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princessica99

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  1. Let me preface this with saying that I did have a Cap1 card. I applied for a Cap1 February 2015 in Texas and was approved. I had made payments religiously and was under the assumption (you know what they say about assuming) that it was fully paid in August 2018 with a lump sum payment. I moved from Indiana to Florida in September 2018. In April 2019, Stenger & Stenger supposedly sent a dunning letter of sorts to my Indiana address (I know...my responsibility to update address). Fast forward to June 2021, I received a ton of junk mail from bankruptcy lawyers which then triggered me to look at public records. It was then that I saw a lawsuit filed against me from Cap1. I immediately filed a request for Discovery so I could see what exactly I was being sued for and to make sure it was legit. I was properly served the initial Complaint at my current address. Their counsel then filed a Motion for Enlargement of Time within 5 days of my Request for Discovery. The Court granted their Motion for Enlargement, giving them 30 days. 30 days came and went with no contact. On September 16, I filed a Motion to Dismiss due to Plaintiff not complying to Court order (not verbatim). The Court then scheduled a hearing for my Motion to Dismiss (for early November via Zoom). On September 29, Cap1 filed a Motion for Default Judgement stating I had failed to "otherwise appear in the case". On 10/14, I opposed saying that my Request for Discovery was my initial appearance (citing Ind. R. Small. Claims. Ct. Rule 4(B)). I also filed a Motion to Strike the original Affidavit of Debt. On 10/21, Cap1 filed a response stating their files reflect that timely and complete responses were sent on July 26 (they attached a dunning letter and vague answers and objections to my discovery requests along with a year's worth of credit card statements and a generic agreement). Now, I never received these. I knew nothing of these until a few days ago when I viewed the public court records (as I'm typing this, my son brought in a huge packet from Stenger & Stenger post marked 10/21). How do I prove I never received requested Discovery until now? Also, the attachments ("Discovery") S&S attached, do they have to be sworn/authenticated/etc? In the meantime, on 10/24, my Motion to Dismiss was denied and my hearing canceled due to Judicial Action. I'm not sure what happens next.
  2. Capital One Bank, (USA) N.A. I have zero legal background, however, from what I can find online, Capital One Bank, (USA) N.A. or the supposed Capital One Agreement is governed by Virginia law (research this). Some consider credit card debts based on an unwritten agreement. Did they provide an agreement? A generic agreement or your specific agreement (needs to be specific I imagine, stating your interest fees, credit limit, etc.)? A charge off statement doesn't show much of anything (last payment made? agreement date? dates of charges made on card? receipts of payments made?) Chances are the affidavit was signed by someone NOT employed by Capital One Bank, (USA) N.A but likely Capital One Services, LLC, ("COSLLC"), an agent and affiliate...BUT NOT AN EMPLOYEE OF THE PLAINTIFF therefore, the affiant is not a party to the case. Again, I have zero legal background. This might be worth researching. Virginia law- 3 year SOL unwritten contract (Indiana case law) (Virginia law) Va. Code § 8.01-246(4) Capital One Bank states: “Applicable Law; Severability; Assignment. No matter where you live, this agreement and your account are governed by Federal Law and by Virginia law.” Make sure you respond, even if it's late. DO SHOW UP for your Zoom meeting (assuming it's a Zoom meeting). I recommend you file a Motion to Dismiss WITH prejudice due to whatever reason you find (what is missing, etc.). I filed a request for Discovery, then Capital One Bank (USA) N.A (seems redundant but I'm making a point) filed a Motion for Enlargement of Time. The Court granted 30 days. Capital One Bank (USA) N.A did not comply. I then filed a Motion to Dismiss based on the Plaintiff not complying. I also filed a Motion to Strike in regards to the affidavit submitted in support of the Plaintiff's complaint (I have a list of questions in case my Motion to Strike is denied). 2 weeks AFTER my Motion to Dismiss, Plaintiff filed a Motion for Default Judgement (claiming I failed to "otherwise appear"). The judge scheduled their Motion to be heard at the same time my Motion is to be heard. Less than 2 weeks later (11ish days), I filed an Opposition to Plaintiff's Motion for Default Judgement because I did, in fact, "otherwise appear" when I filed my Request for Discovery (and Plaintiff responded to the Court in regards to Request). I found this in my searches: Ind. Rule 4. Responsive pleadings (A) Preservation of Defenses. All defenses shall be deemed at issue without responsive pleadings, but this provision shall not alter the burden of proof. (B) Entry of Appearance. For the purpose of administrative convenience, the court may request that the defendant enter an appearance prior to trial. Such appearance may be made in person, by telephone or by mail but the fact that no appearance is entered by the defendant shall not be grounds for default judgment. Again, I have zero legal background. This just describes my attempt. Definitely DO show up, though. Go research Indiana's public court records and type in one of the lawyers' names mentioned in the Complaint. Refine it to the month of June (I assume this is when you were served, and when Capital One Bank (USA), N.A filed). Look at the amount of default judgements just because people failed to show up. I think I found 2 or 3 that responded back. I found zero that challenged Capital One (maybe for good reason, maybe not...who wants to pay thousands of dollars in legal fees for a $2k or less debt?...most just don't show up).
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