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Cap 1 sues, can I get this dismissed?

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Hi everyone.

Well to start, I've been browsing this forum for the past week since my husband got a belated summons (received on the 30th day after it was mailed) from Capital One. We filed an answer with affirmative defenses etc, including wrong juridiction. I knew I was also being sued by them (different account) because my name was listed under his on the Court's website of civil cases. Well I just received the summons in person today, by a different attorney than the one representing Cap 1 against my husband.

Here's what I got:

1. Summons - filed in wrong county (didn't open the account there, have it charged off there and didn't live there when the suit was filed).

2. Wrong account number listed on summons...completely wrong, not a typo

3. Amount: $2,980 on mine, $2,673 on his

I am in CA and this debt is not out of SOL. In the complaint I received from them, it states that "no signed application is required", and I am being sued for two Causes of Action:

Breach of Written Contract and Account Stated.

Does this mean they don't have to provide me with the original signed agreement? And does it also mean that I can't send them a BOP?

Also, attached to the complaint is a Program Case Notice. At the bottom the notice states that "this notice must be served with the summons and complaint", however, my husband's mailed summons did not include this notice. Both were filed in the same court - Sacramento.

There is also an attached AFFIDAVIT OF VENUE signed by the attorney for proper juridiction.

So I feel like we have quite a few defenses to go off of, but I'm just not sure how to go about it now. We had to file the Answer for his case as it was already late (due to them mailing to our previous address and waiting for it to be forwarded here.) I want to file a MTD based on wrong venue and wrong account number before I have to file an Answer, but I'm not sure how often that actually goes through.

Here's another question: How did the server who brought me my summons know my address when the attorneys clearly didn't? Otherwise, wouldn't they have filed the suit in my current county? (100 miles away)

Anyway, I know it's a lot of info and questions, but I want to get on this asap, and there just seems to be so much info on the boards that it's making my head spin. I don't want to file something with the cout that violates rules of procedure etc, but I also don't want to file an Answer if I can get it dismissed (or delayed) first.

Thanks for your help!

Edited by JessEA
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Was the suit filed in the county where you "now" reside? If so, then it is the correct county. It doesn't matter that you lived somewhere else when you defaulted.

It is good that the account number, is wrong - but, I wouldn't try to base my case on that especially with it being the original creditor. That might get straightened out really fast if indeed you did have an account on which you defaulted.

What years were the two accounts opened?

I'm thinking . . . I'd be electing arbitration on this immediately. With such a low debt that they are trying to collect - arbitration could immediately turn this around for you.

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Thanks for the quick reply Linda! No, I haven't lived in that county since May of last year. Definitely wrong venue.

The accounts were both opened in 11/2005, closed 7/2010 (info from credit report)

I'm also very confused about arbitration. I 've read a few threads on it, but I'm not sure if my agreement year allows for that. I'd hate to screw it up just because I totally don't get how it works.

Edited by JessEA
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Since you're dealing with the original creditor, they are not subject to the FDCPA. However, since you live in California - they are subject to the Rosenthal Act.

Let some others come by and give you some advice too, but in the meanwhile I think you also need to post at debtorboards. You can just copy what is in your first post here and then paste it over there as well. I'd get feedback from here and there too!

Here's a link - http://www.debtorboards.com/index.php?action=forum

I don't like the way Capital One operates, but I've seen time and again that electing arbitration on a smaller debt has made them walk away. :)++

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So I guess I am a bit familiar with it, and I'm guessing the part that applies in my case is 1788.15 for the wrong juridiction. But I was under the impression that this rarely works. If I do use it, do I include it in my Answer, or do I need to send something else out alltogether?

And thanks again for your help! I'll post this over there too.

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You can send them a Bill of Particulars request because of the breach of contract cause of action. Since they're suing under breach of contract specifically they WILL need to show the contract that you guys agreed upon with your signature. They will also have to itemize the balance from zero and show all debits and credits. They might try to shine you on but they MUST comply. Now if they are slick and realize that you have some savvy they might try to amend their complaint to strike the breach of contract cause of action and leave account stated. But even if they did that, you could get these items in discovery and you could always amend your answer to specifically defend the account stated claim only.

For the here and now you need to request the BoP ASAP! Precedent says that it need not have a particular form and you can send it on pleading paper and say CCP 454 allows Defendant to request copy of the account. Please send a Bill of Particulars to Defendant including the following:

1.Copy of alleged written and signed contract between plaintiff and Defendant

2.Itemization of account from zero balance showing interest calculations, debits and credits on the alleged account

3.Any other relevant information included in copy of the account via CCP 454.

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Thanks so much Rikki!

I just printed out a BOP for each of us and will be sending them off in tomorrow's mail (CMRRR of course). Can I still send it to my husband's attorney, even though we already filed the answer this week?

Also, maybe a silly question, but with the proof of service, I just signed his and was going to have him sign mine. As I understand it, it just has to be somebody over the age of 18 and not a party to the suit...which we're not since they're seperate individual accounts.

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  • 4 weeks later...

So it's been well over 10 days since the lawyer received my BOP, and I never got a reply back. What now? Do I send another one, and refer to the first one I sent? I have to file my answer by next week, so I guess I'll get that done soon too.

On another note, the lawyers representing Cap 1 on my hubby's case just sent another letter stating that they received his answer, and want him to call to talk about a settlement. We originally planned to settle, but I'm not sure if I should answer them or not...and if so...I'd rather do it with a CMRR letter so that I have the paper trail.

What do you guys think?


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