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My motion to vacate judgment was granted!


abmyers
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Now what?

So here is where I am:

Capital One had a judgment against me, and my motion to vacate default and default judgment was granted. I'm very pleased because I was never made aware of the case and the court agreed with me and now I have a chance to fight back. I was forced to answer the complaint, which I did, summarily dismissing all acusations and claiming a whole bunch of affirmative defenses.

I just sent their attorney a request for documents, basically asking for everything. I was planning on waiting to see what they send before I do interogatories or request for admissions.

So I guess now I wait. See what they send, if they send. My fear is that since this is the OC, they are going to have very good documentation.

I guess what I am asking for is some strategy from this point. This is my second case, and last time I ended up settling after discovery on favorable terms. I'm not opposed to settling this time but I kind of like the experience so any recommendations would be helpful.

Any recomendations would be helpful, but specifically here are some questions I have:

1.) If the records of the plaintiff are sent to me in a timely manner, and are complete, what should I consider next?

2.) If the plaintiff does not respond within 30 days should I ask for a motion to compel discovery?

3.) What trigger should tell me to start thinking settlement instead of victory?

4.) At this point there are no dates on the calendar. No case management, no trial. Should I ask for one or wait for the plaintiff to ask?

5.) The plaintiff did not show at the last motion so I kind of want to test them to see if they will show up. Are there any motions I can fil, other than compel discovery, that will damage their case if they don't show?

6.) Anything else I should do?

THANK YOU ALL FOR YOUR HELP

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  • 1 month later...

That would depend on a few things. You could roll to motions into one if there was something defective in their complaint (i.e. suing upon contract and no contract attached, if court rules required it). However in vacating a default you would mostly likely be best served by focusing upon the single issue at hand, that being getting the default vacated. Otherwise you risk getting bogged down in other issues.

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  • 1 month later...

Ok I found a defense I am using. Please help me with response to discovery.

Here goes:

1.) I will admit to entering into contract.

Interrogatories ask:

Identify all DOCUMENTS that are part of the agreement and for each state the name, ADDRESS and phone number of the PERSON who has each document.

I respond:

Plaintiff, or the attorney for plaintiff, is in possession of the following documents relating to the contract: “Customer Agreement”, periodic statements, payment records, and documentation to support the items that are not defined in the contract such as the periodic interest rate, the credit limit, the date that both parties agreed to enter into a contract and other items as that either party may later find to be evidence of the existence of a contract. Defendant demands that Plaintiff supply Defendant with any documentation mentioned above.

I present proof that the contract was verbal, or at the least fails to meet the strict definition of a written contract.

Interrogatories ask:

State each part of the agreement not in writing, the name, ADDRESS, and telephone number of each PERSON agreeing to that provision and the date that part of the provision was made.

I respond:

The Plaintiff asserts that the “Customer Agreement” is the governing contract for this agreement. The “Customer Agreement” makes references to terms stated outside of the “Customer Agreement” such as “Your initial credit limit will be disclosed when your account is opened”, “payments are to be made to the address for payment stated on your periodic statement”, and “You will be assessed finance charges as previously disclosed to you as part of the TILA Account Disclosures or as we will disclose to you if required by applicable law”. Further, the “Customer Agreement” lacks a signature from either party and does not show a concluded agreement between the parties.

Interrogatories ask:

Identify all DOCUMENTS that evidence each part of the agreement not in writing and for each state the name, ADDRESS, and telephone number of each PERSON agreeing to that provision and the date that part of the provision was made.

I respond:

The Plaintiff asserts that the “Customer Agreement” is the governing contract for this agreement. The “Customer Agreement” makes references to terms stated outside of the “Customer Agreement” such as “Your initial credit limit will be disclosed when your account is opened”, “payments are to be made to the address for payment stated on your periodic statement”, and “You will be assessed finance charges as previously disclosed to you as part of the TILA Account Disclosures or as we will disclose to you if required by applicable law”. Further, the “Customer Agreement” lacks a signature from either party and does not show a concluded agreement between the parties.

Interrogatories ask:

Identify all DOCUMENTS that evidence each part of the agreement not in writing and for each state the name, ADDRESS, and telephone number of each PERSON agreeing to that provision and the date that part of the provision was made.

I respond:

Defendant contends that Plaintiff is in possession of all documents that evidence the existence of an oral contract. Defendant has demanded production of said documents through discovery.

I admit to a breach of contract but force plaintiff to prove the date. (Should be June 2004)

Interrogatories ask:

Describe and give the date of every act or omission that you claim is a breach of the agreement.

I respond:

Defendant’s failure to pay timely interest and principal is a breach of the terms of the “Customer Agreement”. Defendant lacks the evidence to conclude the date to which a breach of contract occurred and has requested supporting documentation from the Plaintiff through discovery.

Interrogatories ask:

Identify each ambiguous agreement and state the facts upon which your answer is based.

I respond:

The agreement is ambiguous for the reasons stated in Form Interrogatories response 150.2. The terms of the agreement are not defined within the agreement and the agreement does not reflect evidence of either party agreeing to the terms and conditions of the agreement, as evidenced by a signature.

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Contend that the "Customer Agreement" is governed by the laws of Virginia rather than California for substantive issues, but admit that case is governed under the laws of California for procedural law.

Interrogatories ask:

State in detail the facts upon which you base your contention that you are not responsible in whole or in part for the plaintiffs damages.

I respond:

Plaintiff has brought a cause of action that is time barred under Virginia law. Plaintiff contends that Plaintiff and Defendant entered into an open contract. Plaintiff has produced a copy of a “Customer Agreement” that Plaintiff asserts is the governing document for said “open contract”. “Customer Agreement” has a choice of law provision outlining Virginia and Federal law as the governing substantive law. Under Virginia law, the statute of limitations for an open contract is three years which would have expired before the action was filed.

Feedback please!!!!!!!

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DOCUMENTS

You are requested to admit that each of the following documents, copies of which attached hereto is genuine:

1. The “Customer Agreement”, attached as Exhibit 1, which was sent to defendant as a response to a request for production of documents, is a true and correct copy of the “Customer Agreement” that was sent to defendant at the initiation of the contract period.

MATTERS OF FACT

You are requested to admit that each of the following facts is true:

1.) You admit that the “Customer Agreement” lacks essential elements of a written debt contract, such as the interest rate, the credit limit or a signature from the borrower.

2.) You admit that the “Customer Agreement” is governed by the laws of Virginia and Federal law as stated in “Customer Agreement” paragraph, “Applicable Law”.

3.) You admit that the statute of limitations for an open contract in the state of Virginia is three years.

4.) You admit that this account fails to meet the definition of a “written contract” and is classified as an open “account” under Virginia law.

5.) You admit that the statute of limitations for an open contract as defined by Code of Virginia 8.01-246(2) is three years.

6.) You admit that defendant did not make a payment on the account within the three years prior to the complaint filing date, December 10th, 2007.

7.) You admit that if Virginia law applies, the plaintiff’s cause of action is time barred.

8.) You admit that California Law applies for procedural law, and Virginia law applies for substantive law.

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