veesmith626

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

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Another question.....

If P&F are the lawyers for Capital One, why would they need to add "This communication is from a debt collector... on their cover letter responses?"

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29 minutes ago, veesmith626 said:

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???

I'd be pointing out that the complaint never referenced HSBC.   If HSBC is not referenced in the affidavit, say so.   In other words, why do they claim you had an account with Cap1, provide a 2010 Cap1 agreement, but offer HSBC statements?  If your account was purchased by Cap1, they should have made it known. 

Hopefully, @calawyer or one of the other CA members can help you with information for your trial brief.

In regard to the failure to include the debt collector notice on the discovery requests, it's an iffy.   1692e(11) exempts formal pleadings from that requirement, but I don't believe the 9th Circuit has ruled on whether or not discovery requests would fall into the category of formal pleadings.   I don't think discovery requests are formal pleadings, but the 9th Circuit has made this ruling:

To determine whether a debt collector is liable for a violation of § 1692e, we apply an objective standard that "takes into account whether the least sophisticated debtor would likely be misled by a communication." Tourgeman v. Collins Financial Servs., Inc., 755 F.3d 1109, 1119 (9th Cir. 2014).

It might be difficult to show how you would have been misled by the failure to include the notice on discovery requests.  I'll see if I can find anything else.

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21 minutes ago, BV80 said:

I'd be pointing out that the complaint never referenced HSBC.   If HSBC is not referenced in the affidavit, say so.   In other words, why do they claim you had an account with Cap1, provide a 2010 Cap1 agreement, but offer HSBC statements?  If your account was purchased by Cap1, they should have made it known.

@calawyer

If they're going with account stated and capital one owns the account I'm not certain the previous HSBC statements matters. I'm just confused by them attaching a capital one agreement from a date when capital one did not own the account.

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28 minutes ago, BV80 said:

In regard to the failure to include the debt collector notice on the discovery requests, it's an iffy.   1692e(11) exempts formal pleadings from that requirement, but I don't believe the 9th Circuit has ruled on whether or not discovery requests would fall into the category of formal pleadings.   I don't think discovery requests are formal pleadings, but the 9th Circuit has made this ruling:

To determine whether a debt collector is liable for a violation of § 1692e, we apply an objective standard that "takes into account whether the least sophisticated debtor would likely be misled by a communication." Tourgeman v. Collins Financial Servs., Inc., 755 F.3d 1109, 1119 (9th Cir. 2014).

My question was not that they "didn't" include the statement, but why they "did".  As I am informed, OC's do not have to abide by FDCPA regulations.

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8 minutes ago, veesmith626 said:

My question was not that they "didn't" include the statement, but why they "did".  As I am informed, OC's do not have to abide by FDCPA regulations.

Oooooh!  Okay, I see.

You're correct that OCs are not subject to the FDCPA; however, it does apply to debt collection attorneys.   I know your situation is a bit different because you said that Cap1 claims PRA owns the account.   Did you ever get that resolved?

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3 hours ago, veesmith626 said:

If they're going with account stated and capital one owns the account I'm not certain the previous HSBC statements matters. I'm just confused by them attaching a capital one agreement from a date when capital one did not own the account.

I am not sure I understand all of the facts (how long HSBC held the account, etc).  One reason it might matter, however, is assignment.  If Cap 1 purchased from HSBC, they may need to prove that as part of their case in chief.  This is especially true if any of the delinquent charges were incurred while the account was with HSBC.  Otherwise, you do not know that this litigation will extinguish any claim that HSBC may have.

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5 hours ago, BV80 said:

Oooooh!  Okay, I see.

You're correct that OCs are not subject to the FDCPA; however, it does apply to debt collection attorneys.   I know your situation is a bit different because you said that Cap1 claims PRA owns the account.   Did you ever get that resolved?

Yes. I guess. Supposedly, Cap One sold 2 accounts to PRA and kept 1 account which is the one they are suing me on. I don't recall having 3 accounts. I only recall having 2 accounts. 

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2 hours ago, calawyer said:

I am not sure I understand all of the facts (how long HSBC held the account, etc).  One reason it might matter, however, is assignment.  If Cap 1 purchased from HSBC, they may need to prove that as part of their case in chief.  This is especially true if any of the delinquent charges were incurred while the account was with HSBC.  Otherwise, you do not know that this litigation will extinguish any claim that HSBC may have.

The account was opened with HSBC bank and went delinquent in 2014 after capital one  aquired the account.

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1 hour ago, veesmith626 said:

The account was opened with HSBC bank and went delinquent in 2014 after capital one  aquired the account.

Does the affidavit reference HSBC?   If not, then I think the billing statements matter because Cap1 hasn't shown how HSBC statements apply to an alleged Cap1 account. 

Like @calawyer said, it's about assignment (Cap1's purchase of HSBC accounts).

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10 hours ago, BV80 said:

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?

I think it's worth mentioning this as well as anything else you have. Although hearsay, it could be considered admissible hearsay. It's inadmissible hearsay when being used to show the "truth of the matter asserted" but this is being used to show the matter asserted is not true. It is also being used for impeachment purposes only, which would make it easier to get introduced into evidence.

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16 minutes ago, Anon Amos said:

I think it's worth mentioning this as well as anything else you have. Although hearsay, it could be considered admissible hearsay. It's inadmissible hearsay when being used to show the "truth of the matter asserted" but this is being used to show the matter asserted is not true. It is also being used for impeachment purposes only, which would make it easier to get introduced into evidence.

What I meant was that he'd have to provide proof that Cap1 bought HSBC accounts, but I don't think he should be the one to have to offer that explanation and provide that proof.    If he just points out that there's a conflict between the fact that Cap1 is suing but providing HSBC statements along with a Cap1 cardmember agreement dated before those statements, then the plaintiff should be the one who has to do the explaining.

Cap1 sued, so it should explain why HSBC statements have been provided and how a 2010 Cap1 agreement applies to 2011 HSBC billing statements.

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30 minutes ago, BV80 said:

Does the affidavit reference HSBC?   If not, then I think the billing statements matter because Cap1 hasn't shown how HSBC statements apply to an alleged Cap1 account. 

Like @calawyer said, it's about assignment (Cap1's purchase of HSBC accounts).

There is no affidavit. There is no mention of HSBC. There are statements from HSBC and Capital one.  

So since capital one acquired the account, they need to show assignment of the account from HSBC? 

 

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Just now, veesmith626 said:

There is no affidavit. There is no mention of HSBC. There are statements from HSBC and Capital one.  

So since capital one acquired the account, they need to show assignment of the account from HSBC? 

 

One theme of your case could be that Cap 1 is hopelessly confused.  They claim to be the original creditor but sent you documents indicated that the account actually originated at HSBC.  THey sue in their own name, but sent you a letter stating that PRA actually owns the account.  It matters to you because if CAP 1 does not own the account, you could end up defending against another lawsuit.

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3 hours ago, veesmith626 said:

The account was opened with HSBC bank and went delinquent in 2014 after capital one  aquired the account.

Sorry, maybe  I wasn't clear. I'm not sure when capital one acquired the account. Most of the statements are HSBC statements. The account became delinquent after capital one acquired it.

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This also matters for another reason....they will likely be asking the court to enforce the conditions and terms in the agreement that they provided--the 2010 Cap One agreement.  But you were never a party to that agreement.  You never accepted Cap One's 2010 terms.  So, it's possible that they could be trying to enforce certain conditions that do not apply to this actual account.  It's not as big of a point as what you're being told by the others, but if this does not get dismissed I would absolutely use this info.  But I do like how someone said it above--Cap1 does seem hopelessly confused.  

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20 hours ago, kraftykrab said:

This also matters for another reason....they will likely be asking the court to enforce the conditions and terms in the agreement that they provided--the 2010 Cap One agreement.  But you were never a party to that agreement.  You never accepted Cap One's 2010 terms.  So, it's possible that they could be trying to enforce certain conditions that do not apply to this actual account.  It's not as big of a point as what you're being told by the others, but if this does not get dismissed I would absolutely use this info.  But I do like how someone said it above--Cap1 does seem hopelessly confused.  

It's true that if the account was never used again (i.e. new charges) once Cap1 bought the account, then the HSBC agreement is still the one to be enforced.  In my opinion, it is just Cap1's attempt to hide the nice arbitration clause in the HSBC agreement.  However, since this is California, it may not be as big of a deal as other states.  CA defendents still do well using the court rules and procedures.

 

On 2/14/2017 at 1:48 AM, veesmith626 said:

Sorry, maybe  I wasn't clear. I'm not sure when capital one acquired the account. Most of the statements are HSBC statements. The account became delinquent after capital one acquired it.

It was clear.  It's Cap1 that is not being clear.  As calawyer stated above, this should be the central theme in your arguments.  Cap1 has muddied the waters real nice.  They randomly present HSBC statements without explanation of how they are relevant or where they came from.  They sent a letter stating this account was sold to PRA.  Present this confusion to the judge and make the argument that it appears Cap1 may not even legally own this account.

 

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I won today! I'm so overjoyed! I've been sitting in my car for like 30 minutes going over what just happened in court. I can laugh about it now but I was nervous as all get out over 30 minutes ago lol.

So.....I get to court and I unknowingly sit down in the row in front of the lawyer for P&F. He touches me on the shoulder and asks me if I am the defendant in their case. I say yes. So he introduces himself as Josh Spite, an attorney with P&F. He begins to tell me to sign in I'm number 10 on the list and he would like to discuss the matter outside for a few minutes. Of course I know he wants to settle the case which is what he tried to do, and also tried to persuade me that he's going to win the case and that there's a witness from Capital One that will be testifying that I was sent account statements and he's going to ask if I lived at those addresses on the billing statements etc. He basically says "I know we're going to win the case." Then he hands me the bill of sale between HSBC and Capital one, "new evidence"  regarding the case. Evidence not recorded on the plaintiff's CCP96. Also mentions that he brought the witness (who was also not mentioned on the ccp96). I bring this to his attention and he states that his witness is the "other qualified custodian of records" that was mentioned on the CCP96 (not named).  He says he really wants to settle the matter before going to trial. He says once we go to trial then any settlement is off the table. So now I know I'm about to win the case and I just basically started to indulge him at this point because I know he lost with the new evidence that he thought I was not going to object to. I asked him if he had any offers to give and he says do you want to talk to my witness he's from Capital One. I said ok bring him in. This guy, the witness, his name is Clifton InoHara. I remember his name from the verification of the responses to my discovery documents. He basically tries to tell me the same thing as the lawyer, insinuating that I'm not going to win the case based on their new evidence and their account statements with my addresses on them and that he was going to testify to everything. Both he and the lawyer ask if I have an offer if there's anything I can pay  a month and I said no I can't agree to anything  and they said they understand that they don't know my situation. They said we want to resolve this and not have to go to trial. They were literally sitting there staring at me waiting for me to  agree to something, settle out of fear, but nope I didn't budge lol. After I begin questioning Mr. Inohara, I see he's getting a little irritated and says he feels like he's being cross examined and we can just do that in the court at trial and I said okay and they said okay. We went back into the court. When the judge called us up she asked are we ready for trial I said yes your honor and they said yes. The lawyer from P&F begins to tell the judge that he has provided the court with additional exhibits that he just got, in addition to the case in response to my trial brief. I immediately say I OBJECT your honor I told the judge that I was completely thrown off this morning by this new evidence. I said your honor those exhibits were not on the ccp96 statement from the plaintiff, nor was this witness here your honor you have my trial brief and she said yes I do and she is  smiling by now. She knows they can't go on like this 😀. The lawyer proceeds to submit his excuses and the judge says "she is absolutely correct". The lawyer  went even so far as to say that  he didn't have the ccp96 statement with him  and  and the judge said  yeah well the question is does she have it,  and I said "I have it here would you like a copy your honor?" This judge was so tickled today because she was smiling from ear-to-ear. "Would you like to continue,"she says to the lawyer. He stumbles, "Well, no your honor 😂" How's this for a good laugh?

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She dismissed the case....without prejudice. A win is a win I guess. Big thanks to all of you who have, and are constantly giving of your time, knowledge and expertise. I love you guys for it! Truly a blessing to have your help and guidance! 

Thanks specifically to @Anon Amos, who's inbox I have been hitting up with questions that he so unselfishly has answered.

@Thank you! @calawyer, @BV80, @kraftykrab, @fisthardcheese, @Cliff2009, @stick&rudder

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Oh, and the lawyer conveniently said he didn't have the ccp96 because of his new witness. He handed me a fake set of documents during our settlement meeting before being called to trial. The documents contained a new ccp96 with his current witness named, a bill of sale between HSBC Bank and Capital one, and a copy of a notice from Capital One stating that the alleged account from HSBC is now issued by Capital one. AND......I forgot to mention that the plaintiff's original ccp96 contained the statement that the witness will be authenticating "Information pertaining to defendants student loan and debt". Ummm no.... the alleged account is not a student loan. I brought up this issue, among others, in my trial brief and they were trying their best to plug up these gigantic holes. Not on my watch lol. Feels good to be a winner! 

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1 hour ago, sadinca said:

Love it, love it, love it!!!! 

Congratulations on your triumphant victory!!!!

Thanks! And thanks to you too sadinca for your help on this board as well! I've been all over these forums and I've gotten support and help from all of you guys whether you know it or not. For all those who say it can't be done, you guys know better! And now I do too!

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5 hours ago, veesmith626 said:

Oh, and the lawyer conveniently said he didn't have the ccp96 because of his new witness. He handed me a fake set of documents during our settlement meeting before being called to trial. The documents contained a new ccp96 with his current witness named, a bill of sale between HSBC Bank and Capital one, and a copy of a notice from Capital One stating that the alleged account from HSBC is now issued by Capital one. AND......I forgot to mention that the plaintiff's original ccp96 contained the statement that the witness will be authenticating "Information pertaining to defendants student loan and debt". Ummm no.... the alleged account is not a student loan. I brought up this issue, among others, in my trial brief and they were trying their best to plug up these gigantic holes. Not on my watch lol. Feels good to be a winner! 

I am so happy and so proud of you.  Most lawyers I know are terrified the first time they go to court.  For some, it never passes.  But to educate yourself and have the courage to stand up and face a professional litigant represented by a lawyer in court is just such a feather in your cap.  I am so glad that you reaped the rewards today.  I hope you have a most excellent weekend and, somehow, I think you will.

 

Don't forget that you are entitled to recover your costs because you are the prevailing party.  Even if this only amounts to your filing fee, it will look better in your pocket than theirs.

 

Congrats.

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6 minutes ago, calawyer said:

I am so happy and so proud of you.  Most lawyers I know are terrified the first time they go to court.  For some, it never passes.  But to educate yourself and have the courage to stand up and face a professional litigant represented by a lawyer in court is just such a feather in your cap.  I am so glad that you reaped the rewards today.  I hope you have a most excellent weekend and, somehow, I think you will.

 

Don't forget that you are entitled to recover your costs because you are the prevailing party.  Even if this only amounts to your filing fee, it will look better in your pocket than theirs.

 

Congrats.

Thanks so much calawyer! I'm proud of myself. I owe it all to you guys. I've been on cloud nine ever since. It's the weekend, time to celebrate!

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