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Sued by Cap One, in Baltimore Co, MD, Please help!


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as the title states, I have been served with a lawsuit from Capital One. I have answered the question in the sticky on this forum. Any help would be appreciated. I have until Match 17 to answer. Thanks in advance!

1. Who is the named plaintiff in the suit?

Capital One bank (USA), NA

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Lyons, Doughty & Velduis, PC

3. How much are you being sued for?

6400.00 and change

4. Who is the original creditor? (if not the Plaintiff)

Capital One Bank (USA), NA

5. How do you know you are being sued? (You were served, right?)

Served by Private Process Server on 3/2/12

6. How were you served? (Mail, In person, Notice on door)

In Person by Private Server

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None – I believe they called, but, I never spoke with them.

9. What state and county do you live in?

Baltimore County, MD

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

June 2011

11. What is the SOL on the debt? To find out:

3 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Suit Served, court date set for June 2012. Must answer Summons by 03/17/2012, and have Interrogatories that were sent with Summons.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

15 days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Statements from June 2011, and July 2011

Copy of Cardholder Agreement

Typed Account Summary Statement with attorneys Fees

Certification of Attorneys Fees

Certification of Non-Military Service

Printout from DOD Manpower Data Center showing I am not Military

Interrogatories

Affidavit from rep from Capital one detailing what they say I owe

I am also attaching the Interrogatories they sent:

INTERROGATORIES

Pursuant to Maryland Rule 3-421, Plaintiff hereby submits the following Interrogatories, to be

answered within 15 days after service of same, and subject to the following instructions.

a. These Interrogatories are continuing in character, so as to require you to file supplementary

answers if you obtain further or different information before trial.

b. Where the name or identity of a person is requested, state the full name, home address, home

phone, and also business address and phone number, if known.

c. Unless otherwise indicated, these Interrogatories refer to the time, place and circumstances

mentioned or complained of in the pleadings.

d. Where knowledge or information in the possession of a party is requested, such request includes

knowledge of the party's agents, representatives, and unless privileged, his or its attorneys. When

the answer is made by a corporate or partnership defendant, state the name, address, and title of

the person supplying the information and making the affidavit, and indicate the source of his

information.

e. The pronoun "you" refers to the party to whom these Interrogatories are addressed and the person

mentioned in clause (d) above.

Please answer the following Interrogatories:

1. State the name, address, and telephone number of the individual(s) answering these Interrogatories.

RESPONSE:

2. Identify all individuals or entities by name, address, and telephone number who will serve as a

witness in the trial of this matter and for each individual or entity identified, state the subject

matter and substance of the testimony expected to be given.

RESPONSE:

3. Identify all individuals or entities with knowledge of all allegations contained in the Complaint or any responsive pleadings filed by you and for each person or entity identified, state the subject

matter and precise information known by that individual entity.

RESPONSE:

4. Identify any individual that you expect to call as an expert witness at the trial of this case and

state the following:

a. The subject matter in which the expert is expected to testify;

b. The substance of the facts and opinions to which the expert is expected to testify;

c A summary of the Grounds for each opinion held; and

d. The qualifications held by such expert to enable him/her to render his/her opinion.

RESPONSE:

5. Identify any and all written or oral communications between you and Capital One Bank (USA),

N.A. regarding your account balance. For all communications, please specify the date, location,

individual(s) or entities involved, and the substance of the communication.

RESPONSE:

6. Identify all payments by date, type of payment or credit and amount for each payment or credit

made to Capital One Bank (USA), N.A. regarding your account balance. For all

communications, please specify date location, individual(s) or entities involved, and the

substance of the communication.

RESPONSE:

7. If it is your contention that the Defendant is not indebted to Plaintiff in the amount alleged in the Complaint, but the Defendant is indebted to the Plaintiff in some lesser amount, please state the lesser amount, and indicate the factual circumstances supporting such lesser amount.

RESPONSE:

8. If it is your contention that Defendant is not indebted to the Plaintiff in any amount as alleged in the Complaint, indicate the factual basis for such contention.

RESPONSE:

9. If it is your contention that Defendant is not indebted to the Plaintiff in any amount as alleged in the Complaint, indicate the legal basis for such contention.

RESPONSE:

10. State whether you have ever used the credit card at issue in this case.

RESPONSE:

11. What offer do you wish to make to resolve this matter?

RESPONSE:

I am specifically wondering about #6. Do they expect me to have a record of EVERY payment I made on this account. I've had it for probably a decade...

Again, thanks to all who may help me with this!

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The request for payment information usually means they don't have any, and they need it to sue under account stated. What are they suing under, account stated or breach of contract? What is your defense? There are no magic bullets to beat credit card companies.

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The request for payment information usually means they don't have any, and they need it to sue under account stated. What are they suing under, account stated or breach of contract? What is your defense? There are no magic bullets to beat credit card companies.

I realize that there are no magic bullets. I am formulating my defense now. I am new to being sued, and have been reading as much as I can on my situation.

They are suing under contract, at least that is the box checked on the lawsuit I received. It reads:

Clerk, Please docket this case in an action of: Contract - Tort - Replevin - Detinue - Bad Faith Insurance Claim

with Contract being checked. Is that what you are asking?

Also, all of my payments to them were electronic, and covered close to a decade. I don't have all of that information anymore. How would I word that in the response? Also, would it be proper for me to ask CapOne for their records in that respect, as they should have a list of all payments made, if their Affidavit with respect to the account balance is to be believed?

Thanks so much for replying and for your help!

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Contract is rather generic, but a contract is not account stated. Check your rules of procedure to see if a contract claim requires that a copy of the contract be attached to the complaint. The standard of proof is higher for contract claims, usually referred to as breach of contract. Again, you are up against a tough competitor and there are very few valid defenses that will work. The way we show you how to answer depends on what your defense will be. Amnesia defenses do not work.

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Contract is rather generic, but a contract is not account stated. Check your rules of procedure to see if a contract claim requires that a copy of the contract be attached to the complaint. The standard of proof is higher for contract claims, usually referred to as breach of contract. Again, you are up against a tough competitor and there are very few valid defenses that will work. The way we show you how to answer depends on what your defense will be. Amnesia defenses do not work.

I will see if I can find the answer in the Civil Procedures. They did attach a generic cardmember agreement, and two printed statements, one showing the last payment I made, and the other from just before the charge-off, i assume. I would like to contest the amount owed, and i don't want to paint myself into a corner using the wrong defense. Not sure what i should say in that respect. i do know I want to defend it, as I certainly don't want to hand them a Judgement. I realize I am up against a tough one, but, any ideas as to a good defense strategy?

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You need to post the complaint as written. Arbitration under the cardholder agreement may work, it is very expensive for them and they usually won't do it, it costs more than they can hope to recover. I see no defense that will work for you at this point. If this is a recent account, they will probably have the paperwork required to win. I wouldn't leave any money lying around in bank accounts, nor would I own any cars, I would sell them. If you have a job they can garnish your wages. They can also lien any real estate you own. You can jerk them around for a while, but that just means a bigger judgment.

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You need to post the complaint as written. Arbitration under the cardholder agreement may work, it is very expensive for them and they usually won't do it, it costs more than they can hope to recover. I see no defense that will work for you at this point. If this is a recent account, they will probably have the paperwork required to win. I wouldn't leave any money lying around in bank accounts, nor would I own any cars, I would sell them. If you have a job they can garnish your wages. They can also lien any real estate you own. You can jerk them around for a while, but that just means a bigger judgment.

There is nothing about Arbitration in the cardholder agreement. As for wages and such, I am self employed, so I think they will be unable to garnish my wages, as i don't pay myself any. There is hardly anything in my business bank account, either. Also, my personal checking is joint with my wife, as hers is joint with me. Would they be able to garnish joint accounts?

Here is the complaint:

That the Plaintiff as stated above by Nathan Willner~;

Laurie H. Lyons; Michele R. Gagnon, its attorney, sues

the Defendant for money payable by the Defendant to the

Plaintiff as follows: That the Defendant purchased

miscellaneous merchandise, services and/or received a

cash advance on their account with Capital One Bank

(USA), N.A.. There is a balance overdue as per affidavit

and statements attached here. Also, the terms and

conditions provide for reasonable Attorney's fees.

Do you need to see all of the attachments as well? If so, is there a way to post PDF's on here (I'll redact the important numbers and names, etc)?

Once again, thanks to any and all, especially you, LeagleEagle, for responding.

I'm hoping I can tie them up enough to negotiate a reasonable settlement. What are your thoughts on my talking to them (the Law Firm, not CapOne)? I don't want to get recorded saying something I shouldn't, you know?

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I cannot believe that any Cap1 agreement does not specify arbitration. This is in every credit card agreement. Ask Linda7. As for this:

As for wages and such, I am self employed, so I think they will be unable to garnish my wages, as i don't pay myself any. There is hardly anything in my business bank account, either. Also, my personal checking is joint with my wife, as hers is joint with me. Would they be able to garnish joint accounts?

Yes. If your name is on the account they can garnish it. Also, study up on reverse piercing of the corporate veil. Self employed individuals are held equally responsible, the assets, profits, or distributions of the corporation can be attached to satisfy personal debts. It's a little harder to do, but it can be done.

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I cannot believe that any Cap1 agreement does not specify arbitration. This is in every credit card agreement. Ask Linda7. As for this:

As for wages and such, I am self employed, so I think they will be unable to garnish my wages, as i don't pay myself any. There is hardly anything in my business bank account, either. Also, my personal checking is joint with my wife, as hers is joint with me. Would they be able to garnish joint accounts?

Yes. If your name is on the account they can garnish it. Also, study up on reverse piercing of the corporate veil. Self employed individuals are held equally responsible, the assets, profits, or distributions of the corporation can be attached to satisfy personal debts. It's a little harder to do, but it can be done.

I've been through the cardmember agreement several times, and there is nothing mentioning arbitration......

Seems like it would be a lot of hassle for nothing, as I barely have any money going through the business, which is an LLC if that makes a difference. Hell, my profit last year was just over $1000.00 (Kind of a hobby business that has gone nowhere since the economy tanked....)

Like I said, I'm hoping that I can throw enough sand in the gears to get them to negotiate a settlement I could afford....

Anyway, should I try to talk to them, or will I open myself up to having them twist my words around in court?

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