ValKal Posted March 26, 2012 Report Share Posted March 26, 2012 1. Who is the named plaintiff in the suit?Capital One Bank (USA) NA2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)Yvonne Mikulik is listed as Plaintiff's Attorney on the front page Listed on the Last Page is : Rausch, Sturm, Israel, Enerson & Hornik, LLC3. How much are you being sued for?67004. Who is the original creditor? (if not the Plaintiff)Capital One5. How do you know you are being sued? (You were served, right?)Served in person at my residence6. How were you served? (Mail, In person, Notice on door)In person7. Was the service legal as required by your state?From what I read, I believe so8. What was your correspondence (if any) with the people suing you before you think you were being sued?Lots of phone calls (which I had long ago stopped answering) and letters, we have moved twice so I was no longer reciving letter but it is possible they were still sending them.9. What state and county do you live in?Texas, Williamson10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)Not sure exactly but sometime around Oct '0811. What is the SOL on the debt?I think 4 years in texas12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).Can't find anything online.13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)No14. 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 I did not.15. How long do you have to respond to the suit? 20 days (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? I had 10 days which is up tomorrow Below are the complaints and the answers I have cobbled together from reading here.Also the below questions are all that I received there was no proof of the account attached whatsoever. Link to comment Share on other sites More sharing options...
ValKal Posted March 26, 2012 Author Report Share Posted March 26, 2012 Justice CourtPrecinct TwoWilliamson County, TexasCase No. XXXXXX Capital One Bank (USA)Plaintiff Vs. XXXXXXXXXXDefendantRESPONSE TO PLAINTIFF’S “Original Petition”.Defendant, appearing pro se, for its Response to Plaintiff’s Original Petition states as follows: All Answers correspond to the numbered paragraphs of the Complaint/ Petition . All allegations of the Complaint/ Petition are denied unless expressly admitted herein.1. Plaintiff intends to conduct discovery under Level 1 of Texas Rule of Civil Procedure 190.2 Because this suit involves only monetary relief totaling $50,000 or less, excluding court costs, prejudgment intrest, and attorney fees.Answer: Standing is a matter of law and for the trier of the facts to decide, therefore no response is necessary. However, to the extent a response is necessary, the Defendant denies the allegations.2. The Address for Plaintiff, Capital One Bank (USA), N.A., is 1680 Capital One Drive, Mclean, VA 22102.Answer: Defendant is without sufficient knowledge or proof to admit or deny the allegation. Therefore, the defendant denies.3. Defendant, XXXXXXX may be served with process at XXXXXXX , or at such other place as the defendant may be found. Answer: Standing is a matter of law and for the trier of the facts to decide, therefore no response is necessary. However, to the extent a response is necessary, the Defendant denies the allegations.4. Plaintiff asserts that the above-named court has jurisdiction over the subject matter of this case and the person(s) of Defendant(s)Answer: Defendant is without sufficient knowledge or proof to admit or deny the allegation. Therefore, the defendant denies.5. Venue of this action is proper in the county named above because Defendant(s) is/are individual(s) believes to be residing in said county at the of commencement of suit.Answer: Standing is a matter of law and for the trier of the facts to decide, therefore no response is necessary. 6. Capital One Bank (USA), N.A. issued a credit card in the defendant’s(s’) name under its account number. Plaintiff is the current owner of this account; Defendant(s) received and used the card and thereby became obligated to pay for the charges incurred with the card.Answer: Defendant is without sufficient knowledge or proof to admit or deny the allegation. Therefore, the defendant denies.7. Defendant(s) defaulted on the obligation to make monthly payments on the credit card account, and the card was subsequently canceled. The credit card account was subsequently charged off to profit and loss. The entire balance on the credit card account is presently due and payable in full.Answer: Defendant is without sufficient knowledge or proof of alleged account to admit or deny the allegation. Therefore, the defendant denies.8. Defendant(s) defaulted in making the payments on the account. After all just and lawful offsets, credits, and payments have been allowed, the total due Plaintiff on the Account is $XXXXX plus interest.Answer: Defendant is without sufficient knowledge or proof of alleged account to admit or deny the allegation. Therefore, the defendant denies.9. The plaintiff has made demand upon the Defendant(s) for payment of the amount due and payable in full. The Defendant(s) have failed, neglected, and refused to pay that amount, plus accrued interest, less all of the lawful offsets, credits, or payments, is still due and owingAnswer: Defendant is without sufficient knowledge or proof of alleged account to admit or deny the allegation. Therefore, the defendant denies.10. Plaintiff has preformed all conditions precedent to filing of this action or all such conditions precedent have been performed or have occurred.Answer: Defendant is without sufficient knowledge or proof of to admit or deny the allegation. Therefore, the defendant denies.11. The issuance of a credit card constitutes the offer of a contract. See, e.g. Bank One, Columbus, N.A. v Palmer, 63 Ohio app. 3d 491, 492, 579 N.E. 2d 284, 285 (Ohio Ct. App 1989). Use of a credit card constitutes acceptance of the terms of the cardholder agreement, which accompanied the card when issued to the Defendant(s). See e.g. Grasso v. First USA Bank, 713 A.2d 304 (Del. 1998); Read v Gulf Oil Corporation, 114 Ga. App. 21, 150 S.E. 2d 319, 320 (1966); Magnolia Petroleum Co. v. McMillan, 168 S.W. 2d 881 (Tex. Civ. App. 1943). Even in the absence of such an agreement the issuance of the credit card constitutes an offer of credit, and the use of the card constitutes the acceptance of the offer of credit. Feder v. Fortunoff, 474 N.Y.S. 2d 937 (N.Y. 1984), citing Empire Nat’l bank v Monahan, 82 Misc. 2d 808, 370 N.Y.S.2d 840 (N.Y. County Ct. 1975).Answer: Defendant is without sufficient knowledge or proof to admit or deny the allegation. Therefore, the defendant denies.12. By using and/or authorizing the use of the credit card Defendant(s) accepted the credit card contract and became bound to pay for all charges incurred with the credit card. Defendant(s) also became subject to all of the terms and conditions of the Plaintiff’s cardholder agreement.Answer: Defendant is without sufficient knowledge or proof of alleged account to admit or deny the allegation. Therefore, the defendant denies.13. The issuer of the card fully preformed the contractual obligation by reimbursing merchants who accepted Defendant(s) credit card payment. Prior to the date of charge-off monthly bills were sent to the defendant(s) reflecting inter alia, all charges incurred with the credit card, the monthly payment due, and the total balance due. The Defendant(s) had a duty to submit any disputes of the charges set forth in such statment, in writing, within sixty days from the date of the statement. Plaintiff asserts that Defendant(s)’ failure to submit such disputes should be treated as an admission of the account balance, since Defendant(s) was/were given both a method and an opportunity to raise such disputes.Answer: Defendant is without sufficient knowledge or proof of alleged account to admit or deny the allegation. Therefore, the defendant denies.14. Defendant(s) Breached the contract by defaulting on the payment obligation of the credit card agreement. In violation of the Defendant(s)’ promises and obligations under the aforementioned written contract, the Defendant(s) breached the agreement by wrongfully failing and refusing to pay for the credit advances actually made to the Defendant(s), as well as unpaid interest.Answer: Defendant is without sufficient knowledge or proof of alleged account to admit or deny the allegation. Therefore, the defendant denies.15. Defendant(s) breach was a proximate cause of actual damages of $XXXXX plus interest. All just and lawful offsets, credits, and payments have been applied to the account.Answer: Defendant is without sufficient knowledge or proof of alleged account to admit or deny the allegation. Therefore, the defendant denies.16. Plaintiff seeks damages on its liquidated claim of at least $XXXXX plus interest, which is within the jurisdictional limits of this court.Answer: Defendant is without sufficient knowledge or proof of alleged account to admit or deny the allegation. Therefore, the defendant denies.17. All conditions precedent to Plaintiff’s claim for relief have been performed or have occurred.Answer: Defendant is without sufficient knowledge or proof of alleged account to admit or deny the allegation. Therefore, the defendant denies.18. The undersigned attorneys hereby give notice that they and the Plaintiff are attempting to collect a debt and any information obtained will be used for that purpose. Plaintiff’s attorneyes are debt collectors.Answer: Defendant is without sufficient knowledge or proof to admit or deny the allegation. Therefore, the defendant denies.Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.By the Defendant acting pro se.Dated: XXXXXXXXXXXBy: _______________________________XXXXXXXXXXXLike I said I'll be turning it in tomorrow, any advice on changes will be greatly appreciated but otherwise I guess I will just cross my fingers and hope for the best.Thanks all! Link to comment Share on other sites More sharing options...
oxyrynchus Posted March 26, 2012 Report Share Posted March 26, 2012 Am I wrong? Your answers seem like answers to discovery requests! Aren't you allowed affirmative defenses to a complaint in Texas? Link to comment Share on other sites More sharing options...
Coltfan1972 Posted March 26, 2012 Report Share Posted March 26, 2012 If you can do a general denial, I'd just do that. All of the without enough information I don't care for, but if you can state it like that, I don't guess it matters. You can argue standing, but this is an original creditor. They can usually prove standing if they decide to fight. They have the records and Cap One will send a witness to court. A JDB is where you win on standing. You don't win much on standing with an original creditor. There are other ways to beat them, but standing is not the silver bullet like it is with a JDB. You stated in # 11 when they provided case law you did not have enough info. They flooded you with case law. I'd deny, this will be settled with a trial. # 1 does not even need an answer, they are just making a statement about their intent. I would personally not answer # 2# 3, has nothing to do with standing. # 4, Does the court really not have jurisdiction? I think they do, but don't know all the facts. If you argue the court does not have jurisdiction, you will have to argue that with a motion to dismiss. Probably not going to happen. # 5 has nothing to do with standing # 6 I'd deny that one without further commentary. See if you can just do a general denial, and then in my opinion just do a general denial. You can get fancy during discovery and trial. You only have 10 days to answer? You sure about that. Good luck, you have to get caught up to speed quick. Link to comment Share on other sites More sharing options...
spanky34 Posted March 26, 2012 Report Share Posted March 26, 2012 There is a good article writen by a TX attorney. I cant post the link yet, but the title is "How to Defend a Credit Card Case" by Craig Jordan. It may be a good start to aid in developing your defense. Link to comment Share on other sites More sharing options...
ValKal Posted March 26, 2012 Author Report Share Posted March 26, 2012 Thank you for the quick responses I don't really know if I can file a general denial or not but I'm going to print both off and bring them and ask the clerk when I get there I guess. I changed the answers like you suggested.I don't really expect to win, I just know I have to answer or I lose by default and I figure by answering it will at least give me an oportunity to see what evidence they have and then if things looks futile I can work on a settlement Thanks again!Also I had 10 day from the time the papers were served but that is up today so I have to answer today. Link to comment Share on other sites More sharing options...
tigger Posted March 26, 2012 Report Share Posted March 26, 2012 There is a good article writen by a TX attorney. I cant post the link yet, but the title is "How to Defend a Credit Card Case" by Craig Jordan. It may be a good start to aid in developing your defense.Thanks for the reference, spaky34--I found it! Here's the link in pdf form, the only format that seems the article is available: http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdfHope it's helpful...! Link to comment Share on other sites More sharing options...
spanky34 Posted March 28, 2012 Report Share Posted March 28, 2012 ValKal - You might try looking the guy up he could give you a reference or help you get started. He seems passionate about what he does Link to comment Share on other sites More sharing options...
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