flanole

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  1. BV80...check out the Pincus referenced earlier in the thread....it is directly on point regarding my case and should generate a dismissal if I am lucky...but within the ruling are several other cases that definitely determine that a credit card agreement is an oral contract in Florida....4 year SOL....more importantly....can you help me find a link to or someone who can pm me a copy of the 2005 Customer Agreement for Capital One...I have a Pre-trial hearing on Friday and am having no luck.....thanks
  2. Secondly I have prepared a MSJ based on existing case law as best I could find it for Fla. Cap One customers....once again welcome any and all feed back.... MOTION FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANT 1-Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude additional unnecessary litigation of the issue in a suit on a different cause of action involving a party to the first case, and plaintiff’s claims are barred. In support of this action Defendant cites the following cases:  502007SC016285 Capital One Bank v. Steven Pincus in the 15th Judicial Circuit for Palm Beach County Florida “Therefore the court finds that the agreement at issue herein is an oral contract subject to Virginia’s three year statute on limitation which was violated by the filing of this action in excess of three years from the date of last transaction.”  Capital One Bank v. Robert C. Cuellar Case 07-CC-12751 in the 13th Judicial Circuit for Hillsborough County Florida “Accordingly, the Court finds that the arrangement between the parties constitutes an “unwritten” contract for purposes of the statute of limitations analysis, that Florida procedural law applies, that Florida procedural law, i.e., borrowing statute, dictates that Virginia’s shorter, three year statute of limitations applies and application of the three-year statute mandates that Defendant prevails on its Motion for Summary Judgment on the breach of contract count.”  Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008 2-Defendant designates Virginia as the Choice of Law based on the clear and explicit language of the contract: “Governing Law – WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT, AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be construed in accordance with and by the laws of the United States of America and by the internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of parties. This agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal Law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect. “ ©2005 Capital One Services, Inc 3-Florida courts have ruled in several cases that Choice of Law provisions contained in credit card agreements apply to statute of limitations claims (Capital One Bank v. Gelsey, 15 Fla. L. Weekly Supp. 64a., Capital One v. Tarpinian 15 FLW Supp. 856a Fla. Palm Beach County Court 2008.) 4-Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum (Virginia) should apply where there exists a contractual choice of laws provision. Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008. ("Under Florida rules, statutes of limitations are considered substantive in nature."); Pescatrice, 539 F.Supp.2d at 1379 See also Western Group Nurseries, Inc. v. Ergas, 211 F.Supp.2d 1362, 1366 (S.D.Fla.2002) (citing Fulton County Adm'r v. Sullivan, 753 So.2d 549, 553 (Fla. 1999); Merkle v. Robinson, 737 So.2d 540 (Fla.1999)) 5-Under Virginia Law said contract is an oral contract based on: Newport News Hampton & Old Point Dev. Co. v. Newport News Street Ry. Co. 32 S.E 789, 790 (Va. 1899) “nothing must be left open for future negotiation and agreement; otherwise it may not be enforced”; said agreement is subject to unilateral changes by the Plaintiff; there is no duration limitation to the agreement; and no specification of credit limit of interest rates. In re. Banks Auto Parts 385 BR 142, 49 Bankr. Crt. Dec. 203 (Ed. Va. 2008) “a writing must contain the names of the parties and terms of the contract in order for the agreement to be a written contract.” 6-Statue of limitations for actions taken against unwritten (oral) contracts is 3 years under §8.01-246(4) of the laws of Virginia. 7-Last known activity on stated account based on documentation provided by Plaintiff is determined to be no later than January 2007. SUMMARY Choice of Law designating Virginia as the appropriate forum is clearly communicated in the aforementioned agreement and supported by case law in the State of Florida. Under Virginia law the contract is clearly defined as unwritten (oral) for which the Statute of Limitations is 3 years from date of last activity. Date of last activity is identified as January 2007. Accordingly, this action is in excess of three years from the date of last activity defining it as a time-barred transaction under §8.01-246(4) of the laws of Virginia. WHEREFORE, Defendant, Kevin T. O’Brien, respectfully submits that the Court should deny the Plaintiff's Request for Judgment,filed herein by Capital One Bank (USA) N.A. and prays for Dismissal of the complaint by the Plaintiff for damages of $984.40, together with pre-judgment interest, reasonable attorney’s fees of $300.00 and any other relief the court deems proper. ______________________________ ______________________________ Defendant, Dated Kevin T. O’Brien 317 Flagler Avenue New Smyrna beach, FL 32169 407-284-2103
  3. After further investigation the Motion to Quash process of service is out so I have prepared a Response to the Claim by Cap One based on the Choice of Law SOL defense asking for dismissal....would appreciate any feedback... Comes now the Defendant, Kevin T. O’Brien (appearing pro se), and files this ANSWER TO CLAIM AND MOTION TO DISMISS CLAIM in response to Complaint and Motion For Summary Judgment filed herein by Plaintiff, Capital One Bank (USA) N.A.. as follows: All answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein. COUNT 1- BREACH OF CREDIT CARD AGREEMENT 1- Admitted 2- Admitted 3- I am without sufficient information or knowledge of the allegations in paragraph 3 of the Amended Complaint and, therefore, must deny same. 4- I am without sufficient information or knowledge of the allegations in paragraph 4 of the Amended Complaint and, therefore, must deny same. 5- I am without sufficient information or knowledge of the allegations in paragraph 5 of the Amended Complaint and, therefore, must deny same. 6- I am without sufficient information or knowledge of the allegations in paragraph 6 of the Amended Complaint and, therefore, must deny same. 7- I am without sufficient information or knowledge of the allegations in paragraph 7 of the Amended Complaint and, therefore, must deny same. COUNT 2- ACCOUNT STATED 8- Admitted 9- I am without sufficient information or knowledge of the allegations in paragraph 9 of the Amended Complaint and, therefore, must deny same. 10- I am without sufficient information or knowledge of the allegations in paragraph 10 of the Amended Complaint and, therefore, must deny same. 11- I am without sufficient information or knowledge of the allegations in paragraph 11 of the Amended Complaint and, therefore, must deny same. Affirmative Defenses 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. As and for a Second Defense Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted or will accept payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received or will receive other compensation in the form of monies and/or credits. As and for a Third Defense Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Collateral Estoppel. As and for a Fourth Defense Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws. As and for a Fifth 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 if 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. As and for a Sixth Defense Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive. As and for a Seventh Defense Defendant alleges that this action is time-barred under §8.01-246(4) of the laws of Virginia which states personal actions based on contracts: Subject to the provisions of §8.01-243 regarding injuries to person and property and of §8.01-245 regarding the application of limitations to fiduciaries and their bonds, actions founded upon a contract, other than actions on a judgment or decree, shall be brought within the following number of years next after the cause of action shall have accrued: (4)In actions upon any unwritten contract, express or implied, within three years. WHEREFORE, Defendant, Kevin T. O’Brien, respectfully submits that the Court should deny the Plaintiff's Request for Judgment, filed herein by Capital One Bank (USA) N.A. and prays for Dismissal of the complaint by the Plaintiff for damages of $984.40, together with pre-judgment interest, reasonable attorney’s fees of $300.00 and any other relief the court deems proper. ______________________________ ______________________________ Defendant, Dated Kevin T. O’Brien 317 Flagler Avenue New Smyrna beach, FL 32169 407-284-2103
  4. While you were responding I registered at Floridadebtor and was waiting for confirmation when I came across the Pincus case...and apparently several others that support the position that I am 1-Under the Rule of Virginia Law based on the Agreement 2-Virginia has already affirmed this is an oral contract 3-The SOL in Va. for Oral contracts is 3 years... soooooo....when does the clock start for SOL in Va.??? I made my last payment in Jan. of 2007....account was charged off in Oct. 2007... So strategically speaking the argument is valid regardless of whether I am in court or arbitration, but by electing arbitration the suit may go away because of the cost/reward aspect for Cap One and I dont have to go through the hassle of the formality of pleadings etc... What is the likelihood of them refiling if indeed the service was not proper? I am assuming that the wheels keep turning at Cap One/CA and they just count on people being intimidated or not having time or knowledge to research etc....do I have anything to lose by electing arbitration? I will research the service issue and arbitration and repost...thanks for the quick response!
  5. I am also dealing with Capital One but in Florida....Details of my situation are...included in my original post Sued by Capital One in Florida Linda 7-I opened my account in 2002....went 30 days PD in April 2007 and Charged off in Nov 2008.....what Cust agreement applies...2005 was included in my copy of complaintAlso, I have been made aware of Case Law in Fla that would confirm Choice of Law is Virginia....with 3 year SOL.... According to FL case law, the SOL for credit card debt is 5 years. Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008 Gaisser v. Portfolio Recovery Associates, LLC - Google Scholar "Conversely, if Florida's five-year statute of limitations applies or the New Hampshire statute applies and was tolled until February 8, 2007, or later, the state case was timely and Plaintiff has failed to state a claim." This case law is important. The Plaintiff, Gaisser, sued on the grounds that the SOL in Portfolio's home state of New Hampshire should apply (choice of law). The court ruled that New Hampshire's 3 year SOL applied because of the choice of law provision in the original cc agreement. Should I ask for arbitration immediately or file a response with affirmative defense including citation of above referenced case law???
  6. Linda7 BV80 suggested I review your posts on arbitration....can you take a look at my post "Sued by Capital One in Florida" and provide some insight/direction??? Plaintiff Capital One/Suit filed by Zakheim & Lavrar "Attorney for Plaintiff" * Suit Type: Limited Civil Case (under $5,000) * State: Florida * Amount: $984 plus interest at 28% from November 2008 * Type of debt claimed by plaintiff: Account Stated What is the difference in Account and Account Stated? * See my post, but there already exists case law that supports Rule of Law should be in Virginia, Cap One HQ, due to it being clearly stated in the Agreement that Va. law applies...SOL is only 3 years in Va. and first cause for action dates to Feb. 2008 * Notes: 1- Scheduled to appear for Pretrial Conference on May 27 and would like to file appropriate Response/Motion to dismiss if applicable as soon as possible... 2-I have seen other references to this law firm regarding clarity of plaintiff identity and whether or not they are entitled to sue...my debt is still owned by Capital One Complaint contains 2 "Count"s Count I Breach of Credit Card Agreement Copies of 4 separate monthly statements summary page only Capital One Cycle Facsimile Report Copy of Capital One 2005 Customer Agreement attached...horrible quality Arbitration Agreement...horrible quality Count II "Account Stated" "Pltf and Def. had business transactions whereby Pltf extended Def. credit on a revolving basis" "Pltf rendered statements to def. and def. did not object in a timely manner" Plaintiff called an old contact number (my sister's residence) in my CR on 5/13/11 and left message....never any contact between myself and Pltf... Hope this helps with trends/JDB/OC strategies and any advice from community would be greatly appreciated as I am under the gun....
  7. BV80-Thanks for the info...It seems Cap One still owns debt (below from Experian) CAPITAL ONE Address: PO BOX 30281 SALT LAKE CITY, UT 84130 (800) 955-7070 Account Number: 486236237292.... Address Identification Number: 0062181908 Status: Account charged off. $985 written off. $1,285 past due as of Nov 2008. Date Opened: 05/2002 Reported Since: 05/2002 Date of Status: 10/2007 Last Reported: 11/2008 Type: Credit card Terms: NA Monthly Payment: $0 Responsibility: Individual Creditor's Statement: Account closed at credit grantor's request. Account History: Charge Off as of Nov 2008, Oct 2008, Jun 2008, May 2008, Apr 2008, Mar 2008, Feb 2008, Jan 2008, Nov 2007, Oct 2007 150 days past due as of Aug 2007 120 days past due as of Jul 2007 90 days past due as of Jun 2007 60 days past due as of May 2007 30 days past due as of Apr 2007 Furthermore, It would appear that Virginia law would govern (see below)....with a 3 year SOL...so how do I make that work for me???????File a Motion to dismiss citing Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008 Governing Law – WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT, AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be construed in accordance with and by the laws of the United States of America and by the internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of parties. This agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal Law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect. Waivers Lost or Stolen Cards or Account Access Checks Communications ARBITRATION. PLEASE SEE ENCLOSED “ARBITRATION PROVISION.” Please not that the terms included in the arbitration provision are part of your customer agreement. ©2005 Capital One Services, Inc.