azroadrunner Posted April 2, 2012 Report Posted April 2, 2012 Was served in person for C@pital $ account by AZ attorneys representing plaintiff. Received advice from a lawyer on how to respond admitted my name and residence and that I entered into contract with C@pital $ for credit card services. Denied or was with insufficient knowledge of C@pital $ being a bank, breach of contract, amount owed, plaintiff demands for payment & plaintiffs attorneys fees.Sent in answer near 20th day from date of being served.Exhibit 1 of evidence was a signed affidavit by authorized agent of C@pital $ bank, stating agent has knowledge of C@pital $ books and records. states account # *************** owes 9,000 to 11,000 (do not want to give exact amount). Affidavit is signed and notarized. at the end is a copy of a statement from last year.Plaintiff requests to appear telephonic for pre-trial. and request is allowed.I have gone over this forum and several others to familiarize myself with what the Plaintiff may do. And reviewing my initial answers I have concerns that Plaintiff may request a summery judgement at the pretrial since I admitted to entering into a contract for credit card services. Researching right now as to what would be a good response to this. Also having trouble finding out if there are specific civil rules of order in my county. I have gone over the Arizona state civil rules.
Coltfan1972 Posted April 2, 2012 Report Posted April 2, 2012 Did you really plead that you don't have sufficient knowledge that Capitol One is a bank? I'd have concerns they are going to ask for summary judgement. However, it's not something they just ask for on the spot. They will probably say something like, we plan to move for summary judgement. The judge will say okay, let's set another pre-trial for 90 days and if the case is not disposed by that time we will set a trial date. You will get time to answer their motion for summary judgement, probably 20 days. Also they can't make an oral motion for summary judgement. It's a pretty big deal. It's no like objection in court to a question and the judge makes a ruling on the spot.
azroadrunner Posted April 2, 2012 Author Report Posted April 2, 2012 Yes that was the lawyers suggestion, I did not have much time to question his reasoning of why he suggested that that I had "without sufficient knowledge" that plaintiff was a national banking association. I will be discussing this with him this week.
Coltfan1972 Posted April 2, 2012 Report Posted April 2, 2012 I will be discussing this with him this week.Good idea, I'd be interested in hearing why he gave you, what I would call, very poor advice. In my opinion, that just destroys your credibility. However, I'm not an attorney and he may have some case that he is using in giving you that advice. Let us know what he tells you.
Beergoggles Posted April 2, 2012 Report Posted April 2, 2012 I am in AZ and my pre-trial was me in a room by myself talking on the phone with the lawyer basically to try to settle. It took about 3 minutes. I am not sure how your justice court does things but that was my experience. By the way he asked how we could settle the matter and I said just dismiss and we both can have a good day. I sent you discovery and am waiting for your response. That was it. He said ok lets set it for trial lets say we need 1 hr for each case? I said fine have a nice day CLICK
chrisbbadd Posted April 2, 2012 Report Posted April 2, 2012 Yes that was the lawyers suggestion, I did not have much time to question his reasoning of why he suggested that that I had "without sufficient knowledge" that plaintiff was a national banking association. I will be discussing this with him this week.Sounds like the Attorney suggested that in an attempt to get the Bank to prove that they are a National Banking Association with the authority to sue anyone in the State of Arizona. The Attorney may also be hinting that the listed Plaintiff is not the real party in interest, more than likely if it's a Capital One case the real party in interest would be a Trust or Investors. I read something about Discover Bank suing, or their name being used, in a lawsuit in Pennsylvania a couple years ago. This Law Blog, I believe it was Bensley Law Blog or something similar, stated Discover can never come after his client again when he had the court compel Discover to produce documents showing who actually owns the debt. Discover Card Master Trust actually owned the debt and as such the complaint was dismissed with prejudice and Discover Bank was sued and entered into a non disclosure agreement to settle with the cardholder. Had to be nondisclosure because look what would happen if the public found out all the accounts of all the Banks have been through the securitization process. There are often declarations made in lawsuits that are nowhere near true, sad, but true. They are kept from the public through non disclosure agreements though.
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