Cap one......real party in interest????

[IrishDMBF]

I don't know if some of you remember my story but I am being sued supposedly by Cap One with WWR as attorneys

The judge ordered discovery on Dec 16th to be complete today Feb 17th.

They sent me their discovery to be completed within 30 days.....I responded to their discovery CMRRR.

I sent them discovery January 5th. I gave them 28 days to respond which is the minimum amount of time allowed under OH Rules of Civil Procedure. They recieved my discovery Jan 7th (CMRRR) My discovery was 3 pronged.....the usual.....interrogatories, requests for admissions and production of documents. I included a certificate of service and also sent a notice of service of discovery requests to the court. I stated in the request for admissions that if they didn't admit or deny within 28 days then the court would deem all admissions admitted. According to the CMRRR 28 days expired Feb 4th. Today is Feb 17th and I still haven't heard anything....so I guess the admissions are deemed admitted.

So what were in the admissions?????? I asked them to admit that Cap One had transferred all rights to the account to WWR, that Cap One has no direct knowedge of the litigation initiated by WWR and that should the plaintiff prevail that WWR would retain the majority of the funds. By not responding these admissions WWR have basically admitted that Cap One is not the real party in interest????

The judge has given us until Feb 27th to submit supplementary material to both of our MFSJ. Both parties submitted MFSJ a long time ago but the judge didn't rule on them because WWR wanted an extension of discovery. They didn't conduct discovery first time around but when they submitted the statements that they had I was able to produce a lease that showed I didn't live at some of the addresses in the statements. The judge also said that their affidavit in support of the MFSJ was not sufficient because the affiant wasn't competent to testify.

So I am going to submit a supplement to my MFSJ saying that Cap One is not the real party in interest and the case should be dismissed. Also since WWR have the rights to the case they are subject to the FDCPA and ORC 1319.12 which states that they have to show a valid assignment of the debt from Cap One to initiate litigation. I asked for this in discovery but didn't get it.

Am I on the right path???? Is there something else you would do?

I appreciate all the advice in this forum

I

[agin]

I am very new here but I would say that when they did not respond it says they don't have anything. I would start looking a counter claim.

Try talking to the clerks office as a rule they don't like JDB's and may be able to point you towards the direction you need to look. They will not give you legal advice.

This site is great so keep searching and reading

Good luck

[debtorshusband]

I think it's customary when one party doesn't respond to Discovery, for the other party, as a show of "good faith" to give them one more chance: another letter reminding them to respond, or else a Motion to Compel will be filed. The Motion to Compel is usually accompanied by request for sanctions, i.e., the other side gets fined.

DH

[nascar]

Motion to Compel

A Motion to Compel would not apply to a Request for Admissions. If the requests are not answered within the statutory time period, they are admitted.

On another note, I don't think that you'll have a lot of success getting the court to order the law firm to release information pertaining to the payment arrangements between the client and the attorney. You might consider rephrasing your questions.

[IrishDMBF]

On another note, I don't think that you'll have a lot of success getting the court to order the law firm to release information pertaining to the payment arrangements between the client and the attorney. You might consider rephrasing your questions.

At this point I don't really need the payment arrangements documents because by not responding the the requests for admissions they have already admitted that the law firm have the rights to the account, that Cap One has no direct knowledge of the litigation and that the law firm would get the majority of the proceeds of the case.......which would make the law firm the real party in interest

As far as I can see the rest of the discovery is meaningless if they didn't respond to these requests for admissions.

[admin]

Who is WWR?

[IrishDMBF]

Who is WWR?

Weltman Weinberg and Reis

[cjtx]

It would have been interesting to see what they responded about the assignment of the debt.

Crap1 usually assigns the debt to a national attorney network such as Trak America (a debt collector) which in turn hires a local attorney in the customer's state to file suit.

It is probably not a sold account, or at least it must have some clauses so they can kick it back to Crap1 when the consumer fights back.

You probably have enough with the admissions for a SJ or at least a partial SJ if you filed any counterclaims... in which case you probably need to compel discovery.

[admin]

http://www.weltman.com/

These guys sound like third party collectors to me. I'd scrutinize any evidence they present.

[IrishDMBF]

It would have been interesting to see what they responded about the assignment of the debt.

That is what I was trying to get at.

You probably have enough with the admissions for a SJ or at least a partial SJ if you filed any counterclaims... in which case you probably need to compel discovery.

If I submitted the compel motion now it takes 3 weeks and a day for the motion to be put on the calendar so therefore it would be adjudged on our next day in court which is March 9th. I would rather hear the judge say that Crap one is not the real party in interest and then orally motion for the order to compel because at that point they can't hide behind any sort of priviledge. Those documents would be needed to show they had a legal right to collect on the case.

http://www.weltman.com/

These guys sound like third party collectors to me. I'd scrutinize any evidence they present.

Trust me I have looked them up and I agree with you. Everything I have read on them suggests collectors but they are sueing with Cap One named as the plaintiff

I hope I have got them where I want them and that they don't try to pull a fast one because I can't figure out why they didn't respond to discovery. Something tells me they are going to try and claim that they didn't receive it but I sent it CMRRR so I have proof plus I also filed a notice of service with the courts and also included a Certificate of Service.

Everything I have read on Ohio RCP tells me my discovery requests were in the correct form.

[cjtx]

WWR works with several CAs like LVNV. I believe their caseload is huge given the number of CAs they collect for, and if there is no incentive to defend themselves in the form of counterclaims, it would be a waste of their time to bother with your case's discovery. It costs time to respond when they could be collecting from someone else. Someone who will pay without putting up a fight.

I think this case was written off as a loss a long time ago. They just tried to get you on a technicality, missed hearing, some error, etc.

[IrishDMBF]

WWR works with several CAs like LVNV. I believe their caseload is huge given the number of CAs they collect for, and if there is no incentive to defend themselves in the form of counterclaims, it would be a waste of their time to bother with your case's discovery. It costs time to respond when they could be collecting from someone else. Someone who will pay without putting up a fight.

I think this case was written off as a loss a long time ago. They just tried to get you on a technicality, missed hearing, some error, etc.

There were no counterclaims. I am just trying to defend myself against the lawsuit.

They sent me discovery and I responded but I will wait and see if they submit anything to the court before the end of the month so they at least tried to send me discovery.....and trust me the discovery was extensive. I didn't give them much to go on because I had nothing of what they were asking.

[IrishDMBF]

Ok, so the deadline to submit supplementary stuff in support of their MSJ came and went and they submitted nothing.

I submitted my supplementary stuff in support of my motion to dismiss, basically saying that Cap One was not the Real Party In Interest, therefore WWR are subject to FDCPA and ORC 1319.12 and have shown no proof that they have any right to collect on the debt. I objected to the statements they previously submitted as hearsay since WWR are not the the OC.

I have read Ohio's RCP and it says a case can be dismissed upon order of the court. This judge is really thorough. The previous time we went before him he had everything read in minute detail which means he didn't just read it right before we came into the room. Court is next monday (Mar 9th) and I am wondering if he reads the file between this and then, do you think its possible that he could dismiss without having to go to court next monday.....since WWR did not bother to respond to my discovery and did not submit anything in support of their MSJ which the judge thought was insufficient as it was but did give them an extension to discovery (I responded to their discovery by the way) It appears to me and hopefully to anyone that reads the case file that WWR has just given up.

I just want this over with.

[Recovering Attorney]

If Cap One is the plaintiff, Cap One owns it adn WWR are merely collecting it.

If you make a MSJ relying on the N/A, remember that the court court still scrutinize the statements for propriety even if they did not answer them. You amy o rmay not get past that, but the judge will understand where you were going with it.

[legal_loansharking]

Prior to court after 5:00 PM EST, call the 800 number on the top of your credit card statement after you enter your cc account info, it will automatically re-direct you to TrakAmerica.

As evidence in court, you should request that a phone call is used as evidence to support your claim. Call the number on the statement and go through the prompts and show the judge that this debt has been farmed out to TrakAmerica and this attorney is a debt collector also as he is not an employee of Trak or Capital One , he is an independent contractor. This should be sufficient to prove everything is hearsay.

[IrishDMBF]

If Cap One is the plaintiff, Cap One owns it adn WWR are merely collecting it.

If you make a MSJ relying on the N/A, remember that the court court still scrutinize the statements for propriety even if they did not answer them. You amy o rmay not get past that, but the judge will understand where you were going with it.

They can't win their MSJ right????? because the judge previously said it was insufficient but extended discovery. Everyone had until last friday to submit supplementary material. They submitted nothing. If they have other evidence they can't use it because they didn't turn it over in discovery.

What if they don't show up in court next monday because they haven't returned my discovery or submitted supplementary material???

[TwitterPated]

I am new so I am unable to post links, but right here on this site there is a link that describes the problem you are having:

In part it says: Mr. Mills was sued by Pressler and Pressler, who named “Capital One” as the Plaintiff in the case. It turns out that Cap One no longer owned the account which was the subject of the lawsuit, but had charged it off. [emphasis added] During the court proceedings, according to Mr. Mills, Mitchell Williamson of Pressler & Pressler admitted that AMER-TRAK or TRAKAMERICA assigned Pressler & Pressler the alleged account admitting that they were not hired by Capital One Bank!

From what I read, this is common for Cap One suits. I am in litigation with Cap One....and the "attorney" is actually a collection agency.

[admin]

This guy posted this on my blog and I was wondering if any one else had heard something about it...

Much of what you have said here is correct but the United States Supreme Court has ruled that debt collectors who have been assigned to collect a debt may sue in the name of the original creditor. The Supremes were strangely silent about debt buyers who have purchased the debt.

What ruling was this???

[TwitterPated]

This guy posted this on my blog and I was wondering if any one else had heard something about it...

What ruling was this???

Using this thread as the example...Cap One is governed by the State of Virginia. If a CA sues on behalf of an OC, they are guilty of Unauthorized Practice of Law.

I cannot post link yet due to newbie status. Feel free to PM me (if that's allowed!) for the link.

VIRGINIA UPL OPINION 203

Collection Agencies Obtaining Assignments of Judgments From Creditors and Proceeding Pro Se to Docket And Collect on the Judgments and Preparing All Necessary Pleadings Without Representation of Counsel

This will respond to several inquiries requesting an Unauthorized Practice of Law Advisory Opinion regarding whether a collection agent or agency or other type of “judgment recovery�? agent or agency, acting pro se, can docket judgments which creditors have assigned to them and proceed, also pro se, to execute and collect on those judgments as the original creditor could do. Three specific situations in this context were presented.

In the first situation, an individual, holding himself out as owner of a judgment recovery service, wrote to the court requesting that the clerk docket several assignments of judgment which he had obtained from judgment creditors. In his correspondence to the court, this individual advised that he had acquired the assignments of judgment by offering the creditor a “small purchase price ($1.00-$5.00) as due consideration plus a percentage of whatever money [he was] ultimately able to collect from the debtor.�? He also included copies of the assignment contracts which he and the creditor had signed. It was this individual’s position that as “owner of the judgment,�? he/his company had “the authority to file the proper forms to seize, garnish and/or lien assets-ultimately recovering funds for the benefit of both parties.�?

In the second situation, another individual approached the clerk of court requesting information as to the procedure for docketing assignments of judgment; he did not present the same to the clerk for actual filing. In this instance, the clerk of the court provided the individual with information regarding Unauthorized Practice Rule 3 and statutory provisions addressing practice and procedure for assignment and execution of judgments. The individual responded in writing to the clerk addressing how the Rules and statutes did or did not apply to him. Unlike the first case, the information the individual provided to the clerk suggested that the assignments that he obtained were complete assignments, with the creditors having no further interest in the judgment. Nor did there appear initially that there was there any “contingency�? fee contemplated as in the first scenario wherein the creditor would share in a portion of any recovery. However, in a later written response from this individual, he suggested that this may not be the case, stating “I believe it is within the law for me to compensate an assignor based on a percentage of the recovery as long as I, as the judgment creditor, enforce the judgment myself.�?

In the third situation, a collection agent/agency sent correspondence to a creditor and a creditor’s attorney offering the agent/agency’s services to collect outstanding judgments. The agent offered to:

. . . do all investigations, asset searches, filing, garnishment processes, service and liens. All with the ultimate goal of collecting your judgment. Upon successfully [sic] collection your judgment, our company will return a substantial percentage to you. Again, THERE IS NO UP FRONT COST TO YOU. (Emphasis added).

The controlling Unauthorized Practice Rules are UPR 3-103 © and (D), Preparation of Documents:

© An agency shall not prepare for others any document which requires legal training or the application of legal principles to factual situations except as authorized under these Rules.

(D) An agency shall not use any letters or forms which threaten the institution of legal proceedings or simulate judicial process or notice of judicial process.

<CLIP> More to follow...

[TwitterPated]

Continued:

Also, UPR1-101 (A), Representation Before Tribunals:

(A) A non-lawyer, with or without compensation, shall not represent the interest of another before a tribunal, otherwise than in the presentation of facts, figures, or factual conclusions, as distinguished from legal conclusions.

The Rules also recognize and affirm the right of a non-lawyer to represent himself:

The right of individuals to represent themselves is an inalienable right common to all natural persons. But no one has the right to represent another; it is a privilege to be granted and regulated by law for the protection of the public.

Va. S. Ct. R., Pt. 6, §I. Unauthorized Practice Consideration 1-2 reflects this same principle: “A non-lawyer may represent himself, but not the interest of another, before any tribunal.�?

There are also statutory provisions which effect the situation you have presented, in particular, §8.01-452 Entry of assignment of judgment on judgment lien docket:

“Whenever there shall be an assignment of a judgment, there may be a notation of the assignment made upon the judgment docket, where the same is recorded, by the clerk. An assignment, in order to be so noted, must be in writing, showing the date thereof, the name of the assignor and assignee, the amount of the judgment, and when and by what court granted, and either acknowledged as are deeds for recordation in the clerks’ offices of circuit courts in this Commonwealth, or signed by the assignor, attested by two witnesses; or such judgment may be assigned by notation on the margin of the judgment lien docket on the page of the book where same is docketed, by the judgment creditor or his attorney of record, and attested by the clerk. The assignment, after the same is noted upon the judgment docket as is herein provided, shall be filed by the clerk with the other papers in the case in his office. When such assignment is made and noted as herein provided further executions shall be issued in the name of the assignee as the plaintiff in the case.�?

Sections 8.01-466 (issuance of fieri facias on judgment for money) and 8.01-511 (institution of garnishment proceedings) both reference an assignee of a creditor as being able to pursue these actions.

On a judgment for money, it shall be the duty of the clerk of the court in which such judgment was rendered, upon request of the judgment creditor, his assignee or his attorney, to issue a writ of fieri facias at the expiration of twenty-one days from the date of the entry of the judgment and place the same in the hands of a proper person to be executed and take his receipts therefore.

Va. Code Ann. § 8.01-466.(Emphasis added.)

“No summons shall be issued pursuant to this section at the suggestion of the judgment creditor or his assignee against the wages of a judgment debtor unless the judgment creditor, his agent or attorney, shall allege in his suggestion that . . . a good faith effort has been made by the judgment creditor, his agent or attorney, to secure the social security number of the judgment debtor.�?

Va. Code Ann. § 8.01-511 (Emphasis added).

In Unauthorized Practice of Law Opinions 120, 150, 151 and 194, the Committee addressed the general issues of what services a collection agency can provide to a creditor to assist in collection of a debt or judgment and what actions non-attorneys can take before a court on behalf of another. UPL 120 reviewed the assignment of claims to a collection agency and the agency's engagement of counsel to pursue these claims. In this opinion, the Committee found that it was not unauthorized practice of law for the agency to hire counsel to collect the claim on the agency's behalf, if the creditor had assigned the claim to the agency for a “fixed consideration�? and retained no interest in the claim. On the other hand, if the creditor assigned the claim to the agency on a contingency basis, wherein the creditor would be paid a percentage of any recovery which the agency was able to obtain on the claim, then the Committee found that the agency's engagement of counsel to pursue the claim in the name of the agency was unauthorized practice of law if the agency did not comply with Unauthorized Practice Rule 3.

[TwitterPated]

Continued:

In UPL opinions 150 and 151, the Committee found that it was unauthorized practice of law for a collection agency or its lay employees to: 1. refer claims to the agency's own counsel without allowing the client to choose his own attorney; 2. collect and disburse monies, including attorneys’ fees, and initiate decisions to continue cases; 3. interfere with the relationship between the attorney and the creditor and act as the only conduit of information between the two; 4. to prepare warrants in debt, either under specific instructions from an attorney selected by the creditor or on their own, using information obtained from the creditor and filled in on pre-printed forms and sent to an attorney for review and filing with the court. In UPL opinion 150, the Committee specifically found that a warrant in debt could be prepared only by the creditor himself, by an attorney licensed to practice law in Virginia or by the licensed attorney's bona fide employee under his direct supervision.

Finally, in UPL Opinion 194 the Committee addressed the authority of a power of attorney to file a Motion for Judgment on behalf of another. The Committee found that the authority granted in a power of attorney does not extend to allowing a non-attorney to prepare, sign, file pleadings and appear in court on behalf of another. A general power of attorney does not confer the legal authority to practice law on behalf of another.

After reviewing the cases presented in the inquiries and applying the authority cited herein to the cases, the Committee opines as follows:

1. In all three cases presented, the Committee finds that actions by the agent/agency to docket and collect on the judgment through available enforcement proceedings, are the unauthorized practice of law. In all cases the original creditor still has an interest in the collection of the judgment since he/she will share in any recovery. The agent/agency is not representing itself alone, but also the interests of the original creditor. Under UPR 3-103©and(D), UPR 1-101(A) and the decisions in UPL opinions 120, 150 and 151, such action by the agent/agency is the unauthorized practice of law. The agent/agency is a non-lawyer attempting to prepare, sign and file pleadings and appear before a court on behalf, not only of him/itself, but also on behalf of the original creditor. This is improper. The distinction between assignment of a cause of action and an assignment of a judgment makes no difference. In pursuing a recovery of a judgment, the methods available, i.e., debtors’ interrogatories, garnishments, writ of fieri facias, all require the preparing, filing and signing of pleadings or petitions which constitute the practice of law, and when done on behalf of another, can only be done by a lawyer.

In all three situations, the judgment recovery agency procures what it describes as an assignment from the original creditor for the purpose of filing enforcement actions in the agency’s own name. However, in each situation, the contingent fee relationship remains the same. The collection agency cannot carry on the business of practicing law by the device of taking assignments from judgment creditors and proceeding in its own name. See, e.g., State ex rel. Norvell v. Credit Bureau of Albuquerque, 85 N.M. 521, 529, 514 P.2d 40, 48 (1973) (assignments taken by collection agency were not in truth assignments acquiring title and ownership but rather to facilitate furnishing legal services for consideration); J.H. Marshall & Assoc. v. Burleson, 313 A.2d 587, 596 (1974) (taking of assignment from creditor does not change the basis fact that collection agency is providing legal advice and services to another for profit on a contingent fee basis).

2. With regard to a situation where the collection agent actually has the judgment assigned to him completely, with no further involvement by the creditor, and no sharing of any funds recovered, the Committee finds that actions brought before the court by such an agent to docket and collect on the judgment are not the unauthorized practice of law.

[TwitterPated]

And lastly:

Section 8.01-452 allows for the assignment of a judgment and the docketing of that judgment. The assignment and the docketing, in and of themselves, are not the unauthorized practice of law as the statute itself allows that the judgment creditor can make the assignment and docket such assignment him/herself, with no requirement that an attorney perform this task. As to execution on the judgment, the statute provides that “further executions shall be issued in the name of the assignee as the plaintiff in the case.�? If the assignee has a complete assignment, he/she is now “the�? creditor and can proceed to collect on the judgment in the same manner as the original creditor could proceed, including filing necessary pleadings and appearing before the court pro se. This is supported by the language in the fieri facias and garnishment statutes. There is no unauthorized practice of law because, with a complete assignment, the assignee is not preparing legal documents for, or appearing before a court on behalf of, another; the assignee is performing these tasks for him/herself only. The original creditor no longer has any interest in the judgment, nor is he/she going to share in any recovery which the assignee obtains.

The decisions in UPL opinions 120, 150, 151 and 194 do not dictate a contrary conclusion than that which the Committee has reached herein. These opinions found unauthorized practice of law to exist when a non-attorney or non-legal entity was attempting to assert an action, file legal documents and appear in court on behalf of another. In the case of a collection agent/agency which has a complete assignment of a judgment, it is not proceeding on behalf of anyone; it is proceeding to enforce its own claim to a judgment. As assignee, they have a right to pursue collection as if they were the original creditor, with or without counsel.

This opinion is based only on the facts presented and is subject to review by the Supreme Court of Virginia pursuant to Part Six: Section I: ¶l0(f)(iii) of the Rules of the Virginia Supreme Court.

A Copy,

Teste:

Clerk

Updated: August 28, 2006

[admin]

OK - now I'm going to have to read all this.

[TwitterPated]

OK - now I'm going to have to read all this.

Errrr....sorry! I can't post links yet so I apologize for the clutter.

In summary, and according to MY interpretation, the CA cannot represent themselves in Virginia Courts "pro se" if they are not an attorney in the first place. The OC must retain counsel to act on their behalf. If the OC no longer holds any interest of the debt (ie, chargeoff, writeoff, etc.) then the CA cannot represent the OC in a court of law in any way.

I posted this in case it may apply to the OP's concern. However, I apologize if it does not.

[admin]

Errrr....sorry! I can't post links yet so I apologize for the clutter.

Keep posting.