Being sued...how am I doing?

[medicbone]

I'm being sued by Capital One and have filed a lot of stuff. Just wondering if I'm missing anything or if I'm doing OK. Lot's of stuff to list, so I appreciate your patience

Original Petition on Credit Card (summarized):

Capital One via Cohen, McNeile, & Pappas vs. Me

1. Capital One gave me a credit card and I agreed to pay them.

2. Capital One paid for purchases I made.

3. I have not advised of billing errors.

4. I owe 16,036.82+interest of 799.93

5. I didn't pay Capital One as agreed

6. I owe attorney's fees of 2405.52

They included: A standard "Customer Agreement" (not signed by me), an affidavit from Capital One saying their computer says I owe the above, a print-out of the computer records with my name but a COMPLETELY wrong address on it, and an old billing statement from last year.

My answer and affirmative defenses:

1. Deny in part: I had an account with Capital One but you haven't proven that this is the account.

2. Deny: Calls for admission of matter defendent has denied, improper.

3. Same as 2

4. Same as 2

5. Same as 2

6. Same as 2

Defenses:

1. Statute of Frauds: I don't think Capital One is suing me, but a debt collector (Capital One told me they sold the debt and they won't deal with me)

2. Lack of Legal Standing: Defense demands proof of ownership by Capital One. If no proof, I have no contract with Cohen, McNeile, & Pappas.

3. Unjust enrichment: They don't have a payment and charge detail to prove amount sought

4. Lack of Privity: Plaintiff did not provide signed, original contract

5. Unclean Hands: Plaintiff concealed right to legal arbitration by not providing original agreement

Counterclaim:

1: FDCPA 15 USC 1692e, Section 807, Paragraph 2; lied about legal status of debt.

2. FDCPA 15 USC 1692e, Section 807, Paragraph 10; false representation.

3. FDCPA 15 USC 1692e, Section 807, Paragraph 14; using the name of another business.

4. FDCPA 15 USC 1692f, Section 808, Paragraph 1; attempting to collect a debt not authorized by the agreement, no agreement exists.

5. FDCPA 15 USC 1692g, Section 809, Subsection (a), Paragraphs 1-5; failed to provide written notice of debt (original petition doesn't count).

6. FDCPA 15 USC 1692j, Section 812, Subsection (a); lying about Capital One suing me.

7. FDCPA 15 USC 1692k, Section 813, Paragraph 2; give me $1,000 for each violation.

Pray judgment for $6,000

They filed a motion to dismiss the counterclaim, saying they're not a debt collector. Oddly enough, this is the only filing that doesn't say "This communication is an attempt to collect a debt and any information will be used for that purpose." LOL! Going in about a month for a hearing on the motion to dismiss. My plan is to point out that they list the "attempt to collect a debt" statement on all filings, according to the FDCPA. So why are they following the rules of the FDCPA if they're not bound by them? Also, they have failed to show sufficient proof that they are not a debt collector, and burden of proof is on the plaintiff.

They also sent request for discovery. The request for admissions is basically a repeat of the initial petition, so again I deny, deny, deny.

Request for production of documents:

1. Canceled checks which indicate payment: To the defendant's knowledge, no checks exist.

2. All correspondence with plaintiff: To the defendant's knowledge, no correspondence exists.

3. Documents that indicate why I'm not liable for the charges: Defendant objects, as plaintiff has failed to prove the actual account as the subject of this dispute.

Interrogatories:

1. Indicate which charges you are disputing: Plaintiff failed to provide detailed records, therefore defendant cannot speak as to the validity of any charges.

2. Identify any and all payments made on the account: Plaintiff has failed to provide detailed records, therefore defendant cannot speak as to the validity of payments.

3. Did you sign an agreement with Plaintiff for use of the credit card? (Check Yes or No): Defendant lacks sufficient knowledge to respond.

My request for admissions:

1. Plaintiff does not possess a copy of the original credit application for account named in the original petition, bearing the Defendant’s signature.

ANSWER:

2. Plaintiff does not possess a copy of the original credit agreement for account named in the original petition, bearing the Defendant’s signature.

ANSWER:

3. Plaintiff does not possess any contract, agreement, assignment, or other means demonstrating that the Plaintiff has the authority and capacity, and is legally entitled to collect on the alleged debt.

ANSWER:

4. Plaintiff does not possess complete accounting of the amount claimed due from the Defendant, including principal, interest, collection charges and any other components that contribute to the balance claimed in the original petition.

ANSWER:

5. Plaintiff does not possess proof of ownership showing that Plaintiff has legal grounds to collect the alleged debt.

ANSWER:

Request for documents:

1. The alleged credit application from ‘Account’, bearing the Defendant’s signature.

2. The alleged credit agreement from ‘Account’, bearing the Defendant’s signature.

3. Itemized statements from ‘Account’ showing how the amount of damages sought was calculated.

4. A contract, agreement, or assignment showing that Cohen, McNeile, & Pappas P.C. is collecting a debt on behalf of Capital One Bank (USA), N.A.

5. Any and all further documents or records that establish Defendant had an outstanding account or debt related to ‘Account’.

6. Letter(s) sent to the Defendant demonstrating an attempt to collect the alleged debt.

7. Any and all communication reporting alleged debt to any credit reporting agency, as well as Plaintiff accessing Defendant’s credit report.

8. Any and all credit report(s) Plaintiff obtained from any credit reporting agency concerning the Defendant.

9. 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 Defendant and/or ‘Account.’

10. Any and all documents related to the sale of alleged debt to Cohen McNeile & Pappas P.C. or any third-party debt collector.

Ugh, lot's of stuff, so thanks so much for reading through. And, obviously, I put everything in much more legal terminology, but this is the abbreviated version. I've had two continuances so far, so I haven't even seen a judge yet. So, how am I doing?

[nobk4me]

Have you considered the arbitration strategy?

[medicbone]

What can I do with arbitration?

[nobk4me]

Arbitration kicks the case out of court and into an expensive (for the creditor) private arb forum.

Read up on it here:

http://debt-consolidation-credit-repair-service.com/forums/forumdisplay.php?f=199

[medicbone]

I'll keep that in mind. Right now we're still doing pre-trial and the plaintiff's local lawyer is pretty clueless. The last time I went into court I saw him say, "I got nothin'" as a rebuttal to another guys defense. Lol! Needless to say that guy got his case dismissed.