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Being sued in Colorado, first post ...


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Hi all, I have received an incredible amount of information from this site. Working on my answer and would love any input.

First here are the basics:

1. Who is suing you? Capital One via a debt collector.

2. For how much? Around $6,000

3. Who is the original creditor? Credit Card company

4. How do you know you are being sued? Served summons, complaint, and "EZ Offer Form" May 16th, 2009. Served in Person at my door when I answered.

5. What was your correspondence (if any) with the people suing you before you think you were being sued? None.

7. Where do you live? Colorado.

8. When is the last time you paid on this account? Don't know.

9. What is the status of your case? I have called the court and although it has been served on me, it has not been officially filed with the court yet. (In colorado they have 15 days after service to file with the court.)

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. I did it anyway, when I received the summons and complaint. It was sent via certified mail on May 18, 2009, and received by them on May 19, 2009. As of this morning, they have still not officially filed the complaint with the court.

13. What evidence did they send with the summons? Just a generic unsigned "customer agreement" from 2005.

Their complaint states:

1. Venue is proper, (states my address)

2. The amount Plaintiff claims from Defendant is $(around $5,000) which represents the balande of the account stated, plus interest of $ (around $500), attorney's fees ($700) plus Court costs and interest at the rate of 25.9% annum.

3. The Plaintiff's claim arises from the Defendant's failure to pay the liquidated balance due on #(account number) as required by the cardholder agreement, whose terms are incorporated herin by reference.

4. The Defendant is not a minor, an incompetent, or in the military service, but is engaged in civilian pursuits.

5. Plaintiff does not demand a Jury trial.

Here is my answer so far.

The Defendant, XXXX, answer(s) the complaint as follows:

1. The amount of damages claimed to be due to the Plaintiff by the complaint in this action is not due and owing for the following reasons:

a. Plaintiff fails to state a claim upon which relief can be granted.

1.The plaintiff has attached one exhibit to their suit. This is a generic “customer agreement” dated 2005. This is unsigned by the alleged debtor.

2. The “customer agreement” stipulates that Virginia law applies to the agreement.

3. Virginia law requires that suit upon an alleged contract requires that the original signed and written contract be presented for any complaint based upon a contract. § vscr-7B:5, § 8.01-27

4. Plaintiff’s suit should be dismissed for failure to state a prima facie case upon the facts stated and exhibits attached.

b. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

c. The unsigned “Customer Agreement” attached to Plaintiff’s complaint is from 2005. Plaintiff has failed to show that this action is within the Statute of Limitations for either Colorado or Virginia. Defendant in good faith upon knowledge known to date asserts this action is outside the Statute of Limitations in Colorado and Virginia.

d. Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

e. Plaintiff has claimed interest in the amount of 25.9% on any judgment. This is in violation of Colorado law and Virginia law, as there is no evidence of any signed contract allowing for interest beyond that allowed by Colorado law or Virginia law. Virginia code § 6.1-330.54, Colorado code §5-12-101.

f. Plaintiff’s alleged damages are limited to real or actual damages only.

g. The Attorney for Plaintiff has not proven in their complaint that they were retained by named Plaintiff, Capital One Bank, N.A., as its representative in this matter. Defendant, in good faith and upon reasonable belief, questions Capital One as the real party in interest based upon the following:

1. There are examples of Debt Collectors fraudulently suing in the name of the Original Creditor, especially Capital One. See Exhibit A, attached.

2. In addition, XXXXXX, a named Attorney for Plaintiff in this suit, is an admitted buyer of charged-off accounts in the normal practice of his firm. See Exhibit B, attached.

3. The issue of whether XXXXXX is in fact an attorney firm suing on behalf of Capital One or a debt collector suing in their own interest or someone else’s interest besides Capital One on a Charge-off (as attorney XXXXXX claims he does in Exhibit B) materially affects the defense of this suit.

4. Defendant demands strict proof of ownership. Specifically that the alleged account is still the legal property of Capital One with all of the original creditor’s rights and privileges intact.

5. Defendant demands strict proof that XXXXXX has been hired to represent Capital One in this matter.

6. As Defendant does not have enough information to determine the validity of Capital One as the real party in interest and actual Plaintiff in this case, Defendant asserts the following defenses to preserve them:

a.

Motion to Dismiss with prejudice for lack of standing

b. Contributory negligence

c. Assumption of risk

d. Unjust Enrichment

e. Lack of Privity

I am just starting on my counter claims, so anything you can think of would be great. Or any advice on my answer of course.

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you need to add in your defences.

defendant basis these claims on Rights Affored to defendant, per the FDCPA 15 U.S.C. and your state laws ( fair debt collections) ,

what this means, is that YOU have rights and you know you have rights , the Law says so,,and heres the law that states that..Plaintiffs have no grounds to say you dont have a "claim for relief", they going to argue the FDCPA?

if you dont add that, you will get :

Defendant fails to state a claim upon which relief can be granted, in thier answer,

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ok thanks. I also have a few counterclaims. BUT these are against the attorney who is suing on behalf of the actual plaintiff (Crapital One). Do I still put these in my answer? Or cannot I not do that because the attorney is not technically the "Plaintiff"?

Do I have to file seperately against the attorneys? Or can I just put them in my answer as counterclaims?

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ok thanks. I also have a few counterclaims. BUT these are against the attorney who is suing on behalf of the actual plaintiff (Crapital One). Do I still put these in my answer? Or cannot I not do that because the attorney is not technically the "Plaintiff"?

Do I have to file seperately against the attorneys? Or can I just put them in my answer as counterclaims?

when you do your answers you may file counterclaims , list right after your affirmitve defences , and as for counterclaims

Plaintiff:Violated 123 on X ....Per ( state code 123) stating briefly what the violation was , by calling defendant 30x day

therefore defendant request/prays for ect..

a dismiss w preju

b, damages per FDCPA...

ect

the CA and Atty are the plaintiffs

you may have to pay a filing fee for the counterclaims, usually its the same amount as the original fee,,a good counterclaim should be able to stand on its own merits, AKA if you intended to sue it could be a solid case . and again state your claim ( FDCPA 15USC & state law codes) as your basis to sue for the damages Ie: award violations of 123. per FDCPA 15 J is $X.00, state violations ect..

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Thanks again for the response.

I just started confusing myself when I was writing up the counterclaims. The only named "Plaintiff" is crapital one. And my counterclaims are all relating to the attorney firm representing them, so wanted to make sure I didn't need to file something else to make sure they were "covered" by my counterclaims.

(the counterclaims mostly relates to disclosures of debt to third party through repeated voicemails). And a couple about the validity of the initial written notice.

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Thanks again for the response.

I just started confusing myself when I was writing up the counterclaims. The only named "Plaintiff" is crapital one. And my counterclaims are all relating to the attorney firm representing them, so wanted to make sure I didn't need to file something else to make sure they were "covered" by my counterclaims.

(the counterclaims mostly relates to disclosures of debt to third party through repeated voicemails). And a couple about the validity of the initial written notice.

you need to have a signed noterized affidavted from the 3rd party

with thier name, time of call, what the caller said,,who they talked too ect..

copy all recordings in order, , then have transcript made( there are pros that do this) have the transcript also noterized, File a copys to the court, send to atty,, later bring the recordings into court

Then watch them Crap themselves.., I had this done, first filed a another "addional counterclaims" about the call, sent that to atty,, ( they denied) then slapped them with the affidavted and transcript. of course all filed with the court,, :twisted: wondering how they gonna get out of that...

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you need to ask for:

REQUEST FOR PRODUCTION OF DOCUMENTS

COMES Now Defendants (name), and files this Request for Production of Documents, and requests the Court to grant such Motion based on facts stated below:

Copy of (Collections )Phone Recordings in any format,Dated X-X-X FROM Phone Number(XXX) made TO (XXX)

Copy of Phone Recordings In Any format , Dated X-X-X, TO Phone Number X-X-Xmade or recieved between the hours of X am & X Pm From XXX

( fill in as close to the actual time like if they called at 9am to say 9:10 am

&list each call seperate)

Copy of any and All records Kept by (Collections) on Defendants, together or seperatly by (Collections)

To include Phone calls, notes, Any and all written communications in said Files Kept by (Collections) on Defendants.

Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the Defendants

including any and all recordings, notes, credit reports,

YOU MUST attach a "permission granted to access phone records" from the 3rd party or they will balk saying they cant "disclose" information on a number thats not yours

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Thanks for all that information. I already made recordings of the calls on my puter (and he is still saving them on his phone). Then I burned three CDs JUST to make sure they didn't get accidentally lost (or if my puter crashed or something). But I will find someone to professionally transcribe it, too.

I figured I would have to do an affidavit from him. But will make sure to have a signed permission too.

Thanks for the discovery suggestions too. Discovery is kind of limited because I have to follow "simplified civil procedure" for County Court in Colorado, which doesn't have a normal discovery process, but If I understand right, I can request discovery at the pre-trial hearing.

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Does your state allow the recording of phone calls without notifying the party that they are being recorded?

:)++ It might be helpful to let other readers know which state says what as a point of reference.

38 states and the D.C. permit recording telephone conversations to which they are a party without informing the other parties that they are doing so.

12 states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington

Of course if the other side gives the preamble about this call may be recorded for training purposes etc then you are free to tape away without ever mentioning it, they have just consented.

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  • 1 year later...

Hi, I see you posts are from last year, can you tell me the outcome?

In general to anyone; what if the Plaintiff never files with the court is the suit automatically voided? Someone had mentioned they had 15 days (from serving or date on paperwork?)

My situation is almost identical to that of Izzblizz and the posting is a help.

I was just served, or rather my significant other was served and supposed to give it to me, on Sept. 18th, but I see the summons is actually dated August 23rd. Is this normal?

I have read that I have a time limit to request the production of documents (help wording this would be greatly appreciated), if so how long?

Is it true that I, being in Colorado, cannot be held to Virginia law? I can't afford an attorney and I don't qualify for free help with this. I too was given a generic unsigned contract of Capital One's dated 2005.

Thanks so much!

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I too would be interested in the outcome of Izzblizz's case. It seemed that everything was being done correctly and with some excellent research.

I just recently "won" (mutual dismissal with prejudice and my expenses in defending myself were reimbursed) a similar case of my own using SOL as an affirmative defense and as a counterclaim that attempting to collect a time-barred debt violated the FDCPA rules against trying to collect uncollectable debts. The only thing I was going to note, but Izzblizz kind of beat me to the punch, is that in CO, you have to get permission to send Requests for Admissions, Interrogatories and Requests for Production at the Pre-Trial Hearing.

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  • 7 months later...
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