Sued by Cap 1 via Patenaude & Felix

[xDthrowaway]

1. Who is the named plaintiff in the suit?

Capital One Bank USA NA

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

Patenaude & Felix

3. How much are you being sued for?

About $1,300.

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

Plaintiff is the OC.

5. How do you know you are being sued? (You were served, right?)

Served papers.

6. How were you served? (Mail, In person, Notice on door)

In person. It was delivered to my roommate who gave it to me.

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

First communication with them.

9. What state and county do you live in?

Nevada - Clark county

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

December of 2013 - within SOL

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

Statute of Limitations on Debts

6 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).

Suit served.

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.

I have not - this is my first communication with this law firm.

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?

20 days. I have about 10 days left to file an answer.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

There was no evidence. All it included was my name, my location, the amount owed with the last 4 digits of the account they are claiming, and that I am in default on said account. No contracts, no affidavits, no statements.

I have my answer basically completed using a template from http://www.civillawselfhelpcenter.org/images/justice-court/answer-debt-or-loan-nonfillable.pdf. The only thing I am admitting is that my name and location are correct. Everything else I have denied due to lack sufficient knowledge or information upon which to base a belief as to the truth of the allegation. I am wondering if I should use any affirmative defenses or just submit the answer as I have it. Any help in the matter would be appreciated.

[Clydesmom]

16 minutes ago, xDthrowaway said:

There was no evidence. All it included was my name, my location, the amount owed with the last 4 digits of the account they are claiming, and that I am in default on said account. No contracts, no affidavits, no statements.

Nevada does not require that evidence be attached to the complaint.  If you want evidence you are going to have to engage in discovery.

17 minutes ago, xDthrowaway said:

I am wondering if I should use any affirmative defenses or just submit the answer as I have it.

Do you actually have any affirmative defenses?  You can't just throw a bunch of affirmative defenses at them and hope they don't notice.  P&F is a large debt collection firm and won't fall for it.  

The SOL in NV on credit card debt is 4 years not 6 but they are still well within the time limit for that so it is not a defense you can use.  Did you have an account with Cap1?  If so, then you cannot raise identity theft as a defense.  This is an original creditor lawsuit.  The defenses you read about on sites like this are off the table for you as you are not being sued by a junk debt buyer.  Cap1 is an aggressive litigator and they can attest to their own records.  Add to that they removed arbitration from their card agreements in 2010 so that is not available to you either.  

 

[xDthrowaway]

9 minutes ago, Clydesmom said:

Do you actually have any affirmative defenses?  You can't just throw a bunch of affirmative defenses at them and hope they don't notice.  P&F is a large debt collection firm and won't fall for it.  

If I do, I am not aware of any. 

 

11 minutes ago, Clydesmom said:

The SOL in NV on credit card debt is 4 years not 6 but they are still well within the time limit for that so it is not a defense you can use.  Did you have an account with Cap1?  If so, then you cannot raise identity theft as a defense.  This is an original creditor lawsuit.  The defenses you read about on sites like this are off the table for you as you are not being sued by a junk debt buyer.  Cap1 is an aggressive litigator and they can attest to their own records.  Add to that they removed arbitration from their card agreements in 2010 so that is not available to you either.  

Yes, I did have an account with Capital One. What is your opinion on how I should proceed with the answer? Should I just file it as it is?

[Clydesmom]

47 minutes ago, xDthrowaway said:

What is your opinion on how I should proceed with the answer?

You definitely want to answer the complaint otherwise they get an easy default judgment.

48 minutes ago, xDthrowaway said:

Should I just file it as it is?

All you posted was a blank template.  I would deny everything except name and address.  Do not claim affirmative defenses you cannot prove.  There is a small chance they don't show for trial and you can get it dismissed at that time.  However, study up on how to fight an original creditor lawsuit.  They are very difficult to win but not impossible but you have to really work at it.

[CCRP626]

4 hours ago, xDthrowaway said:

There was no evidence. All it included was my name, my location, the amount owed with the last 4 digits of the account they are claiming, and that I am in default on said account. No contracts, no affidavits, no statements.

No affidavit and this is small claims Justice Court?

https://www.leg.state.nv.us/nrs/NRS-073.html

http://www.leg.state.nv.us/courtrules/JCRCP.html(starting at Rule 88)

RULE 96.  INFORMAL TRIALS

      No formal pleading other than the claim and notice shall be necessary, and the trials and dispositions of all such actions shall be informal, with the sole object of dispensing fair and speedy justice between the parties.

Double check your local Justice Court rules as well. http://www.leg.state.nv.us/courtrules/

late catch- I see Attorneys are allowed in small claims but attorney fees aren't allowed, so most likely regular Justice Court.

Edited July 25, 2016 by CCRP626
Atty Fees

[xDthrowaway]

It's in the Justice Court, Las Vegas township.

[CCRP626]

@xDthrowaway you can answer as mentioned above or if the complaint is so vague, file a motion for a more definite statement (JCRCP 12e) which will give you additional time to answer. Keep an eye on the clock since under Rule 16.1 they have 30 days after answering to disclose documents and witnesses whether you entered discovery or not. Rule 25A also has discovery limits to hold them to.

1 hour ago, xDthrowaway said:

It's in the Justice Court, Las Vegas township.

Las Vegas Township has its own Justice Court rules, so make sure to review them.

[Coffee_before_tea]

15 hours ago, Clydesmom said:

The SOL in NV on credit card debt is 4 years not 6

@Clydesmom  Do you have case law for this?

[CCRP626]

@Coffee_before_tea the 4 vs. 6 years SOL is covered here.

http://www.nationallist.com/image/cache/White_Paper_Nevada_Debt_Collection.pdf

[Coffee_before_tea]

@CCRP626  I'm looking for case law specifically showing that CC fall under the 4 year, and not the 6 year SOL.  There is no pertinent case law in that document.

[Clydesmom]

57 minutes ago, Coffee_before_tea said:

@CCRP626  I'm looking for case law specifically showing that CC fall under the 4 year, and not the 6 year SOL.  There is no pertinent case law in that document.

Feel free to use Google Scholar or any other search engine.  You should know how to find case law by now.  However, here is but one site that also links to the relevant NV law that states the SOL is 4 years on CC debt:  http://www.creditcards.com/credit-card-news/credit-card-state-statute-limitations-1282.php

[BV80]

@Coffee_before_tea

The link provided by @CCRP626 shows that there must be evidence of a written contract for the 6-year SOL to apply.   This is a useful discussion, but it doesn't apply to this thread because the OP's last payment was less than 3 years ago.

Depending upon the circumstances of that last payment, the OP may be able to request arbitration.

[Coffee_before_tea]

@xDthrowaway  What kind of Cap1 card was this?  (i.e. nordstroms, best buy (or other store card), or basic CC?)

[Clydesmom]

36 minutes ago, BV80 said:

Depending upon the circumstances of that last payment, the OP may be able to request arbitration.

Cap1 removed arbitration from their card agreements in 2010.   Unless the account was opened prior to that or it is a card that they bought out that has arb then it isn't available to the OP.

[BV80]

6 minutes ago, Clydesmom said:

Cap1 removed arbitration from their card agreements in 2010.   Unless the account was opened prior to that or it is a card that they bought out that has arb then it isn't available to the OP.

You're referring to the settlement in the Ross Class Action.

Cap1 agreed to remove arbitration in 2010, but it was only for 3.5. years following January 15, 2010.  After that period, it could reinsert it.

https://www.arbitration.ccfsettlement.com/documents/files/2009-12-17-memorandum-of-settlement-with-capital-one.pdf

[CCRP626]

@BV80 have you heard of Cap One agreements bringing back arb since then? I haven't looked at any recent agreements but they seem against arb based on posts I've read where they try to explain away survival clauses from their old agreements containing arb.

[BV80]

4 minutes ago, CCRP626 said:

@BV80 have you heard of Cap One agreements bringing back arb since then? I haven't looked at any recent agreements but they seem against arb based on posts I've read where they try to explain away survival clauses from their old agreements containing arb.

I haven't looked up any Cap1 agreements after the time limit but the OP should do so.   Considering the settlement agreement referenced a time limit, I would not want to state for a fact that Cap1 agreements would never include arbitration again.

[Clydesmom]

33 minutes ago, BV80 said:

Cap1 agreed to remove arbitration in 2010, but it was only for 3.5. years following January 15, 2010.  After that period, it could reinsert it.

The key word is "could" as of now they have not re-inserted it in the card agreements as of yet. 

[Coffee_before_tea]

@xDthrowaway Needs to provide more info;

-  When did you open the C1 account (what year)
-  What kind of card was it?  (store account, or regular CC)

 

[BV80]

41 minutes ago, Clydesmom said:

The key word is "could" as of now they have not re-inserted it in the card agreements as of yet. 

I agree with you.

But simply based upon the terms of the settlement, I'm not going to claim that Cap1 hasn't reinserted arbitration into any of its agreements.

[Clydesmom]

3 hours ago, BV80 said:

I'm not going to claim that Cap1 hasn't reinserted arbitration into any of its agreements.

I just went to the CFPB data base for card agreements and looking at the current 2016 agreement they have not re-inserted it so unless the OP opened the account prior to 2010 when it was removed arbitration is not an option.

[BV80]

Just now, Clydesmom said:

I just went to the CFPB data base for card agreements and looking at the current 2016 agreement they have not re-inserted it so unless the OP opened the account prior to 2010 when it was removed arbitration is not an option.

Well, there you go!   Unfortunately the OP doesn't have that option. 

Thanks for doing the research! 

[Clydesmom]

7 minutes ago, BV80 said:

Well, there you go!   Unfortunately the OP doesn't have that option. 

At this point I don't see Cap1 re-inserting the arbitration option given their aggressive stance on litigating at a much lower cost.  Not to mention their accounts would be much more attractive to junk debt buyers since consumers could not pull the arbitration pin if sued by a JDB.  

[Coffee_before_tea]

17 minutes ago, BV80 said:

Unfortunately the OP doesn't have that option. 

How do you know that?  I can't see that the OP stated when he opened the account, where'd I miss that?

The old cap1 agreements may have a survival clause that can be used for Arb.

[Clydesmom]

21 minutes ago, Coffee_before_tea said:

How do you know that?  I can't see that the OP stated when he opened the account, where'd I miss that?

The old cap1 agreements may have a survival clause that can be used for Arb.

Good grief you are tedious.  Go back and read ALL my posts where I stated earlier that unless the account was opened prior to 2010 AND there is a survivability clause OR the account was bought by Cap1 it isn't an option.  Try to keep up.