need help with admissions

[cjtx]

I'm being sued by CapOne. The suit was filed in January 2007 in Texas.

My last payment to CapOne was made in January 2003 and charge-off

was in August 2003. SOL for credit cards in TX is 4 years.

So my first thought is to claim SOL. However, some posts claim it starts

running after charge-off and others claim it starts from the date of last

activity. Any clarification will be greatly appreciated.

I will include a copy of the admissions in a little while.

Maybe SOL is all I need, but just in case... On their petition, they claim

my interest rate is 12.9, and they even included a "copy" of my contract

and an affidavit from someone "authorized by CapOne" to make these

statements about my name, balance and interest rate (again 12.9).

This affidavit is dated November, 2006.

The whole argument is based on my breach of contract. However, I have

some old statements (>4 years old) that show they charged me different

interest rates. Would that help me establish the date for SOL by showing

when the contract was first breached (by CapOne) or should I stick with

last payment date?

I'm a little intimidated because this big lawfirm took the case, even though

they did so on a contingency basis. They collect for IRS and several city

governments.

I'm considering countersuing for any violations of FCRA and/or FDCPA

both at the state and federal level. Last time I checked they were

reporting different dates and payment histories to the credit bureaus.

Please help!

[willingtocope]

I'm not an expert on Texas law...so you'll have to dig out the exact statues to be sure...but, if your last payment was in Jan 2003, then in most states, the SOL would start in Feb 2003 (when you were first delinquent).

Sounds like you might just be a month short...

[cjtx]

Are there other ways of getting around date of first delinquency? or should I start considering a settlement?

Ok, here are the admissions:

1. Defendant requested that Plaintiff open a credit card account on Defendant's behalf.

2. Based on Defendant's request, Plaintiff opened credit card account number **************** (the "Account") on Defendant's behalf.

3. The document attached to Plaintiff's Petition is a genuine, true and correct copy of the contractual agreement ("Account Agreement") between Plaintiff and Defendant.

4. Defendant received the contractual agreement.

5. Defendant has understood from the time the Account was opened that use of the credit card results in Plaintiff making a loan on Defendant's behalf for the amount charged or cash advance requested.

6. By the terms of the Account Agreement, Plaintiff is entitled to charge Defendant late fees and over credit limit fees.

7. Defendant purchased goods, wares, merchandise and/or services using the credit card and/or cash advances provided by Plaintiff as indicated in the exhibits attached to Plaintiff's Petition in this cause.

8. The prices for the items purchased on the credit card and/or cash advances provided by Plaintiff to Defendant were the reasonable market value for the goods, wares, merchandise and/or services purchased.

9. Defendant has promised to pay Plaintiff for the charges on the credit card and/or cash advances issued of provided by Plaintiff to Defendant.

10. Defendant received monthly statements showing the amount of charges or cash advances incurred for that monthly period, along with any payments of credits to the Account, and specifying the monthly installment due and owing.

11. Plaintiff has requested Defendant to pay Plaintiff for the charges on said credit card and/or cash advances.

12. Defendant has failed to pay Plaintiff for said credit card and/or cash advances on the Account.

13. The exhibits attached to Plaintiff's Petition in this cause reflect the balance due to Plaintiff after all just and lawful offsets, payments and credits have been allowed.

14. Plaintiff made written demand upon Defendant for payments of said credit card and/or cash advances on the account more than 30 days prior to filing the lawsuit.

15. The Account Agreement attached to Plaintiff's Petition in this cause is a true and correct copy of the account agreement in question.

16. Defendant has breached the contract with Plaintiff.

17. Defendant has no defense to this suit.

18. As of December **, 2006, Defendant is indebted to plaintiff in the amount of $****.**, plus accrued interest at the rate specified in the Account Agreement.

19. The contractual interest rate on the Account as agreed to by the Defendant is 12.9%.

20. At no time prior to the filing of this lawsuit did Defendant or Defendant's representative dispute the debt owing on the Account.

21. Defendant is not a memeber of any military service with assignments or orders that would give the Defendant a right to delay under the law.

22. A reasonable attorney fee for Plaintiff's attorney for the prosecution of this lawsuit would be at least $1,306.63.

[cjtx]

I need to file my response in a few days and I really need some pointers.

Given the admissions they sent me, it doesn't look like they have any solid evidence against me, plus the fact they are working on a contingency basis, it doesn't look to me like the OC is really that interested in going after me.

Of course, I have no experience and my opinion is biased.

A little background on this account.

After August 2001, I made only a few payments. My account should have been closed/charged-off, but because it was well under my credit limit, OC kept it open. In addition, my CC had expired several months before that and they refused to send me a new one. So my last charge on the account was probably in 2000.

Some time ago I disputed the TL with all CRAs, because all of them were showing a different DOLA. Magically, they erased all my payment history for 2002, which is when the account should have been charged off.

PLEASE HELP!!!!

[willingtocope]

First, recognize that since us poor debtors only get hauled into court once or twice in a life time, we tend to think of these things as though they were unique. CA lawyers on the other hand, deal with hundreds, if not thousands of these case...therefore, what you received was essentially a form letter, with every possible offense included. How many of them actually apply to your case is questionable...but you shouldn't take that as an indication that they don't have any proof.

But...start from the assumption that they don't...and, recognize that it isn't your responsiblity to provide them any.

So...except for your name and address...you should answer all other questions with something to the effect of "I lack sufficient knowledge to either affirm or deny".

Do some reading on the board here. There have been some detailed posts recently that go line by line with answers.

(Just by showing up, you'll be ahead in court. The lawyers are pretty much counting on people not being there and they'll just get a default judgement. That doesn't mean you'll win. But you need to be there with the attitude that while you might have had an account with Crap 1 at some point in the past, you do not have suffiecient information to know if this is the account they're suing over).

[Nikro]

First, recognize that since us poor debtors only get hauled into court once or twice in a life time, we tend to think of these things as though they were unique. CA lawyers on the other hand, deal with hundreds, if not thousands of these case...therefore, what you received was essentially a form letter, with every possible offense included. How many of them actually apply to your case is questionable...but you shouldn't take that as an indication that they don't have any proof.

But...start from the assumption that they don't...and, recognize that it isn't your responsiblity to provide them any.

So...except for your name and address...you should answer all other questions with something to the effect of "I lack sufficient knowledge to either affirm or deny".

Do some reading on the board here. There have been some detailed posts recently that go line by line with answers.

(Just by showing up, you'll be ahead in court. The lawyers are pretty much counting on people not being there and they'll just get a default judgement. That doesn't mean you'll win. But you need to be there with the attitude that while you might have had an account with Crap 1 at some point in the past, you do not have suffiecient information to know if this is the account they're suing over).

Great post. I agree with everything said in it.

[Nikro]

I need to file my response in a few days and I really need some pointers.

Given the admissions they sent me, it doesn't look like they have any solid evidence against me, plus the fact they are working on a contingency basis, it doesn't look to me like the OC is really that interested in going after me.

Of course, I have no experience and my opinion is biased.

A little background on this account.

After August 2001, I made only a few payments. My account should have been closed/charged-off, but because it was well under my credit limit, OC kept it open. In addition, my CC had expired several months before that and they refused to send me a new one. So my last charge on the account was probably in 2000.

Some time ago I disputed the TL with all CRAs, because all of them were showing a different DOLA. Magically, they erased all my payment history for 2002, which is when the account should have been charged off.

PLEASE HELP!!!!

I have said this several times, but it is my FIRM belief that when they send these admission requests that they have little to nothing that is why they are asking YOU for it.

YOu are doing great.