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Just rec'd MSJ from Capital One


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Got served in November 2012 for Capital One Credit Card debt of $9500. I answered with general denial no affirmative defenses within the allotted time frame. The complaint is for account stated, although I thought one allegation was odd, i.e., Plaintiff offered to open credit account in defendant’s name, but they don’t say what form the offer takes, e.g., hard application, phone, internet, etc.

 

1. Who is the named plaintiff in the suit? Capital One
 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Well known NYC metro atty for know creditor/JDB

3. How much are you being sued for? $9500

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

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

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


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? Typical debt collector letters
 

9. What state and county do you live in? New York not NYC

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) February 2011

11. What is the SOL on the debt? 4 or 6 years
 

12. What is the status of your case? Suit served? Motions filed? Suit served November 2012, Answer was general denial, no affirmative defenses


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?  - Formal Summons and complaint. No other paperwork attached

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing with summons, Exhibits not with MSJ.

 

Along with the MSJ they attached the original complaint, my answer, three years of account statements (three years 2008-2011). The cardholder agreement that they attached was one from 2010.

 

The account was opened backed in 2005, Do I have an option to take them to arbitration under the 2005 or 2008 agreements?

 

I haven't looked at the cases they cite in the MSJ yet. But the law firm has been know to quote cases but leave out important details from them when quoting the cases. I believe they got slapped around by a judge in NY for quoting cases out of context.

 

Here are links to the MSJ and Capital One Affidavit

 

 

 
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I wish you had elected arbitration at least about the time you filed your answer.  Your court may view that you have waited too long or gone too far into litigation.

 

But, you won't know unless you try.

 

I would immediately send the attorney and Capital One notice of election via JAMS using the 2008 agreement and file a MTC arbitration with the court.

 

But, be ready for a possible fight.  Capital One took out the arbitration provision in 2010.  If you used the account or paid on the account after that time, they often bring up the Ross vs BOA case.  They also state that notices were sent out times in early 2010 informing the customers that they were taking out arbitration.  Look on your statements from January 2010 - May 2010 and see if there is anything about arbitration being taken out.  I've seen some that have this, while on others it was "not" put on the statements.  I would also check "your" statements and compare with what Capital One supplied.  They could later put the information on the statements they are showing while it might not have actually been on your statements.  Compare them carefully!

 

I would also use the fact that the 2008 agreement arbitration provision has a survivability clause which survives "any" changes.

 

You also need to file an opposition to their MSJ before your deadline is up.  Anything that you can argue from their MSJ as a triable issue, point that out and of course also include that you have elected arbitration per the terms of the cardmember agreement.

 

I'd also take a look around in our arbitration forum.  We have recently discussed Capital One's MSJ and using a 2008 agreement, etc.

 

Also, read the thread - Strategy and Steps of Arbitration.  And don't forget your affidavit for the 2008 agreement.

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Thanks Linda. I brought up the 2008 agreement (or even the 2005 agreement) due to the survivability clause. I'm starting to research NY cases about waiving the right to arbitrate and while there are several things to consider (unfortunately the measures are set in Jell-O).

 

The only overriding phrase that keeps popping up in the cases is whether the party looking to arbitrate "merely stepped foot into the court house" or participated quite a bit in the litigation process. Merely answering a complaint (whether arbitration is used as an affirmative defense) doesn't demonstrate that one's actions clearly shows a preference to litigate vs. arbitrate. One of the standards is length of time. I would assume that if this suit sat for a year and then I tried to elect arbitration, they could argue that the election wasn't timely. On the other hand, at this point, if I were to start discovery, RFA's, etc., then I think the arbitration window starts to close.

 

What I failed to do in my initial post is to ask for help in defeating the MSJ because it seems through the reading of various posts here, trying to MTC arbitration at this point would be like spitting into the wind. If people feel it is easier to post the details of the MSJ or the Capital One affidavit rather than just the links, let me know. Together they are lengthy and I didn't want to bury the lead so to speak.

 

Thanks everyone.

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Guest usctrojanalum

OK so a few ways to play this out. What are you ultimately trying to accomplish? They may have enough evidence to win the motion outright at this time, are the judges where you reside republican or democrat? it really does matter here.  I would try the arbitration angle, but I'd be much more confident if you raised it in your answer.  You can oppose the motion while simultaneously cross moving for the judge to compel the JAMS arbitration.

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Be looking for words like this below in your agreement.  I would point out things like that to show the Judge that even though there is "already" a lawsuit filed, the agreement states that you can request arbitration for "any" claim and ask or motion the court to compel arbitration.

 

"You and we agree that either you or we may, at either party's sole election, require that any Claim be resolved by binding arbitration."

 

"You or we may elect arbitration under this Arbitration Provision with respect to any Claim, even if the Claim is part of a lawsuit brought in court.  You or we may make a motion or request in court to compel arbitration of any Claim brought as part of any lawsuit."
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Good question usctrojanalum. My initial feeling was to just defeat the MSJ then compel arbitration. My reasoning was that given the amount of evidence and that I can’t argue SOL, standing etc.; I was hoping to get them to run up their costs both for attorneys and possible arbitration. If it looks like the arbitration fees could total more that $6000 or $7000 that is certainly cutting into what they will net. So maybe they would be more amenable to a settlement (less than the $8000 previously offered).  However, I read in this forum as well as other places that Capital One seems to take a “scorched earth” approach to arbitration. They are looking to win no matter if the costs exceed the returns. It would almost seem that they make suicide bombers appear to be infidels.

 

I guess my question is if I can beat the MSJ, what can they fix in their case to tie up loose ends?

 

The only hope I see as far as defeating the MSJ is that a few judges in NY have denied unopposed MSJ’s (one wa the same attorney, different OC) based on business record admissibility combined with NYS Technology law. A judge in Westchester County (just north of NYC but somewhat Republican leaning) was one of those judges. This is a sample from their opinion:

 

it has not sufficiently demonstrated that the copies of the monthly statements sent defendant are admissible as business records pursuant to CPLR 4518, subdivision (a); plaintiff’s affiant did not sufficiently particularize how she is familiar with plaintiff’s record keeping practices and procedures, and she failed to identify “when, how or by whom” plaintiff’s financial exhibits had been created, and she fails to address whether plaintiff's electronic recordkeeping systems permits additions, deletions or. changes without leaving a record of, such additions, deletions or changes, nor does she address the manner by which tampering with or degradation of the records is prevented,.

 

The judge then goes on to cite a few cases in support of his decision. I believe that the reference to tampering with or making changes to the systems with leaving a record is the judge alluding to parts of the NYS Technology Law. A couple of the other cases that I came across, the judges specifically mention the application sections numbers of the Technology law. They even suggested in their opinion that robo-signing was involved.

 

Two things I noticed about the affidavit – 1) the affiant’s name was hand printed below her signature (her name was not in the body of the affidavit) and 2), my account # was handwritten in. If it were not for the amount of the debt being typed the same as the rest of the affidavit, I was wondering if it was one size fits all? They get whoever to sign off on it that is available. As for the notary, I did some digging. She is an employee of Capital One. Do I have anything with this?

 

Thanks for your input. 

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Thanks for the lead as to NYS Technology Law. I'm going to have to see if that might eventually apply in my case.

 

Question for Linda7

 

Are affidavits from "records custodians" and the like introduce in arb hearings? Does one attack the affidavit in an arb hearing the same way as before a judge? My apologies for not searching through the arbitration forum before asking this question.

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No matter which path I choose (litigate or arbitrate) the first thing I need to do is oppose the MSJ, correct?

 

In response to usctrojanalum’s post, I have a couple of questions:

 

  • Based on what they supplied, granting their MSJ is a foregone conclusion?
  • Or there are a few issues of triable fact (or at least one) that can be raised?

 

As far as going against Capital One, given the amount ($9,500), has been the experience others that one venue works better than the other, i.e., litigate vs. arbitrate? If I go down the arbitration road, what would be the proper path, oppose the MSJ or elect arbitration, then file an opposition with the cross motion that usctrojanalum refers to? If yes, can someone point me in the direction where there might be some examples?

 

Thanks for your help everyone.

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You will run into a serious objection to arb now that MSJ was filed. They will claim that your election is reactionary and untimely, a desperation move designed to thwart MSJ, against which you have no defense. (their probable argument, not mine) They will also raise the "arbitration removed" angle and they will come up with some document they will allege to have sent to you. The payment you made after arb was removed is not good, they will argue that you accepted the new terms when you continued to use the account and make payments. The fact that the agreement may say you can elect arbitration at any time only affects you and them, it is not binding on the court system.

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Thanks Bruno, that is why I brought up usctrojanalum's post and what would be the correct order of procedures, i.e., election, opposition, then MTC?

 

I would certainly argue the survivability clause.

 

Does anyone have an opinion or observation on the Capital One affidavit or the atty affirmation in the links I have in the initial post?

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You'll just have to roll the dice and file eveything at once. The affidavit is kind of moot right now, you need to get past the MSJ and see what the court says about arb. The survivability clause is going to be a losing argument if you accepted the new terms by continuing to use the account. You may be able to argue it if you merely paid on the account to avoid a default, but made no further purchases.

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 matter which path I choose (litigate or arbitrate) the first thing I need to do is oppose the MSJ, correct?

In response to usctrojanalum’s post, I have a couple of questions:

 

  • Based on what they supplied, granting their MSJ is a foregone conclusion?
  • Or there are a few issues of triable fact (or at least one) that can be raised?

 

As far as going against Capital One, given the amount ($9,500), has been the experience others that one venue works better than the other, i.e., litigate vs. arbitrate? If I go down the arbitration road, what would be the proper path, oppose the MSJ or elect arbitration, then file an opposition with the cross motion that usctrojanalum refers to? If yes, can someone point me in the direction where there might be some examples?

 

Thanks for your help everyone.

Opposition will be necessary because all the Collections Attorneys use this as a manner in which to have the rinky dink affidavit used as a witness in the matter. However the affidavit is Hearsay and Hearsay of Hearsay. There are many examples on the board here. I have some things posted also.

 

The philisophical discussion concluded, we address ourselves to the opposition. You will need to make a Seperate Statement of Disputed Material Facts which outlines everysingle issue that is disputed. It would be smart to counter the affidavit allegations and add any further allegations.

 

after that you will need to use the caselaw to argue against summary judgment. The cases usually used are good and some are unique in trashing debt collections arguments for SJ.

 

I have made a post with good stuff:

http://www.creditinfocenter.com/community/index.php?showtopic=319569&view=findpost&p=1234486No

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Thanks Seadragon.

 

I quickly looked at the docs you have in the other thread and there seems to be some good stuff there as well as your post above re: security issues, trustworthiness, etc. My ex worked for an auditing firm doing audit of large companies. He always used to say how when they used to do testing of the transactions of a company’s records they would always find mistakes and discuss them with the company’s accounting department. An example might be a detailed accounting ledger of customer accounts that showed the total of all customer balances to be $195 million, but the financial statements showed $200 million. More often than not they wouldn’t make an accounting adjustment to get the two to agree since the $5 million difference wasn’t material to the Company’s bottom line and wouldn’t mislead investors. However, the difference still existed and hopefully the Company would correct in time for next year’s audit.

 

I do have a question regarding cases that you cite above, not specifically those cases but the fact that they are not from NY. I assume that I need to find equivalent NY cases or is the following the order in which a judge will consider existing case law, etc.?

 

  1. SCOTUS
  2. Federal courts (any difference as to what district?)
  3. NY courts (court of appeals, appellate, supreme (in same district then another one?)
  4. Other State courts
One other thought about what you said in your second to last paragraph, “…in the case of an OC they are not allowed to attempt to say that the accounts they litigate are any different than the ones they sell that have no reliability.” While everyone is looking for the smoking gun, i.e., loan sale agreement, in their cases with a JDB, has anyone gotten their hands on a loan sale agreement and tried to use it against an OC in the manner that you describe? I did come across a FIA Loan Sale Agreement with Cach from 3 years ago. I download a PDF of it but neglected to write down where I came across it. I guess I could look through my internet history. But I know there wasn't a Capital One agreement there. Anyone know of a CapOne floating around?

 

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I have to say, that the point could gain some legs when you couple the fact they sell unwarranteed accounts coupled with breachs of their CC data then you have an argument. OC's languish with the judges believing they are the golden child. That is because no business of any kind has the stones to foreclose on a judge, or try to default one.

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has anyone gotten their hands on a loan sale agreement and tried to use it against an OC in the manner that you describe?

 

You will have to request it in discovery. Showing a generic bill of sale that has the warranty disclaimer may not work, the court would want to see the one that applied to your specific account. Then again, if this is to be used against an OC, there won't be one, so be careful how you frame the request. Rogs may be better. Ask them if they guarantee the balances of accounts sold to JDBs. You can also ask for a sample of their typical sale agreement detailing any guarantees.

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