi-bin/legp604.exe?000+cod+TOC08001000014000000000000 http://www.courts.state.va.us/courts/scv/rulesofcourt.pdf Thank you to everyone in advance for your help!
  2. That sounds like a lot of good information. I just wanted to note that in Virginia, if one is going to appeal a General District Court ruling, they must post a bond with the court in the amount of the judgement. This makes most cases practically appeal-proof, since most of the defendants would not even be in court if they had the resources to post a bond.
  3. I hope they aren't mistaken, since they would probably correct it if they decide to sue. They are one of the infamous "attorney debt collectors" that are well known on this board. The OC sent a letter saying basically the same thing.
  4. The thing is, I'm quite sure that it hasn't been anywhere near 7 years since the OC's DOFD, but it may be about 3 years or so. I'm just trying to find out if I have something to be happy about regarding the letter, or if it is just a false hope and something that the OC has their collectors put on every letter after a specified period of time that doesn't mean much to me from a practical standpoint.
  5. Thank you! Virginia's SOL is 3 years. I'm quite sure that the date of last activity was much sooner than 7 years ago, but it could be past 3 years. Is the collection agency basically saying that it is outside of the SOL?
  6. I received a dunning letter from a collection agency which included the following paragraph: "The law limits how long a debt can be reported to a consumer reporting agency. Because of the age of your debt, [Creditor Name] cannot report it to a consumer reporting agency..." Does this mean that the debt is outside of the SOL? I tried to find information online about how long a creditor can report a debt to a consumer reporting agency, but I could not find anything that seemed to be relevant to this case. Note: A lawsuit has not been filed at this time, but I'm just trying to prepare in case.
  7. I'm probably going to go with "Defendant lacks sufficient information to form a belief about the allegations and therefore denies" then. I'm not trying to win the case based on my Grounds of Defense, I'm just trying to put myself in a position where I will have an opportunity to attack the affidavit and not lose by default for failing to file. There are a couple of significant issues with the affidavit in my case that indicate that the affiant has not specifically reviewed the account and does not have personal knowledge of it, so I am pretty confident in getting it thrown out. I doubt very much that for the amount of money they are suing me for (about $3000) they will send a witness from the OC, but if they do, does it have to be the same individual that signed the affidavit?
  8. To clarify, in my response, do I have to basically indirectly imply that "the plaintiffs are liars who made up the account out of thin air and slapped my name on it" (they are the "original creditor", although not the same one as the OP), -OR- can I deny "based on the fact that the plaintiff has not submitted admissible evidence", being that I think I have a very good chance of having their affidavit stricken due to a couple of defects that call into question the "personal knowledge" of the affiant? If the judge accepts the plaintiff's affidavit and their credit card statements as valid, authenticated evidence, then I have probably pretty much lost anyway, so I may be thinking incorrectly, but I'm trying to base my defense on what will be my strongest points at trial. I assume "I already paid it" would probably require me to provide proof of payment. "Fraud" would probably require me to provide evidence of a police report, etc. I'm not sure what "mistake" would entail. "You have never heard of these people & have no recollection of the alleged debt" might work. Since it is the OC, I don't think "lack of standing" would work. "SOL has run" would not work in my case. I don't know whether I could find anything to use "unclean hands". Basically what I am trying to do is write a defense that does not place the burden of proof on me and does not "open any doors" for the plaintiff's attorney to cross-examine me, but instead focuses on the plaintiff not meeting the burden of proof with admissable evidence.
  9. Thank you for the info above. In Virginia, there is no formal answer besides the Grounds of Defense. The "answer" is simply responding to the judge in person on the "return date" on the summons when he asks "do you acknowledge this debt"? When you say "No", the judge sets a date for trial, as well as a date for the plaintiff to file a "Bill of Particulars" and for the defendant to file a "Grounds of Defense". Not to hijack the OP's thread (congratulations to @padme911 by the way on what appears to be a win), but that's where I'm getting stuck. I have some good things to say as far as why the affidavit should not be allowed, etc., but I'm not sure if that belongs in the Grounds of Defense. If it does not, then I don't know what to put in it.
  10. Thank you. I'm not sure if I want to go that route, and I don't really even have the $250.00 for the consumer portion of the arbitration. I posted some questions on your other thread about the steps you took that led to the judge ruling in your favor.
  11. Did you object to the paper statements as hearsay, or did the judge just say that the paper statements (without a witness to testify) were hearsay on his own? Did Capital One submit an affidavit with the summons? Did you object to it? The answers to these questions will help me prepare my Grounds of Defense.
  12. Does anyone have any suggestions? Can I mention the plaintiff's faulty affidavit in my Grounds of Defense, or do I need to make a separate motion to strike? Why did they not include the affidavit with the Bill of Particulars? Anyone???
  13. I plan to attack the credibility of the affiant and hopefully get the affidavit stricken from evidence, but I'm not sure what the procedure or timing should be for that. I am hoping that someone will be able to come along and help me with suggestions for my Grounds of Defense in reply to the plaintiffs Bill of Particulars.
  14. Correct, that's what happened. I don't know if it varies between judges, but the judge in my case asked all of the defendants who actually showed up the same thing and set a trial date if they answered "No". From what I gather, the case is not officially "contested" until the defendant answers that they do not acknowledge the debt. Also, it's a "summary judgement" rather than a "standard judgement", but I would be surprised if it even applies at this point .
  15. Ok, I'm back with an update. The return date was very short and simple. The plaintiffs attorney did not submit any additional documentation and didn't really even say anything. The judge basically told each of the very few people who actually showed up that this was a civil suit for $XX.XX, and asked if the defendant acknowleges the debt. For those such as myself who did not, the judge set a date for trial and gave the plaintiff a couple of weeks to submit their Bill Of Particulars, followed by another couple of weeks for the defendant to submit a Grounds of Defense. The plaintiff submitted the Bill of Particulars a few days ago, and included as attached exhibits are a reprint of a credit card agreement, as well as several months of credit card statements. The affidavit that was originally included with the summons was was not included, however. I'm not sure if it usually is supposed to be included or not. I have several questions: 1. Since the original affidavit was not included with the Bill of Particulars, do I request that it be stricken before trial as part of my Grounds of Defense, or separately? In addition to what I stated about it previously, I found a couple of discrepancies in the affidavit that suggests that the affiant did not personally review my account, but was simply signing a form that was presented to them (if they even exist). 2. I would appreciate help with my Grounds of Defense. In the Bill of Particulars, the plaintiff stated the following (paraphrased): -The plaintiff issued a credit card to the defendant which the defendant received, activated, and used and is therefore obligated to pay. -The defendant defaulted on the card and the full balance is currently due -The issuance of a credit card constitutes the offer of a contract (cases cited); use of the card constitutes acceptance of the terms of the card agreement (cases cited); absent such an agreement, issuance of the card constitutes the acceptance of the offer of credit (cases cited). -By using the card, the defendant accepted the contract and is bound to pay for the charges incurred, and also became subject to the terms of the card agreement. -The plaintiff sent the defendant monthly statements -The defendant defaulted on the card, and this breach of contract caused the plaintiff damages in the amount that they are suing for. -The defendant is indebted to the plaintiff in the amount of $3,000.00. The balance shown on the attached credit card statements is due to the plaintiff. -The plaintiff reserves the right to amend the Bill of Particulars up to and including trial. If this is too much info to post on a public forum, please let me know and I will edit my post. Thank you!
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