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I recently got a Dismissal without Prejudice filed by Capital One (CO) in North San Diego County.  I beat them at their own game by following steps taken by other members on this board - specifically SeaDragon.  This was a credit card suit whereby CO claimed I owed roughly $3000.  CO hired a local attorney in San Diego - Legal Recovery Law Offices; I believe they handle all CO's lawsuit in SD.  The Complaint did not have any contract or other exhibits attached and plead only Breach of Contract and Account Stated.  Once I was served with the Complaint, the following defense strategy was used:

 

1.  File an Answer ON TIME (within 30 days):  You can get the answer form online at your local court.  Take the time and Deny each and every allegation raised in the Complaint - "Defendant denies the allegations contained in Paragraphs 1-5 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged ......" .  Specifically deny the Paragraph that refers to the written contract - "Defendant denies in Paragraphs 6-8 as there is not, nor has there been any agreement, written, oral or implied with the Plaintiff and Defendant.

 

     a. Make sure you read on this board all about affirmative defenses you can raise, i.e. failure to state a claim, court lacks subject matter jurisdiction - lack of standing, statute of limitations, statute of frauds,    failure to request arbitration, invalid assignment, failure of consideration, FDCPA violations, and other equitable defenses, i.e. laches.

 

2.  At your First scheduled hearing - REQUEST A JURY TRIAL!  Most law firms will drop their cases shortly since costs handling a jury trial will exceed the debt owed.  Don't make any offers to settle since it is too early in the game to quit.

 

3.  If you are served with Interrogatories, Admissions, and requests for documents, do not panic. Make sure you respond and answer each interrogatory and deny all admissions.  You can ignore producing any documents unless you had sent CO "dispute letters" or similar.  If you do not have an answer to the interrogatory, state so with "I lack sufficient information and knowledge to answer this question".  Do not admit to anything they ask you.

 

4.  After answering P's Interrogatories - DRAFT YOUR OWN INTERROGATORIES, Admissions, and Production of Documents and serve on P - you can look on this board for examples.  I basically used P's format and started with the Contract issues - offer, acceptance, consideration, breach, and damages.  I got specific when it came to details of the debt - charges, payments, over limit fees, past due charges, etc..  Make sure you ask for dates on "missed payments" and "last payment made".  You want to make sure you nail down specific dates for Statute of Limitations (4 years in CA) facts.

     b.  Production of Documents - very important to request copies of credit application, card holder agreement, changes/modifications to interest charges, statements, and "all other relevant documents".  

 

5.  P's response to my interrogatories, etc.. was to send me CO's 2005 Card Holder Agreement and the last two years of statements AND a CCP 98 Declaration by Wandi Chamberlain - CO's legal rep in Lieu of Personal Testimony.  In her Declaration she failed to lay the proper foundation/lacked personal knowledge/no authentication required by the Hearsay Exception for Business Records - she was not an employee of CO, only an agent of a subsidiary, did not state when the account was opened, agreement not signed, and other insufficient conclusions - totally bogus boilerplate P Declaration.

 

They also included in their "packet" a CCP 1987 - Requesting Parties to Attend Trial and to cut-off anymore discovery.  Of course, they requested that I attend Trial.

 

6.  Now, you MUST send P your own CCP 1987 and request that Wandi Chamberlain appear on the Trial Date - make sure you save your proof of service.

 

7.  By now you have your Trial Date.  About 10 days before your trial, PERSONALLY SERVE SUBPOENA DUCES TECUM on Wandi Chamberlain at the bogus address given in P's CCP 98 declaration.  Do not allow the Marshal to "sub-serve" anybody else - even if the CCP 98 declaration states that you can serve someone else instead of Wandi.  Only name Wandi in your subpoena.  The service will fail since Wandi will never travel from VA to appear in court.  

 

8.  Before or at your Trial Readiness Conference, file and serve your Motion in Limine to throughout Wandi's declaration, contract, and statements (all Exhibits attached to declaration) as Hearsay evidence.  This forum, specifically SeaDragon, has sample Limine motions you can use.  

 

Once I served the Limine motion and awaited my trial date - CO caved and filed the Dismissal a few days before trial.  CO cannot win any of these cases unless they can provide a "legal rep" capable of providing testimony as to your specific credit card account.  All their evidence gets tossed as Hearsay since they haven't gone through the requirements of the Business Records Exception.  Wandi's declaration is completely bogus and the fact she doesn't reside within 150 miles of the courthouse and subject to a subpoena, the courts will not allow the declaration and attached exhibits.

 

File an Answer with Affirmative Defenses, Request Jury Trial, Respond and file your own Interrogatories-Admissions and Documents Request, File CCP 1987 Requesting P's main Witness to Attend Trial, and file your Motion in Limine and watch how fast CO dismisses your case.

 

Thanks to all the knowledgeable members here - I hope my strategy will make you a winner against any Capital One lawsuits.

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Your specifics are for California, but the overall concept is right on. The first thing one needs to do when getting hit with a lawsuit is take a really deep breath and calm down. For you it's personal but for them it's just another day at the office. The last thing they want to do is put any effort into it. Especially for these little amounts any amount of fighting makes their return on investment go WAY down. They want a quick and easy default judgment, not a long drawn out court battle. I guarantee a pro se defendant who frequents these boards is far more well versed in the intricacies of their case than the opposing attorney is. Chances are that attorney has never laid eyes on the case before facing you in court. You have spent hours researching and they might have spent 10 minutes reading their spreadsheet.

 

Good job! 

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Like banksnogood post about Requesting Jury Trials it works,I was in court watching court cases seeing what it was like in the pits.I hear two attorneys talking about the county not wanting these credit card cases to go in the courthouse(we were in the expo center).Jury trial popped in to my head, I had four cases all at once,I could hardly wait to go to the real courthouse and file my jury trials.Result case dismissed not to be reinstated x3.
The other case was with midland funding dismissed with prejudice.I dont know what would have happened at the(3) jury trials at that time i dont think i could have won.I did beat midland with prejudice using brjmhome6 case i even used his case law from another state and still won(yes they even answered discovery,with his case law from another state). :ROFLMAO2: I knew nothing about law or court only that i did not want to be there.(Coltfan1972 just fainted).Now i love to fight the junk debt buyers.

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I see where keeping on the track is a good thing but as these wins accrue they will change so we all must research the law. They won because we have good starting points and some samples to help but all of us have to get the concepts in our heads and stick to deadlines and procedures because the courts are literally waiting for us to go into sloppy pro per mode so they can roll the judicial gangster bus over us.

 

I wonder why Cap1 dismisses when faced with opposition they must have "lost" alot of money. Unless they get tax breaks or make the money out of thin air.

 

Good Job. You ran them off.

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Like banksnogood post about Requesting Jury Trials it works,I was in court watching court cases seeing what it was like in the pits.I hear two attorneys talking about the county not wanting these credit card cases to go in the courthouse(we were in the expo center).Jury trial popped in to my head, I had four cases all at once,I could hardly wait to go to the real courthouse and file my jury trials.Result case dismissed not to be reinstated x3.

The other case was with midland funding dismissed with prejudice.I dont know what would have happened at the(3) jury trials at that time i dont think i could have won.I did beat midland with prejudice using brjmhome6 case i even used his case law from another state and still won(yes they even answered discovery,with his case law from another state). :ROFLMAO2: I knew nothing about law or court only that i did not want to be there.(Coltfan1972 just fainted).Now i love to fight the junk debt buyers.

I would think the first one would be rocky, then the second would be ok then the third would be where you looked like a seasoned pro.

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I think the reason asking for a jury trail works is the junk debt buyer does not want to be at the courthouse for several days,when he could be collecting default judgements and filing more cases,Most of the junk debt buyers file in all the counties statewide.Then in my post the attorneys said the county did not want credit card cases going to the courthouse.I'm assuming the county wants all the cases disposed of at the expo centers and not at the county courthouse.Most of the judges (judge pro tem) at the expo centers are local attorneys who act as judges,who rubber stamp all the default judgements.My thoughts at these expo center courts is just never admit to anything except your name and address,send discovery to the plaintiff after you file your answer to plaintiffs complaint.Remember 99% of the Plaintiff's are working off of a cd of old charged off accounts and have very limited paper work/or try and make their own.Thats why if you fight back you can win.Find your states rules of civil procedure,local court rules,search the internet for cases and case law in your state.Research the charges against you such as account stated,breach of contract,unjust enrichment.Then figure out how you want to bring your case to the plaintiff.Personally i think these type of courts are a joke but the judgements are very real.

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Congratulations to the OP for shutting down an OC suit.

A successful defense strategy in CA doesn't look like it would fare to well in AZ:
Typically 20 days to answer the complaint.
Steps in Bringing a Civil Lawsuit (http://www.azcourts.gov/PublicServices/CivilLaw.aspx):
...
    4. The defendant has a limited time (usually 20 days) to file a written answer admitting or denying the statements in the complaint.
    ...
Requesting a jury trial in AZ won't avoid mandatory court connected, non-consensual and non-binding arbitration for the majority of collection suits in Superior Court. Particularly those with no counterclaims and an amount in dispute is <$50,000. http://www.superiorcourt.maricopa.gov/superiorcourt/civildepartment/arbitration/index.asp
No CCP 1987 in AZ.

While not a fan of cookie cutter solutions it would appear the OP has posted some handy steps for use in CA. Kudos.

 

I see where keeping on the track is a good thing but as these wins accrue they will change so we all must research the law. They won because we have good starting points and some samples to help but all of us have to get the concepts in our heads and stick to deadlines and procedures because the courts are literally waiting for us to go into sloppy pro per mode so they can roll the judicial gangster bus over us.

 

I wonder why Cap1 dismisses when faced with opposition they must have "lost" alot of money. Unless they get tax breaks or make the money out of thin air.

 

Good Job. You ran them off.

Great advice on following procedures and attending to deadlines (for both sides). The "judicial gangster bus" has rolled too many for too long. Don't be a sloppy pro se is more great advice.

 

For many years Cap1 has sold (without recourse) ~66% of their consumer credit card receivables to an LLC that in turns sells those receivables into a securitization trust. With a DC attorney working on contingency and/or as a silent business partner it would seem that Cap1's skin in the game (both losses and litigation expenses) is minimal at best. There is no indication that Cap1 is guiding their DC litigation from what I have seen or experienced. So while Cap1, having previously been paid and being impervious to losses on the majority of their "defaulted" CC receivables, isn't exactly "making money out of thin air" it does appear to explain a lot of odd behavior we see or experience in litigation and arbitration.

 

The ARM industry and JDBs are always promoting the concept that they are somehow significantly reducing or holding down the costs for the "good" credit consumers. Of course while we are supposed to swallow that story are we to believe that the banks don't project possible losses and calculate and collect interest rates to appropriately compensate for any losses? Hey, if they really mess up their projections they can always demand a government bailout.

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Congratulations on your win! It must feel like the big rock is off your back, they are nothing but slavers!

 

I'm in the same situation being suit by cap1 through LRLO, hope this goes well for me as well.

 

Thanks everyone for the help and support in the forum, everything I have responded was with the help with the knowledgeable ones on this site.

 

I'm happy for you, reading this victory is also emotionally for me .

 

Again, congratulation on kicking their greedy butts! 

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I wonder why Cap1 dismisses when faced with opposition they must have "lost" alot of money. Unless they get tax breaks or make the money out of thin air.

 

I think (and this is my opinion ONLY I have nothing to back it up) that Cap1's relationship with their "attorneys" would not really stand up to close scrutiny. They tend to use law firms who are admitted collection agencies also. I think their agreements are more collection agency type contracts then truly retaining the firm to represent them. In my case the law firm certainly acted more like a JDB then like they had a relationship with the OC. Further, I think they do this specifically to keep the protection from FDCPA that an OC has.

 

Again my opinion only. I'm certainly not officially accusing anybody of anything xangelx

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Thanks for all the CONGRATS!  Yes, it feels great to kick Capital One's a&#036;&#036;.  Until Capital One established an office within 150 miles of any CA courthouse, or has a rep. there

for service - THEY ARE LOSERS!

 

Here is my Motion in Limine and supporting paperwork.  Make sure you attach their Wandi Declaration and exhibits, your CCP 1987 Requesting Wandi's Appearance at Trial, and the

Sheriff's Return of Service on your Subpoena Duces Tecum to Wandi's "in care of" service location:

 

 

CALimine_CreditInfo.pdf

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What worked for you didn't work for me at all. Same scenario, same people, down to the declarant. The judge said my MIL was moot and that Wandi should have been subserved. I now have to serve her again and leave it with the "authorized" person. This was an order from the judge.

I'm glad it worked for you though, I'm just severely disappointed it didn't work for me. My only hope now is that she doesn't show. :(

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HotWheels96 - Go ahead and subserve Wandi - she will never appear.  If you go to trial, make your Hearsay Objections to all Exhibits Plaintiff tries to enter into evidence.  Argue your motion in limine points - specifically that Plaintiff has not complied with CCP 98 which is clear about Declarations in Lieu of Testimony.  If you lose, do not worry - file your appeal within the timeframe.  There is no way they can prevail even if the Judge doesn't pay attention to the law.

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Banksnogood: I sure hope that she doesn't. In the event she does, I'm prepared to question her.

 

The judge continued the trial to allow me a chance to subserve her, which I did. My server filed the proof of service the day after service was completed. What I found odd was that the "authorized agent for acceptance" was not their attorney; it was a third party and one that has had recent legal trouble for falsifying documents and sewer service. Real stand up company eh?

 

So I wonder how that works, when it's a completely different entity; how does she get her papers and how soon is their lawyer notified that service was made?

 

Regardless, my trial is in 15 days. Thank you so much for the well timed words of encouragement.

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Banksnogood: I sure hope that she doesn't. In the event she does, I'm prepared to question her.

 

The judge continued the trial to allow me a chance to subserve her, which I did. My server filed the proof of service the day after service was completed. What I found odd was that the "authorized agent for acceptance" was not their attorney; it was a third party and one that has had recent legal trouble for falsifying documents and sewer service. Real stand up company eh?

 

So I wonder how that works, when it's a completely different entity; how does she get her papers and how soon is their lawyer notified that service was made?

 

Regardless, my trial is in 15 days. Thank you so much for the well timed words of encouragement.

good looking out. let me know If I can help trial is tough.

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