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DEMcGvsME

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  1. I just got a reply from the lawyer and its a book pretty much. The first part is "Plaintiff's first request for admissions" and its just rehashing the summons it seems. There are still no documents to back up the claims. The second half is "Plaintiff's first request for production" and it lists off like everything possible that could have anything to do with this case. Also on the front and after each section is the same few lines about how if I want to settle to call them. There was no mention of arbitration either which I'm not sure how I'm suppose to go about that. I need to get going tonight but I'll check back later. Let me know if I should type all of it up but each section is like 3-4 pages again seeming to list every possible thing they could.
  2. So today I got the confirmation of delivery as well as another copy of my summons from the firm suing me but nothing else from them. It seems kind of odd that they would resend me what I already have.
  3. I got it in today and didn't even have to pay the filing fee cause I'm that broke. Now tomorrow I send off a copy to DEMcG and then we'll see what happens. Thank you for all the help up to this point. You guys have really made this whole process less intimidating than it seemed at the start.
  4. I never disputed the debt in any form. As I said before I got statements online and nonstop phone calls from them (but I didn't log when they called, I ignored them). The only letters I did get form them is how long it had been since my last payment and what the total had become with all the fees that were piling up. You're talking about count 1, right?
  5. What do you mean by this? Haven't I responded to them?
  6. These are the changes. I'm sure the wording isn't exactly correct for these. I'll be checking back tonight. 9. In response to Count 9; Plaintiff is referencing an account and has not provided any identifying information about the alleged account. Denied. Defendant can amend answer pending receipt of a bill of particulars or other identifying information about this alleged account, provided it exists. 10. In response to Count 10; Plaintiff is referencing an account and has not provided any identifying information about the alleged account. Denied. Defendant can amend answer pending receipt of a bill of particulars or other identifying information about this alleged account, provided it exists. 17. As and for a Fourth Defense Defendant invokes in pari delicto. 18. As and for a Fifth Defense. Defendant invokes set-off 19. As and for a Sixth Defense. Defendant elects for arbitration under the contract and the Federal Arbitration Act this court lack jurisdiction. Defendant demands the court stay the proceeding pending private arbitration and the Plaintiff is responsible for initiation of this arbitration. I couldn't find examples to elaborate on 17 and 18 and kind of made 19 up from what you guys had said.
  7. I know peoples feelings about arbitration is mixed... should I actually add that?
  8. Defendant, appearing pro se, for its reply to the Complaint of Capital One Bank states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein. ANSWERS 1. Defendant has insufficient information with respect to the material allegations of Count 1 of Plaintiff’s complaint so therefore deny the claim but retain the right to amend my answer pending receipt of discovery. 2. Defendant denies the material allegations of Count 2 of Plaintiff’s complaint and demand strict proof thereof. 3. Defendant denies the material allegations of Count 3 of Plaintiff’s complaint and demand strict proof thereof. 4. Defendant denies the material allegations of Count 4 of Plaintiff’s complaint and demand strict proof thereof. 5. Defendant denies the material allegations of Count 5 of Plaintiff’s complaint and demand strict proof thereof. 6. Defendant denies the material allegations of Count 6 of Plaintiff’s complaint and demand strict proof thereof. 7. Defendant denies the material allegations of Count 7 of Plaintiff’s complaint and demand strict proof thereof. 8. Defendant denies the material allegations of Count 8 of Plaintiff’s complaint and demand strict proof thereof. 9. In response to Count 9; Pursuant to Oregon Rules of Civil Procedure, Plaintiff has failed to state ultimate facts sufficient to constitute a claim. 10. In response to Count 10; Pursuant to Oregon Rules of Civil Procedure, Plaintiff has failed to state ultimate facts sufficient to constitute a claim. 11. In response to Count 11; Defendant agrees to communication regarding settlement offers and collection efforts via mail only. 12. Defendant denies the material allegations of Count 12 of Plaintiff’s complaint and demand strict proof thereof. 13. In response to count 12; Defendant agrees to this claim provided proof of this alleged debt and contractual terms that allow such costs to be awarded. DEFENSES 14. As and for a First Defense Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. 15. As and for a Second Defense Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making it difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed. 16. As and for a Third Defense Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date. How does this look? I talked with the court and I have until next week so I'm taking this weekend to make sure its correct.
  9. I could use some feedback on this as again I am trying to get this in by the end of the week. Answer 1. Defendant has insufficient information with respect to the material allegations of Count I of Plaintiff’s complaint and can neither admit nor deny the claim. Defendant calls on plaintiff to prove same. 2. Defendant denies the material allegations of Count 2 of Plaintiff’s complaint and demand strict proof thereof. 3. Defendant denies the material allegations of Count 3 of Plaintiff’s complaint and demand strict proof thereof. 4. Defendant denies the material allegations of Count 4 of Plaintiff’s complaint and demand strict proof thereof. 5. Defendant denies the material allegations of Count 5 of Plaintiff’s complaint and demand strict proof thereof. 6. Defendant denies the material allegations of Count 6 of Plaintiff’s complaint and demand strict proof thereof. 7. Defendant denies the material allegations of Count 7 of Plaintiff’s complaint and demand strict proof thereof. 8. Defendant denies the material allegations of Count 8 of Plaintiff’s complaint and demand strict proof thereof. 9. Pursuant to Oregon Rules of Civil Procedure, Plaintiff has further failed to state a claim upon which relief can be granted and is due to be dismissed, There has been no injury in tort. 10. Pursuant to Oregon Rules of Civil Procedure, Plaintiff has further failed to state a claim upon which relief can be granted and is due to be dismissed, There has been no injury in tort. 11. I need help with this cause it seems like they want to be legally allowed to bug me about my debt and getting around that code 12. Defendant denies the material allegations of Count 12 of Plaintiff’s complaint and demand strict proof thereof. 13. What wording would I use to stop them from adding whatever extra fees that they want?
  10. Ok, so I want to make sure and get this done by Friday and I still need some help as to why I would be denying each claim. I think 1 and 2 I don't deny but after that I need a reason to deny each of the other claims? I want to respond but I need help with this first step. I'm not asking for someone to do this for me but at the same time I don't know what I'm doing and I'm feeling very overwhelmed by this. I'm sure that this part is very simple but I want to do it right. So what do I need to let people know to help me make the right answer?
  11. 30 days from the day I picked it up at the post office is September 15th.
  12. Complaint: Capital One Bank (usa), N.A, Plaintiff VS Me, Defendant Plaintiff's Complaint (breach of contract) (recovery of money) Claim is less than $10000 claim subject to mandatory arbitration claim amount is 4976.13 For its first claim for relief, plaintiff alleges: 1. Plaintiff is now and has been at all times mentioned herein a business entity engaged in interstate commerce and is suing on a debt owed to it by Defendant, ME. 2. Plaintiff offered to extend credit to Defendant. Defendant accepted plaintiff's offer and used the credit so extend, thereby entering into a contract with plaintiff, ("contract"). The credit plaintiff extended was provided in the form of an open credit account known as credit account ################, ("account"). 3. Defendant agreed to pay for the charges made through plaintiff's extension of credit in accordance with the terms and conditions of the contract. Each use of the account constituted Defendant's acceptance of plaintiff's continued extensions of credit and constituted Defendant's continuing renewal of agreement to continue to be bound by the contract. 4. The account was used and extensions of credit were made through the use of plaintiff's account number ################ pursuant to the contract and resulted in a balance due, owing, and unpaid by Defendant to plaintiff. 5. After Defendant's use of the account, plaintiff sent periodic billing statements to Defendant itemizing all charges and credits on the account. Defendant failed to dispute in writing any billing statement error, if any existed, within 60 days of the first date of transmission of the periodic billing statement to Defendant, as required by the FCBA 15 USC 1666. The FCBA establishes the method to report a dispute or an error and sets the reasonable period of time to do so. Defendant's failure to dispute plaintiff's billing statements within the time of manner allowed by the FCBA established the balance of an account and established an account stated between the parties of each billing statement that was not disputed withing 60 days of the transmission of each statement to Defendant. 6. Defendant received the benefits of the goods, services, and/or cash advances through the use of the account. Defendant knew or should have known that plaintiff expected to be paid by Defendant for the use of the account, including the cost of goods, services, and/or money as well as finance charges, and other feeds and charges. Defendant was unjustly enriched through the use of the account as the benefits received therefrom were without payment or compensation to the plaintiff to the extent of the unpaid balance of the account. 7. Defendant breached and is in default of the contract by failing to make the required payments as agreed, or otherwise. Plaintiff has elected and does hereby elect to declare the full indebtedness under the contract to be immediately due, owing, and the same remains unpaid. 8. Plaintiff has performed all obligations required of it to be performed and plaintiff has performed all conditions precedent by it to be performed. All other conditions precedent to Defendant’s obligation to perform under the contract have occurred. 9. Although duly demanding by plaintiff, no part thereof has been paid for which credit has not been given heretofore. There is now due owing and unpaid plaintiff by the defendant the sum of $4,976.13, plus interest thereon at the rate of 13.90% per annum from December 22, 2009 until date of judgment. This sum is one of the amounts by which plaintiff has been damaged as a result of the defendant’s breach of contract. 10. The contract further provided for the defendant to pay collection costs incurred herein. By Defendant’s breach of the contract, plaintiff has been additionally damaged in the amount of reasonable costs of collection to be determined upon the evidence at trial and/or upon the filing of a supplemental statement of additional prejudgment damages or a motion for a supplemental judgment on a statement of additional post judgment damages. 11. Under USC 1692c, plaintiff requests the court to expressly authorize plaintiff, its agents, attorneys and assigns to contact defendant, third parties and other entities during litigation and for collection its judgment entered in this case for so long as this account remains unpaid. 12. Defendant promised and agreed to pay plaintiff’s reasonable attorney fees. Plaintiff has been required to retain the services of counsel to represent it in these proceedings. Plaintiff is entitled to an award of a reasonable attorney fee to be determined by the court or courts in which this matter is tried, heard or decided. In the event contractual attorney fees are not available to Plaintiff, an alternative basis for Plaintiff’s entitlement to an award of an attorney fee is by statute. When the amount of the claim does not exceed $10,000.00 and plaintiff has made written demand for payment of the debt more than twenty days before filing the complaint. Plaintiff has made written demand for payment of the debt more than twenty days before the filing of the complaint. 13. Plaintiff specifically requests the court reserve jurisdiction in the general judgment for the purpose of making subsequent fee awards and enchantments of this fee award upon the filing of post judgment cost bill for post judgment fees in the event the amount awarded here later appears inadequate in light of developments in the collection of the judgment. WHEREFORE, plaintiff demands judgment against defendant, ME, as follows: A) On the FIRST CLAIM FOR RELIEF, for the following sums: 1) For the sum of 4,976.13; 2) Prejudgment interest on the sum of $4,976.13 at the rate of 13.90% per annum from December 22, 2009, until judgment date; 3) Post judgment interest at the higher of the contract rate or statutory rate. For a judgment for the amount of plaintiffs collection costs to be determined upon the evidence at trial, together with interest thereon at the rate of 13.90% per annum from the date of judgment, until paid; C) For an award of a reasonable attorney fee to be determined by the court or courts in which this matter is tried, heard or decided , together with interest thereon at the rate of 9.000% from the date of the judgment, until paid; D) Plaintiff’s costs and disbursements incurred herein, together with an interest thereon at the rate of 9.000% per annum from the date of the judgment, until paid; E) Said judgment to bear interest at rates described above from the date of judgment, until paid; F) Granting plaintiff’s request under 15 USC 1692c that the court expressly authorize plaintiff, its agents, attorneys and assigns to contact defendant, third parties, and other entities during litigation and after entry of judgment for the purpose of collecting the judgment entered in this case so long as this account remains unpaid. G) Granting plaintiff’s request that the court specifically reserve jurisdiction in the general judgment for the purpose of making subsequent fee awards and enchantments of the fee award upon filing the post judgment cost bill in the event the amount awarded here later appears inadequate in light of developments in the collection of the judgment; and H) For such other and further relief as to the court may deem just and equitable. (signed by lawyer)
  13. It was a card with my parents name on it also but their name was dropped off it a few years later by the company not by my request. Also while typing the complaint up it certainly makes more sense as I have to process every word to enter it on here but it made me think. The amount listed might be the amount that it was around the time that I stopped paying it since at this point I can't even remember the limit on the card. I want to say the limit was 4500 which means that interest and fees would of brought it up to that amount. I tried accessing my old account and even their "solutions" page but considering how I was handled when I called to confirm the debt was still held by them, I doubt they are going to help me in getting my old statements. The person I talked to told me to contact their legal department about 20 times in the matter of 3 minutes of trying to get some answers out of them.
  14. Thank you for the thorough response. Well a portion of the debt is mine, before all the charges and the fees like you said above. I don't feel that I owe them the money as much as I would really rather avoid a judgment against me. As far as figuring out how much the balance was before I stopped paying, I haven't had paper bills on that account since the early 2000's. I want to say I got that cc when I was 17 so it is over 10 years old. Can I make them send me a back log from the opening of the account? Also, as you said there was no proof attached to the complaint. In the part I haven't typed up yet they do say the amount again but not how they came to that amount. What other details would you need to know about the account history or otherwise? Again I don't know the exact balance when I stopped paying it, at this time, but I know that it has gone up.
  15. So I went about it wrong in my first thread and I'm going to try and clean it up here. I'll start with the general questions, followed by the summons and the complaint and then the questions I need answered. What I'm really looking for right now is if I should follow through with an answer as I was advised by a local lawyer to just roll over and take this judgment. Granted he is a bankruptcy lawyer so me filing is money for him. I do have the option to settle for less than half of what the debt is after talking to some generous family members but only up to a max of about 2/5th of the total cost. I am fairly young without a very large debt load so I would rather not be filing right now. I don't have a lot to lose other than my car but filing over $15-18k seems like a pretty dumb idea. The main reason I don't want a judgment against me is that I've been told it will be harder to find a job and as I am still looking for one currently. I really don't want to make it any harder than it already is and have my wages garnished once I do finally manage to find one. Questions: 1. Who is suing you? Capital One via Derrick E McGavic 2. For how much? 4976.13 + intrest + fees 3. Who is the original creditor? Capital One 4. How do you know you are being sued? Got a summons in the mail on Monday 8/16 5. How were you served? Were you served? By mail had to pick up the letter at the post office and sign for it 6. What was your correspondence (if any) with the people suing you before you think you were being sued? There may or may not have been a warning letter from them but I never had to sign for it. 7. Where do you live? Oregon 8. When is the last time you paid on this account? Over a year ago 9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). Not sure 10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No, didn't expect the suit so soon 12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. 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? Yes it requires I answer or I automatically lose. No questionnaire. Will type up the complaint below. 13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? There is no evidence attached that I can see. 14. What is the SOL on the debt? 6 years but it has only been a year. Summons: To: Me In the name of the state of Oregon: you are hereby required to appear and defend the complaint filed against you in the above civil action within 30 days from the date of service of this summons upon you, and you are notified in case of failure to do so, the plaintiff will apply to the court for the relief demanded in the complaint. You must "appear" in this case or the other side will win automatically. To "appear" you must file with the court a legal paper called a "motion" or "answer," The "motion" or "answer" must be given to the court clerk or administrator within 30 days along with the required filing fee. I must be in proper form and have proof of service on the plaintiff's attorney, or if the Plaintiff does not have an attorney, proof of service upon the plaintiff. IMPORTANT WRITTEN NOTICE TO CONSUMERS REQUIRED BY 15 USC 1692g and 15 USC 1692e(11) Unless the consumer, within thirty days of receipt of this notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by this "debt collector." If you notify us in writing within the thirty day period that the debt, or any portion thereof, is disputed, we will obtain verification of the debt or a copy of a judgment against you, and a copy of such verification or judgment will be mailed to the consumer by us. If you request in writing within the thirty day period, we will provide you the name and address of the original creditor, if different from the current creditor. THIS COMMUNICATION IS FROM A "DEBT COLLECTOR," AS DEFINED IN 15 USC 1693a(6). WE ARE ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. Complaint: ***Complaint below*** it was too long... So my questions I need answered are: 1. Should I answer the compliant, negotiate for a much smaller settlement or ignore it? 2. a) If I answer then I really need some help interpreting the complaint. If I negotiate the total down how should I go about doing it? 3. How bad is a judgment against your record for finding a job? (I am not in the financial industry or deal with money at all) 4. Is filing bankruptcy really worth it for $15-18k?
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