I've just been served by Capital One. (Or have I?)

[big_dave_man]

I've done quite a bit of reading on here but really haven't posted much. I received summons papers from Capital One on Tuesday of this week. (Attached) There is attorney information at the bottom but when I call it says to call a different number who is "collecting on behalf of the attorneys office". I'm not sure if this is legit or not. The collection agency is supposed to call me back today with a settlement figure. According to my credit report this account has been charged off. (This is well within the SOL) I'm confused as to who actually has my account at this point and if I settle, I don't want to be paying the wrong party.

http://img12.imageshack.us/i/scan4496.pdf/

Here is a draft of my answer. Am I headed in the right direction?

COMES NOW the defendant, Joe Schmo, for himself alone and in answering the allegations of the complaint on file herein, affirms, denies, and alleges as follows:

1. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation contained in paragraph 1 of the Complaint concerning the status of the Plaintiff being a national bank authorized to do business in the State of Indiana, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. Defendant does confirm he is a resident of the County of Wells, Indiana.

2. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

3. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

4. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

AFFIRMITAVE DEFENSES

5. Blatt, Hasenmiller, Leibsker & Moore, LLC has not proven that they are authorized and licensed to collect claims for others in the State of Indiana, or solicit the right to collect or receive payment of a claim of another.

6. Blatt, Hasenmiller, Leibsker & Moore, LLC has not proven that they were retained by Capital One Bank (USA), N.A. as its representative in this matter.

7. Blatt, Hasenmiller, Leibsker & Moore, LLC has not proven that Capital One Bank (USA), N.A. is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of Capital One Bank (USA), N.A. with all of the original creditor’s rights and privileges intact.

8. 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.

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

10. Blatt, Hasenmiller, Leibsker & Moore, LLC has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

11. Defendant alleges that Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

12. Plaintiffs alleged damages are limited to real or actual damages only.

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

14. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

15. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

16. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

By the Defendant pro se

Dated this 9/10/09

[ualbany18]

On the complaint page there looks like there is a stamp which reads "Filed Aug 31 Clerk of the Wells Superior Court" also there appears to be a hand written cause number on the top right corner of the same page. This would lead me to believe that the summons is legitimate.

Edited September 11, 2009 by ualbany18
grammar

[merrybucks]

I would take out 5,6 and 7. Cap1 usually doesn't sell their accounts.

According to my credit report this account has been charged off.

That's just an accounting term, your CR would tell you if the account has been sold.

[big_dave_man]

Wow! You guys are quick! Thanks so much!

So I can assume it's a valid summons and that Capital One still owns the account.

Some additional questions -

1. How much time will filing this answer give me? 6 weeks or so? My plan is to scrounge up some $$ and make an offer.

2. The total amount owed is $1400 +/-. They offered to settle at $940. Do you think this is the best they can do? Should I file my answer, wait a week or so and try again?

[unusualsuspect]

Generally your answer is due in 20 or 30 days from the date you were served. Filing an answer in 6 weeks won't help you.

File your answer the day before it's due... it really p*sses them off. Then, depending on how you're feeling approach them for a settlement of 30-50%.

File a motion to strike the affidavit as hearsay. If they don't take it, then file a subpoena for the affiant to appear in court, along with all the books and records related to the account... don't make this easy for them.

[big_dave_man]

Generally your answer is due in 20 or 30 days from the date you were served. Filing an answer in 6 weeks won't help you.

Sorry. I meant if I file the answer within the requested time frame how long until the next stage? I should have made the clearer.

[ualbany18]

how long until the next step after you file your answer really depends on how busy the court you are being sued in is.

[admin]

I'd also pull out #12.

Just a nit-picky thing, but I'd restart the numbering on the Affirmative defenses.

[unusualsuspect]

File your requests for discovery along with your answer.

Generally the other side has 30 days to produce the evidence you are seeking.

[Recovering Attorney]

I would take out 5,6,7 10,11,12

[big_dave_man]

I would take out 5,6,7 10,11,12

So take out all of those?

[bevj2]

So take out all of those?

Yes, because they really aren't affirmative defenses. However, you can use these in any discovery questions to the plaintiff.

[big_dave_man]

Yes, because they really aren't affirmative defenses. However, you can use these in any discovery questions to the plaintiff.

Thank you all so much for your help. I am filing my answer on Friday. This should buy me enough time to round up a decent settlement amount.

[shazbat]

Mini-victory today, although now I'm thinking I might have choked just when I was o the verge of prevailing! Blatt Hasenmiller filed Complaint on July 17, 2009 allegedly on Cap One's behalf. Trial was today. I live 4 hours from Detroit, and they sent up a Big Dog who immediately offered to Dismiss Without Prejudice on $20k claim. After trying unsuccessfully to get him to With Prejudice, I took it. I just don't have the aperture right now for this... My mom is terminally ill.

Blatt guy insists that Cap One was a direct client, but I'm not fully convinced, especially given that TSYS and NAN were involved. I believe a TSYS/NAN employee signed the flimsy Affidavit of Debt to support their complaint (claiming "personal knowledge" blah blah).

I truly wonder that TSYS/NAN are a subsidiary of Cap One, or owned by them, or some stakeholder relationship exists. Great scam, if you think about it: Take their $3.6 bbn from the govt., charge off the debt, then flip it over to a profit center, and collect whatever revenue they can. What do you think?

Thanks to everyone's posts here, I was able to stumble along the past months. Thank you so much! I did some of what I was supposed to do, did NOT do Discovery or Interrogatories (which I don't recommend, I just didn't get it done), but did file several Motions, some late (Strike Affidavit, Summary Judgment, Violation of Court Rules, Sworn Denial, Dismiss for Lack of Evidence). I filed an Ex Parte request to Subpoena the Affidavit guy AND the Big Dog to appear, which really got their attention. They countered with a Motion to Quash Subpoena two days ago for Affidavit guy, and got the other cancelled due to Attorney/client privilege, which I answered aggressively today, but BHLM never saw it. And the Judge never ruled on any of my Motions.

Last one I filed today, which he hadn't even seen, was a Motion to Dismiss due to violation of Supreme Court Rule 222 (they never provided names, addresses, and so on). I don't even know if that applies in District Court or not, but what the hey! Does it/did it apply?

I will never know what the Judge would've done on the Motions, as some were technically untimely, but I was prepared with case law to rebut that. As I'm truly broke, and unemployed, and was prepared to appeal if I lost. But I conceded. When presented with the settlement, the Judge commented he is "not generally inclined to Dismiss Without Prejudice on the day of Trial". But he accepted it.

What are the chances of Cap One or other JDB bottom-feeders coming after me now that BHLM has walked away? I don't know what Michigan's SOL is, but my last payment was summer 2008. The BHLM guy said he would tell Cap One I would be a formidable adversary, that I would appeal, and was uncollectable. He also said repeatedly I should go to Law school and apply my talents.... I know, blowing smoke you know where...

Can I still file for FDCPA violations against Cap One? Or Blatt Hasenmiller themselves? Should I, or is it poking the hornet's nest? I've spent a ton of hours and some precious funds on this.

US Bank is teeing up to come after me next for $25k. Any words of wisdom there? I don't have any money to participate in any of their long range programs. (No, I can't file for bankruptcy, yet, maybe never.)

Sincere thanks and debt of gratitude to each of you!