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Hello all,

I've been combing the forums for about 5 hours now and I was hoping to get some help specific to my situation. Thank you in advance for taking the time to read this and hopefully responding.

 

1. Who is the named plaintiff in the suit? Myself.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Blatt, Hasenmiller, Leibsker, & Moore, LLC (representing Capital One)

3. How much are you being sued for? $5454.23

4. Who is the original creditor? (if not the Plaintiff) Capital One Bank (USA), N.A.

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

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

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? St. Joseph County, Indiana

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 12/11/2015

11. What is the SOL on the debt? To find out: 6 years

12. What is the status of your case? Suit served? Motions filed?   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? No

15. How long do you have to respond to the suit? 20 days - August 10th is the final day to respond.

16. What evidence did they send with the summons? Copy of credit card agreement (no signatures) and Affidavit of Debt

 

I'm not sure what my chances are of actually getting this suit dismissed, I just know that I do not have the funds right now to try and settle out of court, or have this suit automatically ruled against me. Basically I want to delay the final judgment as long as possible at the very least while I try and find some options.

Here are the complaints listed for reference:

 

Plaintiff alleges:

1.  That the defendant(s) is (are) indebted to plaintiff for purchases of merchandise sold and delivered, services rendered, or cash advanced at request of defendant(s) and paid for by plaintiff arising out of the use of a credit card pursuant to a certain credit card agreement entered into by the plaintiff and defendant(s); that a copy of said agreement is attached hereto, made a part hereof and marked Exhibit "A".

2.  That thereafter plaintiff performed all the conditions thereof on its part to be performed.

3.  That defendant(s) have failed and refused to pay pursuant to the terms of said instrument and are in default thereon.

4.  That there is due and owing plaintiff thereon the sum of $5454.23 and costs. Plaintiff is not seeking attorney fees.

                     WHEREFORE, plaintiff asks for judgment for $5454.23 and costs.

 

 

This is the answer I have so far:

Defendant, appearing pro se, for its reply to the Complaint naming CAPITAL ONE BANK (USA), N.A. Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

 

1.         The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

2.         The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

3.         The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

4.         The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

 

FURTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.

 

AS AND FOR AFFIRMATIVE DEFENSES

 1.    Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

2.    Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

3.    Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

4.    Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

5.    Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

6.    Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

 

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

 

By the Defendant pro se

 

Dated this 8/9/2017

 

 

Does this make sense? And do I need to respond to the affidavit in any way? I'm not well versed in this type of thing so any advice would be greatly appreciated.

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22 minutes ago, kindiana said:

1.    Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

Your state does not allow a Statute of Frauds defense for a credit card case.  The only one that does is Utah.  The courts are well aware that there is no signed contract in a credit card case.  The clause in the card agreement that states "use of this card and payments on the account re-affirms the consumer's consent to the terms of use and agreement between the issuer and consumer."  That creates the contract.

23 minutes ago, kindiana said:

2.    Plaintiff failed to state a claim upon which relief can be granted.

You can try this but they clearly did state a claim:   you used the card and failed to pay.  They stated a claim on 1-3 and 4 merely re-affirms how much they claim you owe on counts 1-3.

25 minutes ago, kindiana said:

3.    Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

Nope.  Capital One interest rates are within state law for Indiana.

26 minutes ago, kindiana said:

6.    Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

The FDCPA does not apply to Capital One they are an original creditor.

27 minutes ago, kindiana said:

I'm not sure what my chances are of actually getting this suit dismissed

ZERO.  Cap1 is a very aggressive creditor and will not need an affidavit to attest to their own business records.  They have everything they need to get a summary judgment.  Worse:  they removed arbitration from their card agreements so not even that threat is available to you to derail this.   Short of identity theft there really are not any affirmative defenses when you default on a credit card and the original creditor is coming after you.

28 minutes ago, kindiana said:

I just know that I do not have the funds right now to try and settle out of court, or have this suit automatically ruled against me.

It is unfortunate but short of bankruptcy there is not much option to slow the freight train down with a creditor that precludes arbitration.  You might get one 30 day continuance but if the case is in small claims court it could be concluded in as little as 90 days.

If you are having major debt issues a consult with a bankruptcy attorney might be the best option.

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