namasch

Hunt & Henriques / Capital one

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Thank you in advance for any and all help!

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.)

    - Hunt & Henriques

3. How much are you being sued for?

    - $3267.08

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

    - N/A


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

    - Summon served 

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

    - In person (to my husband, not to me)

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

    -  I don't know (Can someone tell me if having summons served to my husband is legal?

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

    - They had sent a dunning notice

    - I requested DV they complied within statutory time.

    - They sent an intent to sue letter

    - They initiated negotiations for mutual settlement, and gave me until April 10 to respond, but filed the lawsuit on April 5.  When I called to finalize negotiations on April 10, I was told they had already filed suit, so I did not follow through on the negotiations.

    - Received summons on April 27.

9. What state and county do you live in?

    - California, San Diego

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

    - September 2015

11. What is the SOL on the debt?

    - 4 years in California

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)

    - Complaint filed: 04/05/17; Summons & Complaint served: 04/27/17
    - Summons Filed 04/05/17


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.)

    - Yes

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.

    - 30 days (May 26)

16. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or on an open book account, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment.

    - Common counts


 17. Is the complaint "verified"? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

    - No.  The complaint is not verified.

18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

    -No

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

There is no evidence with the summons or complaint.

 

Any advice?

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Hi Namasch. First off, I'm NOT an attorney. I'm simply paying forward my experience because of the help I got here on two cases that I've won.

Second...On Q's 6 & 7, if they served your husband at home and he's over 18 (which I assume he is) then yes, it's my belief that you were served correctly. They may serve the Summons/Complaint on anyone in the household who is over 18.

Strange that the OC (Capital One) didn't include any evidence of the debt. They usually do.

If I were you, I'd FIRST send a Bill of Particulars (CCP 454) with Proof of Service. Although the BoP looks funny when you click on the link, it's fine when you download it to fill out.

As an FYI, this BoP was resurrected AND drafted by the incomparable Calawyer and all credit goes to him!

Anyway...You need to see what they have. Since you haven't filed your Answer yet (I'd file a General Denial since it is not verified), they might not respond. HOWEVER, if they feel you might want to settle before this goes any further, they just might. I had no problem having them respond to the BoP both times, even before I filed my Gen.Den.

Good luck!

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Hi AuthorCat,

In response to my letter for debt validation, they sent me capital one credit card statements for the debt, so they have sent me evidence even though it wasn't attached to the complaint.

I'll take a look at the BOP.

Thank you for your response!

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9 hours ago, namasch said:

Hi AuthorCat,

In response to my letter for debt validation, they sent me capital one credit card statements for the debt, so they have sent me evidence even though it wasn't attached to the complaint.

I'll take a look at the BOP.

Thank you for your response!

Debt validation, I believe, is separate from the Complaint and has nothing to do with it now. You're now in the Court system.

How long ago did you write them a DV?

In response to your debt validation request, did they provide to you every single monthly statement from the moment you opened until the alleged charge-off? Even if they did, you can still request those as stated in the BoP. It'll give them something to do.

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I sent the DV in mid February. I actually didn't manage to send it within the 30 days, but they responded anyway. I think they sent me the last year's worth of statements.  So you're saying that I should request every single monthly statement in the BoP?

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8 hours ago, namasch said:

 I think they sent me the last year's worth of statements.

Well, that means it's incomplete. Even if it were complete,  you can still go ahead and send the BoP that already has the language at the very end:

Quote

 the date of each transaction, a description of the services, materials or goods supplied or other consideration rendered, the price or charge made for each item, and all payments or credits that have been made to the account.

 

8 hours ago, namasch said:

So you're saying that I should request every single monthly statement in the BoP?

The language is already drafted in the BoP.

Don't forget to mail your BoP with Proof of Service and CMRRR it. Everything you serve on Plaintiff should be CMRRR'd from here on out. If this were my case, I would send the BoP as soon as possible - like, today.

P.S.: What I did was note what I was serving on both the certified mail receipt and return receipt so that I wouldn't confuse the receipts with other documents I'd served. I just made a small notation in parenthesis (ex: BoP). Also, I noted the CM number in the footer of the document(s) to neatly keep track of all the paperwork.

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I mailed the BoP with CMRRR today, and I just realized I didn't include the Proof of Service.   I guess I'll have to send it again.  It won't count in the court without that right?  Even if I have the CMRRR?

Oh, and if I resend the BoP...  I have to have someone else mail it?  because I can't serve it as a party to the action?

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7 hours ago, namasch said:

I mailed the BoP with CMRRR today, and I just realized I didn't include the Proof of Service.   I guess I'll have to send it again.  It won't count in the court without that right?  Even if I have the CMRRR?

Good rule of thumb is, the CMRR receipts are for your records (proof you've sent and they've received), and the PoS is for the Court.

Were this my case, I would serve them again with  Proof of Service and CMRRR. I was thinking that I might need to produce the BoP at trial so I'd want the Proof of Service attached.

8 hours ago, namasch said:

Oh, and if I resend the BoP...  I have to have someone else mail it?  because I can't serve it as a party to the action?

From the PoS-30, line 1:

I am over 18 years of age and not a party to this action. I am a resident of or employed in the county where the mailing took place.

You can have anyone in your household over 18 and not a party to the lawsuit sign. I went to the Post Office myself but I had my twenty-something son or daughter sign (whoever was available at the time) all PoS's.

I made certain to keep the original BoP and PoS for myself and served copies of these on Plaintiff.

Good luck! Try to get that second BoP, signed PoS, and CMRRR it today if you can.

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So, I just received the Bill of Particulars yesterday.  They only sent statements starting in Jan. 2015.  Their letter states that reserve the right to send additional statements should they become available as a "Supplemental Bill of Particulars"

The included statements only have 2 purchases for about $80 of the total claimed amount they are suing for.  Also, interest for those months of statements and late fees for some months after minimum payments stopped being made.

My question now is this....  does this affect what I file as my response in any way?  My response is due by next Friday.

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I believe you meant to say that you've received Plaintiff's response to your BoP, correct?

Also, you stated in your initial post that the Complaint was not verified, so nothing's changed. Looks like you can still file a General Denial. Make sure you file your Gen.Den within  thirty days after you were served.

Also, write them a Meet and Confer for your BoP and give them an additional 5 days. Although, technically, you don't need to serve the M&C on Plaintiff with a PoS, I did so anyway.

I believe Calawyer said that serving them a M&C looks good in the eyes of the Court--should you ever need it at trial.

 

 

 

 

 

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Their BOP answer doesn't affect your General Denial, which is little more than a checking off a box anyway :)

Regarding how you were served, if they gave the summons to your husband (or any adult for that matter) at your residence or place of business then you were substitute served. Service of this nature requires that they place an additional copy of the summons in the mail for delivery at your residence. Service is considered complete 10 days after that date (that the 2nd copy was placed in the mail), then the 30-day countdown begins. Did you receive the 2nd copy? It should have included a  proof of service with the date of mailing. Your online case file may also indicate that substitute service was used.

CCP 415.20 B
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=415.10-415.95

By the way, even if you go by 30 days from the day your husband was handed the summons, you would have until Tuesday May 30th to answer. The 30th day from 4/27 falls on a Saturday, by code your deadline to answer is extended to the next regular court business day. Since Monday the 29th is Memorial Day and courts are closed, you are extended to Tuesday May 30th.

I point these technicalities out because there will be various deadlines throughout this case that both you & Capital One/Hunt & Henriques will have to adhere to. Sometimes being late on something is not a big deal, sometimes it can have significant consequences. You'll need to understand it all so that you don't make a mistake, but also so that you can take advantage if the plaintiff makes a mistake,  and they sometimes do :)

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I have NOT received a 2nd copy, and it has been 3 weeks already.  Does this mean that the service was NOT legal?  My husband answered the door, and I was busy with the baby, so I did not interact with the server at all.

 

Given that it was not served properly (as I haven't received a copy in the mail), can I use that in my response to the complaint?...  to argue that the case should be dismissed because I wasn't served properly... or something like that?

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Is there an online case file you can look at? The entry regarding service might tell you if plaintiff is claiming personal vs substitute service.

If they are incorrectly claiming personal service,  you wouldn't be able to obtain a dismissal from that. With some work, you could quash the service, but they would simply serve you again - it would only delay the inevitable. Have seen this a few times before, some process servers/JDBs are shady like that - people here often advise that you go ahead and treat it like you were served and answer the complaint in the 30-day time frame.

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The online case file says personal. 

However,  I will treat it as if it were legal, as I figure that it would be risky not to respond within the 30 days.  If it goes to trial, perhaps I can bring it up as a point where the plaintiff didn't follow proper procedure?

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3 hours ago, namasch said:

Is there a Meet and Confer template available?

I',m on my way out the door but I have a M&C for the BoP. I'll get to iit this evening and post a link

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So, I filed my general denial, and also  sent the M&C as suggested above.  They replied to the M&C saying that they didn't need to produce a contract and that because a payment had been made on the account on the statements they did send, that showed that I accepted that the debt was mine.  I don't have the letter handy at the moment.

 

However, I have a follow-up... they have now sent a letter with "Specially Prepared Interrogatories; Requests for Admission, and Demand for Production of Documents".  and they demand that I respond by Aug. 3 (I received it some time ago, but have been overwhelmed with other priorities.)

Am I actually required to respond?  Of course, their language implies that I don't have a choice but to respond. Any advice would be welcome.

Special Interrogatories include:

  1. Did I request a credit card account from Capital One?
  2. Was I issued an account?
  3. When was the account opened?
  4. Who else had a card on the account?
  5. Who was authorized to use the account?
  6. Did I use the account?
  7. Is $#### the balance due on the account as of April 5, 2017?
  8. If no, state facts for denial.
  9. Was the card ever lost or stolen?
  10. Is there unresolved problem that was reported in writing to Capital One?
  11. Did I receive statements?
  12. When was my last payment?
  13. Have I ever corresponded in writing regarding the account with Capital One?
  14. State all facts supporting general denial.
  15. State all facts supporting affirmative defense.

Requests for Admission:

  1. Admit ownership of account number ######.
  2. Admit receiving periodic statements for said account.
  3. Admit the balance owed by me on said account as of April 5, 2017 was $####.
  4. Admit no payments have been made on said account since April 5, 2017.
  5. Admit the last payment was made wince April 5, 2014.

Demand for Documents:

  1. All correspondence with the bank or any collection agency within the past 5 years regarding said account.
  2. Same as #1.
  3. Proof of the last payment made (e.g. back account debit.)
  4. All documents supporting affirmative defenses.
  5. All documents supporting general or specific denials.

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Yes, you MUST respond to their RFA, RFPDoc, and ROGs! Especially the RFAs.

You can find really good examples on this site how to respond. You can start with 1111girl's:

Replace "Same as 1" with "DENIED'.

I had been late with my Responses but filed them with the Court before they could file that I had 'admitted'. Although you don't have to, you can file your responses with the Court to have them on record IF you're late and BEFORE they file that you've admitted. Basically, they're trying to make YOU prove their case. Don't.

Hope this helps.

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In reading the forum you linked to, I still wonder how to respond to the Interrogatories?  Any advice?

Also, where can I find the discovery templates "( RFA, Special ROGS, Document Demand)"

 

Thank you

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can you post the questions as they are written (leaving out any identifiable information)?

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16 minutes ago, sadinca said:

can you post the questions as they are written (leaving out any identifiable information)?

I believe he has, SadinCa. It's in an above post:

 

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8 hours ago, namasch said:

In reading the forum you linked to, I still wonder how to respond to the Interrogatories?  Any advice?

Also, where can I find the discovery templates "( RFA, Special ROGS, Document Demand)"

 

Thank you

I don't believe there are any discovery templates. I simply put it all on pleading paper.

I've sent you a DM.

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Something like the following.  Bracket for correct pronoun:

 

Defendant objects to this interrogatory on the ground it is vague and ambiguous in the context of this litigation. Plaintiff has filed a "bare bones" complaint in this action which does not sufficiently identify the alleged "account" .  For that reason, Defendant served a Bill of Particulars seeking the alleged contract sued upon as well as the complete account.  Plaintiff has refused to produce any contract and has not produced the entire account.  Without such information, Defendant cannot provide the information requested in this interrogatory. Defendant reserves the right to supplement [her] answer to this interrogatory after Plaintiff complies with its obligations under the Code.

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