MY HEARING TODAY BOY OH BOY

[chiquita55]

Today I attended my case management hearing which was no big deal but I couldn't believe the judge and the outward disgust he has for debtors. He puts on a pleasant demeanor but he as much said that if you had the credit card, you should pay up. He didn't seem to think any debtor should take up his court time fighting the summons!

BTW, I have always heard that no one fights these lawsuits but that isn't the case in San Diego. I had to sit thru all sorts of people getting their court dates and they were almost all there!! I guess San Diegans fight back!

Anyway, after the 2nd pro per person stepped up and didn't answer the way he should (the judge asked 1 question...did you want a jury trial or a bench trial) and then he set the pre trial hearing and trial date and said if you don't show up he ould strike your answer to the summons. Very strict judge. When that 2nd person tried to declare his own court case date the judge lectured the whole court room on how debtors are going to lose these cases and to just pay up. I won't go into his half hour tirade. So that is what I am up against.

BTW, the Plaintiff never showed up, called or sent back a case management form. I asked the judge to dismiss the case but he wouldn't. I also asked that the other side abide by the same rules as I have to, that they should file their forms in a timely manner and they should have to send me a copy of all the court forms that are filed. The judge just nodded but gave some excuse why they never did their job. So he is definitely pro Plaintiff. I will need all the help I can get. I did send off the Bill of Particulars today. We shall see if this outfit answers me. The judge did say if they didn't answer to come back and file a motion to compel. The judge told me to beware of them and read all my mail carefully. Apparently these lawyers for Capital One try to get msj's etc without you ever knowing. The judge said they were tricky. HELP

Edited March 25, 2011 by chiquita55

[antiquedave]

its interesting that the judge said they were tricky, I'd be curious to see if the people fighting their cases did their homework or were just shooting off the cuff, he may be tired of the cowboys.

I'd make copius notes as to what the judge said and who else was in court at the time, it just seems to me that he is too biased

[chiquita55]

This judge is extremely biased. He is pleasant but biased. He talked alot because none of the people that appeared knew the court rules at all, nor knew anything about how to fight the lawsuit. At least I had come here and knew what to expect and filed my pleadings in a professional way. The judge gets peeved with people representing themselves. He said that he understood they couldn't afford a lawyer but that he was going to treat them as a lawyer and that they would get no help from him. There were several hispanics there that don't even know what is going on and he said California was too poor to pay for interpreters so they had to find their own interpreters if they couldn't understand and that they would get no help from the court. Doesn't seem fair but I guess the day for equal access for all is over in California. You sink or swim. I am lucky in that I am poor and on ssdi and was able to get all my fees paid and I asked for a jury trial.... I keep hoping that Cap One will go away as there is absolutely nothing they can get from me. I just got a notice from the State today that when I die, they get first dibs on my Estate since they pay my medicare premiums and co pays that medicare doesn't cover. That is already 10 years worth of medicare premiums and 100s of thousands of dollars in medical bills so there won't be a thing for this law firm from my old manufactured home that is homesteaded when I die.

One last thing regarding mediation in California. The judge said there are no funds in California for mediation so there is none. Whether you could pay yourself for a private arbitrator I don't know but he said they were not offering any mediation because there was no $$ for it in California. I don't know if all cities are like that or just ours.

Edited March 25, 2011 by chiquita55

[lheart]

Thanks for the update!

[Guest usctrojanalum]

Your OP is very contradictory, you first say that the judge is a mean, biased, pro plaintiff judge but then he tells you if they do not answer your BOP to get a motion to compel and to beware of the lawyers because they can be tricky?

[rikkivs]

So much for justice administered by and for the people huh? That judge is a jerk and I feel for you. You can either try to get him removed from your case due to bias OR you can stick it out and laugh when they try to execute a judgment against your LACK of assets lol! Don't you worry Chiquita, look at Pro Say's comments from another poster whose wife has a disability. He gave good advice about contacting the bank to let them know your only funds are ssdi or whatever else and untouchable.

I maintain that it is unethical and immoral for these jerks to pursue cases where the person is severely disabled and or elderly. It adds another layer of stress to their lives and it is highly unlikely that any judgment could be collected from their meager fixed incomes. Keep your head up and listen to the judge. He at least saw you were prepared and told you what to do. If he is this strict with pro se litigants than he may be strict with those nasty attorneys. He MIGHT very well hold the Bop to the ten day deadline. Hope and pray that he does. Meanwhile get your discovery together; they won't be able to answer you so keep it moving:) Good luck and Godspeed!

[rikkivs]

He has to put on a face of objectivity but in reality might appreciate a pro se litigant that has actually read the rules of civil procedure. That is what I hinted at above; that if she listens to him and does what he says, she may prevail...

[chiquita55]

USCTROJAN I TOLD the judge that I had sent the BOP and that I WAS going to file the motion to compel if the other side didn't answer it. He didn't tell me to do that at all or what to do. He then said that to be sure to do that because if I didn't and tried to say something about it in court it would be too late. So NO, he wasn't helpful. But he does know that I filed it and I did file it with the court today even tho you don't have to because the girl at the desk insisted on having it put in my file. I will not warn the other side. I gave them 10 days and if they don't answer I will file the motion to compel. I have to say he did warn 2 or 3 people to watch their mail carefully because the lawyers from the other side could file things and be very tricky and if the response was wrong or the defendants didn't answer properly their case would be closed out and they would get no help from him. If you think that is helpful or nice then so be it. He did warn us.

Edited March 25, 2011 by chiquita55

[Linda7]

Why don't you go ahead and file a MTC arbitration and get this out of court?

[fightemdontfold]

First of all I am glad you were able to attend and stay for the hearing, I know you were worried about that.

I agree with USC, you are kinda split it seems on the demeanor of the judge. But that doesn't matter, don't feel like your being attacked.

The plaintiff doesn't even show and it isn't dismissed,yikes,how disgusting the hypocrisy in these cases, I'll never get used to hearing about it on here.

It might be a case of the judge not being accustomed to people who fight back properly from what you have written. I would tread carefully, you might be ok if you properly educate yourself and come forward with a proper defense, but the judge may not be too far from a rubber stamp, I mean he pretty much acted as their counsel from what it sounds like.

[antiquedave]

I consider bankruptcy an option, and I don't have the kind of debts you appear to have either, I felt a great relief when I finally gave in and decided that bankruptcy would be okay, took the weight of the world off and it put everything into perspective.

I never wanted to be a person who filed bankruptcy but I wish I could have come to that decision much earlier. At first I couldn't wrap my head around the idea that they were suing me, with the IRS leins they can't get anything anyways but it eventually sunk in.

These guys are pretty much on auto pilot, not a lot of thought goes in to what they are doing, when they are challenged they can't get through the arrogant sense of entitlement that they have and they are of the smash and grab mentality, what they are doing is more like a violent rape, they have a batterer mentality, They are going to take what they want, full speed ahead and damn the torpedoes.

makes me wonder what happens in the break room when one of these bottom feeders lose to a pro per, do they have to wear the toilet seat of shame?

[chiquita55]

Yes Fightem, there was definitely a difference in how the plaintiff lawyers are treated and the pro se people. This judge hates debtors. i think he would put them all in jail if he could. Its ok for them not to show up or even send in a case management form but he threatened every debtor that if they didn't do everything just right he would strike their answers and give a default judgement. he threatened everyone with that but me (I was the last person). He also threatened to do that if they missed any hearings or failed to answer anything.

Some poor guy wanted to put a hold on his court trial for several months because his wife had been very ill and had a special needs baby that was very ill. Apparently the baby was born with a zillion problems and this judge would not let him continue the case to another time. Even the lawyer from the other side offered to hold off on the trial but the judge wouldn't have it. He really is quite cruel or perhaps he is just tired of everyone's excuses for this that and the other. I guess the fellow in this case had to cart his sickly wife and daughter around all over for therapies and doctor appts and didn't have time right now to fight the case.

Antiquedave, I hate ti file Bankruptcy since this is the only creditor hounding me and the SOL will be over in a few months. It would just set my credit back by 4 years but if I find they are going to take something of mine it is always an option. We can always file it if necessary. Alot of people were doing that that showed up at court today. Like I said, hardly any no shows. Everyone was fighting these creditors in one way or the other.

[chiquita55]

Linda, what is a MTC arbitration?? From what I understood from the judge today you have to pay for arbitration. The California court (at least not his) were not offering any free mediation of any kind. You had to get a private arbitrer and I can't afford that.

[LearningasIgo]

Linda, what is a MTC arbitration?? From what I understood from the judge today you have to pay for arbitration. The California court (at least not his) were not offering any free mediation of any kind. You had to get a private arbitrer and I can't afford that.

Could it mean? Motion to compel?

Under California state court rulesPursuant to California Rule of Court 3-1345:

© Contents of separate statement

A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include-for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested-the following:

(1)The text of the request, interrogatory, question, or inspection demand;

(2)The text of each response, answer, or objection, and any further responses or answers;

(3)A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;

(4)If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;

(5)If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and

(6)If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.

---------------------------

Just a "motion to compel" arbitration. Most of the arbitration fees land with the plaintiff.....

Edited March 26, 2011 by LearningasIgo

[chiquita55]

What would be the purpose to do this?

[Linda7]

Is the OC, Capital One? When do they say the account was opened and when was the default? Also, what is the ballpark amount they are suing for?

A MTC arbitration would get the case dismissed/stayed pending "private" arbitration. It would get it out of the court's jurisdiction. If then filed with JAMS, the consumer is out $250, but can request a waiver. The costs to arbitrate fall to the creditor, not the consumer as the arbitration provision states that they will pay. The tactic is that it will cost them quite a bit to arbitrate when you elect it. Often the cost outweighs the very debt they are trying to collect and you could actually get them to walk away. Or it could get you a better settlement or buy more time as all this takes quite awhile.

And you can MTC arbitration even though you are already in court. I'd do it quick before they get a SJ on you. You need to go to debtorboards http://www.debtorboards.com/index.php?action=forum and post who you're up against and where you are with the case.

[chiquita55]

Linda, are you on debtor boards? It seems very quiet over there. Anyway, yes it is Cap one and I believe according to them that the default is November and the 4 years sol would be november this year. So it must have been November 2007 according to them. I do not know if that is right. I haven't run a credit report yet.

The judge today said that the courts weren't paying for any mediation due to the poor state of California right now. Would that come under that? What if I opted for that and they didn't give me a fee waiver??? Thats a scary thing.

The amount was a little over $4,000. So far the attorney hasn't submitted any proof of any kind with their filing. No statements. No copy of a bill. Nothing. I do expect them to send a summary judgement at some point but so far they have submitted no proof of anything. I sent off a BOP today asking them for alot of info. Wouldn't they have to answer that before they could file a summary judgement? Wouldn't they have to submit to the court a list of all the charges from ZERO til now and prove you owe the $4,000?? The trial is in December. Please give me more info on this arbitration. I am not going to settle with them as I can't afford it and I am judgment proof.

[LearningasIgo]

I am not going to settle with them as I can't afford it and I am judgment proof.

Then it should be more interesting than fearful. Personally, I'm make them if I could, dot their t's and cross their eyes. And I'd make sure to inform them that should they happen to "win", when the dust clears, they still lose. They can't collect and the judgment can be erased at any time with BK7, should I so choose. I'd actually feel that I held all the cards, including an extra ace up my sleeve.

[HoppinMad]

Mediation and arbitration are not the same in most jurisdictions. While they are both forms of alternative resolution they are funded differently. Usually mediation is a publically funded option and arbitration is a through a private arbitrator or company.

[donqII]

Why don't you go ahead and file a MTC arbitration and get this out of court?

I'm with Linda.... MTC private arbitration.....

This is a no brainer IMHO>>>>>>>>>>>

[donqII]

Linda, are you on debtor boards? It seems very quiet over there. Anyway, yes it is Cap one and I believe according to them that the default is November and the 4 years sol would be november this year. So it must have been November 2007 according to them. I do not know if that is right. I haven't run a credit report yet.

The judge today said that the courts weren't paying for any mediation due to the poor state of California right now. Would that come under that? What if I opted for that and they didn't give me a fee waiver??? Thats a scary thing.

The amount was a little over $4,000. So far the attorney hasn't submitted any proof of any kind with their filing. No statements. No copy of a bill. Nothing. I do expect them to send a summary judgement at some point but so far they have submitted no proof of anything. I sent off a BOP today asking them for alot of info. Wouldn't they have to answer that before they could file a summary judgement? Wouldn't they have to submit to the court a list of all the charges from ZERO til now and prove you owe the $4,000?? The trial is in December. Please give me more info on this arbitration. I am not going to settle with them as I can't afford it and I am judgment proof.

Electing private arb will not be funded by your court. If your

cardmember agreement says so they may pay your fee4s for you.

If not, and you have JAMS.... Calif will give you a fee waiver...

BTW.... they do not have to answer anything.... Mine did not answer my discovery requests and went straight for a hearing date for SJ.

That is when I interceded with my motion to compel and stay....

The case is stayed.... and that is a story for another time...

I would not think twice about doing what you need to do to get away

from a judge who more or less told you and the others in the court room you are going to loose.

[HoppinMad]

Chiquita55

Here's some info about Crap One to put in your arsenal.

There is supporting case law that the Capital One Membership Agreement does not construe a written agreement. In Capital One Bank v. Creed, 220 S.W.3d 874 (S.D. Mo.2000), the company alleged the parties entered into a contract, whereby the company would extend credit to the customer. The company alleged that the customer breached the terms of her contract by failing to pay the amounts for which credit was extended. The customer denied the allegations and asserted the affirmative defense that the action was barred by the statute of limitations. The appellate court ruled that the action was barred by the five year statute of limitations under Mo. Rev. Stat. § 516.120 (2000). The customer made a partial payment on December 2, 1999, and the company's petition was not filed until January 3, 2005. The ten year statute of limitations under Mo. Rev. Stat. § 516.110 was not applicable because the company did not produce a written promise by the customer to pay money.

The Plaintiff does not have standing to sue in Court. A prospectus dated May 22, 2008 (http://google.brand.edgar-online.com/EFX_dll/EDGARpro.dll?FetchFilingHTML1?ID=5957768&SessionID=J3ivWFsgRboPzz7 ) issued by Capital One Multi-Asset execution Trust ("COMET"), describes the securitization process used by Capital One Bank (USA) N.A. (Capital One Bank). The securitization process involves, in addition to Capital One Bank and COMENT, an entity called Capital One Funding, LLC and then in turn transferred to COMET. COMET then issues various classes of securities backed by the value of those accounts. The master Trust agreement provides that Capital One Bank will service the accounts in exchange for a servicing fee.

[chiquita55]

HoppinMad wouldn't I have to provide California law and not Mo. law in order to try and win the case using the above? Our SOL is 4 years on credit cards and I am still many months within the SOL.

Donq11 What happens if you LOSE at arbitration? This is sounding like a better option because this judge is so anti-debtor. I know anyone with credit card debt will lose unless you can prove your card was stolen and there was identity theft or the SOL has run out. The judge mentioned those 2 things as the only reasons to fight the case. lol I don't have either defense.

Also if you do tell the court you want to elect arbitration, how do you then set that up?

[chiquita55]

Yes, I am not fearful. There is really nothing they can get from me. I can't work again and my only income is ssdi and I have no assets or money etc. I already did state this in my answer to their summons but to tell you the truth I don't think they are even looking at my case. They didn't file the case management form or show up at court The judge gave them some excuse and just said they must not have been notified but I personally sent them a copy of my case management form 3 weeks ago so they have no excuse. I figure I will try to cost them as much as I can in the process and as much time as I can but I don't understand some that are saying they don't have to provide any discovery or proof of anything. Why is that??? Then why do we have to provide it? Since I opted for a jury trial and should get my fees waived for that do they have to pay anything for a jury trial? That should help too since this judge would not make the decision. But I wonder if the other side has to pay for the jury too. One good thing is its set for a 3 day jury trial so they are stuck coming at least 3 days. lol

Then it should be more interesting than fearful. Personally, I'm make them if I could, dot their t's and cross their eyes. And I'd make sure to inform them that should they happen to "win", when the dust clears, they still lose. They can't collect and the judgment can be erased at any time with BK7, should I so choose. I'd actually feel that I held all the cards, including an extra ace up my sleeve.

[Linda7]

Linda, are you on debtor boards? It seems very quiet over there. Anyway, yes it is Cap one and I believe according to them that the default is November and the 4 years sol would be november this year. So it must have been November 2007 according to them. I do not know if that is right. I haven't run a credit report yet.

The judge today said that the courts weren't paying for any mediation due to the poor state of California right now. Would that come under that? What if I opted for that and they didn't give me a fee waiver??? Thats a scary thing.

The amount was a little over $4,000. So far the attorney hasn't submitted any proof of any kind with their filing. No statements. No copy of a bill. Nothing. I do expect them to send a summary judgement at some point but so far they have submitted no proof of anything. I sent off a BOP today asking them for alot of info. Wouldn't they have to answer that before they could file a summary judgement? Wouldn't they have to submit to the court a list of all the charges from ZERO til now and prove you owe the $4,000?? The trial is in December. Please give me more info on this arbitration. I am not going to settle with them as I can't afford it and I am judgment proof.

Yes, I'm at debtorboards and a lot of other people that are here are there also. Don't worry about what the Judge has said as you can put the Judge out of the picture. As stated previously, electing private arbitration which you are entitled to via the cardmember agreement has nothing to do with "if" your state can afford it. The creditor will pay the costs. There is a $250 consumer cost, which can be waived (especially in California). All the other costs will fall to the creditor. Even if you lost - you would be out nothing more than you would be in court - especially with you being judgment proof. However, to get their judgment on you (if they even can) it will cost them a lot. Then they would have to go back to the court to get it confirmed and sometimes that doesn't happen either. With the debt as small as yours, it is just not cost effective for them to try and arbitrate with you - but, if you elect it . . . they have to! You could easily get them to walk away from this, but just in case you end up with some stubborn, attorney that thinks he is going to prove a point and score a "win" for the OC . . . . . look at what it will cost the OC! Go to debtorboards and post who the OC is and the other pertinent information without giving away your identity - just use ballpark figures, etc. I think you need to file a MTC private arbitration immediately and get out of that court!