Jump to content

Cap 1 answers Motion...help???


Recommended Posts

Okay, so a few weeks ago I posted an update for my husband's case with Capital One. We were able to get them to dismiss without prejudice after doing two BOPs and a Motion to Exclude Evidence.

However, Cap 1 is also suing ME, different account and different attorney. I got my summons only a few weeks after we got his, so I basically filed papers/motions for both about the same time. This is a quick summary:

1.Received their summons in person on March 17th.

2.Filed my Answer on time, stating wrong venue, wrong acct #, denied almost everything other than my name.

3. Sent them the first BOP request in late March (after reviewing stuff on this site), to which they never responded.

4. Sent second BOP (and stated it was the 2nd request etc) on May 20th, with no response again.

5. Filed Motion to Exclude Evidence last month.

6. Received a packet from them today with an "amended" complaint and copies of my monthly statements.

I now have a court date set for October. So I'm totally confused as to what I'm supposed to do now. Do I just show up and fight? Should I file or send anything else to them or the court before October? How will I know if the court decides to exclude evidence or not? On court day?

And...is it too late to elect arbitration? Can I do it on court day if they decide to let the evidence in, despite my motion?

I know...a ton of questions. I just hoped it wouldn't get this far since the other attorneys for my hubby's case backed off.

Any help/experience would be greatly appreciated!

Edited by JessEA
Link to comment
Share on other sites

Send the plaintiff a meet and confer letter - with your 2 BoPs enclosed. Inform them the repsonse to the BoP is deficient per CCP 454 and that they have had more than enough time to comply...

File either a motion in limine to preclude the statements from evidence, or, a motion to compel with sanctions - they have had 3 months to comply with your BoP.

Link to comment
Share on other sites

Another note...

A little clarification here please!

With the monthly statements, they send two motions. The first is a request to amend their complaint (to add in the card member agreement and monthly billing statements) and the second is to add Association of Counsel...for another attorney.

Can I file something against these amendments? I believe the court hearing date they've set for October is just for these amendments, if I'm reading it correctly. It states that a tentative ruling will be made the court day before the hearing, unless I request an oral argument.

The specific wording they want to add is "attached hereto and incorporated by reference as Exhibit 1, is the customer agreement, and monthly billing statements received by defendant (s) associated with the alleged debt"

It was dated August 3rd, and I'm just now getting it :(

Link to comment
Share on other sites

You could fight their motions...but the more damaging is to preclude.

The other thing is to take a quick look at the CC agreement. Does it have arbitration? If so, then make a motion to compel arbitration per the agreement.

Either way, get your motions on calendar for the same day... in the interest of expediency.

Link to comment
Share on other sites

The motion to preclude is the same one I already filed, right? It was the Motion to Exclude Evidence based on CCP 454. How do I get them on the calendar for the same day?

And yes, there is an arbitration agreement. I don't know how long I have to file it, though. It doesn't really specifically say that. It just states that either party can take it out of court if they initiate arbitration. Is that something I should file right now? Or wait until court day and request it there?

How likely is it that the court will allow their amended complaint to include the statements? They said they "didn't realize the defendant would need them until they reviewed my Answer, so now they're including them"...5 months later...and only after I filed the Motion to Exclude

Link to comment
Share on other sites

The judge may not allow them to amend their complaint...as far as getting your motion to preclude on calendar, file the motion at the courthouse and ask the clerk to put it on calendar for the same day...

Also, you may want to be ready to pull the arbitration card.

Link to comment
Share on other sites

  • 2 weeks later...

So I'm trying to figure this out...still! ugh

The court is going to make a decision and notify me on The attornery's motion to amend their complaint...unless I request a hearing.

Should I be requesting that? Is it in my favor? The reason I ask if that as this court is out of venue (and 100 miles away), and it's not an easy task for me to get off work to show up there. Plus I've got kids in school that I have to be able to drop off and pick up too. Now I'll definitely request the hearing if it's advisable, but I haven't got a clue about these things. If I request a hearing and the attorney (or rep) doesn't show up, will the court deny their motion?

Also, I already filed my motion to exclude evidence over a month ago...so am I supposed to call the court and request that it be heard on the same date they set for the decision to amend Cap One's complaint? I'm so confused!

I am ready to go for arbitration if things go south, but I'd rather not have to!

I'm planning to send the attorney a meet and cofer letter stating that they haven't met the BOP requirements, but I feel like I should be sedning something to the court too. I just don't know what :(

Link to comment
Share on other sites

Similar situation I'm in right now, except I just filed Opposition to P's motion for leave to amend complaint (after which P's request to withdraw their motion/hearing for amended complaint). I also filed motion to compel BOP w/ hearing coming up... You just have to break it down and attack piece by piece, pay attention to filing deadlines though (eg. Oppostion motion must be filed at least 9 days before hearing of amended complaint motion)

Link to comment
Share on other sites

Another note...

A little clarification here please!

With the monthly statements, they send two motions. The first is a request to amend their complaint (to add in the card member agreement and monthly billing statements) and the second is to add Association of Counsel...for another attorney.

Can I file something against these amendments? I believe the court hearing date they've set for October is just for these amendments, if I'm reading it correctly. It states that a tentative ruling will be made the court day before the hearing, unless I request an oral argument.

The specific wording they want to add is "attached hereto and incorporated by reference as Exhibit 1, is the customer agreement, and monthly billing statements received by defendant (s) associated with the alleged debt"

It was dated August 3rd, and I'm just now getting it :(

Make sure that the Credit Card Agreement they send is actually a Credit Card Agreement. They tried to pass off a 30 Second Credit Invitation as evidence in my husband's trial and it had the wrong social on it and was in no way a binding contract so that alone nullified that piece of evidence. Also they will never usually send copies of monthly statements that span the duration of the life of the account. In our case they sent 2 years worth of statements, an affidavit that was three years old, the bogus credit invitation, something from the department of defense trying to confirm my husband's military status and those few statements.

All of that "evidence" they sent us helped us build a solid "Ur full of Doo-Doo defense." so just thoroughly go through what they send because a lot of times, their own paperwork has inconsistencies that you can use against them.

Link to comment
Share on other sites

It's definitely a credit card agreement...I dont know if it's HIS credit card agreement though.

Can I still file the Motion to Compel BOP, even though they sent me a copy of their motion to amend their complaint (which included the partial statements and CC agreement)? Technically, they didn't answer me, right? And it wasn't complete anyway.

Should I also be filing the opposition to their motion to amend the complaint?

Link to comment
Share on other sites

What is the ballpark figure for this debt? You can send it to my pm's if you'd rather.

Depending on your answer, if it is small enough - I would definitely use arbitration to fight this.

You have said enough on the open board, that they can probably figure out who you are and using your own words from the forum about when you opened the account, etc., they could have a slam dunk case on you.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.