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Hi, some of you may remember me. I was posting back a few months ago regarding a lawsuit with Capital One Bank in California. I tried to get it removed from court into arbitration but the judge would not do it. I believe he was wrong in his ruling but I moved on. Its possible if I lose I may appeal the whole case and I am saving that for appeal as my contract gave me the right to arbitration and the judge used the wrong laws to deny it.

That said, I have been very ill for several months, am disabled and not sure how I will even go to court but I hate to let these people just win easily. I am home on oxygen now. I hope someone can help me a little. Here are some facts:

I never got any discovery from Capital One. I never asked for any.

They never asked me for any discovery.

In the past I did send them a BOP but they refused to answer it.

Since I was ill, after fighting the arbitration problem I just said the heck with it. I can't deal right now.

I have no assets they can get except for a 2001 honda. My income is solely a small social security check. Since I have medicaid and medicare and the state pays my medicare premiums, anything in my small estate (a mobile home) would go to the state when I die.

They never sent or asked for a summary judgement. Here is what I just got from them:

Pretrial package. In it was a couple years worth of statements. I believe 2.005 towards the end up to November 2007. It ended with a balance of around 3,000 bucks. But they are suing for 8,000+ and court costs.

Toward the end of the old bills which start at around 2900 (they never show how they got to 2900 dollars) and end at a little over 3,000 dollars, they add on some sort of interest at the end making the bill about $3900.

All of a sudden they enclose a page that says I owe $6900 with no explanation and then on the same page the $8,000 figure is laid out with no proof that I can see as to where that figure comes from. So they don't appear to have any other bills or statements. I assume thats why they didn't go for summary judgement.

My questions are: Is there anything I can argue in court to possibly win?

Do I have to do some sort of brief in order to talk?? Do I have so submit anything to the court and is there time?

One last thing. I chose a jury trial. The lawfirm never mentions the jury trial. They know I have no assets and are on ssdi. They never ask to do a deal altho once in court I told the lawyer on their side I had no $$ to do any deal with them and there was nothing for them to get. I am ill and don't have much energy. is there any simple way to win this or should I just stay home?

Edited by chiquita55
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My only intention was to say in court that there is no proof of the amount owed. That the plaintiff failed to show a record of the account from $0 to $8,000+ and no proof that I owe that.

Can I just speak in court or do I have to offer up ahead of time what I would say. I am totally in the dark. This is the only person that ever sued me and I believe that last that can ever sue me. I can barely think straight. lol I didn't really plan to call any witnesses. I don't know who they would be. Basically I just want to say they didn't prove their case. Did they?

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The purpose of sending the plaintiff CCP96 is to get them to send you what they plan to present as evidence in court. Then you can figure out how to poke holes into their "evidence". Not sure if you're being sued by a JDB or OC, but if it's like most cases discussed on here, you can expect them to have a few statements, generic cardmember agreement and assignment. They'll probably attempt to submit a sworn affidavit in lieu of testimony, which you should fight (and reason why I suggested you read up on CCP98).

Also, read through this thread, there's a lot of good advice/information you could use:


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I kinda wish you came here two weeks ago but we can help.

You mention a CCP 98 declaration in lieu of live testimony, is that from an out of state declarant(person who signed it) please post that with you info redacted from it.

You are going to have to subpoena the witness. also you are going to have to apply for a fee waiver FW-001 to get the jury fees waived.

so you are a little bit behind but can catch up easily.

You need to subpoena the witness at the address given on the declaration. also you want to reference the CCP 98 on the subpoena you can also request they bring their resume, their employee file, and any other things to trial.

You are gonna have to(we will help) work on the jury instructions CACI for this and your trial brief (don't worry I have one that you can tailor to your situation.

so stuff that has to be done tonight:

Fee waiver form FW-001 one original and 1 copies do not send this to plaintiff file the original with the court:





Subpoena to appear at trial this can be served by anyone who is not a party to the suit and is over 18 and a resident of the county 1 original and 2 copies serve the original to the place listed on the ccp 98:


Look here for trial brief info:


and for jury instructions:



You are the first person to have chosen a jury trial that I know of. If you want PM me the court location and I can give you a heads up on how the judges have ruled in the past on that. I might save you they jury hassle.

I am now committed by my honor to help any way I can so let all of us help you to try to win.

So fill out those forms also check for posts using the search function we have several members serving subpoenas right now to the CCP98 affiants.

You can do this:) and even if it goes bad for you they still aint gonna get nothing. Make them prove everything and send them CAlawyers bill of particulars because the DISCOVERY CUTOFF is already past the BOP is still valid it will make them in a bad way because they cannot get documents in the time frame and then they cannot add any new stuff.

Don't worry to much about the billing statements(make the objections and fight to exclude them) the courts are really paying attention to the bills of sale.

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You are so sweet Seadragon. I will get back to you on the exact forms I received today. There was some long affidavit signed by someone swearing this and that but I don't know if it is a cp98. The other person in this thread mentioned I should read those rules so I have to go look thru this huge stack of stuff and see what forms they are I received. They called this a pre trial packet. Will they still try to send a summary judgement?

As for the jury trial, I picked it because it cost $$ but I already have a fee waiver for this case. Do I need a separate fee waiver for the jury? Let me know. Maybe I could get it filed. But I have filed many documents under the present fee waiver I have.

I am surprised Cap One (yes they are the original creditors but they don't appear to have all the statements, only some, unless they are going to file them at court. I am very ill now so hard for me to keep up but will do my best. I always do have the appeal I can do for the judge not allowing arbitration (it was in my contract that I should be able to do this). This judge is very pro creditor. I don't have much chance with the judge which is why I picked a jury trial. Also, cap one already submitted a form for the judge to sign to award them a judgement. Maybe they don't intend on showing up???? (the law firm).

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You can check on the courts website to see the case summary. FW-003 is for the jury fees and the reporter I believe.

They gave alot of stuff but without personal knowledge, authentication, and the other evidentiary foundation they have a pile of papers only.

The jury trial will make the judge tighten up and lean straighter.

So let me help you( I am off all week for vacation at home working on my appeal) and you can make them pull their hair out. They should have dismissed after a fee waiver was granted.

going to set some precedent.

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If you want me to call you, let me know or dm me your phone. It may be easier to talk than write. lol I have long distance included in my service. I am going to make dinner and then look thru these documents and tell you what #s are on them. Most of them are the copies of the statements for part of the time they claim I owe them for.

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Snapdragon, here is what I received.

A Trial Notice and it outlined what I owe them. Claims I made a 'special insistence and requrest' to have this account. Claims it is Acct Stated. Claims that I never claimed that they were fraudulent or that this was a fraudulent bill.

The CCP98 which is filed by a Wandi Chamberlain. She claims to have personal knowledge of my acct but she did not include all the statements or bills. She claims to work for Cap One and she says she is allowing the atty office to handle her part of the testimony.

She claims to be a representative of COSLLC and an authorized agent of Plaintiff. She claims she is authorized to make this Declaration on behalf of COSLLC and Plaintiff. I wonder who COSLLC is?? She is employe by them as a LItigation Support Spe******t. Par of her responsibilities is having personal knowledge of the manner and method by which Plaintiff prepares and maintains its normal business records for outstanding credit accounts.

They attached original application with signature. She claims to have attached true and correct copies of periodic statements associated with the acct. says last payment was april 3 2007.

thats about it. the rest is statements. Am I to expect more paperwork before the trial date? I will dm you the court.

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Guest usctrojanalum
Its possible if I lose I may appeal the whole case and I am saving that for appeal

That said, I have been very ill for several months, am disabled and not sure how I will even go to court

I stopped reading here, the parts I bolded do not make sense. You have so much more important things to worry about than Capital One. Do not save your money for an expensive appeal that you would not be likely to win anyway. Keep your money for yourself, getting yourself better and maintaining the way you are living.

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Did you ever send a BOP?

If not, you'd probably want to get it out pretty quick...then send a CCP 96 out.

Also, subpoena the affiant to appear- they have to give an address within 150 miles of the courthouse where she can be served. Betting dollars to donuts, she won't be at the address...then you can file a motion to preclude the affidavit.

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I sent bop but they refused to answer it. Sent it twice. They said they didn't have to answer it. Then I got too ill to deal with it.

This gal is in VA. I am in Calif. She gave the lawyers address where she can supposedly be served 20 days before trial. what happens if I send subpoena now and she isn't there? do they accept for her?? After that she said she would be in VA. (before and after that)...

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The process server will fill out a declaration stating that she was not able to be served...then you can move to preclude her statement since they failed to comply with CCP98.

Were you sued on account stated? Did they also add breach of contract or money lent/received?

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If you need more time, I would suggest getting a letter from your doctor(s) stating that you are unable to appear in court at this time due to health problems, and ask for a continuance. Ask for 90 days, see if you get it. Also, why not file bankruptcy? You have nothing they can take or attach, and all of these problems will go away.

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Well I could file BR but this is the only case like this and it will all go off my credit report soon so I hate to do that. If I file BR then I have 10 more years to wait. This way only 1 item is on there with a judgement. I am what they call judgement proof so no reason to really file BR. And you never know, maybe I can somehow beat them. They really don't have all the info they need I don't think and it is going to costly for them to go to trial and not get anything (they already know they can't get anything). I imagine at the pretrial a few days before trial they try to settle but I have no $$ to settle with so it isn't going to happen. I already told their lawyer that at another hearing.

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Thanks Scientific. I have a feeling it can be won too. This set of lawyers usually always file a summary judgement but in my case they didn't because they don't have enough to win. Thats my opinion anyway. This case is costing them alot of time and $$ just to put judgement across my credit rating. They are stupid as my income is so low it doesn't matter what credit rating I have anyway and they will never see a dime. I am not sure how to win it but I hope with all the help here that I can speak clearly enough to get the job done. I don't see that they have any evidence that I owe this amount of money. Somehow I have to be able to cause doubt in the minds of the jurors but I have no idea how to do that. All they have evidence of is that maybe I had a card with them at one time.

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