jdbhater

please help! answering h&h (acting as cap one) summons. info inside!

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These forums have been incredible and are honestly the most competent and helpful resource out there - thank you all! 

 

Quick background: 

Oct 2012: Received letter from H&H stating that they they were attempting to collect on behalf of CapOne.

Oct 2012: DV'd them and received a very sad packet with the name and address of original creditor and account statements from Aug 2011 - May 2012. CapOne confirmed my account was closed and charged off/bought? May 2012. 

Jan 2013: Received notice of intent to file suit and incur court costs - "on behalf of our client CapOne", ended doc with "This communication is from a debt collector."

Was served with summons two weeks ago with Capital One listed as the plaintiff. Reason for case: Rule 3.740 collections.

 

1. Who is the named plaintiff in the suit?

 
CAPITAL ONE BANK (USA) 

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

HUNT & HENRIQUES, Attorneys at Law

3. How much are you being sued for?

$2,*** (LIMITED CIVIL CASE, does not exceed $10,000)

4. Who is the original creditor? (if not the Plaintiff)
 
CAPITAL ONE is the Plaintiff stated

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)

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?

NO MUTUAL phone correspondence, received intent letter to which I responded with a DV via certified mail. 

9. What state and county do you live in?

CALIFORNIA, SANTA CLARA

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

OCT. 2012, WITHIN SOL

11. What is the SOL on the debt? To find out: 

4 YEARS.

12. What is the status of your case? Suit served? Motions filed? 

 

Open case, complaint and summons filed, proof of summons served. Have a few days left to answer.

 

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.

YES - Received name of address of Capital One as original creditor and 10 months of statements; nothing showing assignment to H&H. 


15. How long do you have to respond to the suit?
 
30 DAYS FROM BEING SERVED (I have only a few days left!)

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
 
NO EXHIBITS, ETC. JUST CASE ASSIGNMENT, STATEMENT OF LOCATION ADDENDUM, ETC - APPEAR TO BE STANDARD CASE FILING ITEMS.

 

-----------------------------------------------------

 

 

I realize my strategy for answer is going to be very different if the plaintiff is the original creditor, but after reading, it seems that H&H is the actual creditor. I called CapOne and finally got them to confirm that they closed the account and charged it off in May 2012. I originally had an answer with affirmative defenses (lack of standing), but I wrote that with a JDB as a plaintiff in mind. My main focus now is to come up with an another answer soon, but I don't know if an answer with lack of standing will work. Should I just prepare an answer with a demand for BOP? 

Thanks again. 

 

 

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You need to write the complaint out and we can tell you what to put.  Is it account stated, or breech of contract?

 

Then we will show you the next action after you get that answered.

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Thank you so much for your message!

 

Here are the details of the complaint:

 

The case type is "Contract, Rule 3.740 collections" and the cause of action is attached to the complaint is "Common Counts."

 

The plaintiff alleges that the defendant became indebted to plaintiff within the last four years on an open book account for money due, because an account was stated in writing by and between plaintiff and defendant in which it was agreed that the defendant was indebted to plaintiff.

 

The plaintiff alleges that the defendant became indebted to plaintiff within the last four years for money lent by plaintiff to defendant at defendant's request, for money paid to defendant at defendant's special instance and request.

 

 

I am aiming to draft an answer soon, but I don't know if an answer with lack of standing will work. Should I just prepare an answer with a demand for BOP?

Thank you so much for your time and attention!

 

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Hopefully Seadragon or CAlawyer will be along soon.  I don't think the BOP applies for account stated, but I may have that backwards.  I think it applies to breech of contract.  But it is going to be difficult because this is an original creditor suing, so lack of standing will probably not work.  

You can file a general denial, use a form on the calif. courts website.  Hold off on affirmative defenses, I am not sure what you would put, but the cali guys can chime in.

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Thanks! I hope they're along soon, as well. I figured lack of standing would be a tough call, I just don't know how else to answer. I know calling these guys and settling is likely one of the last things I should do - so I figured my best route for now is to answer and go from there. Thanks again!

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I realize my strategy for answer is going to be very different if the plaintiff is the original creditor, but after reading, it seems that H&H is the actual creditor. I called CapOne and finally got them to confirm that they closed the account and charged it off in May 2012.

 

Just because the account was charged off doesn't mean it was sold.  "Charge off" is an accounting term.  Chances are that H&H did not purchase the debt but is merely representing CapOne.

 

Check your credit report to see if CapOne is reporting the account as sold or transferred.  If not, then CapOne still owns the account.

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It appears to me that H&H is acting as attorney for Cap 1, the original creditor.  I would prepare a general denial (if the complaint is not verified).  If you have a breach of contract cause of action, then a BOP is appropriate.  If not, I suggest that you do just 3 RFPs:

 

All statements;

the contract (referred to in the complaint); and

any assignment of the claim at issue in the complaint.

 

THe last will affirm that the claim has not been assigned if indeed that is the case.

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Thanks so much for your feedback, calawyer. The cause of action is "Rule 3.740 Collections," not breach of contract. I've prepared a general denial already but will work on RFPs. I will need to send a POS for the RFP's, correct?  

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I sent the general denial today (overnighted). Is it best that I send the RFPs today? Or do I wait?

 

 

You need to file it with the Court as well as serve it on the plaintiff's lawyer. 

 

You might want to post your RFPs here in final form.  THere are templates available on the board that will give you the proper form.

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Thanks again, as always. I plan on sending the RFP tomorrow (once I get feedback on it). I know I should send one to the plaintiff's lawyer and another to the court (with POS), should I send both CMRRR and overnight them? The end of my 30 days is Friday.
My RFP - any feedback is appreciated.

JDB Hater
Tel: (111)123-4567




JDB Hater, In Pro Per


 

Superior Court of California

For the County of Santa Clara




Capital One Bank (USA), N.A.
Plaintiff,
vs.
JDB Hater
Defendant

Case No.: XXXXXXXX


DEFENDANT'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

(Code Civ. Proc. §2031.010 et seq.)


PROPOUNDING PARTY: DEFENDANT JDB Hater
RESPONDING PARTIES: PLAINTIFF Capital One Bank (USA), N.A.

SET NO.: 1 (One)

Pursuant to §2031 of the California Code of Civil Procedure, please provide and serve by mail, at (JDB Hater’s address), within thirty (30) days of the date of service of this request
, true copies of the following DOCUMENTS listed below.
I. DEFINITIONS
“DOCUMENT” means and includes, but is not limited to, the following: ANY writings, drawings, graphs, charts, photographs, phonograph records, tape recordings, notes, diaries, calendars, checkbooks, books, papers, accounts, memoranda, correspondence, reports, spreadsheets, working papers, drafts, appointment books, videotape recordings,
and ANY computer-generated, computer-stored or electronically stored matter, such as e-mail, instant messages, computer databases and electronic data stored on hard disks, floppy disks, magnetic tape or other electronic storage medium, as well as ANY other written, typed, printed, graphic or recorded matter of ANY kind, however produced or reproduced; ALL “writings” within the meaning of California Evidence Code §250; and ALL “writings,” “recordings” and “photographs” within the meaning of Federal Rules of Evidence §1001. Any written, printed or electronic copies of DOCUMENTS bearing notations, marks or codes not found in the original shall be deemed to be different DOCUMENTS and shall also be produced.
“ANY” shall mean “any and all.” Similarly, “ALL” means “any and all.”

“Plaintiff,” means Capital One Bank (USA), N.A., or any agent, employee, officer, director, or any other person acting on its behalf.
“Defendant” means, JDB Hater an individual.
“Credit Agreement”, means the Original Signed Application bearing Defendant’s signature for any contract between Plaintiff Capital One Bank (USA), N.A. and Defendant JDB Hater.

1. ALL DOCUMENTS relating to or constituting ANY alleged credit agreement between defendant and Capital One Bank (USA), N.A.
2. ALL DOCUMENTS relating to or constituting ANY assignment to plaintiff of the alleged account referred to in the complaint, including
contract, agreement, assignment, or other means demonstrating that Hunt and Henriques, Attorneys at Law had the authority and capacity, and was legally entitled to collect on the alleged debt from Account Number XXXX.
3. ALL DOCUMENTS constituting statements of alleged account number ending in XXXX, showing all payments and credits from inception until present.

Dated this 23 of April, 2013
______________________________
JDB Hater, In Pro Per

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Couple of revisions.  You want to make this as broad as possible:

 

1. ALL DOCUMENTS relating to or constituting ANY alleged agreement between defendant and Capital One Bank (USA), N.A.
2. ALL DOCUMENTS relating to or constituting ANY assignment of the alleged account referred to in the complaint,

3. ALL DOCUMENTS constituting statements of alleged account number ending in XXXX, showing all payments and credits from inception until present.

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