Capital One responded to my discovery, where do I go from here?

[medicbone]

I am being sued by Capital One, represented by Cohen, McNeile, & Pappas of Kansas City. I've basically filed everything as I should have based on what I've read on the forum. My answers, affirmative defenses, counterclaim (FDCPA), and discovery have been filed. I have a hearing on Tuesday. Basically I'm at a loss as to what my next step should be since the lawyer answered my discovery (didn't really expect them to). Here's what they sent me back:

PLAINTIFF'S RESPONSE TO 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.

Response: Deny.

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

Response: Deny

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.

Response: Deny. Plaintiff is the original creditor

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.

Response: Deny.

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

Response: Deny.

PLAINTIFFS ANSWERS TO INTERROGATORIES

1. Does plaintiff currently have a signed agreement between the Defendant and Plaintiff defining terms and conditions of alleged account.

Answer: Yes. See cardmember agreement attached to Plaintiff's petition (it's a copy of the standard agreement, not a signed one).

2. Are you able to provide a complete and accurate accounting of all payments and charges related to the alleged account to prove, in a detailed manner, the amount of damages claimed in the original petition?

Answer: Billing statements provide same.

3. Are you able to produce proof of ownership of the alleged account?

Answer: Capital One is the original creditor and has never transferred or assigned this account to another.

4. Has the debt alleged in the original petition been purchased by Cohen, McNeile & Pappas or a debt collector?

Answer: See response to #3.

REQUEST FOR PRODUCTION OF DOCUMENTS

1. Original credit application from account bearing Defendant's signature.

Response: Objection. Plaintiff objects to this interrogatory as "Account" has not been properly defined. Defendant could have numerous accounts with Plaintiff. Therefore, without a definition of "Account" Plaintiff cannot properly respond. Without waiving said objection, see attached internet application for the subject of the debt attached. (They included a computer screen printout that has my name, address, phone number, social security number; it does not have the account number or anything else on it).

2. Original credit agreement from account bearing defendant's signature.

Response: See response to #1. Without waiving said objection, see agreement attached to petition. (The standard credit agreement that doesn't have my signature on it).

3. Itemized statements from account showing how the amount was calculated.

Response: See response to #1. Without waiving said objections, see attached documents (a copy of EVERY credit card statement I had with them showing purchases, payments, and finance charges).

4. A contract, agreement, or assignment showing that Cohen, McNeile & Pappas is collecting a debt on behalf of Capital One.

Response: Objection. Attorney-Client privilege. Without waiving said objection, Plaintiff states the pleadings speak for themselves.

5. Any and all further documents related to account.

Response: See response to #1. Without waiving said objection, see attached documents (everything I listed above).

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

Response: A standard letter is computer generated and sent by the law firm making demand on the debtor, but each individual letter is not retained. Defendant's letter was generated on or about March 30, 2010.

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

Response: Objection, "any and all" is overly broad and unduly burdensome. Further, information sought is irrelevant.

8. Any credit reports Plaintiff obtained.

Response: Objection, "any and all" is overly broad and unduly burdensome. Further, information sought is irrelevant.

9. Any notes, memoranda, etc.

Response: Objection, "any and all" is overly broad and unduly burdensome. Further, information sought is irrelevant.

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

Response: None exist. This debt has not been sold.

So again they included all of billing statements which have detailed sales and payment records, the internet application screen prints (which really show nothing), and an affidavit from Capital One's legal department saying the answers to the interrogatories are true.

It looks like a pretty detailed response to my discovery request. They didn't send a signed application or credit agreement, but I don't want my whole case to revolve around that one technicality. Any suggestions on where I can go from here?

[Massive]

I don't see any evidence that Cap One owns the debt. Them saying so is not evidence of that. I doubt those account statements are actual cpoies of the ones sent to you or that they have proof that they were mailed to your residence. I doubt that the generic agreement even has a copyright dated the year the alleged account was opened. What date were you sued and what date is on the Affidavit?

Capital One Funding is the likely owner of the securitized account, not Capital One. Make them prove ownership. Cohen McNeile & Pappas filed suit against an acquaintance of mine years ago when they had no right to as they held the debt for about ten months and then sent it back to the O.C. and a few months later filed suit. My acquaintance was dunned a couple weeks after the lawsuit was filed and Cohen McNeile & Pappas are in hot water as we speak, whether they know it or not. They may have to dissolve by the time my acquaintance gets done with them. He's giving both the law firm and original creditor an opportunity to make things right before he lowers the boom on them.

[medicbone]

Thanks for the reply. I have court in 7 hours so any last minute advice would be great!

Turns out the credit agreement they sent is from 2005. I opened my account in 2008. I doubt Capital One went three years without updating their agreement, so hopefully this is good news. I actually have two affidavits. One was written in April, I was sued in May. The second affidavit was part of my discovery request, it was written this month.

Here's something I just noticed. CM&P submitted a summary of my account that says my account has not been charged off, but it has according to Capital One and my credit report. Does that help me at all? Also, their reply to my interrogatories says that they have a SIGNED agreement and credit application, but they obviously don't. What are the chances I can get it thrown out on that?

[mentalcompass]

from my quick read, they can't legally collect this. ask for the case to be dismissed. kick their butts! i'm glad to see someone fighting fire with fire.

[medicbone]

Update: Just got out of my hearing. Capital One was trying to dismiss my counterclaim, stating since they're the OC, they're not a debt collector and not covered by FDCPA.

Judge (to Plaintiff attorney): Are you here trying to collect a debt from this guy?

Atty: Yes.

Judge: Motion denied

Me: *smiles* Haha!

I got a continuance to request further discovery and to draft a MTD. Any help on my motion would be greatly appreciated!

[Massive]

Great job, that is a renegade outfit you are exposing. Prosecute your countersuit because Cap One does NOT own the debt and Cohen, McNeile & Pappas know that. The days of law firms just saying in pleadings that the Plaintiff is the original creditor is about to come to an end. They have the burden of proving that statement.

[mentalcompass]

I'd like to know more about these third-party law firms work with Capital One. Any reading material you can point me to?

[Anne Tyler]

I'd like to know more about these third-party law firms work with Capital One. Any reading material you can point me to?

Kramer and Frank works for Capital One, among others. I was sued by them last year. Kramer and Frank has a F rating with the BBB and the net is full of news about them.

Just google Kramer and Frank.

[Recovering Attorney]

Wake up, people!

Capital One suing you through an attorney is Capital One suing you. If they present all the statements with your name and address and charges and payments, then they have established, in any court I've been in, that you had and used a credit card and owe them money. That being said, if they do not provide an updated agreement, you could argue " question of fact" regarding things like fees, interest rate, etc, but not the fundamental question of the debt.

Cap One is an OC, so the FDCPA does not apply to them. The judge was, imo, sending a mesage to them to treat you better and force a settlement. Don't read anything more into it. Maybe the law firm violated your rights, but you go after them for that in a eparate suit.

[ADSOFT]

Wake up, people!

Capital One suing you through an attorney is Capital One suing you. If they present all the statements with your name and address and charges and payments, then they have established, in any court I've been in, that you had and used a credit card and owe them money. That being said, if they do not provide an updated agreement, you could argue " question of fact" regarding things like fees, interest rate, etc, but not the fundamental question of the debt.

Cap One is an OC, so the FDCPA does not apply to them. The judge was, imo, sending a mesage to them to treat you better and force a settlement. Don't read anything more into it. Maybe the law firm violated your rights, but you go after them for that in a eparate suit.

Exactly, OC is suing you.

However, based on your first post, the OC blew it, they don't have proper docs to establish a contractual obligation. I would have just filed motion to dismiss since they have no docs to prove you owe any amount. They blew it, I would have asked to have case dismissed at trial (maybe you did, I didn't read all the posts).

Very interesting that Plaintiff denied all questions, basically cut thier own throat??? .

I have to read the whole thread. But let me say this.

I GUESS JUST BECAUSE YOU ARE BEING SUED BY THE OC DOESN'T MEAN THEY HAVE ALL THE DOCS. .... the smart thing you did was listen to members around here, ....probobly saved your case.

[Anne Tyler]

Wake up, people!

Capital One suing you through an attorney is Capital One suing you. If they present all the statements with your name and address and charges and payments, then they have established, in any court I've been in, that you had and used a credit card and owe them money. That being said, if they do not provide an updated agreement, you could argue " question of fact" regarding things like fees, interest rate, etc, but not the fundamental question of the debt.

Cap One is an OC, so the FDCPA does not apply to them. The judge was, imo, sending a mesage to them to treat you better and force a settlement. Don't read anything more into it. Maybe the law firm violated your rights, but you go after them for that in a eparate suit.

Going after them in a separate suit? what kind of suit, what kind of damages? I need to "go after" a 3rd party DC who has been on a fishing expedition and coming up with nothing went along with the judge who switched some court dates.

The law firm (lol to the law part) representing Midland Funding are directly responsible but I'm wondering about Midland Funding as well? Can they be "gone after" as well. Where is the line between attorney / client / actions taken drawn?

I have to work hard to keep the law firm and the DC separate because they all seem (thought they are of course not) one and the same since they both have the same philosophies etc.

So I'm just exploring my avenues. I am going to file a complaint with the Bar Association against the attorneys unless there is a better way. These people lie and cheat and surely not just me and I want them to take a step back, actually I wish they would lose their law license but anyway I want to draw attention to them.

[FL4answer58]

“question of fact" regarding things like fees, interest rate, etc, but not the fundamental question of the debt”

Accord, Sears, Roebuck and Co. v. Seneca Insurance Co., 254 Ill. App. 3d

686; 627 N.E.2d 173, 176-77 (1st Dist. 1993) (“The best or secondary

evidence rule provides that in order to establish the terms of a writing, the

original must be produced unless it is shown to be unavailable for some

reason other than the serious fault of the proponent”); Zurich Insurance Co.

v. Northbrook Excess & Surplus Insurance Co., 145 Ill. App. 3d 175, 203,

494 N.E.2d 634, 652 (1st Dist. 1986), aff'd, 118 Ill. 2d 23, 514 N.E.2d 150

(1987).

A credit card agreement that is subject to change upon notice does not

contain all essential terms. Even if the debtor signed a written

application which set forth all material terms at the time of the

application, the “change by notice” provision – whether expressly

included in the contract or implied therein by statute – makes it

impossible to determine from mere examination of the document that

those terms are still in effect. Either the creditor must rely on the fact

that a current version of the agreement was sent to the debtor, or

establish that no change notices were mailed. In either case, parol

testimony is essential, and there is no document which conclusively

establishes the terms of the agreement. : Portfolio Acquisitions,

L.L.C. v. Feltman, 391 Ill. App. 3d 642; 909 N.E.2d 876 (1st Dist.

2009);

In Classified Ventures, Inc. v. Wrenchead, Inc., 06 C 2373, 2006 U.S.

Dist. LEXIS 77359 (N.D.Ill., October 11, 2006) (Darrah, J.), the court

held that where a contract went through several revisions, the need to

use parol evidence to show which of the several versions was in effect

made the contract not one wholly in writing. The same logic applies to

a credit card agreement that can be changed by notice without a

signature.

Filing a single lawsuit without having in hand the means of proving it is

not a violation (Harvey v. Great Seneca Financial Corp., 453 F.3d 324,

330 (6th Cir. 2006)), but a practice of filing lawsuits with the intent of

dismissing them if they are contested may be a violation (Mello v. Great

Seneca Financial Corp., 526 F.Supp.2d 1020 (C.D.Cal. 2007)).

Adding unauthorized amounts to debts, e.g., attorney’s fees. Shula v.

Lawent, 359 F.3d 489 (7th Cir. 2004), aff’g, 01 C 4883, 2002 U.S. Dist.

LEXIS 24542 (N.D.Ill., Dec. 23, 2002).

Collection lawyers who “regularly” collect consumer debts are covered.

Heintz v. Jenkins, 514 U.S. 291 (1995).