Jump to content

Document is considered an appearance?


Recommended Posts

Hi Everybody,

I'm new here. I am being sued by Capitol One for default on my credit card. I had a balance of about $1500 and they are suing for about $2800 with fees and interest.

The last payment I made on this account was 1/10. I have no other debt. I am self employed but not making it financially. I hope that things turn around but in addition to the economy my health is an issue.

I'm in Ohio.

I have been following the advice here but I have a question.

I mailed a DV to the attorney representing Capitol One and a copy to the court.

The court returned a letter with copies of what I sent to them along with a form letter with the following:

"This matter has been referred the the Clerk Of Court for a decision whether the document filed (Date) qualifies as an answer or motion. Based upon a review of the document in question (The DV letter) the Court finds:

The document is an appearance and the party who filed it is entitled to notice of the filing of a motion for default judgement at least seven days prior to the entry of a judgement by default."

Based on the other boxes on the form the court could have checked this may be a routine response. Or maybe not.

Can anyone give me any insight?

Thanks

Link to comment
Share on other sites

Every profession has its own unique terminology, the legal profession moreso than most. "Appearance", which to us layman would seem to logically mean physically showing up in court, is one of those words given a unique meaning in the legal world.

So the short answer to your question is "Yes, a document can be called an appearance." When a defendant files an Answer, he is said to have "appeared" in the case.

Now, it seems you have made a mistake. A DV letter is not the proper response to a lawsuit. A DV letter is what you send when you are first contacted by a debt collector. Each state does things differently, but in general terms, when you are sued, you must file a document called an Answer, in which you deny the plaintiff's claims and assert your Affirmative Defenses. Here in California, the courts proved easy-to-use forms for people to use.

So that's what this stuff from the court is about. Your paperwork was not in the proper form, so they were trying to decide if it counts as an Answer. I am concerned that they only mention you being notified about a Default Judgment. It might mean you did not explicitly deny the plaintiff's claims, which the judge may assume to mean you do not dispute them, and the next step may be the awarding of a default judgment. I suggest you find out what Ohio wants as a properly formatted Answer, and file it ASAP.

Good luck.

DH

Link to comment
Share on other sites

The court is looking for an "Answer" to the lawsuit. You have to admit or deny the allegations listed in the summons.

If you admit to any of the allegations, the court has nothing to decide on those issues. If you deny, you are telling the court, you dispute the allegation and you want them to determine the facts.

Think of Admit being equal to Guilty in criminal court, and Deny being equal to Not Guilty in criminal court.

A criminal caught red handed will still plead Not Guilty to preserve certain rights to trial. Civil is the same way. You will want to deny some of the allegations if you want to have any type of a fighting chance.

DO NOT tell your financial problems are part of your answer, neither the court or Cap1 will care. Just answer the allegations only.

Link to comment
Share on other sites

Thanks lheart, good advice.

Experian updated the info on the report and now shows Cap 1 as a zero balance. The other two credit reporting agencies already showed a zero balance.

The Attorney sent a copy of a statement they received from Cap 1. There is a discrepancy in the final balance claimed. They are suing for $2800 and the final they show is about $4300.

Oddly, they blacked out with a pen three areas where the credit card number is. The account number shown is the same as the card number however.

I will file a motion for dismissal because the didn't provide the original signed agreement I asked for.

I don't think a document that has been tampered with is something I should accept, should I add that as well?

Now that none of the credit reports contain info that I owe Cap 1, I'm not sure how to address that in the motion.

I've done research on the courts website. They provide forms and guidance on some of the mechanics of where to file what. I've researched other places to find a sample of a motion. I'm getting that there are some standards that are more or less universal.

I'm going to file a motion ASAP and if anybody has some advice I'd be grateful.

Thanks

Link to comment
Share on other sites

You missed the point of my post.

YOU NEED TO FILE AN ANSWER IN COURT.

Right now all the court has is your "Dispute Letter." Depending on the judge or clerk, they may treat it as a denial or they may consider a default judgement against you.

They do not need a signed application to win in court. Your asking for one does not change that reality.

Also the blacked out portions of the numners are required per court rules. Since court documents are public record, certain things filed with the court are required to be "redacted."

You have some descrepencies, but this is not going to just go away. You have some work to do if you want to resolve this.

Link to comment
Share on other sites

  • 3 weeks later...

Update:

I filed an answer and it got accepted. So I made the first hurdle.

I received a Notice of Mediation today and have some questions.

Notice of Mediation

This case is referred for mediation. The Mediation Program staff will coordinate the date and the time for the mediation.

All necessary discovery shall be completed prior to this conference. Lack of discovery or settlement authority will not be accepted as an excuse for failure to negotiate. Clients shall be present. Counsel shall be prepared to negotiate openly and knowledgeably about the case in a mutual effort to reach a fair and reasonable settlement.

All settlement discussions shall be subject to Ohio Evidence Rule 408 and R.C. Chapter 2710, the Uniform Mediation Act. Failure to prepare for negotiations at this conference may result in the imposition of sanctions, including dismissal or for the assessment of prejudgment interest under R.C. 1343.03 ©

I looked up Rule 408, Chapter 2710 and R.C 1343.03 and I get the general idea, I'll have to spend more time studying this.

As to my next step. Discovery is a list of questions I send to the other lawyer with a copy to the judge?

The Plaintiff will send me a list of questions?

I'm going to look research this sight looking for examples and templates. I want to stay on top of this and be prepared as I don't know when I'll have to meet for mediation.

Any advice or links to get me started?

Thanks

Link to comment
Share on other sites

Yes, Discovery is a list of questions you send to the other lawyer, but (unless things are different in Ohio) are not sent to the court. And yes, you can expect requests from the other side as well. Unless they were hoping to win by default, and would rather dismiss the case than expend any actual effort to win.

What you can expect, and what you will send, are the following:

Requests for Admissions

Request for Production of Documents

Interrogatories

Search for these terms, and good luck.

DH

Link to comment
Share on other sites

Thanks to DebtorsHusband for pointing me in the right direction. I've gotten quite an education. :)

I have prepared a motion for discovery and was hoping someone could check my work and answer a couple of questions.

IN THE FRANKLIN COUNTY MUNICIPAL COURT

FRANKLIN COUNTY, OHIO

Capital One Bank (USA) , N.A.

..

15000 Capital One Drive

Recoveries PMO – Legal

Richmond, VA 23238

Plaintiff

vs.

Joe D Fendant,

Street

City, State Zip

Defendant )

)

) Case Number: XXX XX XXXXX

)

)

) Judge John Doe

)

)

)

)

)

)

)

)

MOTION FOR DISCOVERY - REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO

PLAINTIFF CAPITAL ONE BANK (USA) , N.A.

COMES NOW Defendant Joe D Fendant, pro se and requests for the Plaintiff to produce legitimate documents to support their allegations. Defendant thereby requests that plaintiff provide the following: within thirty (30) days.

DEFINITIONS

The following definitions are to be used in responding to the following interrogatories.

A. “Plaintiff,” means Capital One Bank (USA) , N.A.or any agent, employee, officer, director, or any other person acting on its behalf.

B. “Defendant” means, Joe D Fendant an individual.

C. “Document,” means all original writings of any nature or all copies thereof, regardless of whether or not such copies differ in any way from the originals, in your possession or control, wherever located, and includes, but is not limited to, contracts, agreements, records, memoranda, handwritten notes, working papers, letters of correspondence, invoices, statements, purchase orders, bills of lading, minutes and reports.

D. “Credit Application”, means the Original Signed Application bearing Defendant’s signature for any contract between Plaintiff and Defendant or Defendant and Capital One Bank (USA), N.A.

DOCUMENTS TO BE PRODUCED

1. ALL documents evidencing any communication between Plaintiff and Defendant in connection with the Agreement described in Plaintiff’s Petition, including letters and correspondence;

2. The alleged credit application from Account Numbers (Capital One Bank (USA) , N.A. Acct#) xxxx-xxxx-xxxx-xxxx bearing the defendant’s signature;

3. The alleged credit agreement from Account Numbers (Capital One Bank (USA) , N.A. Acct#) xxxx-xxxx-xxxx-xxxx that states interest rate, grace period, terms of repayment, et cetera;

4. Itemized statements or credit card statements from Account Numbers (Capital One Bank (USA) , N.A. Acct#) xxxx-xxxx-xxxx-xxxx that demonstrate how the alleged amount of $2512.67 was calculated;

5. A contract, agreement, assignment, or other means demonstrating that Dewey, Cheetum & Howe LLC had the authority and capacity, and was legally entitled to collect on the alleged debt from (Capital One Bank (USA) , N.A. Acct#) xxxx-xxxx-xxxx-xxxx;

6. Letter(s) sent to defendant by Capital One Bank (USA) , N.A., demonstrating an attempt to collect on the alleged debt, Account Numbers (Capital One Bank (USA) , N.A. Acct#) xxxx-xxxx-xxxx-xxxx;

7. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;

8. Any and all further documents that you believe establish that plaintiff had an outstanding account or debt related to Account Numbers (Capital One Bank (USA) , N.A. Acct#) xxxx-xxxx-xxxx-xxxx;

9. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt;

10. Any and all written communication, received by the plaintiff and/or plaintiff’s attorney from the defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff’s and/or plaintiff’s attorney accessing of defendant’s credit report(s).

11. Any and all communications from plaintiff and/or plaintiff’s attorney to the defendant explaining why plaintiff and/or plaintiff’s attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining defendant’s credit report(s);

12. Any and all credit report(s) plaintiff and/or plaintiff’s attorney obtained from any credit reporting agency concerning the defendant;

13. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or Account Numbers (Capital One Bank (USA) , N.A. Acct#) xxxx-xxxx-xxxx-xxxx.

Joe D Fendant

By: _______________________________

Joe D Fendant, Defendant

Street

City, State Zip

I'm not sure if I should have entered the law firm or Cap One where I did.

The mediation hearing is about 12 days away. It was scheduled yesterday, so the plaintiff wouldn't have time to reply to my discovery. I plan on sending mine tomorrow and will answer theirs if I receive it. Should I reschedule or just to the hearing?

Thanks for any help!

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.