Chuk

Being Sued by Cap1, Sent in my Answer may have made a mistake

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I was just recently served for a lawsuite brought about by Cap1 via Michael J Scott.  I have a few quick questions and will get all of my info on line this evening so you can see the pertinant info.  I will say this site has been very helpful and has helped me get a better grasp of what i need to do.  The info on here is wonderful.

 

My first question is around the certified copy that goes to the lawfirm when you file your answer.  My Answer stated i sent a certified copy on the 4/1/2013.  I ran into an issue at my local post office and was not able to send the certified letter out unitl 4/2.  Will this cause me any issues?  Do i need to resubmit my answer with an amendment for the date it was actually sent?

 

My 2nd question is on the type of loan i have, its a Small Business Line of Credit.  I was confused if this was handled the same as CC dept and suit.  I was not able to find any specific info around a Small Business Line of Credit on this board, but i did see indicators that lead me to believe it would be handled in the same as a CC suits.  Can someone help and confirm this for me.

 

Ill get the rest of my info on line tonght.

 

Thanks again. 

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No need to amend anything, no lawyer is going to gripe over something being a day late. Most likely this will be treated as an open account like a credit card would be. The only difference may be that there was a signed agreement for this. Do they have one? Also, some states specify that in an action brought upon a contract, a copy of the contract must be attached to the complaint. Check your rules, or someone from TX will tell you.

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Here is the info around my suit, i have a few  questions at the bottom.

 

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

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

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Michael J Scott SBN 24000876

3. How much are you being sued for? $47,878.84

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

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


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

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? None

9. What state and county do you live in? Tarrant County, Texas

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Sometime in 2009

11. What is the SOL on the debt? To find out: 4 years but im not sure if it is the same for Small Business Lines of Credit

12. 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). Suit served and just filed Answer on Monday

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? I had 20 days to respond which expired on 3/27, i filed my answer the following Monday at 8 AM on 4/1......Im trying to push as far out as i can in hopes we have an SOL case

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. The only thing i was sent was a Request for Admissions, aside from that I was sent nothing else with the summons / petiition that i recieved .   No statement, no contract, no exhibits....nothing....

 

 

Here is the Answer i submitted on 4/1

:

Cause No. 2013-

 

Capitol One National Association

Plaintiff,

 

-vs.-

 

Defendant.

 

IN THE COUNTY COURT

AT LAW NO. 2

TARRANT COUNTY, TEXAS

 

DEFENDANT'S ORIGINAL ANSWER

 

TO THE HONORABLE JUDGE OF SAID COURT:

 

COMES NOW, Me, Defendant herein, and files this Original Answer in response to Plaintiffs Original Petition, and in support thereof would show the following:

The Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of The Plaintiff's allegations.

  1. No Answer Required
  2. Defendant denies the allegation found in paragraph 2 of Plaintiff's Complaint
  3. Defendant denies the allegation found in paragraph 3 of Plaintiff's Complaint
  4. Admit
  5. Defendant denies the allegation found in paragraph 5 of Plaintiff's Complaint
  6. Defendant denies the allegation found in paragraph 6 of Plaintiff's Complaint
  7. Defendant denies the allegation found in paragraph 7 of Plaintiff's Complaint
  8. Defendant denies the allegation found in paragraph 8 of Plaintiff's Complaint
  9. Defendant denies the allegation found in paragraph 9 of Plaintiff's Complaint
  10. Defendant denies the allegation found in paragraph 10 of Plaintiff's Complaint
  11. Defendant denies the allegation found in paragraph 11 of Plaintiff's Complaint
  12. Defendant denies the allegation found in paragraph 12 of Plaintiff's Complaint
  13. Defendant denies the allegation found in paragraph 13 of Plaintiff's Complaint
  14. Defendant denies the allegation found in paragraph 14 of Plaintiff's Complaint
  15. Defendant denies the allegation found in paragraph 15 of Plaintiff's Complaint
  16. Defendant denies the allegation found in paragraph 16 of Plaintiff's Complaint
  17. Defendant denies the allegation found in paragraph 17 of Plaintiff's Complaint
  18. Defendant denies the allegation found in paragraph 18 of Plaintiff's Complaint
  19. Defendant denies the allegation found in paragraph 19 of Plaintiff's Complaint

PRAYER

Defendant prays that the Court deny The Plaintiff's Complaint and for all other relief just and proper in the premises.

CERTIFICATE OF SERVICE

On the date shown below a copy hereof was delivered in person by agent or delivered by courier with receipted delivery or sent by certified mail, return receipt requested.

 

Michael J Scott (SBN: 24068407)

1120 Metrocrest Dr

Carrolton, TX 75006

214 234 8456

214 234 8454

 

Certified: 04/01/2013.

 

Respectfully submitted,

 

____________________________

ME

Pro se


 

Here are a few questions i have.

 

Im not sure how SOL works with Small Business Loans in TX, does anyone know if they are handled the same as CC debt?

Im also unsure of how to go about requesting admissions from the plaintiff,is it as easy as sending them the docs certified mail?   How do i aknowledge this via the courts?

When it comes to my defenses, how is the best way to go about submitting them to the courts?  I read several different arguments on teh board for listing them and not listing them in my Answer, i opted to not include them in my letter.

It has been several years since Capitol One has attempted to contact me regarding this debt, they charged it off at least 20-24 months ago as well.  Is there anything in this delay of attempting to collect i can use to my favor?

 

More questions to come as i work on docs.

 

Ill scan and put up my petition later tonight, maybe it can help those who have never seen one.

Ill be working on my Request for Admissions in the next few days ill post it as soon as its available.

 

Thanks again for all the awesome help!!!!!

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Sec. 16.004.  FOUR-YEAR LIMITATIONS PERIOD.  (a)  A person must bring suit on the following actions not later than four years after the day the cause of action accrues:(1)  specific performance of a contract for the conveyance of real property;(2)  penalty or damages on the penal clause of a bond to convey real property;(3)  debt;(4)  fraud;  or(5)  breach of fiduciary duty.

 

You probably don't have an SOL issue, but we can't tell because we do not know how the contract defines default, nor do we know the date of the last payment. Usually an account goes into default when you miss a scheduled payment. You should look for this info, this is a huge amount of money and you are up against an original creditor. Usually special defenses are included in the answer. What's yours? They are going to pursue this one, bet on it. The amount of time they waited to sue can be raised as an interest issue.

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I don't know Texas law but in most other states filing a law suits puts a hold on SOL assuming the account isn't already past it of course.

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Hey guys its been a little while since my last post, i got a little discouraged but im not giving up with out a fight.  So im back and ready to send off my answer to the Plaintiffs Req for Admissions.  Before i submit my answers i have a few more questions to ensure im heading down the right path. 

 

I want to send a Discovery Req to the plaintiff so i can get the ball rolling on my side, will i be out of line by doing so.

Do I send this Discovery Req with my Answer or is it best to wait a few days and send it seperately?

Do i need to send a copy to the court or does a certified mailing to the plaintiffs attorney do the trick?

I didnt see any request for Interigatories on my petition or RFA, does this normally come at a later date?  Ive seen several posts where the defendent recieved the Petition, RFA, RFI, and Discovery in the same packet.  I only got the petition and RFA.

 

I feel like i may be a little out of order with the way im working this but with only getting a petition and the RFA i felt like this was mybest option or next step.

 

Ill be on a little later to post my answers and the beginnig of what i have for my Discovery.

 

Thanks again for all of the help.

 

 

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http://babyinthecake.wikispaces.com/z_(Sample)-Discovery+Request+Example look over this

Level 1 discovery

Rule 190.2 defines Level 1 cases as those cases in which all plaintiffs affirmatively plead that they seek only monetary relief aggregating $50,000 or less, excluding costs, prejudgment interest and attorney’s fees, or divorce cases involving no children and a marital estate worth no more than $50,000. In Level 1 cases, each party is allotted a total of 6 hours to take all oral deposition testimony. The parties can agree to expand this limit up to 10 hours. Each party can serve on any other party no more than 25 interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. In a Level 1 case, all discovery must be completed during the discovery period, which is defined as beginning when the suit is filed and continuing until 30 days before the date set for trial.

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Chuk,

 

You might want to rund off the amount and redact the Index number on the PDF of the petiion you posted. You can be indentified by searching the county clerk's on-line records database.

 

It look like you are named as an individual. You said this was a small business loan. What was the legal entity of the business you had? Corporation, LLC, sole proprietor? If it was a corp or LLC, I assume you had to give a personal guarantee and that is why you are named individually?

 

As Bruno indicated, it's tough trying to offer help without specifics.

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Orig Pet.pdfReq for Adm.pdf

 

Im listing my answers for the plaintiffs Req for Admissions, can someone please look them over for me.

 

I took down my Orig Pet, i will clean it up and get it back out there shortly, thanks for the catch.

 

Im unsure on my defense at this point.  I contiinue to look through the forums and different cases for the appropriate defenses to use.  I will have a better answer to this one soon.

 

 

 

 

1.Response: The information known or easily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response

 

 

2.Response: The information known or easily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

3.Response: The information known or easily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

4.Response: The information known or easily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

5.Response: The information known or easily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

6.Response: The information known or easily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

7.Response: The information known or easily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

 

8.Response: The information known or easily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

9.Response: The information known or easily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

10.Response: The information known or easily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

 

 

 

 

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Racecar thanks for the link to the Discovery example, its full of nice little goodies that i think will help me out tremendously.

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Hey guys, its been a little while since ive been on here working on my case but i have a couple of updates that i need a little more help on. 
 
I cant lie, since my last post i have done the worst thing anyone in my position could do, i sat back and waited.  I guess i was overwhelmed by the situation and felt like i was waiting for the other side to crush my world. 
 
Thanks to sound advice on this website I did go ahead and answer my original petition to the courts and request for admissions the attornies were asking for.  I suppied both but waited to the absolute last minute to do both.  I was close to SOL and wanted to delay as much as i could. 
 
Past this i havent done much, i prepared a Req for Discovery but never submitted it.  Again waiting like a fool for my world to be crushed.
 
Fast forward to late last week when i recieved a settlement offer from the JDB handling my case.  They were offering a 50% settlement on the amount they are claiming i owe.  Well before i could get back on here and get advise i get a letter from the court today.  Its a 'Notice of Dismissal' from the courts. it says that 'the case has been on the docket for more than 10 months, based on time standards for disposition cases' and that 'unless some disposition is made or affirmitive relief requested in writing within 30 days, either by setting for trial, judgment or motion to retain, this case will be dismissed for want of prosecution pursuant to rule 165A TRCP'. (Ive attached a copy.)
 
What exactly am i looking at here.  Are there any steps i can take to try get this case dismissed? Based on the info i can gather the account woulld be out of SOL at this time but im not sure if that is usable in my situaion. 
 
Any help would be greatly appreciated.
 
Thanks

 

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I apologize im having a hard time loading my attachment so ive typed out the letter below.

 

Notice of Dismissal

 

This case has been on the docket of this court for more than 10 months.  This court desires to comply with the supreme court order of February 4, 1987, on the time standards for the dispostion of cases.  Unless some deisposition is made or affirmative relief requested in writing within 30 days, either by setting for trial, judgement or motion to retain, this case will be dismissed for want of prosecution pursuant to rule 165A, TRCP.

 

Signed on this the 25th day of February 2014

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Well lets hope the courts notification to the jdb gets lost in the mail.  If they do not respond to it, the court will dismiss it.  If they do respond to it, you know have some time to get off your butt and learn how to fight it. ;)  Wait for now, if they respond, quit waiting for your world to be crushed, and get on here and ask what to do next.

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A motion for summary judgment is generally considered a dispositive motion.

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I just found your thread and was wondering if you ever figured out the DOLP to determine the SOL. Its amazing they are being so passive on this considering the amount. I hope you win, but I have never seen anyone get so lucky with anything over 5K-10K. For that amount of money I'm surprised they haven't hit you harder. I have seen CO spend six figures to recover less than half that amount. 

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Hi guys/gals im back with a quick update from my last post.  I got this letter in the mail yesterday, it brought a smile to my face for sure.  What i recieved was a notice for Dismissal without Prejudice.  Ive scripted the verbiage out below for your revew.  I feel very lucky and fortunate at this time to have recieved this news. 

 

Order Of Dismissal Without Prejudice

 

On this day came on to be considered the Notice of Nonsuit filed by plantiff  Capitol One National Association.  The court, being advised of plaintiffs nonsuit, hereby ORDERS that the above-entitled and numbered cause be dismissed prejudice as to defendant, me, with all costs taxed to the plaintiff.

 

Signed by Judge

Signed by Attorney for Plaintiff

 

 

While im not out of the woods yet, im finally on a good path to get this behind me.  My next main goal is to work to prevent this suit from being brougt against me again.  I believe that i am at or passed SOL for TX, which is 4 years.  In my initial contacts with the JDBs or some other collecter that offered my a payment plan, prior to the suit being filed, i was advised that there last record was sometime in 2009.  I dont know what the record is as they would not openly tell me, but i have to believe that SOL may be a play for me. 

 

How do i go about getting this moved to Dismissed with Prejudice.  Is there any action i can take against the JDB for having me wrapped up in this mess?  Is there any action i can take agains the JDB for filing a suit and basically sitting on it wating for me to make a mistake?  I would like to go ahead and try to get this pulled from my credit reports, is there any particular way to go about this?

 

Thanks again.

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@Chuk

 

Unless your rules say otherwise, a plaintiff is allowed to voluntarily dismiss. 

 

There's no FDCPA violation just based on the fact that they sued you and took their time during litigation.

 

Did you determine if the debt was outside the SOL?  If it is past the SOL, you'd have an FDCPA violation. 

 

Dispute the account with the credit reporting agencies.  You won't really be able to use the voluntary dismissal to help you because there was no ruling on the merits of the case. 

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You got really lucky. But, for your own peace of mind, you MUST know the exact date that you first defaulted. That would be one day after you first missed a payment. 

 

If you don't have the records, then I assume some bank does. Get those records, even if you need to pay for them.

 

I got one trade line removed, and an OC's collectors off my phone and out of my life, by knowing the exact date that I last paid them anything. Even though it was later than the actual DOFD, being able to decisively tell them that the SOL had run on XX/XX/20XX, and that they were NOT to contact me again, felt incredible.

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Im working on getting the SOL down now, ill post later as soon as i have more info.

 

Thanks again for all the help!!!!

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