smitty009

Late for Request for Admissions Answer

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5 hours ago, smitty009 said:

Yes, I have been served the MSJ.  And, they seem to have filed it on the same day that they vacated the other motion. The court record says " discovery motion for that date was vacated". Why wouldn't they have just waited and seen if their 1st motion would win before they filed the 2nd. And, can they even file an  MSJ without first showing some reason, like the RFAs being admitted ?  So, I have to show how I should win before actually winning ?  Isn't that what the original court date is for ?  Why wouldn't everyone just file an MSJ immediately ?  It seems that they're making more work for themselves just to put me through some more hoops. And all for no end game gain ?  I don't get it.

Smitty,

There was no reason to continue the Discovery motion, they saw your response and in their experience didn't think they would win the motion.  They may have even seen your letter regarding arb.  The quickest way to derail the arbitration possibility is to make another filing, forcing you to answer, thus a MSJ.  By Civil Procedure code 437 a MSJ requires 75 days notice, that is why the hearing is set for July.

As I stated earlier you are dealing with an Original Creditor on an account that you say is $20K.  Around here there are a number of procedural steps that allow for victories over the JDB and Collection attorneys that can be used to win.  In your case these are less useful, and here is why.  They don't have to overcome "Standing" to sue, there is no assignment or sale of the account.  This is an OC so they have all the records at their finger tips, and I assume there are Exhibits attached to the MSJ filing that show the statements.  I am equally certain there is a affidavit or declaration from someone who works for Cap One that talks about those statements. (In a JDB case they rarely have a witness or declaration from the OC, it is some person from the JDB trying to authenticate the statements)

The reason they continue is that a $20K judgment is good for 10 years and can be renewed for another 10 years and collects interest every month.  You may not have any money today, but who knows, you could tomorrow or a 13 years from now.  So for them it is a small investment of time and money to have the right to possibly collect in the future.

I am not telling you not to continue to fight, I just want to answer your questions above.  You have to have an answer the MSJ filed at least 14 days prior to the hearing date in July, if you decide to continue to fight.

Let us know what you decide and then we can discuss what the next steps could be.....

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Thanks for the reply and the info, Skippy1960 ! I don't see that I have a choice, I have to fight.  Any suggestions would be appreciated.

And Happybluesky, that is why I am here. To find out suggestions.  Thank you also.

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4 hours ago, Happybluesky said:

What is your defense?

 

What is your purpose here? How are your comments (in the Cali threads) supposed to be of any use to defendants being sued here?

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7 hours ago, smitty009 said:

 So, I have to show how I should win before actually winning ?  Isn't that what the original court date is for ?

No, you have to show 1 reason (issue of material fact) why it should be allowed to go to trial, where it can then be heard and ruled on the merits. They are saying there's absolutely no reason why this case should be tried because there's no issues at all, everything is as they say it is and it should just be ruled in the plaintiff's favor now, rather than going to the expense of trial.

As Skippy said, there's no reason to continue a motion to deem RFA's admitted because you answered them.

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On ‎4‎/‎27‎/‎2016 at 0:35 PM, smitty009 said:

I have a house that I owe way too much on, no money, no vehicles that I own free and clear, and am on Disability. Anyone see an angle here ?

Assuming you can get past their msj: you aren't very attractive to them as far as a law suit goes (even if they did have a right to try to collect from you for 20 more years), and in Cali they would need a live witness to appear at trial.  Also your disability income is safe from garnishment anyway, so you are basically collection proof.

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1 hour ago, Anon Amos said:

What is your purpose here? How are your comments (in the Cali threads) supposed to be of any use to defendants being sued here?

The basis for defeating an msj are material facts in dispute relating to valid defenses.

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3 hours ago, smitty009 said:

Thanks for the reply and the info, Skippy1960 ! I don't see that I have a choice, I have to fight.  Any suggestions would be appreciated.

And Happybluesky, that is why I am here. To find out suggestions.  Thank you also.

Smitty,

First I must tell you I showed up here with $72K in CC debt over 14 cards.  I was sued 4 times, lost the first case against Target.  Didn't really know what the hell I was doing, they filed MSJ and we lost.  (Wife's account)  From that point on I spent hours on this site, learning Civil Procedure and how to write court filings.  I must tell you that I used an attorney on the second OC case as the amount was $15K and couldn't afford to chance another loss.  I was still working and had saved a war chest of sorts.  The attorney won that case and it went to trial!  The CA for the other side made a huge error and never legally requested I be present.  This meant they had to rely only on their witness, because I never had to take the stand.  During that time I had other creditors for small balance accounts that I used the Arbitration Card on and they gave up. In the end I never lost another case and spent $9200 to get rid of all 14 accounts.  This was a 3 year experience of hours on the computer, away from the kids and family.

I learned that these cases are like playing chess you have to find away to be 3-5 moves ahead of your opponent.  By the way they are certified legal professionals.  They may not be practicing law at a top firm, but they are still trained lawyers and they do what they do all day long.  So don't underestimate your opponent.  The good news is they have hundreds of cases they are managing and can or will make mistakes.  Just as in my case had I taken the stand we may have lost.

Now for your circumstance:

I would mount a two pronged offensive.  First I would check the MSJ filing it should have a copy of the CC Agreement as an exhibit.  See if it has a arbitration clause.  It is always best to use their evidence against them when possible.  You will need to read the Agreement carefully Cap One got wise and removed the arb clause for a while.  Assuming the Arb clause is in the agreement, you should go ahead and file a motion to compel arbitration and stay the current case.  You will need to get cracking on this, because you will want to schedule the hearing for this Motion in June prior to the MSJ.  If you can win the courts approval that will derail the SJ as it will be stayed until the completion of the arbitration.

Next assume you loose the Arb motion you need to start right away on you Opposition the MSJ.  You are saying I don't know what I need to file to oppose, right?  Every document you received you will have a similar document named the almost the same way.  Example:

Plaintiff likely filed the following Documents:

Plaintiffs <Enter Name>Notice of Motion and Motion for Summary Judgement- Defendants <enter name> Notice of Opposition to Motion for Summary Judgement

Plaintiffs <enter name> Motion for Summary Judgement- Defendants <enter name> Opposition to Motion for Summary Judgement

Plaintiffs <enter name> Memorandum of Points and Authorities- Defendants Opposition to Plaintiffs Points and Authorities.

Hopefully you get the jest of how this will work.  You need to start now, because your opposition created the entire 75 or so pages they sent you in less than 2 hours, it could take you 2 hours to just to get a good court style filing set up so your work looks professional.

If you still want to move forward then the board will do our best to assist......

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16 hours ago, Anon Amos said:

No, you have to show 1 reason (issue of material fact) why it should be allowed to go to trial, where it can then be heard and ruled on the merits. They are saying there's absolutely no reason why this case should be tried because there's no issues at all, everything is as they say it is and it should just be ruled in the plaintiff's favor now, rather than going to the expense of trial.

As Skippy said, there's no reason to continue a motion to deem RFA's admitted because you answered them.

Anon Amos, Thanks for the response. But all of my responses were a denial. Wouldn't they rather have continued and gotten their RFAs admitted affirmatively and been done with it and then filed an MSJ on the  grounds of the RFAs.  But instead, they vacated the 1st motion for RFAs and filed the 2nd motion for MSJ on the same day. 
What would be an example of an issue of material fact ? Thanks again for the help.
 

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12 hours ago, skippy1960 said:

 

I would mount a two pronged offensive.  First I would check the MSJ filing it should have a copy of the CC Agreement as an exhibit.  See if it has a arbitration clause.  It is always best to use their evidence against them when possible.  You will need to read the Agreement carefully Cap One got wise and removed the arb clause for a while.  Assuming the Arb clause is in the agreement, you should go ahead and file a motion to compel arbitration and stay the current case.  You will need to get cracking on this, because you will want to schedule the hearing for this Motion in June prior to the MSJ.  If you can win the courts approval that will derail the SJ as it will be stayed until the completion of the arbitration.

If you still want to move forward then the board will do our best to assist......

Skippy1960, Thanks for the help. The CC agreement they sent is dated 2010 and the copy of the app they sent is dated 2007, so it looks like they're trying to hide the correct agreement because it does have an Arb clause. I found the right agreement on line. And, yes, I definitely will continue to move forward. I'll try to have an MTC for Monday or Tuesday if I can. How do I request the date for the motion ?

 

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Smitty,

For the MTC to have any chance of winning you need to make sure you are truly entitled to arbitration via the cardmember agreement.  The agreement that your account is governed by is the last agreement in place prior to your default on the account.  Meaning if stopped making payments in June of 2013, and a new agreement was presented to all active account holders in January of 2014.  Your account would be governed by the agreement previous to June of 2013.  You can't go all the way back to 2007 when you opened the account, if there were updates made along the way.

In most instances they pulled the Arb clause in 2010, you never really stated when you defaulted on the account only that the suit was filed in December of last year.

As previously stated you can still file and go through the process and they may make that mistake we spoke of, and bingo they will have to spend time and money to fix it.

Anon is correct on these large dollar accounts, you want to wear them out working on your file, because they may get tired at some point.....

Just wanted to make sure you understand what this MTC filing is all about, likely not to win, but to force them to spend time to answer....In this case yes file it with the last agreement that has an arbitration clause.

Be sure to read CCP 1281.2 as it has the rules on what needs to be in the Motion.  They use the word Petition, this is somewhat interchangeable with Motion.

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If OP has a valid defense, then I suggest staying in court.

Absent a valid defense, OP will probably lose regardless of court or private contractual arbitration. You just can't bluff CAP 1 like you might with a JDB.

OP may gain some leverage to settle for a low amount by continuing the fight, but unless OP can come up with several thousand dollars for settlement and taxes on forgiven debt, settling is not realistic.

So, what's the point here:

Hope for a fatal procedural mistake by plaintiff?

Hope that by a fluke CAP 1 can't prove its standing to sue?

Hope that Cap 1 cares about spending some real money for a $20 k judgment?

 

 

 

 

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3 hours ago, Happybluesky said:

If OP has a valid defense, then I suggest staying in court.

Absent a valid defense, OP will probably lose regardless of court or private contractual arbitration. You just can't bluff CAP 1 like you might with a JDB.

OP may gain some leverage to settle for a low amount by continuing the fight, but unless OP can come up with several thousand dollars for settlement and taxes on forgiven debt, settling is not realistic.

So, what's the point here:

Hope for a fatal procedural mistake by plaintiff?

Hope that by a fluke CAP 1 can't prove its standing to sue?

Hope that Cap 1 cares about spending some real money for a $20 k judgment?

 

 

 

 

Happy,

Thanks for your continued realism of the situation, in pointing out once again that having a valid defense is a big problem. Really, based on your assistance about 95% of the folks that show up here should sit back and take the default judgment because they have no valid defense.  So I will now give you some examples of WHAT THE POINT IS!

You are very correct Hope is not a strategy.  In the Civil Court system I have yet to find any Civil Procedure or Civil Code that requires either party Plaintiff or Defendant to have valid complaints or valid defenses based on law.  If someone wants to sue another person they can, and a defendant can defend a claim if they choose.  Now at some point in the process the item you continue to point out may become the down fall of a case.

In the meantime any OP who shows up here will get to LEARN about our system of justice.  They may gather additional computer skills base on all the filings.  A good chance their writing skills will improve.  It is possible that they will grow a back bone if they didn't have one.  They may find they are going to change their behavior in how they handle there finances.  The list could go on and on.  That is the point!

This board would not need a lot of participants if all we needed to do is find the "VALID DEFENSE" for each person.  No Valid Defense sorry no help for you...

So you are right Smitty here could stop the fight take his medicine ($20K Judgement).  Or, he can put the Plaintiff's attorneys through the paces and make them earn that $20K judgement, by answering legitimate filings allowed with-in the law.  This case is still being handle by a Collection Attorney group, and they do make mistakes because of the nature of that law practice.  Known as Copy and Paste law by the para-legal group for the 3-9 real attorney's at a given firm, handling 100's of cases at any given time.

Finally, what is the real cost for Smitty to fight the case.  If he qualified for a fee wavier nothing for the answer, but lets say he doesn't get the fee wavier. Add it up, the answer filed, response to MTD admitted, MTC Arb and filing answer to the MSJ, couple reams of paper, a round of black ink, CMRR/postage.  I say he gets all this for under $1000.  Happy, you and I have been here a long time, that $1k isn't enough to begin to try to settle with.

So what has he really lost if he does lose this case????

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12 hours ago, Happybluesky said:

 

Hope for a fatal procedural mistake by plaintiff?

Hope that by a fluke CAP 1 can't prove its standing to sue?

Hope that Cap 1 cares about spending some real money for a $20 k judgment?

 

 

 

 

Hope you stop posting in Cali threads.

You aren't helping any defendants here.

The OP has the same hope as anyone else did here, the hope that they can get a dismissal. He has no money and is on disability, so not only can he get fees waived; his income is collection proof. Also, he got sued, so he has no choice but to respond to events that will take place in the litigation, and without the funds he can't settle (and needs that money to live on).

I have seen Cap 1 dismiss here in CA 4 times, and the lowest amount case was $10k, the others were all around $20k (and I can assure you it was done without your "help"). They didn't "spend some real money to get a $20k judgment" which is just a piece paper when there's nothing to collect. These people knew if Cap 1 paid to get a witness here then the case was over for them and they would be collection proof anyway, or, it would get dismissed. They also knew they didn't have money or a lot of choices in the matter.

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Assume:

1. Action is timely.

2. CAP 1 will be able to prove the elements of its claim - say breach of contract:

(i) Existence of enforceable contract.

(ii) Breach of contract traceable to defendant.

(iii)  Damages to plaintiff resulting from breach.

According to those two assumptions, by definition neither SOL nor lack of standing are valid defenses.

So what's left?

Respond to suit with MTD challenging plaintiff's standing anyway, and hope you can grind them down. When that most likely fails, file answer, hopefully with valid counterclaim (law firm is subject to FDCPA!), and continue grinding: Not impossible CAP 1 would agree to mutual dismissal or low settlement amount.

Or move the case out of court and into private contractual arbitration. Even if arbitration was taken out of credit agreement since account opened, it may be possible to use a survivability clause to win  MTC: Not impossible CAP1 would self dismiss / fail to pay its arbitration fees.

At the end of the day, however, sometimes there are cases that are unwinnable. That isn't the end of the world. After judgment ages 2 or 3 years without payment, an OC bank such as CAP1 may be very flexible in settlement.

I should say that the one case where I had no valid defense, answer with valid FDCPA counterclaim led to JDB offering me $1,000 and extinguishing debt if I would agree to a mutual dismissal. I agreed. By that time, I had spent about $1,000 on various court costs and incidentals. JDB claim was only for about $1,000, so it makes sense that they would would pay just to get rid of such a troublesome defendant.

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30 minutes ago, Happybluesky said:

Respond to suit with MTD challenging plaintiff's standing anyway, and hope you can grind them down. When that most likely fails, file answer, hopefully with valid counterclaim (law firm is subject to FDCPA!), and continue grinding:

A MTD challenging Cap1's standing will not only most likely fail, it will definitely fail, so it's a waste of time.

Yes, the law firm is subject to the FDCPA but Cap1 is not.  Therefore, an FDCPA lawsuit against the law firm would have to be a separate lawsuit and not be a counterclaim against  Cap1.

There are enough CA members here who know how to help the OP and lead him through the litigation process. 

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I' m starting to think Happy is not exactly a "half-full" type of person.   If I can cause the banks a little more work or a little more money spent trying to get my dime then I've gotten my satisfaction. Sometimes it's not winning the fight that counts it's bloodying the opponent. The CC companies helped put me out of business and started my money problems in the beginning so I look at it that it's  part of their 2008 bailout package, having to deal with people like me . And what is the difference to me whether I end up owing them 20k or 21k ? Maybe you've heard about blood out of the turnip ?  See, you don't seem to see that I rather enjoy this and what else do I have to do. Winning isn't everything.

 What I don't get about this suit is this:

Am Ex sued me starting in 9/2013. The civil case conference was set for 2/2014. There, the hearing was set for 10/2014. I sent a demand for BOPs  in 3/2014. I sent a notice of arb in 9/2014 and a follow up letter a week later threatening to file a MTC for arb a week before the hearing and plaintiff dismissed the case with prejudice. They never filed any motions and were nothing like the Cap 1 lawyer and the fire they seem to have under them. I mean, they sent me their RFAs the day after I answered their summons. They must have had someone checking the court's computer record hourly. They filed their motion to deem 2 days after I sent their answers to the RFAs to them. Now, they've withdrawn their one motion and filed a new one on the same day 2 days or so after I opposed their motion. Is this normal or does it seem personal to  just me. Maybe I'm sensitive.

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1 hour ago, BV80 said:

A MTD challenging Cap1's standing will not only most likely fail, it will definitely fail, so it's a waste of time.

 

Not to mention that the court as well as your opponent will have no choice but to view you as a complete fool.

It's sad to see this garbage in the Cali threads after all the effort that went into them, and all the victories that comes out of them. 

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1 hour ago, Happybluesky said:

Procedure varies somewhat from state to state, but the essential elements for causes such as breach of contract are common.

So what?  Of what use is this?

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1 hour ago, smitty009 said:

I' m starting to think Happy is not exactly a "half-full" type of person.  

Unfortunately the Cali threads are no longer troll free at the time.

Quote

they've withdrawn their one motion and filed a new one on the same day 2 days or so after I opposed their motion. Is this normal or does it seem personal to  just me. Maybe I'm sensitive.

It is 100% not personal. All of these cases are about economics. And yes it is normal.

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Thank you Anon Amos.  But, if it's not personal why is there such a disparity in approach of CC lawyers. Amex files and dismisses with little zeal. B of A , another CC debt of mine, just wrote off what I owed them to get the tax break without even trying to collect ( I assume if I had to pay tax on the amount it comes off their tax obligation ). And now there's this lawyer, that seems to want to "spare no expense" and reminds me of a dog I once had when it had a bone. All about the same amount of money. So, is this what they mean by "practicing law"?

On another subject, I'm starting my MTC and I'm not sure if it's a motion or petition and is a petition different. I'm in San Diego. I've looked for a pdf example to use but not having much luck. Do you know of one ? I have one from the amex suit but not sure it's right now as I just have a "Brief in support of motion to compel arbitration", "statement of facts","points and auth." and "conclusion" but don't remember where I originally got it from. 

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8 minutes ago, smitty009 said:

Thank you Anon Amos.  But, if it's not personal why is there such a disparity in approach of CC lawyers. Amex files and dismisses with little zeal. B of A , another CC debt of mine, just wrote off what I owed them to get the tax break without even trying to collect ( I assume if I had to pay tax on the amount it comes off their tax obligation ). And now there's this lawyer, that seems to want to "spare no expense" and reminds me of a dog I once had when it had a bone. All about the same amount of money. So, is this what they mean by "practicing law"?

On another subject, I'm starting my MTC and I'm not sure if it's a motion or petition and is a petition different. I'm in San Diego. I've looked for a pdf example to use but not having much luck. Do you know of one ? I have one from the amex suit but not sure it's right now as I just have a "Brief in support of motion to compel arbitration", "statement of facts","points and auth." and "conclusion" but don't remember where I originally got it from. 

Some lawyers/law firms are aggressive while others are not. 

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2 hours ago, smitty009 said:

Thank you Anon Amos.  But, if it's not personal why is there such a disparity in approach of CC lawyers. Amex files and dismisses with little zeal. B of A , another CC debt of mine, just wrote off what I owed them to get the tax break without even trying to collect ( I assume if I had to pay tax on the amount it comes off their tax obligation ). And now there's this lawyer, that seems to want to "spare no expense" and reminds me of a dog I once had when it had a bone. All about the same amount of money. So, is this what they mean by "practicing law"?

On another subject, I'm starting my MTC and I'm not sure if it's a motion or petition and is a petition different. I'm in San Diego. I've looked for a pdf example to use but not having much luck. Do you know of one ? I have one from the amex suit but not sure it's right now as I just have a "Brief in support of motion to compel arbitration", "statement of facts","points and auth." and "conclusion" but don't remember where I originally got it from. 

Smitty,

Here is a set of files from 2009.  Just as the professional lawyers can get in trouble so goes it for us around here.  You will need to adjust the facts to fit your actual circumstances.  Meaning don't slam you name on these and file them!  You need to do some work, but these are full and complete set of filings.  You will also need to present as an exhibit your declaration that the Card agreement you intend to submit is the version that should be used.

First step is get the circumstance updates done.  Then lets see where you are and do some fine tuning....

Redacted Memorandum of Facts v 2.doc

Redacted Motion to Compel Arbitration Cap v 2.doc

Redacted Notice of Lodgment of Exhibits in Support of Motion to Compel Arbitration Cap.docx

Redacted Notice of Motion and Motion to Compel Arbitration Cap .docx

Redacted Order to Compel Arbitration Capitol 1.doc

Redacted Proposed Order to Compel Arbitration Capitol 1.doc

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You are filing a Motion, I mentioned previously that the CCP1281.2  uses Petition.  The CCP applies to both.

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