remus936 Posted October 26, 2008 Report Share Posted October 26, 2008 Great site very informative. I have been sued by Capital One Bank (USA)N.A. but after reviewing some old statements from the accounts that I am being sued for, I found out that the name on my statements was Capital One F.S.B.This is an entirely seperate entity from the one sueing me.I have a hearing set for Nov. my question is should this be dismissed when I go to the hearing when I show them that these accounts were from Capital One F.S.B. & not Capital One Bank(USA)N.A. - which was not even formed until 2007/2008 & my accounts have been charged off since 12/04.On the petition they filed it only mentions Capital One Bank & nothing else about any other entity. Link to comment Share on other sites More sharing options...
chrismg Posted October 26, 2008 Report Share Posted October 26, 2008 Capital One F.S.B is a subsidiary.The holding company is Capital One Financial Corporation of which Capital One Bank (USA), National Association is a part of. Long story short....they are all Cap one. Link to comment Share on other sites More sharing options...
remus936 Posted October 26, 2008 Author Report Share Posted October 26, 2008 Capital One F.S.B is a subsidiary.The holding company is Capital One Financial Corporation of which Capital One Bank (USA), National Association is a part of. Long story short....they are all Cap one.That part I get, but they are all seperate entities with seperate business operations & If you are suing them, you better have the right entity, for example I found a lawsuit that was filed against Capital One Financial Corp. & the case was dismissed because Cap one's lawyers said that the case should have been against cap one f.s.b. If that work on that case shouldn't the same arguement work in reverse? Thanks to all who wish to answer. Link to comment Share on other sites More sharing options...
swirlgirl Posted October 26, 2008 Report Share Posted October 26, 2008 If you raised that argument and won, what would keep them from filing a new lawsuit from whatever entity you thought was appropriate? Link to comment Share on other sites More sharing options...
Florida_Bronco Posted October 26, 2008 Report Share Posted October 26, 2008 If you raised that argument and won, what would keep them from filing a new lawsuit from whatever entity you thought was appropriate?Since the statute of limitations is coming up, it could buy him the time needed to escape this lawsuit. Not sure how Texas works with tolling of the SOL, but then the OP could always argue that since the suit was filed by a different entity that the tolling would not apply. Link to comment Share on other sites More sharing options...
chrismg Posted October 26, 2008 Report Share Posted October 26, 2008 For all intents and purposes the entire company is suing you. Bringing statements to the proceedings that corroborate that the account is actually yours might not be advisable. Cap One is notorious for being able to provide documentation for their accounts supporting their claims. Link to comment Share on other sites More sharing options...
remus936 Posted October 26, 2008 Author Report Share Posted October 26, 2008 If you raised that argument and won, what would keep them from filing a new lawsuit from whatever entity you thought was appropriate?SOL will be expired, they should be expired now, but the case was filed right on the time for the SOL to expire, maybe a month before. So now it is way past, so they can't file another one, or I can get it dismissed for sure, if they did. Link to comment Share on other sites More sharing options...
remus936 Posted October 26, 2008 Author Report Share Posted October 26, 2008 For all intents and purposes the entire company is suing you. Bringing statements to the proceedings that corroborate that the account is actually yours might not be advisable. Cap One is notorious for being able to provide documentation for their accounts supporting their claims.I agree that bringing statements into court is not a bright idea, thats way I havn't mentioned anything about it as of yet.So for Cap One has not produced a piece of evidence as of yet & it has been like 75 days since my request for production of the documents. What if I even had a court filing from the in-house Capital One lawyers that they argued that they were in fact seperate enitites & the court ruled in their favor? Does this stand a chance or am I barking up the wrong tree.... and just hope this lawyer will not drive the 2.5 hrs for this case Link to comment Share on other sites More sharing options...
deltadawn Posted October 26, 2008 Report Share Posted October 26, 2008 my accounts have been charged off since 12/04What was the DOFD? The DOFD determines the SOL - not the charge off date. Once DOFD has been determined, you can verify if the lawsuit was timely. Link to comment Share on other sites More sharing options...
Florida_Bronco Posted October 26, 2008 Report Share Posted October 26, 2008 my accounts have been charged off since 12/04What was the DOFD? The DOFD determines the SOL - not the charge off date. Once DOFD has been determined, you can verify if the lawsuit was timely.Good catch. That thought didn't even cross my mind. Link to comment Share on other sites More sharing options...
remus936 Posted October 26, 2008 Author Report Share Posted October 26, 2008 my accounts have been charged off since 12/04What was the DOFD? The DOFD determines the SOL - not the charge off date. Once DOFD has been determined, you can verify if the lawsuit was timely.What is the DOFD - I assume it has something to do with my last payment/account activity - but you know what they say when you assume something....so what is DOFD...pardon my ignoranceIf it is what i assume than I don't have a definate date, I can just guess by some statements around that time that I have found & have a good idea on when I quit paying, but can't know for sure until they send me what I requested them to produce. Link to comment Share on other sites More sharing options...
swirlgirl Posted October 26, 2008 Report Share Posted October 26, 2008 Good catch. That thought didn't even cross my mind.Actually, the SOL begins after the DOLA, date of last activity.The DOFD is used to determine the 7 year reporting period for a CR. Link to comment Share on other sites More sharing options...
remus936 Posted October 26, 2008 Author Report Share Posted October 26, 2008 Actually, the SOL begins after the DOLA, date of last activity.The DOFD is used to determine the 7 year reporting period for a CR.My DOLA is somewhere around may-june 2004 & these cases were filed in may 2008, so that is way I am trying to find a way to get this dismissed, I know for 100% that the SOL has expired now.Again thanks to everyone responses... Link to comment Share on other sites More sharing options...
chrismg Posted October 26, 2008 Report Share Posted October 26, 2008 Cap One's attorney hasn't complied with discovery? Sounds like they are dropping the ball. Judge probably won't be too happy about it. =) Link to comment Share on other sites More sharing options...
remus936 Posted October 26, 2008 Author Report Share Posted October 26, 2008 Cap One's attorney hasn't complied with discovery? Sounds like they are dropping the ball. Judge probably won't be too happy about it. =)the attorney is over 2.5 hrs away from me, so I am hoping that this is just a fishing expedation, as I said before there has been no supporting documents been presented, not even in the petition. This has been going on since June when I filed my discovery & still nothingI filed for dismissal last week on the basis of no agreement,no statements, no case...but it got kicked to the curb by the judge denied on all counts. Saying the plantiff has the right to present it's case in court... So court is set for Nov.18th & hopefully he won't show up.That is why I am trying to find a loophole & being sued by the wrong entity of Cap One Financial Corp. seems like a good place to start. Link to comment Share on other sites More sharing options...
Florida_Bronco Posted October 27, 2008 Report Share Posted October 27, 2008 Actually, the SOL begins after the DOLA, date of last activity.The DOFD is used to determine the 7 year reporting period for a CR.That depends on the state. Not sure how Texas is though. But regardless, what I was getting at is that the OP might want already be past the SOL depending on the DOFD and/or DOLA. Link to comment Share on other sites More sharing options...
nascar Posted October 27, 2008 Report Share Posted October 27, 2008 Actually, the SOL begins after the DOLA, date of last activity.The DOFD is used to determine the 7 year reporting period for a CR.The SOL, with respect to the filing of a lawsuit, begins when a cause of action accrues. That does not necessarily mean that it begins to run with the DOFD or the DOLA. The terms of the contract are the only determinant of when a material breach occurs- and in some cases that may not be either of the two aforementioned events. Link to comment Share on other sites More sharing options...
Focus2069 Posted October 27, 2008 Report Share Posted October 27, 2008 I filed for dismissal last week on the basis of no agreement,no statements, no case...but it got kicked to the curb by the judge denied on all counts. Saying the plantiff has the right to present it's case in court... how can they present their case, when they have provided NO evidence that they plan on using against you?everything they bring up should be objected to because you were not provided anything.However, I would file a motion to compel discovery, that way the Judge will make them produce the evidence. Link to comment Share on other sites More sharing options...
nascar Posted October 27, 2008 Report Share Posted October 27, 2008 I filed for dismissal last week on the basis of no agreement,no statements, no case...but it got kicked to the curb by the judge denied on all counts. how can they present their case, when they have provided NO evidence that they plan on using against you?There are a few reasons why your "dismissal" was rejected. First you are only entitled to file for "dismissal" at certain times of the proceeding and for certain reasons. Once the initial pleadings have been filed and the case has moved on from there, a "motion to dismiss" is no longer proper. If you submit one, which the OP appears to have done here, the judge must treat it as a motion for summary judgement and as such, it will be granted only if there are no remaining issues of material fact and the moving party is entitled to judgment as a matter of law.Since the plaintiff still alleges you owe the money and you still allege that you don't, there are still obvious questions of material fact. You can allege all day long that the other side has no evidence, but until you prove that none exists, the judge isn't going to rule in your favor. You've probably heard the saying, "absence of evidence is not evidence of absence." There ya go.As indicated in a previous post, document discovery was requested some 75 days ago and the plaintiff has not responded. That alone doesn't entitle you to do anything except request and order to compel the other side to produce what you have requested. You have not done that. Link to comment Share on other sites More sharing options...
remus936 Posted October 31, 2008 Author Report Share Posted October 31, 2008 Thanks for all your input..I wish I would have found this site a few months ago.I will file a motion to compel this coming week..What about the wrong entity is sueing me, they are claiming that I breached a contract with a entity that didn't even exist until 2007. Capital One Bank(USA)N.A. was not even in existance when all of this took place.Do I have any chance of pleading this in court?? This is the only company ever mentioned in the petition, if they produce any documents with any other enitity on them, can I use that in my favor?Again thanks for all who answer Link to comment Share on other sites More sharing options...
cap1kid Posted October 31, 2008 Report Share Posted October 31, 2008 The entity has legal right to sue you- I'm sure somewhere in the original contract it specifies the right to transfer the debt. you can argue it- but i think your wasting breath Link to comment Share on other sites More sharing options...
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