Being Sued by Capital One-Please Help

[ChoosingToWin]

I am running out of time to respond to a civil summons (details below). Thank God I found this forum. I've been reading and researching for days, but feel so overwhelmed and scared. Any suggestions will be greatly appreciated. First and foremost, my summons lists Capital One Bank as the plaintiff, but I think the law firm representing them are JDBs. I need to answer by this Friday.

1. Who is suing you? Capital One Bank (USA), N.A. is listed, but I believe it's really JDBs Morgan & Pottinger {who are listed as the plaintiff's legal counsel}

2. For how much? $8,000 + $1,500

3. Who is the original creditor? Capital One

4. How do you know you are being sued? Served with civil summons dated 11/30/10 (served on 12/1)

5. How were you served? Were you served? Served by sheriff's deputy

6. What was your correspondence (if any) with the people suing you before you think you were being sued? Received letter dated 10/31/10 on atty's letter head which offered to settle for 90%. Letter states "This communication from a debt collector is an attempt to collect a debt..." I did not reply to the letter, nor to any other collection notices.

7. Where do you live? I live in Kentucky

8. When is the last time you paid on this account? Last payment was around October 2009.

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). Case open-I must file an answer by 12/20

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 must answer in writing within 20 days. No interrogatory was attached. I will post the details of the documents below.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Attached to the Civil Summons are the Complaint (details below), a photo copy of a statement from around April x, 2010, and a computer printout that says Capital One Cycle Facsimile report that shows previous balance, "transaction," late fee, interest, my name & a card number (also from around April, which is apparently when the debt was charged off).

14. What is the SOL on the debt? To find out: I believe the SOL in KY is 5 years.

Please note that Civil Summons indicates it was filed on 11/30, but I wasn't served until 12/1. It says I must file a written defense within 20 days or that judgment by default will be taken against me. Also, it says that the name(s) and address(es) of the party or parties demanding relief are shown on the complaint. Capital One is the only plaintiff listed on the complaint. I think I may have a defense of fraud by this "firm" but haven't been able to ascertain with certainty who actually owns the debt. My credit report shows that the debt was charged off, but from what I've been reading that doesn't necessarily mean the debt has been sold - does it?

Here's what the Complaint says...

Comes the Plaintiff, the Creditor herein, by Counsel, and for a complaint, states as follows:

1 That Defendant is indebted to the Plaintiff under the contract, account statement and/or affidavit, as shown on the attached Exhibit "A".

2 Said obligation is past due, and the Defendant owes the Plaintiff $8,xxx, with interest thereon at the rate of 14.6% per annum from April x, 2010 until date of judgment with 14.6% per annum thereafter until paid, plus court costs and such attorney fees as the Court finds reasonable which Plaintiff asserts as $1,500.

Wherefore, Plaintiff demands judgment against the Defendant for the sums, plus interest, set forth above and court cost.

I need help with my answer. Do I have sufficient grounds for filing a motion to dismiss based on what I believe to be the situation with the so-called attorneys? If not, what's the best, most-comprehensive way to respond to this? Please help. I've read through so much and I'm so very confused. Any replies will be greatly appreciated.

[BV80]

If your CR does not say sold/transferred, chances are Cap1 still owns it.

Do I have sufficient grounds for filing a motion to dismiss based on what I believe to be the situation with the so-called attorneys?

Probably not.

You must answer and file the Complaint within the allotted time to avoid a default judgment. If you're trying to buy time, read your court's rules of civil procedure to find out when you can send your own Interrogatories and Request for Production of Documents. In your Request for Production of Documents, you could request proof that the attorneys were contracted by Cap1.

Cap1 may offer a settlement, or you could offer it on your own.

[hopefulscambeater.]

What BV80 said.

I'd be willing to wager M&P were retained as Ky Counsel for the CC company (OC)

[ChoosingToWin]

Thank you, BV80 and HopefulScamBeater. If what you're both saying is accurate and since I don't have a SOL case what other grounds might I have to defend this?

[skippy1960]

Thank you, BV80 and HopefulScamBeater. If what you're both saying is accurate and since I don't have a SOL case what other grounds might I have to defend this?

Filing an answer based on your rules of Civil procedures is your first step, include some affirmantive defenses that you can find on the site. The information in the complaint are just allegations until a court of law finds them as fact. Just as your affirmative defenses and denial of the complaint are allegations until the court of law says they are not.

Choices are get busy and learn how to file a proper answer or let them have their default judgement and then they will come after your funds. For me I like to make them work for their money, I am sure they tacked on some $ for attorney fee's, are you going to give them that $1200 bucks for something a para-legal created in 10 minutes.

Make them prove their case, alot of things can go wrong, at some point they need a witness if you run them all the way to trial.....

[hopefulscambeater.]

I can assure you neither of us would have any reason to offer advice that is "not accurate".

Sadly being Original Creditor-Plaintiff to be honest you're in for a rough stretch, M&P will probably have what they need. (or know they can easily get it from OC) I would suggest you contact a NACA attorney ASAP (three in Ky IIRC) see what they advise , "I" would be apprehensive going against that law firm with OC as Plaintiff Pro Se - THE MAIN THING is to answer before the 20 days are "up"......keep in mind IF you admit to the debt in any way within your answers, you are going to likely lose... IF you don't answer in 20 days you WILL Lose

You should probably research • KRS § 360.010

I'd ask a consumer lawyer IF that "could help you" in ANY way at all

[skippy1960]

Fairly straightforward-

Here is the link-http://www.louisvillelaw.com/civil_rules/cr8.htm

Hope this helps

KENTUCKY RULES OF CIVIL PROCEDURE

RULE 8 - GENERAL RULES OF PLEADING

CR 8.01 CLAIMS FOR RELIEF

(1) A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (a) a short and plain statement of the claim showing that the pleader is entitled to relief and ( a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

(2) In any action for unliquidated damages the prayer for damages in any pleading shall not recite any sum as alleged damages other than an allegation that damages are in excess of any minimum dollar amount necessary to establish the jurisdiction of the court; provided, however, that all parties shall have the right to advise the trier of fact as to what amounts are fair and reasonable as shown by the evidence. When a claim is made against a party for unliquidated damages, that party may obtain information as to the amount claimed by interrogatories; if this is done, the amount claimed shall not exceed the last amount stated in answer to interrogatories.

[Amended by Order 86-3, eff. 1-1-87; prior amendments eff. 1-1-85, 1-1-78; adopted eff. 7-1-53]

CR 8.02 DEFENSES; FORM OF DENIALS

A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, he may do so by general denial subject to the obligations set forth in Rule 11.

[Adopted eff. 7-1-53]

CR 8.03 AFFIRMATIVE DEFENSES

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

[Adopted eff. 7-1-53]

CR 8.04 EFFECT OF FAILURE TO DENY

Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. Averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading, except that the following allegations must be proved:

(a) Those against a person under any disability.

( Those necessary to sustain an action for divorce.

© Those concerning value or amount of damages which are not for a sum certain or for a sum which may by computation be made certain.

[Amended eff. 1-1-78; prior amendment eff. 4-1-63; adopted eff. 7-1-53]

CR 8.05 PLEADING TO BE CONCISE AND DIRECT; CONSISTENCY

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required.

(2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in Rule 11.

[ChoosingToWin]

I can assure you neither of us would have any reason to offer advice that is "not accurate".

My apologies, hopefulscambeater. I certainly didn't mean to suggest that either of you would offer advice that was not accurate. My accuracy reference was only about the (educated) speculation of the owner of the debt. I've read so much, I'm still conflicted about that particular issue. I sincerely appreciate any thoughts that anyone on this forum would be gracious enough to share with me, and I would never intentionally offend anyone gracious enough to respond to my posts.

Sadly being Original Creditor-Plaintiff to be honest you're in for a rough stretch, M&P will probably have what they need. (or know they can easily get it from OC).

I'm hoping they won't have my original signed CC agreement, which goes back to 1989, and was with a predecessor bank.

I'm very grateful for the KRS § 360.010 citation. From what I'm gathering, the 29.9% rate they were applying could be considered usurious.

[ChoosingToWin]

Thank you, thank you, thank you, Skippy1960. Now, if someone could just recommend a good legal jargon dictionary...

[BV80]

I'm hoping they won't have my original signed CC agreement, which goes back to 1989, and was with a predecessor bank.

I hate to be the bearer of bad tidings, especially considering the Season, but they don't actually need the original signed agreement. Most cc agreements state that use of the card indicates acceptance of the cardmember agreement. Every time the agreement was updated or changed, and you used the card, you, in effect, accepted their agreement.

I'm not telling you to give up, but Hopeful is right. OCs are more difficult to challenge.

One possible affirmative defense might be to challenge the balance. It's not the greatest defense, but if you want to buy time, it's something. Find out when you can request discovery, and request all documents that show charges, payments, interest, and fees.

[ChoosingToWin]

DEFENDANT'S ANSWER TO COMPLAINT

Defendant, appearing Pro Se, for her reply to the Complaint naming Capital One Bank (USA), N.A. Plaintiff, states as follows: All answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

1. Defendant has insufficient knowledge to affirm or deny this statement. Defendant leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

2. Defendant has insufficient knowledge tor affirm or deny this statement. Defendant leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

First Defense

The complaint fails to state a claim against defendant upon which relief can be granted.

Second Defense

The Plaintiff has not proven the alleged debt is valid or the amount of the alleged debt is accurate. The Plaintiff must prove that the alleged principal, interest, collection costs and alleged attorneys fees are all correct, agreed to in the alleged contract, and lawfully charged. Defendant also insists that the Plaintiff provide the alleged contract and a complete accounting proving the amount of the alleged debt.

Third Defense

The 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 other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

Fourth Defense

Plaintiff has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account

Fifth Defense

Morgan & Pottinger, P.S.C. has not proven that they were retained by Capital One Bank (USA), N.A. as it’s representative in this matter.

Sixth Defense

Morgan & Pottinger, P.S.C. 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.

Seventh Defense

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.

Eighth Defense

Plaintiff’s alleged damages are limited to real or actual damages only.

Ninth Defense

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

Tenth Defense

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.

Eleventh Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or

Counterclaims at a later date (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.

WHEREFORE, the Defendant prays for a judgment in favor of the Defendant dismissing the complaint with prejudice, together with costs, and such other further and different relief as the court finds proper here.

By the Defendant Pro Se

Any thoughts?

[ChoosingToWin]

Kentucky's rules of Civil Procedure includes an appendix of forms. The sample request for production of documents (which can be filed at any time) includes the following wording:

"Plaintiff A.B. requests defendant C.D. to respond within _____ days to the following requests:

(1) That defendant produce and permit plaintiff to inspect and to copy each of the following documents:

(Here list the documents either individually or by category and describe

each of them.)

(Here state the time, place, and manner of making the inspection and

performance of any related acts.)"

My question is do I have to word it like this, ie., request a time and place to inspect and copy their documents -or- can I simply ask for the documents as is shown in some of the examples on these boards?

Also, I'm inclined to file this at the same time I file my answer to the complaint. Is there any good reason not to? Also, by filing a request for production of documents, am I screwing anything up if I later decide to go for arbitration? While invoking arbitration has been suggested to me, I don't know anything about it.

Finally, on legal documents greater than one page in length, is a heading or page numbering required on the subsequent pages?

As always, any feedback will be greatly appreciated.

[ChoosingToWin]

I received your PM, hopefulscambeater, but am unable to PM as I haven't posted enough yet. Thank you, so very much. I would have never thought to consult with an attorney without your urging, as I have no money to pay for one... But if they'll listen and perhaps offer advice I will definitely check it out. Again, I thank you. Best wishes to us ALL!

[hopefulscambeater.]

You have a Private Message

"I" would add the KRS I posted to the defenses, "just in case"

Something to the affect of :

Totals demanded do not conform to requirements of KRS 360.010 and therefore the Unverified Complaint should be dismissed With Prejudice- or similar

Also "another take" using the same KRS is " amount demanded would result in Unjust Enrichment for the Plaintiff and should therefore be dismissed With Prejudice (etc. )

IMO better to list in case you can use than to not list them

[hopefulscambeater.]

Finally, on legal documents greater than one page in length, is a heading or page numbering required on the subsequent pages?

YES........Ky Requires each page be numbered if more than one page......(bottom center)

Also Black Font NO smaller than 12 point, DOUBLE SPACED with 1.5" LEFT Margin ALL Very important......

Glad you got the PM, I understood you didn't have enough posts to reply, hope it helps you !

[ChoosingToWin]

Also Black Font NO smaller than 12 point, DOUBLE SPACED with 1.5" LEFT Margin ALL Very important......

The Summons is not double-spaced and neither Summons nor Complaint have a 1.5" margin. Is there anything I can do about that?

[hopefulscambeater.]

Probably not sadly-- IMO (and that is ALL it is LOL)

Pro Se have to be "more careful" to follow the letter of the law- to be taken seriously, whereas the Lawyers are "already in the clique " as it were.... WE were VERY careful to file everything properly with the Court, send M&P everything filed with the court CMRRR and a copy of that filed with the court as well.

Keep in mind as Skippy pointed out IF they continue at some point they will have to produce a live witness- which is costly to them, WATCH the court dockets EVERY single day so they can't sneak a Default or SJ on you, be prepared to appear if need be, make them earn their $1500 in fees they're asking- odds are good you'll get some decent reductions in what they'll take at the least. Hang in there! We are all pulling for ya!

[ChoosingToWin]

A sample request for documentation shows multiple numbered paragraphs referring to ""Account,"" for example:

"1. The alleged credit application from “”Account””, bearing the Defendant’s signature;"

Question: Where it says ""Account"" do I leave it as such or do I complete it in some way. The Complaint does not state an account number, but the attached exhibit is a statement which shows an account number.

I'm sorry if this is an obtuse string of questions (especially this latest one), I just really have no idea in such matters.

Thanks in advance!

[hopefulscambeater.]

"I" would address ALL references to "account" as ALLEGED Account

[ChoosingToWin]

"I" would address ALL references to "account" as ALLEGED Account

Would you leave it in quotes?

Also, upon further reading of the Kentucky Rules of Procedure, it appears as though I must make request to inspect and copy the documents. So, where it says "2. (Here state the time, place, and manner of making the inspection and performance of any related acts.)" How am I to complete that section?

I do have a call in to an NACA attorney. If I don't hear from her soon, I'll call another. I want to be as prepared as possible when I speak with her, and also prepared to answer my complaint if I'm not able to speak with an attorney first.

[ChoosingToWin]

Probably not sadly-- IMO (and that is ALL it is LOL)

...WATCH the court dockets EVERY single day so they can't sneak a Default or SJ on you.

How do I do this? I can't find anything on line. I am not in a major city, though I am close to one.

[hopefulscambeater.]

You "should be able to check online" we're not in a major city either but the County Court Docket is online (you will need your case #on the Unverified Complaint you got with the summons)

Or you can search your name / County here to see

http://courts.ky.gov/

[ChoosingToWin]

How do I complete this part?

"(Here state the time, place, and manner of making the inspection and

performance of any related acts.)"

Please help. I'm trying to prep this so I can file it at the same time as my answer - which needs to be filed right away.

[hopefulscambeater.]

How do I complete this part?

"(Here state the time, place, and manner of making the inspection and

performance of any related acts.)"

Please help. I'm trying to prep this so I can file it at the same time as my answer - which needs to be filed right away.

Sorry I'm not sure "where that part" is from?

[ChoosingToWin]

Hopefull,

I'm completing a request for Production of Documents and I found this information in the appedendix of forms of KY's rules of Civil Procedure.

It looks like this:

"Plaintiff A.B. requests defendant C.D. to respond within _____ days to the following requests:

(1) That defendant produce and permit plaintiff to inspect and to copy each of the following documents:

(Here list the documents either individually or by category and describe

each of them.)

(Here state the time, place, and manner of making the inspection and

performance of any related acts.)"

I have a good idea of the documents I want to request, but am of sure of what to say for a time, place, and manner of making the inspection... In reading rule number 34, it looks like it has to be worded this way. Personally I'd prefer to ask them to send me copies. But if I understand correctly, this is how the document is supposed to be worded.

I want to file it, along with my answer by Wednesday. (Unless there's some reason not to.)

Incidentally, found the docket info. Thanks so much!