Cap One suing in Oregon

[DEMcGvsME]

So I went about it wrong in my first thread and I'm going to try and clean it up here. I'll start with the general questions, followed by the summons and the complaint and then the questions I need answered.

What I'm really looking for right now is if I should follow through with an answer as I was advised by a local lawyer to just roll over and take this judgment. Granted he is a bankruptcy lawyer so me filing is money for him. I do have the option to settle for less than half of what the debt is after talking to some generous family members but only up to a max of about 2/5th of the total cost.

I am fairly young without a very large debt load so I would rather not be filing right now. I don't have a lot to lose other than my car but filing over $15-18k seems like a pretty dumb idea. The main reason I don't want a judgment against me is that I've been told it will be harder to find a job and as I am still looking for one currently. I really don't want to make it any harder than it already is and have my wages garnished once I do finally manage to find one.

Questions:

1. Who is suing you?

Capital One via Derrick E McGavic

2. For how much?

4976.13 + intrest + fees

3. Who is the original creditor?

Capital One

4. How do you know you are being sued?

Got a summons in the mail on Monday 8/16

5. How were you served? Were you served?

By mail had to pick up the letter at the post office and sign for it

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

There may or may not have been a warning letter from them but I never had to sign for it.

7. Where do you live?

Oregon

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

Over a year ago

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).

Not sure

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, didn't expect the suit so soon

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?

Yes it requires I answer or I automatically lose. No questionnaire. Will type up the complaint below.

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

There is no evidence attached that I can see.

14. What is the SOL on the debt?

6 years but it has only been a year.

Summons:

To: Me

In the name of the state of Oregon: you are hereby required to appear and defend the complaint filed against you in the above civil action within 30 days from the date of service of this summons upon you, and you are notified in case of failure to do so, the plaintiff will apply to the court for the relief demanded in the complaint.

You must "appear" in this case or the other side will win automatically. To "appear" you must file with the court a legal paper called a "motion" or "answer," The "motion" or "answer" must be given to the court clerk or administrator within 30 days along with the required filing fee. I must be in proper form and have proof of service on the plaintiff's attorney, or if the Plaintiff does not have an attorney, proof of service upon the plaintiff.

IMPORTANT WRITTEN NOTICE TO CONSUMERS REQUIRED BY 15 USC 1692g and 15 USC 1692e(11)

Unless the consumer, within thirty days of receipt of this notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by this "debt collector." If you notify us in writing within the thirty day period that the debt, or any portion thereof, is disputed, we will obtain verification of the debt or a copy of a judgment against you, and a copy of such verification or judgment will be mailed to the consumer by us. If you request in writing within the thirty day period, we will provide you the name and address of the original creditor, if different from the current creditor.

THIS COMMUNICATION IS FROM A "DEBT COLLECTOR," AS DEFINED IN 15 USC 1693a(6). WE ARE ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.

Complaint:

***Complaint below***

it was too long...

So my questions I need answered are:

1. Should I answer the compliant, negotiate for a much smaller settlement or ignore it?

2. a) If I answer then I really need some help interpreting the complaint.

If I negotiate the total down how should I go about doing it?

3. How bad is a judgment against your record for finding a job? (I am not in the financial industry or deal with money at all)

4. Is filing bankruptcy really worth it for $15-18k?

Edited August 26, 2010 by DEMcGvsME

[rikkivs]

Judging from what you've written, you feel as though you owe the money for which they're suing. Is that correct? If you feel a moral obligation to pay them, then you still need to answer the suit, include affirmative defenses and conduct discovery to make certain that the amounts they are claiming are correct. It looks like they are suing you under numerous causes of action like:

1.Account Stated 2.Breach of Contract 3. Monies had and Received 4.Goods and Wares Delivered and others that you've not yet typed...They've put out a veritable fisherman's net and are trying to catch you with any debt related cause of action they can find! This means that they are throwing stuff out to see if something will stick.

They can use all of that fancy legalese, but it doesn't amount to anything if they cannot prove their allegations. If they did not attach any evidence to the complaint, all the more reason for you to answer and conduct some discovery.

You will also need to go over your books to see how much you actually charged on the card and how much you have paid them altogether. Look at the absolute amount you've paid them since you've had the account and one of your affirmative defenses should be 'SET OFF', which means that you've paid monies on the account and are not responsible for the entire amount for which they are suing.

There are numerous other affirmative defenses you may use and you will need to look over the sticky to see which ones fit your situation. However, since they did not attach any proof to the summons, then you can also use this affirmative defense 'FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED;' the Plaintiff has simply declared that Defendant owes them money without a shred of proof of the alleged account attached to the complaint.

During the time that you did not pay on the account over the past year, have late fees and finance charges been accruing on the account? At what point did the balance stop growing? You could argue that they are unjustly enriched by waiting too long to bring the suit, they were able to gain income simply from fees attached to the account...I don't know the particulars of your case, but it is a defensible case and things may work out in your favor. Those two affirmative defenses would be: 'LACHES' and 'UNJUST ENRICHMENT' But you've got to answer the summons asap and you will need to give a little more information on you account history before we can give you more opinions.

This debt is not worth declaring BK over at all! BK attorneys are extremely manipulative and thrive off of your misery. The long term effects of a BK, ESPECIALLY in this economy are not favorable in the jobs market. It isn't worth it to borrow money from your family and friends either because that will not make the debt go away. After you answer the suit, have a non party over to serve the papers to the Plaintiff and courthouse, you need to document all of your income and assets. If you are unemployed, underemployed or employed but carry a large set of monthly expenses, then you can write up a financial statement and if you lose the case, do a motion to set installment payments. If you are dead broke, they cannot get blood from a turnip! So you need to do research now and get all your personal paperwork in order.

Best Wishes.

[DEMcGvsME]

Thank you for the thorough response.

Well a portion of the debt is mine, before all the charges and the fees like you said above. I don't feel that I owe them the money as much as I would really rather avoid a judgment against me. As far as figuring out how much the balance was before I stopped paying, I haven't had paper bills on that account since the early 2000's. I want to say I got that cc when I was 17 so it is over 10 years old. Can I make them send me a back log from the opening of the account?

Also, as you said there was no proof attached to the complaint. In the part I haven't typed up yet they do say the amount again but not how they came to that amount.

What other details would you need to know about the account history or otherwise? Again I don't know the exact balance when I stopped paying it, at this time, but I know that it has gone up.

Edited August 26, 2010 by DEMcGvsME

[nobk4me]

You got the card when you were 17? Isn't it illegal to enter into a contract with a minor?

[chuckygee]

You got the card when you were 17? Isn't it illegal to enter into a contract with a minor?

I believe you can affirm contracts as an adult that were unlawful when you were a minor. By continuing to use the card, that was likely considered affirming the contract.

[Randall948]

Might wanna check that 17 out with a local lawyer as it may vary state to state.

reason I say this is a friend of mine's sone got a card unbeknownst to her at 17 and ran it up and defaulted. He did use card after 18 and by time she found out about it he was defaulted.

Talked to a local lawyer who told her in this state 17 is a no go even if you continue into your majority.

She felt bad about just plain defaulting and didnt want him hounded for years even though they couldnt successfully sue so she just paid them something like 40%.

They even admitted to her on phone that they couldnt hold him legally liable.

(shrug) your mileage may vary.

[DEMcGvsME]

It was a card with my parents name on it also but their name was dropped off it a few years later by the company not by my request.

Also while typing the complaint up it certainly makes more sense as I have to process every word to enter it on here but it made me think. The amount listed might be the amount that it was around the time that I stopped paying it since at this point I can't even remember the limit on the card. I want to say the limit was 4500 which means that interest and fees would of brought it up to that amount. I tried accessing my old account and even their "solutions" page but considering how I was handled when I called to confirm the debt was still held by them, I doubt they are going to help me in getting my old statements. The person I talked to told me to contact their legal department about 20 times in the matter of 3 minutes of trying to get some answers out of them.

Edited August 26, 2010 by DEMcGvsME

[DEMcGvsME]

Complaint:

Capital One Bank (usa), N.A, Plaintiff VS Me, Defendant

Plaintiff's Complaint

(breach of contract)

(recovery of money)

Claim is less than $10000

claim subject to mandatory arbitration

claim amount is 4976.13

For its first claim for relief, plaintiff alleges:

1.

Plaintiff is now and has been at all times mentioned herein a business entity engaged in interstate commerce and is suing on a debt owed to it by Defendant, ME.

2.

Plaintiff offered to extend credit to Defendant. Defendant accepted plaintiff's offer and used the credit so extend, thereby entering into a contract with plaintiff, ("contract"). The credit plaintiff extended was provided in the form of an open credit account known as credit account ################, ("account").

3.

Defendant agreed to pay for the charges made through plaintiff's extension of credit in accordance with the terms and conditions of the contract. Each use of the account constituted Defendant's acceptance of plaintiff's continued extensions of credit and constituted Defendant's continuing renewal of agreement to continue to be bound by the contract.

4.

The account was used and extensions of credit were made through the use of plaintiff's account number ################ pursuant to the contract and resulted in a balance due, owing, and unpaid by Defendant to plaintiff.

5.

After Defendant's use of the account, plaintiff sent periodic billing statements to Defendant itemizing all charges and credits on the account. Defendant failed to dispute in writing any billing statement error, if any existed, within 60 days of the first date of transmission of the periodic billing statement to Defendant, as required by the FCBA 15 USC 1666. The FCBA establishes the method to report a dispute or an error and sets the reasonable period of time to do so. Defendant's failure to dispute plaintiff's billing statements within the time of manner allowed by the FCBA established the balance of an account and established an account stated between the parties of each billing statement that was not disputed withing 60 days of the transmission of each statement to Defendant.

6.

Defendant received the benefits of the goods, services, and/or cash advances through the use of the account. Defendant knew or should have known that plaintiff expected to be paid by Defendant for the use of the account, including the cost of goods, services, and/or money as well as finance charges, and other feeds and charges. Defendant was unjustly enriched through the use of the account as the benefits received therefrom were without payment or compensation to the plaintiff to the extent of the unpaid balance of the account.

7.

Defendant breached and is in default of the contract by failing to make the required payments as agreed, or otherwise. Plaintiff has elected and does hereby elect to declare the full indebtedness under the contract to be immediately due, owing, and the same remains unpaid.

8.

Plaintiff has performed all obligations required of it to be performed and plaintiff has performed all conditions precedent by it to be performed. All other conditions precedent to Defendant’s obligation to perform under the contract have occurred.

9.

Although duly demanding by plaintiff, no part thereof has been paid for which credit has not been given heretofore. There is now due owing and unpaid plaintiff by the defendant the sum of $4,976.13, plus interest thereon at the rate of 13.90% per annum from December 22, 2009 until date of judgment. This sum is one of the amounts by which plaintiff has been damaged as a result of the defendant’s breach of contract.

10.

The contract further provided for the defendant to pay collection costs incurred herein. By Defendant’s breach of the contract, plaintiff has been additionally damaged in the amount of reasonable costs of collection to be determined upon the evidence at trial and/or upon the filing of a supplemental statement of additional prejudgment damages or a motion for a supplemental judgment on a statement of additional post judgment damages.

11.

Under USC 1692c, plaintiff requests the court to expressly authorize plaintiff, its agents, attorneys and assigns to contact defendant, third parties and other entities during litigation and for collection its judgment entered in this case for so long as this account remains unpaid.

12.

Defendant promised and agreed to pay plaintiff’s reasonable attorney fees. Plaintiff has been required to retain the services of counsel to represent it in these proceedings. Plaintiff is entitled to an award of a reasonable attorney fee to be determined by the court or courts in which this matter is tried, heard or decided. In the event contractual attorney fees are not available to Plaintiff, an alternative basis for Plaintiff’s entitlement to an award of an attorney fee is by statute. When the amount of the claim does not exceed $10,000.00 and plaintiff has made written demand for payment of the debt more than twenty days before filing the complaint. Plaintiff has made written demand for payment of the debt more than twenty days before the filing of the complaint.

13.

Plaintiff specifically requests the court reserve jurisdiction in the general judgment for the purpose of making subsequent fee awards and enchantments of this fee award upon the filing of post judgment cost bill for post judgment fees in the event the amount awarded here later appears inadequate in light of developments in the collection of the judgment.

WHEREFORE, plaintiff demands judgment against defendant, ME, as follows:

A) On the FIRST CLAIM FOR RELIEF, for the following sums:

1) For the sum of 4,976.13;

2) Prejudgment interest on the sum of $4,976.13 at the rate of 13.90% per annum from December 22, 2009, until judgment date;

3) Post judgment interest at the higher of the contract rate or statutory rate.

For a judgment for the amount of plaintiffs collection costs to be determined upon the evidence at trial, together with interest thereon at the rate of 13.90% per annum from the date of judgment, until paid;

C) For an award of a reasonable attorney fee to be determined by the court or courts in which this matter is tried, heard or decided , together with interest thereon at the rate of 9.000% from the date of the judgment, until paid;

D) Plaintiff’s costs and disbursements incurred herein, together with an interest thereon at the rate of 9.000% per annum from the date of the judgment, until paid;

E) Said judgment to bear interest at rates described above from the date of judgment, until paid;

F) Granting plaintiff’s request under 15 USC 1692c that the court expressly authorize plaintiff, its agents, attorneys and assigns to contact defendant, third parties, and other entities during litigation and after entry of judgment for the purpose of collecting the judgment entered in this case so long as this account remains unpaid.

G) Granting plaintiff’s request that the court specifically reserve jurisdiction in the general judgment for the purpose of making subsequent fee awards and enchantments of the fee award upon filing the post judgment cost bill in the event the amount awarded here later appears inadequate in light of developments in the collection of the judgment; and

H) For such other and further relief as to the court may deem just and equitable.

(signed by lawyer)

Edited August 26, 2010 by DEMcGvsME

[rikkivs]

Well, you will need to answer the law suit as soon as possible, as I mentioned before. They are blowing a lot of hard smoke up your arse but the suit is defensible. Without a contract or language from the contract, their contract based causes of action look faulty. This is why you need to conduct discovery asap.

There are stickies on here for the types of things you need to ask for in the discovery process. However, the most important things you need are the following:

1.An itemized list of all debits and credits against the account from zero balance. This means that they need to show you ALL the account activity since the account was opened, this means charges, payments, interest rates and how they were calculated, finance charges, late fees etc. In some states, this document is called a BILL of PARTICULARS.

2.An authenticated copy of the contract under which they are suing. They cannot just say that you owe them attorney fees under a contract and that you've breached a contract without providing the contract so you can see its provisions. Usually they provide some generic contract with a date years after you opened the alleged account and in court, this is NOT admissible because its terms and conditions are not the same as the terms and conditions you entered many years ago when you first got the card.

3.Billing statements authenticated by someone from the original creditor.

Lastly, have you ever disputed anything on the account verbally or in writing? When you were unable to make payments, did you ever call them and tell them your financial situation and ask for some type of accommodations? Please let us know because if so, this can shape your defense further.

[rikkivs]

Thank you for the thorough response.

Can I make them send me a back log from the opening of the account?

Also, as you said there was no proof attached to the complaint. In the part I haven't typed up yet they do say the amount again but not how they came to that amount.

YES this is what is called a bill of particulars in many places. You should request the entire log of the accounts' activities from its inception. As to looking over your records, you can subpoena your checking account records from your bank(s) to further investigate this. Or maybe your bank records are online? That would make it easier for you to investigate your payment history.

It is vitally important that you reconcile your books. We got sued last year by an alleged original creditor (OC). After going over the spreadsheet they sent us with an alleged account history, we discovered that they had merged two different accounts together and we had actually paid off the account they were suing us under. The other account was one that we did not have at all! We had no obligation to these jerks! Our case was dismissed by the judge because Plaintiff violated a local rule of court and didn't show up to the settlement conference so that was an automatic dismissal. However, after investigating the flimsy bill of particulars they sent us, we saw that we didn't owe them anything!

All of this to say that you likely owe a whole heck of a lot less than they are suing you for so please conduct due diligence on your end because the ride is only beginning!

BTW when is your answer due?

[LeeBee77]

I'm in a similar situation in N. California. JDB has turned a $500 debt into over $4k. Trial in less than a week, and they ignore the arbitration election letters I sent (didn't know to file a MTCA and now too late). Arb clause is there, and I elected, and they lied in court and said there was no arb clause. Judge has ordered us to meet before the trial and try to work things out. He should have dismissed the case in my opinion, as I've followed his orders to communicate with the JDB and they've ignored me completely.

Should I go to the trial? Although I am a fighter, I believe they'll get their judgement for much more than what the company told me I owed with interest (even AFTER they filed the suit). BTW, most of these charges are overlimit and late fees.

I plan to file BK for other reasons by October (hit some rough times with the economy). I want to avoid garnishment. How long will that take after I lose? Can I appeal even if they get the default if I am a no show?

Sorry - lots of questions here. Thanks in advance for your answers.

[rikkivs]

If you are going to file BK in October then the unsecured debts will be washed away anyhow OR you will enter into a restructured payment program with them. Answer the lawsuit and include affirmative defenses. Usually JDB's do NOT have admissible proof that you owe them anything at all! Are you talking about a settlement conference that the judge ordered?

[LeeBee77]

Already went to the readiness hearing; told the judge I elected arb. He ordered both parties to meet prior to trial date (early next week). If I don't go to the trial date, it's an auto default judgement. When will the levies and garnishments start? Can that happen immediately? Thanks for your input.

[DEMcGvsME]

BTW when is your answer due?

30 days from the day I picked it up at the post office is September 15th.

[DEMcGvsME]

Ok, so I want to make sure and get this done by Friday and I still need some help as to why I would be denying each claim. I think 1 and 2 I don't deny but after that I need a reason to deny each of the other claims? I want to respond but I need help with this first step. I'm not asking for someone to do this for me but at the same time I don't know what I'm doing and I'm feeling very overwhelmed by this. I'm sure that this part is very simple but I want to do it right.

So what do I need to let people know to help me make the right answer?

[Oregonactor]

Ok, so I want to make sure and get this done by Friday and I still need some help as to why I would be denying each claim. I think 1 and 2 I don't deny but after that I need a reason to deny each of the other claims? I want to respond but I need help with this first step. I'm not asking for someone to do this for me but at the same time I don't know what I'm doing and I'm feeling very overwhelmed by this. I'm sure that this part is very simple but I want to do it right.

So what do I need to let people know to help me make the right answer?

Check your email. Sent you what you need to help you write your answer.

Oregonactor

[DEMcGvsME]

I could use some feedback on this as again I am trying to get this in by the end of the week.

Answer

1. Defendant has insufficient information with respect to the material allegations of Count I of Plaintiff’s complaint and can neither admit nor deny the claim. Defendant calls on plaintiff to prove same.

2. Defendant denies the material allegations of Count 2 of Plaintiff’s complaint and demand strict proof thereof.

3. Defendant denies the material allegations of Count 3 of Plaintiff’s complaint and demand strict proof thereof.

4. Defendant denies the material allegations of Count 4 of Plaintiff’s complaint and demand strict proof thereof.

5. Defendant denies the material allegations of Count 5 of Plaintiff’s complaint and demand strict proof thereof.

6. Defendant denies the material allegations of Count 6 of Plaintiff’s complaint and demand strict proof thereof.

7. Defendant denies the material allegations of Count 7 of Plaintiff’s complaint and demand strict proof thereof.

8. Defendant denies the material allegations of Count 8 of Plaintiff’s complaint and demand strict proof thereof.

9. Pursuant to Oregon Rules of Civil Procedure, Plaintiff has further failed to state a claim upon which relief can be granted and is due to be dismissed, There has been no injury in tort.

10. Pursuant to Oregon Rules of Civil Procedure, Plaintiff has further failed to state a claim upon which relief can be granted and is due to be dismissed, There has been no injury in tort.

11. I need help with this cause it seems like they want to be legally allowed to bug me about my debt and getting around that code

12. Defendant denies the material allegations of Count 12 of Plaintiff’s complaint and demand strict proof thereof.

13. What wording would I use to stop them from adding whatever extra fees that they want?

[rikkivs]

Answer

1. Defendant has insufficient information with respect to the material allegations of Count I of Plaintiff’s complaint and can neither admit nor deny the claim. Defendant calls on plaintiff to prove same.

You need to admit or deny only. So you could say you don't have sufficient information to answer so therefore deny, and you have the right to amend your answer pending receipt of discovery or bill of particulars etc.

2-8 are fine because you are outright denying what they've said.

9. Pursuant to Oregon Rules of Civil Procedure, Plaintiff has further failed to state a claim upon which relief can be granted and is due to be dismissed, There has been no injury in tort.

I don't know how relevant the statement about torts is...You ought to explain how they've failed to state their claim. Is it because they didn't attach any evidence of a contract or any accounting for this alleged account, any redacted account numbers? Or something like that? What do your state rules of civil procedure say about failure to state a claim? You might cite the relevant rules of civil procedure to this assertion.

10. Pursuant to Oregon Rules of Civil Procedure, Plaintiff has further failed to state a claim upon which relief can be granted and is due to be dismissed, There has been no injury in tort.

Again, this seems like a replication of (9) so my commentary from (9) applies here as well.

11. I need help with this cause it seems like they want to be legally allowed to bug me about my debt and getting around that code.

I see what you are saying here and think that they can contact you regarding settlement offers etc, but they still have to act within FDCPA parameters. You might say that they can communicate with you regarding settlement offers and collection efforts via mail only but meet and confer issues like motions can be discussed on the telephone. I don't know if that will work, but it's worth a shot.

You are outright denying (12), so that is good.

13. What wording would I use to stop them from adding whatever extra fees that they want?

Yeah, that is a hard one to say because they can't add charges without justifying them and can only increase the amount they're suing for, provided they can show proof of this alleged debt, and contractual terms that allow such costs to be awarded. You could say something like that.

It looks like ORCP Rule 21 section 8 is applicable to the failure to state a claim defenses "failure to state ultimate facts sufficient to constitute a claim,". Use this in your wording for (9) and (10).

Lastly, consider adding some more affirmative defenses because if you don't assert them now, you waive them for later! Since you got the card so long ago and they are suing you for it after more than a year, try using LACHES as another affirmative defense.

Edited September 8, 2010 by rikkivs
found out about orcp rule 21

[DEMcGvsME]

Defendant, appearing pro se, for its reply to the Complaint of Capital One Bank states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. Defendant has insufficient information with respect to the material allegations of Count 1 of Plaintiff’s complaint so therefore deny the claim but retain the right to amend my answer pending receipt of discovery.

2. Defendant denies the material allegations of Count 2 of Plaintiff’s complaint and demand strict proof thereof.

3. Defendant denies the material allegations of Count 3 of Plaintiff’s complaint and demand strict proof thereof.

4. Defendant denies the material allegations of Count 4 of Plaintiff’s complaint and demand strict proof thereof.

5. Defendant denies the material allegations of Count 5 of Plaintiff’s complaint and demand strict proof thereof.

6. Defendant denies the material allegations of Count 6 of Plaintiff’s complaint and demand strict proof thereof.

7. Defendant denies the material allegations of Count 7 of Plaintiff’s complaint and demand strict proof thereof.

8. Defendant denies the material allegations of Count 8 of Plaintiff’s complaint and demand strict proof thereof.

9. In response to Count 9; Pursuant to Oregon Rules of Civil Procedure, Plaintiff has failed to state ultimate facts sufficient to constitute a claim.

10. In response to Count 10; Pursuant to Oregon Rules of Civil Procedure, Plaintiff has failed to state ultimate facts sufficient to constitute a claim.

11. In response to Count 11; Defendant agrees to communication regarding settlement offers and collection efforts via mail only.

12. Defendant denies the material allegations of Count 12 of Plaintiff’s complaint and demand strict proof thereof.

13. In response to count 12; Defendant agrees to this claim provided proof of this alleged debt and contractual terms that allow such costs to be awarded.

DEFENSES

14. As and for a First Defense

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

15. As and for a Second Defense

Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making it difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

16. As and for a Third Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

How does this look? I talked with the court and I have until next week so I'm taking this weekend to make sure its correct.

[KentWA]

Add into your defense that you have elected arbitration and under the contract and the Federal Arbitration Act this court lack jurisdiction and that you demand the court stay the proceeding pending arbitration and order plaintiff to initiate. I believe Cap One contract says they will pay your fees for arbitration.

[rikkivs]

Yes, you did well under the admit or deny section. I believe that since 9 and 10 fall under that section, you might say that Plaintiff is referencing an account and has not provided any identifying information about the alleged account. Denied. Defendant can amend answer pending receipt of a bill of particulars or other identifying information about this alleged account, provided it exists;) You would also say something similar on 10.

Then under your affirmative defenses section you already have the 'failure to state a claim' defense, which is good. Laches is also good. Laches goes hand in hand with unjust enrichment because if they waited too long to bring the lawsuit, then interest and other fees accumulated on the alleged account although you made no additional charges on the account after a certain time, those additional fees are unjustly enriching the plaintiff. Another one you might try is in pari delicto, which means mutual mistake of both parties. Both of you guys made a mistake and leave it at that...Lastly, since they are suing you on account stated, you ought to think about the legs of account stated and add some of the defenses specifically to your affirmative defense section. You will need to use the no prior course of dealing, or you objected to their charges on the account etc. Lastly, don't forget the affirmative defense of SET OFF, this says that even if you do owe them money, you don't owe what they're suing for because you paid diligently on the account up to a point and want the sum total of those payments to be taken into consideration when reviewing the case etc.

Best Wishes. I'll check on you sometime this weekend.

Edited September 11, 2010 by rikkivs

[DEMcGvsME]

I know peoples feelings about arbitration is mixed... should I actually add that?

[nobk4me]

I would include arbitration as an affirmative defense. Even if you later decide you don't want to go that route, at this point, you might. So include it. If you omit it now, you can't use it later.

And be sure to specify private arbitration pursuant to the contract, as I understand that in Oregon, there is court-sponsored arb, which you don't want.

[rikkivs]

Add arbitration as another affirmative defense. Place your revised answer here later on today so we can see it and give constructive criticism before you send it off. Me and my husband got out of a 27K suit last year due to helpful hints found on this board. I vowed to pass on everything we learned to fellow debtors (read unwitting debt peons) and that means YOU! Best Wishes and please let us know progress on your case because all of us care:smile:

[DEMcGvsME]

These are the changes. I'm sure the wording isn't exactly correct for these. I'll be checking back tonight.

9. In response to Count 9; Plaintiff is referencing an account and has not provided any identifying information about the alleged account. Denied. Defendant can amend answer pending receipt of a bill of particulars or other identifying information about this alleged account, provided it exists.

10. In response to Count 10; Plaintiff is referencing an account and has not provided any identifying information about the alleged account. Denied. Defendant can amend answer pending receipt of a bill of particulars or other identifying information about this alleged account, provided it exists.

17. As and for a Fourth Defense

Defendant invokes in pari delicto.

18. As and for a Fifth Defense.

Defendant invokes set-off

19. As and for a Sixth Defense.

Defendant elects for arbitration under the contract and the Federal Arbitration Act this court lack jurisdiction. Defendant demands the court stay the proceeding pending private arbitration and the Plaintiff is responsible for initiation of this arbitration.

I couldn't find examples to elaborate on 17 and 18 and kind of made 19 up from what you guys had said.