Need help on a summary judgment motion against me

[bambino3710]

1. Who is suing you?

Capital One/ Kramer & Frank, PC

2. For how much?

$4500

3. Who is the original creditor?

Capital One

4. How do you know you are being sued?

Summons

5. How were you served? Were you served?

Left on front porch

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

None

7. Where do you live?

KS

8. When is the last time you paid on this account?

Oct 2007

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily).

Plaintiff has moved for a summary judgment

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.

No

12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I have already filed an answer by the due date but it was a general denial letter. (Before I found this site)

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

Credit Card Terms, Past statements

14. What is the SOL on the debt? To find out:

5 years

Hi everyone,

I just stumbled upon this great site and hope some of you can help.

I have been sued by Kramer & Frank, PC on behalf of Capital One and have already filed an answer October 10 (day it was due). I filed it before I found some affirmative defenses on this site and as a result, the answer was merely a general denial letter. They list Capital One Bank as the plaintiff but think they are just another Collection Agency and not acting on behalf of Capital One.

I filed a discovery request and all they sent were the credit card statments and nothing with a signature of any sort. They answered all my questions with objections (such as when I asked for all records and reports, they object that "This request is overly broad and unduly burdensome as it is not limited in the scope of the relevant time period or as to the subject matter at issue in this case." This was what most of their objections were.

I went to court, got a new date at the end of December, but then today received a letter from the plaintiff. They are saying they served me ith a request for admissions on or about mid October and that I failed to respond in a timely matter.

I never received a letter from them beside my discovery documents and can testify that this is the case. In the memorandum in support of summary judgment, they did include a copy of a request of admissions as an exhibit but again, I never got this.

So I have a few questions to sum everything up and appreciate any help.

Is it too late to amend my answer to include some affirmative defenses?

Should I/Do I have to answer the request of admissions that they sent as a copy?

How do I object the motion for summary judgment? The plaintiff sent a letter that the notice of a hearing on the motion for summary judgment will take place in the middle of December and would like to postpone this/object to it.

Do I have to file a new answer to the memorandum in support of summary judgment?

Once again, thanks for your help and thanks for bearing through my post.

Edited November 21, 2009 by bambino3710
Spelling error

[trueq]

If you fail to answer admissions, you admit everything.

There is one thing you can do to derail it.

Exercise the contractual arbitration clause, that immediately waives Cap1's right to court. In my experience that gets local legal counsel fired and the case "stayed" pending arbitration.

Here is a copy of my arbitration exercise letter.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297310&page=2&highlight=Rubin

You meet the criteria to do this. OC seems to have you on admissions, judge will probably issue a judgment against you.

Oh and BTW, if you do this, you will cost Cap1 at least the amount of the claim in lawyer fees and arbitration fees.

Read JAMS rules of minimum standards of consumer fairness before you do this.

http://www.jamsadr.com/rules-consumer-minimum-standards/

Also search "Trueq" and "arbitration" over last 4 months. Its been a vigorous debate, but if you read the "JAMS" and "$2000" thread, you will see that I went from avoiding Cap 1's SJ to punishing Cap1 in arbitration with their contract.

Edited November 21, 2009 by trueq

[merrybucks]

You need to respond to their MSJ ASAP. In your response let the court know why you didn't respond to their admissions.

[david9041]

On number 5 you said " 5. How were you served? Were you served?

Left on front porch " Check to see if that is legal in your state , if it is not legal go to the courthouse and see if the Proof of Service had been falsified . They would have admitted it as evidence and you can use that to your advantage . They did this in 3 of my cases .

[admin]

I'd hesitate before exercising arbitration. You are almost done with the case just donig things the "normal" way.

[david9041]

I'd hesitate before exercising arbitration. You are almost done with the case just donig things the "normal" way.

Question what does it mean when the thread is locked ? List it as " Sorry! This thread is closed! " ?

[bambino3710]

Thanks everyone for your replies. At this point, I think arbitration may be too late and even if it as still an option, think I may still try and see this through. I am going to file an objection to the motion summary and maybe file a motion for summary judgment myself. (On the basis of unclean hands, since they are saying they sent a request for admissions but didn't) How can I ask if they are representing Capital One or prove that they are just another CA? Can I cite this in the motion to dismiss as they (the lawfirm) appear to be the plaintiffs and not Capital One? Thanks again for any help!

[DFS]

I was loosing my case. Several days before the trial date, I sent a Motion to Compel - I just didn't think I could win based on earlier motions and denials. Day of trial, I said there was a Motion before the court. Long story short Judge granted it.

The attorney was "fit to be tied."

Insisted on a unreasonable time line for me to file. Judge granted motion after reading contract).

Went home, re-read a lot of the posts on here (thank you TRUEQ and others).

Prepared my JAMS claim. Sent the attorney the "Notice of Intent to Initiate Arbitration with JAMS". CMRRR

Waited for signed CMRRR, then sent Claim to JAMS without $250 filing fee.

JAMS sent "Notice of Intent to Initiate Arbitration" to Plaintiff Attorney and asked Plaintiff Attorney for good address for the Bank so they could notify them.

Next thing I know, I received an Order from the Court Dismissing the Case without Prejudice. I know, without prejudice may not be so good, but the advice I got was that's not so bad in this case since they can not litigate due to election of Arbitration per contract.

So, as far as I am concerned - I WON! Because the alternative (probably would have been about an hour from time I notified court of pending motion) would be a judgment against me. Could I have won the case - maybe not then but from all that I have learned in the past months from this site I stand a good chance in the future because you got to know what to do right from the "get go!!"

It certainly appears Arbitration did the trick, at least in my case. Can they refile, well I don't think so since Arbitration was elected. But at this point, I would stand a better chance with a whole new case than where I was at minutes from possibly loosing. Knowledge is power, and I was pretty weak minutes before my trial. Now I am in training

Good luck to anyone else out there going down this road. I agree Arbitration is not for everyone. But right now, I like it.

[david9041]

How long was it from the time you sent the paperwork to JAMS until you got something from JAMS stating you had initiated arbitration ? my stay is for 60 days and it will be awhile before I get it sent to JAMS .

[DFS]

In fact, I sent to JAMS as CMRRR, I got the green card back the same day I got JAMS paperwork, they don't mess around.

But, since I did not sent the $250, they had not officially commenced arbitration. In fact, they also included a bill for me for the $250.

[trueq]

This is where arbitration can give you a reset!

If you messed up your answer, you neglected admissions, or at a loss to effectively oppose summary judgment...arbitration exercise can screw up even the most slam dunk debt case!

Listen closely....THE DEBT ATTORNEY CANNOT EASILY FILE ITS CLAIM WITH ARBITRATION PROVIDERS, IF AT ALL, IN THE CONTRACT, BUT JUDGE IS REQUIRED TO HONOR THE ELECTION OF ARBITRATION TO RESOLVE THE DISPUTE!

Arbitration is, for now, a consumer weapon....we have to get passed the anti consumer history of arbitration and embrace the current reality...arbitration can tilt the scales against credit card company now!

Waiving the guy suing you out of court to a possible dead end, or at the very least a very expensive path, is a good tool!

Edited November 22, 2009 by trueq

[bevj2]

I was loosing my case. Several days before the trial date, I sent a Motion to Compel - I just didn't think I could win based on earlier motions and denials. Day of trial, I said there was a Motion before the court. Long story short Judge granted it.

The attorney was "fit to be tied."

Insisted on a unreasonable time line for me to file. Judge granted motion after reading contract).

Went home, re-read a lot of the posts on here (thank you TRUEQ and others).

Prepared my JAMS claim. Sent the attorney the "Notice of Intent to Initiate Arbitration with JAMS". CMRRR

Waited for signed CMRRR, then sent Claim to JAMS without $250 filing fee.

JAMS sent "Notice of Intent to Initiate Arbitration" to Plaintiff Attorney and asked Plaintiff Attorney for good address for the Bank so they could notify them.

Next thing I know, I received an Order from the Court Dismissing the Case without Prejudice. I know, without prejudice may not be so good, but the advice I got was that's not so bad in this case since they can not litigate due to election of Arbitration per contract.

So, as far as I am concerned - I WON! Because the alternative (probably would have been about an hour from time I notified court of pending motion) would be a judgment against me. Could I have won the case - maybe not then but from all that I have learned in the past months from this site I stand a good chance in the future because you got to know what to do right from the "get go!!"

It certainly appears Arbitration did the trick, at least in my case. Can they refile, well I don't think so since Arbitration was elected. But at this point, I would stand a better chance with a whole new case than where I was at minutes from possibly loosing. Knowledge is power, and I was pretty weak minutes before my trial. Now I am in training

Good luck to anyone else out there going down this road. I agree Arbitration is not for everyone. But right now, I like it.

Can I ask what "claim" you filed in arbitration?

[trueq]

He initiated in JAMs. WITHOUT PAYING THE $250 REQUIRED CONSUMER FEE!

The debt lawyer then dismised the case in court without prejudice.

He then withdrew his arbitration initiation because the JAMS arbitration does not commence until the fees are paid, including CAp1's $150 on the initial case managment fee. (Once a JAMS arbitration commences it needs agreement from BOTH parties to dismiss the arbitration.)

The "without prejudice" does not make a difference here because the litigation waive (by arbitration exercise) is on record and any lawyer re-bringing this case in litigation would violate the FDCPA!

So effectively, DFS got a dismissal WITH PREJUDICE!

*******This is a great story.*******

Because of the fallout of the NAF, arbitration is now a superior procedural weapon for the consumer!

This is coming from someone who was abused by the NAF twice!

Arbitration still has its issues, but the restrictions placed on credit card providers by their named arbitration providers makes you wonder why credit cards are stupid enough to keep the clause going forward!

Edited November 24, 2009 by trueq

[MG05]

A JDB will not go to arbitration now that NAF is out of the game. AAA might take the case but that is doubtful. I would DV the JDB and put the “elect arbitration” wording some place in the DV letter. If they do validate … tell them you still dispute the account and ask for a “Customer Agreement” with the “Arbitration Provision”. Remind them once more you that if there is an underlying arbitration provision, without any acknowledgment on your part of the debt, you elect arbitration to handle the alleged dispute privately between the parties. This will end the game and if they sue you have them on a number of violations. Trueq was very right on this premise and it does work! JDB will not spend the time or money and will move on!

Remember the JDB will go away but the OC is another story. The OC can be beat you have more work but it can be done. Read Trueq's posts ...

[bevj2]

He initiated in JAMs. WITHOUT PAYING THE $250 REQUIRED CONSUMER FEE!

The debt lawyer then dismised the case in court without prejudice.

He then withdrew his arbitration initiation because the JAMS arbitration does not commence until the fees are paid, including CAp1's $150 on the initial case managment fee. (Once a JAMS arbitration commences it needs agreement from BOTH parties to dismiss the arbitration.)

The "without prejudice" does not make a difference here because the litigation waive (by arbitration exercise) is on record and any lawyer re-bringing this case in litigation would violate the FDCPA!

So effectively, DFS got a dismissal WITH PREJUDICE!

*******This is a great story.*******

Because of the fallout of the NAF, arbitration is now a superior procedural weapon for the consumer!

This is coming from someone who was abused by the NAF twice!

Arbitration still has its issues, but the restrictions placed on credit card providers by their named arbitration providers makes you wonder why credit cards are stupid enough to keep the clause going forward!

I understand he initiated in JAMS, but my question is....what exactly did he file a claim for? In my particular case, I don't really have a "complaint" against the OC, so far nothing wrong has been done. So I was curious...if there have been no violations on the part of the plaintiff, what can one use to initiate a claim in arbitration?

[MG05]

Capital One and the dummy firms they hire all do something ... think and read you will find the answer. Trust me they have violated something!

If you Motion for Arbitration the dummy attorney might give you a few violations when he blows his lid! LOL

Read and make a choice best for you … Arbitration is not for everyone but neither is a a judgment or paying these bastards IMHO.

[david9041]

Capital One and the dummy firms they hire all do something ... think and read you will find the answer. Trust me they have violated something!

If you Motion for Arbitration the dummy attorney might give you a few violations when he blows his lid! LOL

Read and make a choice best for you … Arbitration is not for everyone but neither is a a judgment or paying these bastards IMHO.

I agree you can always find something , my first JAMS claim is for 75,000 against Cap1 .

Question ? if JDB owns account ,you DV and elect Arbitration , JDB now sells the bebt to another JDB does the second JDB own it with the Arbitration demand intact ?

And again are you the person I talked to on the phone ?

[MG05]

Yes David ... we spoke. I would think if they sold ... you would have to start over with the new JDB ... Trueq what do you think??

[david9041]

Yes David ... we spoke. I would think if they sold ... you would have to start over with the new JDB ... Trueq what do you think??

Thanks , what I am thinking is that after I first DV them and elect Arbitration ,if a second JDB becomes involved I will not DV them , I will let them take me to court and use that as grounds for an Arbitration claim against them ( court action after I elected arbitration .

[MG05]

They could claim innocent party and tell the court they had no idea what you had agreed with the previous owner of the debt.

[trueq]

JAMS, by admission of its chief legal counsel, does not "do debt collection arbitration".

If you initiate, with no complaint...do not pay $250 fee. Wait until CAp1 responds....see what they do. (Like fire local legal counsel. Will in-house counsel ask you to settle? Will they even pay their chunk of fees to start it?)

A ton of things can happen. If CAp1 files the debt in JAMS...OBJECT and drag out Jay Welsh on how JAMS doesn't do that.

If you don't pay fee, arbitration cannot commence...so don't pay it until you are sure CAp1 can't file debt claim against you.

I know...this is dirty, but that's why I prefer to smack CAp1 with a six figure JAMS claim, upfront, instead!!!!

Just my thoughts, but I'm the complete Cap1 ax grinder!

JAMS Cap1 answer and counter claim due in 4 days for me!!!!!

[david9041]

They could claim innocent party and tell the court they had no idea what you had agreed with the previous owner of the debt.

I am sure they would but then I could MTD on the grounds that Plaintiff knew or should have known that Arbitration had been elected , I could argue that a stay con not be allowed because it is a sham pleading . Now they would be out the cost of the lawsuit and in Arbitration I could claim serious harm because of the lawsuit and that the agreement had been violated because of their actions

[david9041]

JAMS, by admission of its chief legal counsel, does not "do debt collection arbitration".

If you initiate, with no complaint...do not pay $250 fee. Wait until CAp1 responds....see what they do. (Like fire local legal counsel. Will in-house counsel ask you to settle? Will they even pay their chunk of fees to start it?)

A ton of things can happen. If CAp1 files the debt in JAMS...OBJECT and drag out Jay Welsh on how JAMS doesn't do that.

If you don't pay fee, arbitration cannot commence...so don't pay it until you are sure CAp1 can't file debt claim against you.

I know...this is dirty, but that's why I prefer to smack CAp1 with a six figure JAMS claim, upfront, instead!!!!

Just my thoughts, but I'm the complete Cap1 ax grinder!

JAMS Cap1 answer and counter claim due in 4 days for me!!!!!

Trueq good luck , and I do not consider it dirty , it's just coming down to their level , I see nothing wrong with that . I am just going to enjoy this .

[bevj2]

Well, this is why I was asking....

Had a SECOND pre-trial scheduling conference this morning. At the first, it was with the bailiff, he suggested to Crap1's rent-a-lawyer that they submit MSJ. They didn't do that, and we have already both done discovery. All they have is a stack of statements with NO account # that is missing an entire year, and they did give me the cardholder agreement. They do not have any affadavit from OC to verify debt, no application, etc. No dates were set, and another pre-trial (by phone, this time) was done today.

When I didn't get a phone call at the scheduled time this morning, I called the bailiff's office. Spoke to a receptionist, who put me on hold. She came back and told me that there was not going to be any trial dates set today, because the plaintiff has evidently informed the court they were going to submit MSJ. Not sure when that happened, for all I know they were on the phone with the bailiff at the same time, and nobody even bothered to call me. She explained to me that once they file that, I can respond with any arguments I may have.

Now....the court I am in seems to be a judgement mill. I'm pretty sure the lawyer will have an affadavit from the OC when they file the MSJ, but I don't know for sure. I asked for that in discovery but wasn't given anything. So, I'm stuck.....wait it out and respond to their MSJ with what little bit of defense I have (which isn't much, like I said they haven't even given me an account number) and HOPE that the judge denies? Do I take the chance that the MSJ will be ruled in their favor? Or, do I go ahead and motion for arbitration? Gee, a crystal ball would sure come in handy right now!!

[trueq]

I'd exercise arbitration now.

File a MTD because of the exercise.

Then its a fight over dismissal or permanent stay of the case!!!!!

That is a position of power vs. weakness of waiting around to be smacked by scumbag on SJ motion.

Just my thought.

I have exercised arbitration clause 8 times in court. All 8 cases permanently stayed. 0 judgments in those cases. And no one is closer today to getting a judgment in any of those cases than they were 12 months ago!

Its hard to argue with those results.