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Can someone please help me, totally lost


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  1. Who is the named plaintiff in the suit?

      Capital One Bank (USA), N.A.

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

     LAW OFFICES OF PATENAUDE & FELIX A.P.C.

3. How much are you being sued for? 

        $3,xxx

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

Capital One Bank (USA), N.A.

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? Nothing yet

9. What state and county do you live in? CA, Tulare

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 09/2012

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? 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). 

Can’t find anything

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? 

  • 30 Calendar days to respond/ was served on 11/7/13 @ 9pm
  • Charges
    • ​Common Counts
    • Other allegations: Before commencement of this action, in those cases where recovery costs is dependent on such notices, Plantiff informed the defendant(s) in writing it intended to file this action and that this action could result in a judgement against defendant(s) and that would include court costs and necessary disbursements allowed by CCP Section 1033(B)(2)
    • damages of $3,xxx
    • For such other relief as the Court deems just and fair
    • This cause of action is based upon account number xxxxxxxxx for the sum by which Defendant has been unjustly enriched by virtue of Defendant receiving monetary or other benefit, by Defendant knowingly requesting the funds at issue and/or accepting the benefits bestowed. It is inequitable for Defendant to retain said benefits without repaying Plaintiff the value thereof.

 

  • ​They attached  
  • First CAUSE OF ACTION-Common Counts

cc-1 (a) became indebted to plaintiff, credit report shows that Capital One charged it off. Date closed 11/10

          (B) because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff

(6) they say: this cause of action is based upon account XXXXXXXXXXXXXX9077 for the sum by which defendant has been unjustly enriched by virtue of defendant receiving monetary or other benefit, by defendant knowingly requesting the funds @ issue and/or accepting the benefits bestowed. It is inequitable for defendant to retain said benefits without repaying Plaintiff the value thereof.

 

cc-2  $3xxx which is the reasonable value, is due and unpaid despite plaintiffs demand,

 

cc-4 For such other and further relief as the court deems just and fair.

 

Question:

I was wondering since it says in credit report that it was charged off then would the law firm be the new owner and would then be a junk debt buyer? Whenever they called he first stated he was a lawyer working for the firm, later he said he was a debt collector and denied he ever said he was a lawyer working for the firm. Were very confused @ how to answer since were not real sure who owns the debt. Can someone please help, were so new to this, been searching and reading on this site ever since we got the summons.

 

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 or any other information attached.

Thank you in advance for your help.

 

 

 

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Welcome.

 

Here is a form you can use for your answer:  http://www.courts.ca.gov/documents/pldc010.pdf

 

  Check box 3 (a).  That generally denied all allegations of the complaint and makes plaintiff prove its case.  You can add any affirmative defenses you may have but don't worry too much about them.  If you later discover that you want to add an affirmative defense, you can ask the court and your request should be "liberally granted".

 

You will then file the answer with the court and serve a copy on the plaintiff (have someone put it in an envelope addressed to plaintiff's lawyer and sign a proof of service.  Here is a proof of service:  http://www.courts.ca.gov/documents/pos030.pdf

 

Get the answer filed and we can then talk about strategy for discovery.

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You are clearly here looking for some small glimmer of hope, so, here you go ==> I BEAT cap1 and my amount was yours, plus 10,000...allegedly. ;)

Start reading NOW. The information you need is here, but you must be willing to do the work. You will find many people here who can and will help, but none of that matters if you're not willing to do the work.

Do as calawyer has already advised; you need to get your answer in. Calawyer has also told you to have somebody else sign the proof of service and to put the envelope in the mail for you. This is important as we are not allowed to mail our own stuff. You'll take that proof of service and your answer (my court requires the original) to the courthouse and file them.

Also, you might look into filing a fee waiver to help you in getting the answer filed without breaking the bank. These are forms FW-001 http://www.courts.ca.gov/documents/fw001.pdf and FW-003 http://www.courts.ca.gov/documents/fw003.pdf . You need to make a couple of copies of the first one.

Make sure to keep us posted and especially let us know when things progress. Take it one step at a time and try to remember, we all were in your shoes at one point.

Wheels

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  1. Who is the named plaintiff in the suit?

      Capital One Bank (USA), N.A.

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

     LAW OFFICES OF PATENAUDE & FELIX A.P.C.

3. How much are you being sued for? 

        $3,xxx

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

Capital One Bank (USA), N.A.

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? Nothing yet

9. What state and county do you live in? CA, Tulare

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 09/2012

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? 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). 

Can’t find anything

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? 

  • 30 Calendar days to respond/ was served on 11/7/13 @ 9pm
  • Charges
    • ​Common Counts
    • Other allegations: Before commencement of this action, in those cases where recovery costs is dependent on such notices, Plantiff informed the defendant(s) in writing it intended to file this action and that this action could result in a judgement against defendant(s) and that would include court costs and necessary disbursements allowed by CCP Section 1033( B)(2)
    • damages of $3,xxx
    • For such other relief as the Court deems just and fair
    • This cause of action is based upon account number xxxxxxxxx for the sum by which Defendant has been unjustly enriched by virtue of Defendant receiving monetary or other benefit, by Defendant knowingly requesting the funds at issue and/or accepting the benefits bestowed. It is inequitable for Defendant to retain said benefits without repaying Plaintiff the value thereof.

 

  • ​They attached  
  • First CAUSE OF ACTION-Common Counts

cc-1 (a) became indebted to plaintiff, credit report shows that Capital One charged it off. Date closed 11/10 If they charged it off then you deny this allegation because they have not set forth facts that they own, or someone else owns the debt.

          ( B) because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff

(6) they say: this cause of action is based upon account XXXXXXXXXXXXXX9077 for the sum by which defendant has been unjustly enriched by virtue of defendant receiving monetary or other benefit, by defendant knowingly requesting the funds @ issue and/or accepting the benefits bestowed. It is inequitable for defendant to retain said benefits without repaying Plaintiff the value thereof. Since they claim it was set forth in writing you demand they produce such writing before you can admit or deny, plaintiff has offered no concrete evidence that this writing exists, mere statements of council are not facts before the court. Since plaintiff claims account stated defendant cannot admit nor deny until an accounting of the alleged account is offered ad evidence for the defendant to review.

 

cc-2  $3xxx which is the reasonable value, is due and unpaid despite plaintiffs demand,

 

cc-4 For such other and further relief as the court deems just and fair.

 

Question:

I was wondering since it says in credit report that it was charged off then would the law firm be the new owner and would then be a junk debt buyer? Whenever they called he first stated he was a lawyer working for the firm, later he said he was a debt collector and denied he ever said he was a lawyer working for the firm. Were very confused @ how to answer since were not real sure who owns the debt. Can someone please help, were so new to this, been searching and reading on this site ever since we got the summons. You need to challenge this in court, use your credit report to chow their has been a charge off an inquiry into who the real owner needs to be done, they need to prove they still own the debt.

 

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 or any other information attached.

Thank you in advance for your help.

 

Motion to dismiss because plaintiffs pleadings are not concrete, contain no proof of any of the allegations, is not plausible enough to invoke the courts authority.

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@masa26_73

 


You need to challenge this in court, use your credit report to chow their has been a charge off an inquiry into who the real owner needs to be done, they need to prove they still own the debt.

 

A charge off doesn't mean that the OC doesn't own the account.  

 

At some point, unless the case is dismissed early on, an affidavit will have to be provided by the plaintiff.  If that affidavit is from the OC stating that you owe them money, then the OC still owns the account.

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A charge off doesn't mean that the OC doesn't own the account.  

 

At some point, unless the case is dismissed early on, an affidavit will have to be provided by the plaintiff.  If that affidavit is from the OC stating that you owe them money, then the OC still owns the account.

 

Correct, a charge off just means that the account has been changed on the asset and liabilities accounting of the OC as no longer an asset. For example, if you owe my company $1000.00 then I would list that as an asset on my books. If I determine that I can no longer collect the $1000.00 (typically after 180 days delinquent) then I can no longer report that $1000.00 and need to charge off the $1000.00 from my asset account and move it to a bad debt account on my books.

 

Charge offs are just accounting entries for the OC, they do not have anything to do with the ownership of the debt and whether or not the debtor still owes it.

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You need to deny, as they have provided no proof of ownership of the debt,,,,,,i do not care if all they have done is charge off the debt, they still need to prove they own it. What if they have sold it? then you will still be liable to the real owner and face being sued again over this debt.

Bell Atlantic v. Twombly (2007)
At a minimum, there must be factual allegations that "raise a right to relief above the speculative level( (at 1965)

 

I would first challenge them as to who owns this debt, lets not just assume they still own it. They could have sold it and we do not know but we need to make sure first.

 

Plaintiffs complaints set forth no facts that prove they are the owners of the alleged debt. Defendant denies these allegation and demands strict proof of the ownership of the alleged debt.
 

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I would like to thank each and every one of you for your help. I was having a major panic attack, feeling a little better now. lol 

It happens to every body on here. You will get into the groove.

 

Send a Bill of Particulars

 

amd make sure you send a proof of service when mailing them anything. http://www.courts.ca.gov/documents/pos030.pdf

 

Read ASTmedics midland thread and read the wonderfully written journey of Homeless in California.

 

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My friend who was fighting an account stated claim had the plaintiff list nearly identical info under causes of action. They claimed one CoA yet mentioned unjust enrichment in the same sentence as the AS claim. The plaintiff went on to state that they were not claiming UE, only AS when the BoP was served. Makes me wonder if the BoP issue should have been pressed.

Also, it makes me wonder if this isn't a way around having to properly participate in the lawsuit they filed.

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@BTO429

 

Cap 1 is the OC.   Since when do original creditors have to allege that they haven't sold the debt???

Because we do not know at this time whether or not they may have sold it. After a charge off they normally sell. OP needs to make sure before the court can proceed. I do not want them have to pay this debt and find out in a few months that the OC did sell the debt. Just being cautious, I am telling you this because it happened to me, I owed the debt and i admitted to it and paid it off, I was in Iraq when they filed so I could not defend myself, when I got home there was a default, I told the court if they lift the default and the plaintiff dismisses the case i will pay them in the hall way. Come to find out 8 months later they had sold the debt to midland and I had to do it all over again. Luckily I beat midland, i also filed a case against providian and the court ordered them to pay me back, plus damages. I got damages because they filed an affidavit of non military status ooooops they screwed up.

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My friend who was fighting an account stated claim had the plaintiff list nearly identical info under causes of action. They claimed one CoA yet mentioned unjust enrichment in the same sentence as the AS claim. The plaintiff went on to state that they were not claiming UE, only AS when the BoP was served. Makes me wonder if the BoP issue should have been pressed.

Also, it makes me wonder if this isn't a way around having to properly participate in the lawsuit they filed.

It is exactly what they do. They claim account stated to get around having to provide the contract. Plus they can add on all their other fees in an account stated, if you do not challenge it.

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Odds are about 66% that Cap1 sold the receivables/debt to an LLC, without recourse, unless the account is only a few years old.

Odds are they will claim they never sell (or never sold) the receivables (or they claim to own a near worthless "account" which has value as servicing rights and not much else).

Odds are that it is unlikely that a defendant would be able to prevail on the so-called securitization defense by proving up in court that Cap1 is not likely the real party in interest (which they likely are not).

 

If it was my first time defending against Cap1 I would probably focus primarily on other avenues to defeat them.

 

I have seen no nexus between charging off (an accounting entry) and an N.A. CC banks selling a debt/receivable. The accounting entry of charge off routinely happens with a default so it would occur with or without a sale of the debt. With banks like Cap1 the sale has often taken place prior to any default.

 

If one wants to tackle the securitization defense I would suggest the effort is going to be only a bit easier then breaking out of an arbitration agreement with a mega-billion dollar entity that wants to enforce their contract of adhesion arbitration clause ( http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/ ). The odds of success are going to be in the slim to none range IMHO.

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Unfortunately Cap One is the most likely bank to hold charged off accounts. Not sure the exact formula they are using, but I'm guessing around 3K is about the amount that keeps them from selling. It is true they have sold a lot of the smaller accounts, but they are holding the larger ones. They will hold these until the SOL expires waiting for some alert from the CBs. If you get a new job, apply for credit or get a new loan they will be more likely to file suit. I'm not sure what the other triggers are, but they are filling up the dockets in some states. In my state alone they are using three different rent-a-lawyer firms. 

 

Another reason they may be more aggressive is not having to deal with arbitration with the newer accounts. This change effects most accounts defaulted on or after 2010, although some have survivability clauses. If you have an older account agreement I would definitely look into this. Linda7 has a great thread on arbitration if you qualify. 

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We're doing that whole, pay it forward thingymabob.

 

Don't stop reading though; and even though you're going to find a surplus of information here, it's important that you ask questions if you don't understand something. I've never been a believer in the saying 'there's no such thing as a stupid question' rather, I think the only stupid question is the one not asked. In fact, I've always felt that if one person asks a question, many other people had the same one but were too embarrassed to ask it.

 

I also wanted to throw in this tidbit: Read up on ASTMedic's Midland post. While you are up against an OC, I found many of the things mentioned in his post had some relevance. And, since I've been in your shoes before, don't hesitate to PM me if you feel you need to.

 

Wheels

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