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SWIM2071

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  1. Ryan, thank you for the input. Regarding the POS, do I include those in the mailings themselves? Should I also be e-filing everything I'm sending to the attorney. Do I need to e-file the GD as well? Thanks!
  2. Good 'ole Swim received a visit the other day form an uninvited guest and they dropped off a summons. 1. Who is the named plaintiff in the suit? Capital One Bank 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? $ ~6k 4. Who is the original creditor? (if not the Plaintiff) Capital One 5. How do you know you are being sued? Served 6. How were you served? (Mail, In person, Notice on door) Served in person 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Dunning received, request for verification sent, ~12 months statements received along with an intent to file suit 9. What state and county do you live in? San Diego, CA 10. When is the last time you paid on this account? Within Statue of Limitations 11. When did you open the account (looking to establish what card agreement may be applicable)? 2016 12. What is the SOL on the debt? 4 years 13. 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). Suit Served 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes 15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). Yes 16. 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. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 30 days after the summons The action is a limited Civil Case, does not exceed $10,000 The cause of Action complaint with 4 common counts: Plaintiff alleges the defendant became indebted to the plaintiff A. Within the last four years on an open book account for money due because an account was stated in writing and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff. Within the last 4 years for money lent by plaintiff to defendant at defendant's request for money paid, laid out, and expended to or for defendant's special interest and request. In the civil case cover sheet the case type is a Contract - Rule 3.740 collections (09). 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No additional evidence provided. === My next step is to draft a general denial. My question is, how should I approach the general denial. I've searched the forums here, while there's examples of a lot of other forms and templates, I haven't see any examples of a general denial. Some threads suggest adding all of the affirmative defenses one can, while others suggest to keep it simple. Can I just send a general denial based on the complaint isn't verified? Should I include separate affirmative defenses as well (such as Failure to State a Cause of Action or ambiguity) or will that cut it? Next should I send a Bill of Particulars (BOP), requesting all items of the case? @RyanEX I see you're in SD, any insight would be much appreciated. Thanks! ~Swim
  3. Good ole' Swim got a letter in the mail from Hunt & Henriques (H&H) recently.... The letter claims the amount owed to CapitalOne (CO) is ~$6,000.00. Swim responds well within 30 days via Certified Mail Return Receipt Requested (CMRRR), with a simple request for validation. Something along the lines of... "I dispute this. Validate. P.S. Don't call me." H&H wastes no time and sends about a years worth of statements from the alleged CO account, which includes a page from CO that the account was charged off. That's it. A few days later H&H sends their notice of intent to file suit: Swim lives in Southern California, and already checked -- arbitration is out the window due to CO removing that clause. From what Swim can tell, H&H didn't actually validate the debt, and the SOL is in effect for a few more years. Not sure is CO owns the account and H&H represent them -- or if H&H is a Junk Debt Buyer (JDB). And at this point does it make a difference? Should Swim respond and further dispute the alleged debt? Or simply sit back, continue to read up on California threads on https://www.creditinfocenter.com to formulate a game plan, and wait for their next move (which is likely to be what?)? Presumably, with COVID, H&H has collections up to their eyeballs, and Southern California courts are experiencing delays... it could be some time before this makes its way into a courthouse? Or is that wishful thinking? Good ole' swim isn't an easy target, and isn't going to roll over. What's the best course of action to get a jump start to defend against this alleged debt, presuming H&H follows through on their intent to file suit? Thanks! ~Swim
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