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Don't give up against Capital One.


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Here is a recent case favoring the Defendant. All this guy did was stick to it, answer interrogatories and requests for production of documents. There was even an "affidavit" from Cap One. State is California.

The big things

  • was no contract
  • outside SOL:
  • The defendant even admitted in court he had a card.

CLJ XXXXXXX CAPITAL ONE BANK VS Joe Consumer

CAPITAL ONE BANK FLINT C. ZIDE

Joe Consumer PRO PER

MOTION FOR SUMMARY

JUDGMENT/SUMMARY ADJUDICATION OF ISSUES FILED BY CAPITAL ONE BANK AGAINST Joe Consumer

This is a collection action alleging common count claims and breach of contract. Defendant’s objections to the declaration of Crystal Wright are SUSTAINED. The declaration filed January 14, 2009 is dated July 1, 2008.

There is no evidence of Defendant entering into a contract with Plaintiff (no signature on contract or otherwise a signed application). The only invoice on the subject credit card is a past due billing dated July 9, 2003. Thus, there is no evidence of any charges for purchases or otherwise by Defendant on this card.

The only evidence is Defendant’s candid admission in this opposition (entitled Motion to dismiss summary judgment filed January 20, 2009, indicating that “this will serve as a response to the points brought about by the Motion to Move for Summary Judgment”) that he did have a charge card with Capital One and made purchases, but Defendant disputes the debt. Plaintiff has simply failed to make a prima facie showing on the motion.

Further, the key issue raised is the affirmative defense of statute of limitations of four years. Both the opposition and the moving papers demonstrate that the debt existed prior to June 10, 2003. The Complaint was filed on December 5, 2007, more than four years hereafter. Accordingly it appears that Plaintiff cannot prevail.

Accordingly, Plaintiff’s motion for summary judgment is DENIED. Plaintiff’s alternative motion for summary adjudication of issues is also DENIED. The Court notes that the motion for summary adjudication of issues fails to comply with the mandates of CRC Rule 3.1350(B) and (h).· If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required, as the tentative ruling affords sufficient notice to the parties.

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