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Need help responding to summons


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1. Who is suing you?Capital One

2. For how much? $1,274.97

3. Who is the original creditor?Capital One

4. How do you know you are being sued?Was served a summons on Feb. 8

5. How were you served?Process server gave it to my 11yr old son outside our home Were you served?

6. What was your correspondence (if any) with the people suing you before you think you were being sued?None

7. Where do you live?CAlifornia

8. When is the last time you paid on this account?Sept. 2002

9. What is the status of your case I have 30days from date of service to reply. The lady at the courthouse said in these kinds of cases it takes a while to go to court, if they even go to court.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)No, just pulled my CR when I was served. I know my bad :(

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

12. Does your summons require a response? 30days from date of service, which was Feb. 8. Complaint for -

1) Breach of Written Contract

2) Account Stated

3) Open Book Account

4) Money Lent

All cause of actions state "within the last 4yrs, Defendant breached the terms of the agreement..."

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?customer agreement with no name or acct #

14. What is the SOL on the debt? 4yrs in the state of California so the SOL was in Nov 2006 plus they have failed to provide info that it is my acct

Any help would be greatly appreciated!

Thanks!:)

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I believe Cali carries a 4 year SOL for even written contracts. If you breached Sept 2002, SOL has probably passed by several months.

Not really up on Cali procedure, but I'm sure this is relatively correct.

If they allege a breach in the complaint older than 4 years, the complaint is subject to a motion to dismiss. Gets rid of the case lickity split. I'm not sure about account stated in California, so it's possible the clock can start at the latest account statement they actually sent you... even if it was a year after you defaulted. However, Cap1 was not in the business of sending out account statements post default back then if memory serves me correct.

Payment on the account may restart the clock on some or all of those causes of action. Payment by check may constitute a written acknowledgment of the debt, creating a new SOL clock start.

So you need to read over their complaint and see what it says. Generally, I'd say you are probably safe from judgment here if you're willing to do the leg work to learn Cali procedure and spend some time at a law library.

Direred should be able to help you more specifically.

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Thanks IHateCAs and Osiris!

Yes, I am certain no payment was made. They kept charging late fees and overlimit fees after the last payment. They state they have proof from April 12, 2003. I know I didn't make any payments in 2003. I need to know exactly how to word my response using the SOL defense.

Also the legal age in CA to accept a summons is 18.

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If this is truly out of SOL, I believe you can countersue for suing you for an out of SOL debt. This is because the Rosenthal act gives you additional rights in Calif. Do some searches. I believe Rosenthal applies to OCs as well as CAs. Again, this is just my recollection, so check it out or hopefully someone with first hand knowledge will post.

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If this is truly out of SOL, I believe you can countersue for suing you for an out of SOL debt. This is because the Rosenthal act gives you additional rights in Calif. Do some searches. I believe Rosenthal applies to OCs as well as CAs. Again, this is just my recollection, so check it out or hopefully someone with first hand knowledge will post.

Thanks for that info! I'm going to call the courthouse tomorrow and ask the exact procedure for responding. I would like to have two responses. The first that I haven't the company never notified me about the debt until I was served. The second that the SOL has expired. Not sure if that's possible but worth a try.

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I am waiting for response on an acct I was served a summons on

and it was not my acct never had a business credit card and it had never been listed on any credit report. out of the SOL, and the

exhibt they sent was dating back in 1993 nothing to link it to me.

But I had to file a written reply within 30 days are they could

claim default.

I wrote a letter with the Planniffs name, address, vs my name and address....be sure you put the case # on there.

I just stated I deny this is my debt and then listed the reasons

1. Never had a credit card with this company.

2. Never been reported on my credit reports

3. Out of the SOL for my state.

I filed a copy with the clerk of the court and sent one to the attorney certified mail

Next I filed Discovery just to be ahead ......surely they will drop it.

I should counter-sue for all they have put me through but I am

drained from dealing with this and right now just want it over,

Good luck to you.

jangel

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