Texas county courts civil suit capOne

[energizer]

I have been sued in tx county courts by capital One for 2 business lines of credits and 2 credit cards for business. They have combined it all for one lawsuit demanding upto $.30k I am told I need to have an attorney reresented for I have a business account. Its also a guranty acct. Now my question is if today (before filing my answer) i dissolve my c corp then can I represent myself for the lawsuit.

I will follow the admin's profile of answringthe remaining parts of the laswsuit. later in the posts.

[Amerikaner83]

I don't know the answer to your question re: dissolving your business...but I just wanted to remind you that since this is a business debt, FDCPA does NOT apply. So don't even utter the words FDCPA/FCRA in your Answer.

[energizer]

1. Who is suing you?

Capital One NA for 2 business lines of credit and 2 business credit cards (Mastercard)

Represented by: Local Law firm (I presume its a debt collector)

2. For how much?

~$28,165 + atty fees on 4 different accounts combined in one lawsuit

3. Who is the original creditor?Capital One Na

4. How do you know you are being sued?

Summons given to me

5. How were you served? Were you served?

Served by a 3rd-party summons person at my house.4th December 2008.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

Settlement offers @ 25% CMRRM notification of do not contact (cease and desist).

7. Where do you live?Texas

8. When is the last time you paid on this account?June/July 2008

9. What is the status of your case

An original petition is filed with the courts. Have filed my answer with the courts.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Yes and no response from credit bureau!!!except on just one of the four accounts.

11. Did you request debt validation before the suit was filed?

Have requested debt validation on lines of credit accounts.

12. Does your summons require a response?. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Yes. I have responded by filing an answer with the courts.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

Evidence submitted with the summons is as follows

Exhibit A: Consumer Line of Credit Agreement on PLOC-(Personal Line of credit)

Exhibit B: PLOC statement (latest)

Exhibit C: Loan Application-Original application as applied

Exhibit D:Notice of Loan Approval- Business Line of Credit (BLOC)

Exhibit E: Loan Application-Original-Application as applied for my credit card

Exhibit F: Business Mastercard application-Original application as applied

Exhibit G: Business MasterCard Agreement-Card Agreement

Exhibit H: Business MasterCard Monthly Statement

The notes are as follows:

Note 1: Overdraft Protection- Line of Credit- Max limit $5k

Note 2: Business Line of Credit- Limit $14k

Note 3: Business Mastercard- KFGMC-Limit $6000

Note 4: Business MasterCard-AMC-Limit-$2500

All above notes were maxed out

Total amount sued for is $ 28,165.72

At 50% settlement its $14,082.86

No stmt from the original creditor or no request for admissions/production/interrgoatories requested. No affidavits attached to the summons either.

All the business lines application comes with a gurantor signature. a Gurantor agreement

The original agreements were with a different bank which was taken over by Capital One.

If SOL will not apply, what other options of defense do I have?

Will any of these defenses have validity in Texas?

3- Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

4- Plaintiff’s Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

5- Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6- The Plaintiff has failed to provide any contract or agreement bearing the signature of the Defendant, nor any itemized statements of said debts.

7- Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

8- The Plaintiff has failed to provide any proof of a relationship between themselves and the alleged original creditor, specifically the authority of the Plaintiff to collect the debt on behalf of the original creditor.

9- Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

10- Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

[notagain]

If SOL will not apply, what other options of defense do I have?

Will any of these defenses have validity in Texas?

3- Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.if you didn't agree to anything with cap 1, I would think this would be valid

4- Plaintiff’s Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.ditto

5- Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.always

6- The Plaintiff has failed to provide any contract or agreement bearing the signature of the Defendant, nor any itemized statements of said debts.if true, of course

7- Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.someone said no... But, since cap 1 is a jdb in this case, maybe fdcpa applies? I don't know...

8- The Plaintiff has failed to provide any proof of a relationship between themselves and the alleged original creditor, specifically the authority of the Plaintiff to collect the debt on behalf of the original creditor.yes

9- Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.great

10- Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.good

[Amerikaner83]

REMEMBER:

FDCPA IS IRRELAVENT in this case!!!!! Business Debt is NOT covered under the FDCPA. Do not even breathe the word FDCPA, OK?

[energizer]

Its one of those credit cards where in you sign up for a business credit, (business LOC) and you are also personally liable. (on your SS#).

Does that change anything. If you were issued a credit card, line of credit based on your business and yoou can show multiple uses (personal and business, hopefully >50% as personal) does that change anything. In the meantime, if the business is dissolved (C-corp no longer exists) in and during the lawsuit, is that a good or bad thing.

[docniss]

Its one of those credit cards where in you sign up for a business credit, (business LOC) and you are also personally liable. (on your SS#).

Does that change anything. If you were issued a credit card, line of credit based on your business and yoou can show multiple uses (personal and business, hopefully >50% as personal) does that change anything. In the meantime, if the business is dissolved (C-corp no longer exists) in and during the lawsuit, is that a good or bad thing.

energizer, my experience is that you are responsible for credit taken out in your business name. I am an s-corp so I don't know if there is a difference with a c-corp, but if they have your ss# then they got you. which of course you might be able to use the FCRA/FDCPA regulations with that. I did and it worked for me.

If you are denying the debt in your Answer than you do not want to "show multiple uses (personal and business, hopefully 50%..." you are contradicting your Answer, and therefore lying in court documents.

I don't think you can eliminate this problem by dissolving the corporation, first you used your ss#, second, if the suit includes your business name and it was active when the suit was filed then you may face some other issues such as dissolving the corp to be self serving.

But, I am NOT a lawyer or paralegal, I am just a entrepreneur that has had to deal with my own issues of this nature so I have learned a lot over the years. I am sure the legal minds can chime in here.

[KentWA]

Actually if they have been pulling your credit report and listing TL's I believe you may have a cause of action(s). Read the below linked FTC letter and research closely any cases cited. I have not dug into this and it is something I ran across in other research, so I can not offer any guidance. However from the quick read of the FTC letter it looks like getting a CR or listing on the credit repoert any business related stuff is a violation. This could mitigate damages if they have been at this for a bit.

http://www.ftc.gov/os/statutes/fcra/tatelbaum.shtm

[energizer]

If it is a biz acct isnt that supposed to be reported on a busines credit. I am only showing an overdraft personal acct showing up on my 3 bureau reports.

As for TradeLines, there is only one reported, however, there is no inquiry from the lawyers representing cap1. All inquiries are from original creditor cap1

What do you think will be the likely outcome from this. A July 1, 2009 court date has been set. I am now represented by a lawyer.(As of Mar 30, 2009).

My lawyer has asked for violation of privacy notices and many other requests that have not been attended to. Cap1 lawyers just dont respond to my lawyers or return back any info. What does that suggest?

[energizer]

i was unable to show any income (net income on 09,08, and 07) had been negative and i was able to get away with $30,000 in lines of credit, credit cards and overdraft charges on my crap1 account.

wola