banksnogood

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About banksnogood

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  1. HotWheels96 - Go ahead and subserve Wandi - she will never appear. If you go to trial, make your Hearsay Objections to all Exhibits Plaintiff tries to enter into evidence. Argue your motion in limine points - specifically that Plaintiff has not complied with CCP 98 which is clear about Declarations in Lieu of Testimony. If you lose, do not worry - file your appeal within the timeframe. There is no way they can prevail even if the Judge doesn't pay attention to the law.
  2. Thanks for all the CONGRATS! Yes, it feels great to kick Capital One's a$$. Until Capital One established an office within 150 miles of any CA courthouse, or has a rep. there for service - THEY ARE LOSERS! Here is my Motion in Limine and supporting paperwork. Make sure you attach their Wandi Declaration and exhibits, your CCP 1987 Requesting Wandi's Appearance at Trial, and the Sheriff's Return of Service on your Subpoena Duces Tecum to Wandi's "in care of" service location: CALimine_CreditInfo.pdf
  3. You should always file your answer and specific affirmative defenses, which failure to arbitrate is one of them. Arbitration is risky and I would choose to fight in Court. At the first Hearing, Request A Jury Trial and be prepared to pay the court fee - in CA only $150. Once you file your answer, they will send you interrogatories, admissions and production of documents. You can then counter by serving them your own interrogatories, etc.. Use their format and ask them to produce the application and written card holder agreement and all other relevant docs, I.e. any modifications to interest rate, last payment, date opened, etc. you could demand a bill of particulars as well. They will send you the standard credit card agreement and probably a few years of statements - nothing will have your signature on it. If they also send you a "Declaration in lieu of Personal testimony" made out by one of their loss mitigation specialists to prove the contract, YOU WILL WIN! This declaration is hearsay and won't fly unless the Declarant is available to testify - Capital One won't pay the expense for their rep to testify at trial and will dismiss the case. Check your local court rules to see if you can file a "Motion in Limine" right before your Trial Readiness Conference. This motion will kick out their declaration and attached exhibits, I.e contract, statements, etc.. They have no case and will dismiss rather than face embarrassment.
  4. I recently got a Dismissal without Prejudice filed by Capital One (CO) in North San Diego County. I beat them at their own game by following steps taken by other members on this board - specifically SeaDragon. This was a credit card suit whereby CO claimed I owed roughly $3000. CO hired a local attorney in San Diego - Legal Recovery Law Offices; I believe they handle all CO's lawsuit in SD. The Complaint did not have any contract or other exhibits attached and plead only Breach of Contract and Account Stated. Once I was served with the Complaint, the following defense strategy was used: 1. File an Answer ON TIME (within 30 days): You can get the answer form online at your local court. Take the time and Deny each and every allegation raised in the Complaint - "Defendant denies the allegations contained in Paragraphs 1-5 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged ......" . Specifically deny the Paragraph that refers to the written contract - "Defendant denies in Paragraphs 6-8 as there is not, nor has there been any agreement, written, oral or implied with the Plaintiff and Defendant. a. Make sure you read on this board all about affirmative defenses you can raise, i.e. failure to state a claim, court lacks subject matter jurisdiction - lack of standing, statute of limitations, statute of frauds, failure to request arbitration, invalid assignment, failure of consideration, FDCPA violations, and other equitable defenses, i.e. laches. 2. At your First scheduled hearing - REQUEST A JURY TRIAL! Most law firms will drop their cases shortly since costs handling a jury trial will exceed the debt owed. Don't make any offers to settle since it is too early in the game to quit. 3. If you are served with Interrogatories, Admissions, and requests for documents, do not panic. Make sure you respond and answer each interrogatory and deny all admissions. You can ignore producing any documents unless you had sent CO "dispute letters" or similar. If you do not have an answer to the interrogatory, state so with "I lack sufficient information and knowledge to answer this question". Do not admit to anything they ask you. 4. After answering P's Interrogatories - DRAFT YOUR OWN INTERROGATORIES, Admissions, and Production of Documents and serve on P - you can look on this board for examples. I basically used P's format and started with the Contract issues - offer, acceptance, consideration, breach, and damages. I got specific when it came to details of the debt - charges, payments, over limit fees, past due charges, etc.. Make sure you ask for dates on "missed payments" and "last payment made". You want to make sure you nail down specific dates for Statute of Limitations (4 years in CA) facts. b. Production of Documents - very important to request copies of credit application, card holder agreement, changes/modifications to interest charges, statements, and "all other relevant documents". 5. P's response to my interrogatories, etc.. was to send me CO's 2005 Card Holder Agreement and the last two years of statements AND a CCP 98 Declaration by Wandi Chamberlain - CO's legal rep in Lieu of Personal Testimony. In her Declaration she failed to lay the proper foundation/lacked personal knowledge/no authentication required by the Hearsay Exception for Business Records - she was not an employee of CO, only an agent of a subsidiary, did not state when the account was opened, agreement not signed, and other insufficient conclusions - totally bogus boilerplate P Declaration. They also included in their "packet" a CCP 1987 - Requesting Parties to Attend Trial and to cut-off anymore discovery. Of course, they requested that I attend Trial. 6. Now, you MUST send P your own CCP 1987 and request that Wandi Chamberlain appear on the Trial Date - make sure you save your proof of service. 7. By now you have your Trial Date. About 10 days before your trial, PERSONALLY SERVE SUBPOENA DUCES TECUM on Wandi Chamberlain at the bogus address given in P's CCP 98 declaration. Do not allow the Marshal to "sub-serve" anybody else - even if the CCP 98 declaration states that you can serve someone else instead of Wandi. Only name Wandi in your subpoena. The service will fail since Wandi will never travel from VA to appear in court. 8. Before or at your Trial Readiness Conference, file and serve your Motion in Limine to throughout Wandi's declaration, contract, and statements (all Exhibits attached to declaration) as Hearsay evidence. This forum, specifically SeaDragon, has sample Limine motions you can use. Once I served the Limine motion and awaited my trial date - CO caved and filed the Dismissal a few days before trial. CO cannot win any of these cases unless they can provide a "legal rep" capable of providing testimony as to your specific credit card account. All their evidence gets tossed as Hearsay since they haven't gone through the requirements of the Business Records Exception. Wandi's declaration is completely bogus and the fact she doesn't reside within 150 miles of the courthouse and subject to a subpoena, the courts will not allow the declaration and attached exhibits. File an Answer with Affirmative Defenses, Request Jury Trial, Respond and file your own Interrogatories-Admissions and Documents Request, File CCP 1987 Requesting P's main Witness to Attend Trial, and file your Motion in Limine and watch how fast CO dismisses your case. Thanks to all the knowledgeable members here - I hope my strategy will make you a winner against any Capital One lawsuits.