veesmith626

I'm being sued by Patenaude & Felix but Capital One says Portfolio Recovery Associates owns the account

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39 minutes ago, veesmith626 said:

@ClydesmomThe "Then what?" is that I want Cap One to prove to me that this is indeed my debt and that I still owe Cap One  not someone else they sold the debt to. I had 2 credit card accounts with Cap One. I am being sued by Cap One for an alleged account which the amount is closed to the total of those 2 accounts but I am also being sued for 2 accounts by PRA which claims they own the accounts that Cap One was the OC. So "Now What?"

Then you have the upper hand because you have a defense to both cases:  lack of standing.  I would testify that Cap1 lacks standing based on PRA's suit.  In the PRA case I would not only use lack of standing but file a counter claim for a violation of the FDCPA in taking an action they cannot legally take:  suing you when they don't have standing.

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35 minutes ago, Clydesmom said:

I would testify that Cap1 lacks standing based on PRA's suit.  In the PRA case I would not only use lack of standing but file a counter claim for a violation of the FDCPA in taking an action they cannot legally take:  suing you when they don't have standing.

I'm not absolutely sure that Cap One has lack of standing, but almost certain because AFTER the lawsuit, they (Cap One) sent me a letter stating that I owed on 2 alleged accounts and that they were acquired by PRA.

PRA has since filed a lawsuit against me. I'm not sure if PRA own the accounts or if they are just collecting for Cap One? The question is who has standing, which are my accounts and what exactly do i owe?  I will be fighting and possibly paying twice if these debt collectors win. This is not fair if all the plaintiff needs is a copy of a few billing statements with my name and address and some payments.

Would my lack of standing defense be put in a trial brief or a MSJ before trial or do I wait until trial to assert lack of standing?

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51 minutes ago, veesmith626 said:

I'm not absolutely sure that Cap One has lack of standing, but almost certain because AFTER the lawsuit, they (Cap One) sent me a letter stating that I owed on 2 alleged accounts and that they were acquired by PRA.

PRA has since filed a lawsuit against me. I'm not sure if PRA own the accounts or if they are just collecting for Cap One? The question is who has standing, which are my accounts and what exactly do i owe?  I will be fighting and possibly paying twice if these debt collectors win. This is not fair if all the plaintiff needs is a copy of a few billing statements with my name and address and some payments.

Would my lack of standing defense be put in a trial brief or a MSJ before trial or do I wait until trial to assert lack of standing?

What EXACTLY is alleged in the complaint?

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14 hours ago, BV80 said:

What EXACTLY is alleged in the complaint?

"Defendant became indebted to plaintiff within the last four years because an account was stated in writing by and between plaintiff and defendant and which it was agreed that defendant was indebted to Plaintiff within the last 4 years....This cause of action is based upon account number XXXXXXXXXXXX1234 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.....Other: For such other and further relief as the court deems just and fair"

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Cap One sent a "Plaintiff's Verification to Defendant's Request For Production of Documents" letter from an "authorized agent for Plaintiff Capital One". Is this Verification the same as an affidavit?  I googled the person's name and it's a lawyer. I'm sure he has no personal knowledge about the account or how business records are kept unless he is an employee of Cap One.

The Cap One Agreement that they attached to the statements is from 2010 but the statements start 2011 and the alleged opening of the cc was sometime in 2007. Do they need to provide the Agreement from when the cc was opened in order to enforce an agreement?

 

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Guys help me out on this....isnt there a state where courts have ruled that "account stated" cannot be used to collect credit card debts?  I seem to recall that there is, though I cannot remember if it's CA or another state.....

 

In either event, if you try to challenge standing, prepare yourself for them to simply file that motion to substitute party right then, and prepare yourself for the court to simply grant it and move on.  I'm currently in a case right now where something similar happened--the attorney continued to try to "prosecute" the case in the name of the original plaintiff, and took actions before the court in the name of that party when they had previously admitted that that party no longer had any standing.  The trial court blew it off completely, did not permit me to challenge it, overruled my objection and let the plaintiff do whatever they wished.  This one's definitely going to appeal, because standing must be present at all times and can be challenged at any time.  I had written notice from the plaintiff and their attorney stating that they no longer had standing, and the court allowed them to "prosecute" the case with formal action anyways.  I'm not really surprised, just disgusted.  There's a lot of case law from even federal courts that limits third party standing to very limited circumstances.  One party that has no standing is not permitted to stand in place for another that supposedly does, generally speaking.  But if you challenge this, they will likely just sub in the new party as a response, and the court will likely grant it without issue.

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7 hours ago, kraftykrab said:

Guys help me out on this....isnt there a state where courts have ruled that "account stated" cannot be used to collect credit card debts?  I seem to recall that there is, though I cannot remember if it's CA or another state.....

It's probably a common count.  If it weren't allowed, I'm sure calawyer would have made it known.

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58 minutes ago, BV80 said:

It's probably a common count.  If it weren't allowed, I'm sure calawyer would have made it known.

Found it---it's in Texas, not CA....I just could not recall where it was from....

 

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5 minutes ago, kraftykrab said:

Found it---it's in Texas, not CA....I just could not recall where it was from....

 

Well, a number of TX courts have ruled that an account stated is a valid cause of action for a credit card.

In any case, the OP has a good chance of winning due to CA rules. 

@Anon Amos

@RyanEX

@sadinca

 

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2 hours ago, BV80 said:

Well, a number of TX courts have ruled that an account stated is a valid cause of action for a credit card.

In any case, the OP has a good chance of winning due to CA rules. 

@Anon Amos

@RyanEX

@sadinca

 

Yeah, I know, there's a condition that must be there for that to work.  I did see where TX Supreme Court has ruled that account stated cannot apply to credit card debt when there's supposed to be a contract in place.  I know that some courts have ruled the opposite.  

I think you're right about the OP's chances....we have some really knowledgeable CA peeps in here....

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12 hours ago, veesmith626 said:

Does anyone know if:

1.  The "Plaintiff's Verification to Defendant's Request For Production of Documents" letter from an "authorized agent for Plaintiff Capital One" is the same as an affidavit?  I googled the person's name and it's a lawyer. 

2.  If the Cap One 2010 Agreement that they attached to the statements is valid since the cc was opened in 2007?

 

 

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10 hours ago, veesmith626 said:

 

I don't know about #1 because I'm not from your state and am not familiar with your rules.  However, the dated agreement is fine as long as the account was still in good standing during that date. 

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I received response from plaintiff to ccp96 and they list 1 witness who is a legal specialist for Capital One ,  and state "or other qualified custodian of records. " Also for documents, a  copy of customer agreement and 2 years of statements.

1. They can't call any other witnesses not properly named in their statement, correct?

2.  If they call the witness it's going to be difficult since the witness is an employee for the OC. 

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3 hours ago, veesmith626 said:

I received response from plaintiff to ccp96 and they list 1 witness who is a legal specialist for Capital One ,  and state "or other qualified custodian of records. " Also for documents, a  copy of customer agreement and 2 years of statements.

1. They can't call any other witnesses not properly named in their statement, correct?

Not if you object. The witness name and address is supposed to be on the ccp 96, they aren't supposed to reserve the right to call "other qualified witness". It's supposed to be who they "intend" to call.

3 hours ago, veesmith626 said:

2.  If they call the witness it's going to be difficult since the witness is an employee for the OC. 

Correct. It's going to come down to whether or not they fly a witness to trial, and if they think they can collect from you. If they have no witness then they have no case, and if they bring a witness then it will most likely be easy for them.

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3 hours ago, veesmith626 said:

Has anyone went up against a qualified witness at trial and won with Cap One?

@calawyer

@Anon Amos

@BV80

Most of the cases I have seen here with cap one were dismissed before trial . I have only seen cap one go to trial 3 times and they were all for around 20k. All 3 cases were dismissed at trial because they never brought a witness.  All the defendants just went to trial assuming it would be over for them if the witness showed up  and really didn't have much left to lose anyway so they just chanced it.

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45 minutes ago, Anon Amos said:

 

45 minutes ago, Anon Amos said:

Correct. It's going to come down to whether or not they fly a witness to trial, and if they think they can collect from you. If they have no witness then they have no case, and if they bring a witness then it will most likely be easy for them.

I googled the witness and they're about 70 miles from the courthouse but there's no address for the witness in the statement. P&F says the witness "...can be reached through plaintiff's counsel at P& F's address.

 

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46 minutes ago, Anon Amos said:

Most of the cases I have seen here with cap one were dismissed before trial . I have only seen cap one go to trial 3 times and they were all for around 20k. All 3 cases were dismissed at trial because they never brought a witness.  All the defendants just went to trial assuming it would be over for them if the witness showed up  and really didn't have much left to lose anyway so they just chanced it.

This makes me feel much better Anon! But I planned on fighting all the way because as you said,  I have nothing to lose. Plus I've learned a lot thanks to you guys! I'm  surprised they didn't bring a witness to trial for $20K????  

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Guys....

So I just noticed that the account statements they sent to me start in 2011 with the account being an HSBC bank account but P&F attached a 2010 Cap One agreement. Do I have an argument? I'm still working on my trial brief and need to have some more ammo so hopefully they will dismiss before trial.

Thanks for the help!

@calawyer @Anon Amos @BV80 @sadinca @RyanEX

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31 minutes ago, veesmith626 said:

Guys....

So I just noticed that the account statements they sent to me start in 2011 with the account being an HSBC bank account but P&F attached a 2010 Cap One agreement. Do I have an argument? I'm still working on my trial brief and need to have some more ammo so hopefully they will dismiss before trial.

Thanks for the help!

@calawyer @Anon Amos @BV80 @sadinca @RyanEX

Was the card originally a store credit card?

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7 minutes ago, veesmith626 said:

No. Just a regular credit card Mastercard. 

Well, Cap1 bought HSBC's credit card business around 2012.   I thought it was the store cards, but it might have been the entire credit card business.  In any case, the acquisition didn't occur until the end of 2011 or beginning of 2012.   Therefore, a 2010 Cap1 agreement would not be applicable to the account because Cap1 didn't own the account in that year.

Just follow everything the CA members tell you to do and the lawsuit might be dismissed before you ever need to use that information.

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9 minutes ago, BV80 said:

 Therefore, a 2010 Cap1 agreement would not be applicable to the account because Cap1 didn't own the account in that year.

It won't hurt to mention this in my trial brief....

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7 minutes ago, veesmith626 said:

It won't hurt to mention this in my trial brief....

It might be considered hearsay.   If it were me, I might point out what you originally stated.  The credit card statements and cardmember agreement are in conflict with each other.   The billing statements are from HSBC and dated 2011 whereas the agreement is from Cap1 and dated 2010.  

Did the complaint reference HSBC?

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No. The complaint only references plaintiff capital one and "common counts on an account stated  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." 

They sent 3 years of statements and a Cap One cc agreement. No affidavit. Only responded to to ccp96 with 1 witness and sent a notice in lieu of subpoena  for me to appear at trial. 

I guess they can still question me even though they did not include me as a witness in their ccp96???

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