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Gonjee

Motion for Summary Judgement / Plaintiffs Exhibits

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Hello,

I am in Washington State, and I have a Summary Judgement hearing on 6/1 for a past debt. Creditor is Capital One thru an Attorneys office.

The question I have is regarding the exhibits they intend to use in their case.

Exhibit A is the sworn Affidavit from someone in Capital One.

Exhibit B is a copy of an application (They had also sent me this in response to my DV, and had marked it on their header sheet as part of their verification). However, the application is not mine, its for someone else, clearly with a different name and ss#).

Exhibit C is a large stack of account statements, copies of a few checks I had paid them with some years ago.

My question is about Exhibit B. Is there anything I can do for an erroneous application sent as evidence? Can I file a motion to dismiss? I don't think I want to file a motion to strike, seeming Exhibit B might work for me somehow.

Any insight or suggestions would be greatly appreciated.

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The application can be thrown out, but they might just come up with the right one. They don't need an application to win on account stated. They are trying to show that they sent statements, you retained them without dispute, and you made payments. Therefore you agreed to the balance and there is no dispute. From the looks of this, you'll have a judgment against you after the hearing unless you can come up with some sort of viable defense. Doesn't look like you have one from what you posted.

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Thanks for the info Legal..They had finally filed with the court after 13 months of the summons to me. Then 2 weeks later filed the MSJ.

I think I may try and workout a settlement agreement if they will return my calls.

I just had a MSJ hearing yesterday with same attorneys but different OC.

When I got there, I was told from the clerk that they had cancelled.

Thanks again

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Hello,

I am in Washington State, and I have a Summary Judgement hearing on 6/1 for a past debt. Creditor is Capital One thru an Attorneys office.

The question I have is regarding the exhibits they intend to use in their case.

Exhibit A is the sworn Affidavit from someone in Capital One.

Exhibit B is a copy of an application (They had also sent me this in response to my DV, and had marked it on their header sheet as part of their verification). However, the application is not mine, its for someone else, clearly with a different name and ss#).

Exhibit C is a large stack of account statements, copies of a few checks I had paid them with some years ago.

My question is about Exhibit B. Is there anything I can do for an erroneous application sent as evidence? Can I file a motion to dismiss? I don't think I want to file a motion to strike, seeming Exhibit B might work for me somehow.

Any insight or suggestions would be greatly appreciated.

File an opposition to Plaintiff's MSJ, with Exhibit B being exposed as having no merit and creating a genuine issue of a material fact. The MSJ should then be denied.

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File an opposition to Plaintiff's MSJ, with Exhibit B being exposed as having no merit and creating a genuine issue of a material fact. The MSJ should then be denied.

As Legal stated, they don't need an application to win. Unless the OP can deny the account, the statements will show an account stated.

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The usual: I am not a lawyer, if you need an attorney, find one.

That said, my understanding re: Washington and account stated. One of the elements for account stated is that the amount is undisputed. If they have statements and copies of payments AND you didn't challenge the bills OR challenge the amount in your answer, they will probably be able to establish account stated.

If, for example, your answer included that not all payments were credited, they haven't established account stated.

If you challenged any elements of account stated in your answer, you have a good chance to beat the MSJ. The burden on an MSJ is on the moving party and they must establish that there is no tryable issue of fact. (You may, of course, beat the MSJ only to lose at trial, but at least you've bought some time.)

Since you haven't provided your complaint or answers, there's really no way to assess where you stand...but going up against a well-documented OC is a long shot. Good luck.

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Thanks for the replies.

Right now I'm thinking of settling. The weird thing about this particular account is it was charged off in July of 2010, but I'm assuming they are still managing the account thru that time and have S & H attorneys pursuing the lawsuit against me.

I had submitted my Answer back in March of 2011, and they finally filed with the court in April of this year, then a week later with the MSJ.

At this time, I haven't requested for Discovery and have til 5/21 to Respond to their MSJ.

My questions is, would Capital One still possibly managing this account after 2 1/2 yrs of non-payment?

Anyways, this was my Affirmative Defense sent with my Answer.

1. Statute of Frauds - Attorneys have not proven that they were retained by Capital One Bank as its representative in this matter.

2. Lack of Legal Standing - Attorneys has not proven that Cap One Bank is the real party of interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of Capital One Bank with all of the original creditor's rights and privileges intact. Full account number was not provided to Defendant, leaving to the Defendant to guess as to whether the account was his.

3. Unjust Enrichment - Plaintiff has failed to provide payment and charge summary to verify the amount of damages requested.

4. Unclean Hands - Plaintiff has concealed Defendants legal arbitration right to waive Plaintiff from this court venue by not producing a signed copy of the credit card agreement.

My Answer pretty much denied all of their claims.

Also, the charge-off amount was $3182 from July of 2010, they continue to show interest up to this day. The Complaint states I owe $3593, which I do question.

Do I pursue with Discovery and Respond to the MSJ, or is settlement my best option at this point?

Thanks

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Affirmative defenses are yours to prove.

1. Statute of Frauds has nothing to do with whether or not the attorneys were ratained by the Plaintiff.

2. Unless you have some sort of evidence that the OC doesn't own the debt and isn't suing you, this won't work.

4. I'm not sure about this one, but, unless your state laws require a contract in writing, it's not necessary. Credit cards are based upon use and acceptance. If they can provide cc statements, and you can't deny it's your account, they've proven use and acceptance. You could question the accuracy or authenticity of the statements, but again, it boils down to whether or not you can deny the account.

Creditors can continue to add interest to an account after it's been charged off.

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I understand now why they went all out digging up info on your case.

I'm not going to tell you what to do, but if it were me, I'd be looking for the best possible settlement I could get. In my opinion, they will win eventually, probably w/o a trial, just on the MSJ. (Sorry, that's just how it looks to me...)

BTW, they don't need a signed, written contract in Washington.

In theory, you could run up costs, but realistically and depending on the account agreement, you'd end up paying them in the long run anyway.

I do want to add a pep talk here. Well over 90% of people take a default. Just by answering, against long odds, you bought a lot of time for yourself. You could have won the lottery, received an inheritance, gotten a bonus, or something--or even just saved enough to wave a decent lump sum in their face.

And they have to provide evidence. It bugs me that if you don't answer in WA, they can get a default solely on the complaint without providing any evidence whatsoever.

There was probably nothing you could answer with that would beat a well-documented OC, but your answer was pretty good--enough to keep them honest and make them work for a living.

Be sure to let us know how it works out.

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Meant to answer your question, too, and see I forgot.

Unless you were notified C1 sold your account, they still manage it. There's really nothing to manage since there's no activity, it's in the computer with interest adding and when they need to, they can print or re-print statements, provide a current balance, etc.

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My questions is, would Capital One still possibly managing this account after 2 1/2 yrs of non-payment?

Because they know this is the usual response from 97% of people they sue.

"Right now I'm thinking of settling"

Honestly, it does not matter what their reason is. If the account is within the statute of limitations, they don't have to have a reason.

As to the application. Chrissbadd states since it has no value, that raises an issue of material dispute. That is not correct. It would have no value but something having no value does not raise a material dispute because it "has no value" to either party.

You also don't need an application to prove the account. The appeals court(s) have held that the action and conduct of the parties establish a contract. In other words, an account stated with no original application needed.

Misterloon's analysis is dead on and BV80 correctly advised you about the pitfall's of your affirmative. I would just add that they won't work even if the other side was under the obligation, which they are not, to prove them.

Statute of frauds won't work either way, but they way you argued statute of frauds is not the way you would argue it, even if it were to apply in this case. SOF basically argues a certain agreement to be enforceable must be in writing, in this case your credit card agreement. The courts have ruled a written agreement is not needed in credit card cases, therefore SOF fails.

The other affirmative defenses you listed would be borderline deemed frivilious by the court.

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One element of account stated they usually try is the "you did not sdispute the amount" trick. This is from a Texas lawyer:

Plaintiffs frequently rely on the Fair Credit Billing portion of the TILA, 15 U.S.C. § 1666. That provision imposes liability on plaintiff were it not to comply with the statutory billing error procedures. §1666(e). The Fair Credit Billing Act does take away consumers‘ rights to claim that they do not owe what is stated on a periodic bill. It does not mandate that consumers avail themselves of those dispute procedures -- unless they want to seek statutory damages for their violation -- nor does it provide that consumers lose claims or defenses if they call to complain -- as most do -- rather than write. Congress did not take away consumers‘ defenses as a penalty for not invoking the statutory billing error procedures, undoubtedly because imposing a writing requirement places a burden, sometimes insurmountable, on a portion of TILA‘s intended beneficiaries. See, White and Mansfield, Literacy and Contract, 132 Stanford Law & Policy Rev. 233 (2002). While the majority of the population may be able to draft a dispute letter, a

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significant minority unfortunately does not have that capability, for lack of either literacy or English language skills. See, National Institute for Literacy, the State of Literacy in America: Estimates at the Local, State and National Levels (1998), available through http://www.nifl.gov. Plaintiff‘s efforts to import the optional consumer protection of the Fair Credit Billing Act as a sword against the consumer turns that consumer protection statute upside down and inside out.

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Going to use this example to expand on how Washington State differs from some other states.

In Washington, the courts as a matter of law, rule, and principle are supposed to grant pro ses every possible benefit to make sure they are heard and the case is tried on fact, not technicallity. There is case law to back this up, and it's useful to know in case you need to remind the judge.

If a Washington lawyer had written that answer, they'd get taken to the woodshed. For a pro se, it's good enough because it gets the point(s) across.

The court are supposed to and should look through the deficiency of the answer to discern the heart of the argument. Essentially, ignore the "unclean hands" or "unjust enrichment" part and focus on the factual points, even if they are presented in a manner that is deficient.

So the court would view it more like this:

1. Cap 1 not showing it retained this law firm.

This is a non-starter. The attorney's are officers of the court; if they say Cap1 hired them, that's good enough 99.99% of the time.

2. Cap 1 not showing legal standing.

This is pretty much a non-starter, too. But--and to their credit--the attorneys are taking this seriously and at face value like they are supposed to, and I'm thinking that's why they would like to have the app to show, even though they don't really need it. It takes time and money to dig back for an app.

3. No record of charges and payments.

That's why they now have a stack of statements. If you hadn't answered as you did, they'd probably only bother bringing a couple, if any.

4. Concealed arbitration provision.

Another non-starter and self-contadictory, too. If it's concealed, how do you know about it?

The point is, Washington law, as a general rule and discounting the occassional arrogant judge, just wants to give a pro se the chance to be heard. That's one way a pro se in Washington generally has it better than some other states...

This also shows how you can, in Washington, buy time even if you've got a weak hand...

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The lawyer cited federal law, not state. National banks are governed by federal law. State banking law is irrelevant. they have no authority.

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4. Concealed arbitration provision.

Another non-starter and self-contadictory, too. If it's concealed, how do you know about it?

Mister Loon,

I have to respectfully disagree with your point. CC agreements are available online. Research can enable one to locate a cc agreement that could be applicable at the time of the charge-off. Therefore, you'd be able to find out if arbitration was an option.

BUT, I don't know if the failure to include an agreement, thereby "concealing" arbitration, would be an unclean hands defense.

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BV80,

Thank you, point taken and spot on. I wasn't as careful in my thinking and language as I should have been. (I also sometimes can't see beyond my bias--it seems to me the plaintiff can make their case w/o much difficulty.)

The primary point I was trying to make with that post had to do with how Washington courts are supposed to view pro ses. Some states essentially require a pro se to be on par with an attorney with 20 years of experience; Washington is, at least in theory and in my experience, much more forgiving of a pro se's lapses. The courts as a general rule want the pro se to have a fair chance to be heard and understood, even if they don't understand all the legal theory and finer points of the law.

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Let me add one other thing. In Washington, all you usually get is the summons and complaint. I've never heard of any evidence being attached; nor is any required. In Washington, fail to answer and they can get a default w/o any evidence at all.

I did make the assumption that the answer was written off a complaint with no evidence attached. Usually, because we're a pocket service state, they sue first and look for evidence later if they need to.

I assumed it wasn't concealing so much as a failure to provide or attach with complaint. Usually, if you answer, but you don't ask in discovery, you won't see any evidence introduced unless and until they MSJ--then it will be attached.

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Gonjee,

I keep coming back to this because there's something here I can't quite put my finger on, but I'm thinking I may have underestimated the strength of your answers.

You obviously hit a nerve; they've put a lot of time and attention into making the case against you. They spent, if I remember correctly, 13 months digging this stuff up.

Let me see if I understand this correctly: You do not have the cardholder agreement AND they have not provided the cardholder agreement? Did you ask for one?

Here's what's bothering me: they don't need that app. And BV80 is right, cardholder agreements can be downloaded by anyone off the web. Even if C1 didn't have one, they could download one like anyone else.

This is the only answer I can come up with: Is it possible that they want to use the app to show or have you admit that you already got agreement when you applied for and received the card? If so, why the convolution?

Is it possible that the nerve you touched is that your agreement had a MANDATORY arbitration clause? If so, you may be on to something...

I would really focus on seeing if you can find the agreement or force it out of them. Anyone else seeing this, or have any ideas?

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Read Linda7's posts about arbitration. She's very familiar with the process. Arbitration is a good idea if the amount claimed is fairly low and the agreement includes JAMS. That forum is more consumer friendly.

If the forum is JAMS and the amount claimed is fairly low, an OC might drop the case simply because of the fees involved. The fight just wouldn't be worth it.

However, for a larger amount, some OC's will agree to arbitrate. In that case, depending upon your defenses, you could still lose.

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Need a stronger legal mind than mine at this point, so weigh in. Just thinking out loud, not a lawyer, blah, blah, blah...

Do you remember the clause? What if you filed a sworn affidavit stating that your credit card(s) had mandatory arb clauses?

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Follow my thinking: A plaintiff with a unilaterally written contract of adhesion with a mandatory private contractual arb clause sues in state court. Hands don't get more unclean than that.

If there is a way to prove that, how to play it. First, I wouldn't elect arb. Their case is too strong and a loss in arb is as bad or worse than a loss in court. They've got their case ready to go, there's no advantage really to electing arb that I can see. No, first goal would be to get the case tossed from court. If they want to file arb, so be it.

Getting the case tossed would provide the basis for a Washington Consumer Protection Act suit, at $2000 a pop. Maybe could even amend and counterclaim in this case rather than as a separate, subsequent action.

In other words, try to get some money out of them even if I have to give it back. Also, if the case was tossed w/ predjudice from a state court, wouldn't that be a basis to dismiss a subsequent attempt by them to arb. Don't know; interesting question.

The big question: Is there a mandatory arb clause? If so, how can it be proved?

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What you have to understand is that very few of the agreements (really none in credit card cases that I know of) contain mandatory arbitration clauses.

That seems to be where a lot of consumers get tripped up. While there are arbitration clauses, they are not mandatory clauses.

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Agreed, most have the "either you or we may elect" thing going, but there were some agreements that had mandatory arb. I actually had mandatory arb on 2 of my cards (that's 2 out of 14 so they're not real common). But they are out there...

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That's interesting, I've never heard of a credit card with mandatory arbitration, due to the costs associated, of course.

The card companies seem like they are always trying to get out of arbitration for simple claims and only want it when they are getting sued class action style.

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Geez, ColtFan, you're going to make me demonstrate what an old fa*t I am.

Mandatory arb was pretty common back in the 90's and it's always been common in the subprime market.

If memory serves me right, it was Providian havinig to sign a settlement with the US Attorney back in about 1999 that caused the mandatory clauses to start disappearing. It generated a ton of bad publicity so a lot of lenders issued new cards and/or restated existing agreements with the "either you or we may elect" language.

However, they're still out there, especially if its subprime market stuff. C1 was heavy in that market; don't know what their agreements stated.

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