Gorbah

Urgent Help Needed Sued by Capital One in Nevada

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First post ever. Wish I woulda found this community a month ago.  Been sued by CO and seems they've hired PNF in Nevada.  I filled out a generic answer not really understanding the process but wasn't just going to roll over and take a wrongful judgement.  I received a summary of judgement and I have very little time to respond. Seadragon posted some awesome content and steps for the state of CA which has very similar laws to NV but I'm lost and have no where to and find a straight answer so hopefully I'm not posting material that been covered but here are my questions...

1. The papers say I need to file an "Opposition" if I'm contesting the summary what do you recommend I contest?

2. Should I amend my answer and file complaint/counter claim?

3. How is it they are able to place burden of proof onto me?

4. I do have a court date so is there a way to get it to trail or dismissed before this?

I will fight and win this one way or another just require a bit of guidance and wisdom. Any help is greatly appreciated

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@Gorbah

I hope someone will come along who is familiar with Nevada courts. http://www.civillawselfhelpcenter.org/  In order for you to receive help on responding to the motion for summary judgment, please post it--without identifying info.

This attorney-written article explains the basics of summary disposition. It isn't about the argument; it's about the facts--supported or not by evidence.

Rules of Civil Procedure

The Federal Rules of Civil Procedure (Rule 56) supply an analytical basis for every state's version of the law. They require that the party seeking judgment (the "movant") provide evidence in support of every fact necessary to judgment and also demonstrate that there is no dispute as to that fact. If the movant initially seems to meet that burden, then the party opposing the judgment must demonstrate that there are issues of fact that are "material" (that matter to the court's decision). Every state of which I am aware has a very similar, if not identical, procedure.

Two Hurdles

From the point of view of a pro se defendant (representing yourself), there are two major hurdles to defending against a motion for summary judgment.

First, you must remember to respond in the same form as the motion itself. That means you must examine each fact (normally in a numbered, separate paragraph) and point to specific evidence that disputes it. Literally, that if the other side has presented 15 paragraphs of facts, you should have 15 paragraphs of responses, and your paragraph 3 should dispute (or admit) their paragraph 3. And so on.

Second, you must present actual, admissible evidence that demonstrates the dispute. The evidence must obey the rules regarding what evidence the court is allowed to consider, in other words. And what that means, to put it even more bluntly, is that you must have affidavits or other sworn testimony in support of what you say. There is a tendency among pro se defendants to spend a lot of time and space arguing without having given the court the evidence that would support the arguments. Do not make that mistake. A court can apply laws it knows to evidence you provide, but it cannot provide facts that support the arguments you make even if they seem obvious to you. Motions for summary judgment are defeated not because the court believes your version of the facts rather than the other side's, but because you have shown that there is evidence that disputes the facts the other side needs to show. The court is not supposed to weigh the evidence, simply to check to see if it is there.

The plaintiff has the burden of proof, and that makes a lot of difference in motions for summary judgment. It means that you can prove your defense against the debt collector either by showing that and one part of its case against you cannot be proved.

If the debt collector cannot prove ownership of the debt it is asserting against you, for example, its whole case must fail. Likewise if it can't prove the amount of the debt or that you owe it. If any part of the plaintiff's case fails, all of it does. And you can prove that it fails either by proving—remember, you must show that there is “no dispute” about the things you are proving—that the debt collector is wrong (it isn't your social security number or name, for example), or that the debt collector will not be able to prove the debt. 

If you follow these rules you should have an excellent chance of defeating a motion for summary judgment filed against you. 

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Thank you @Brotherskeeper I've been to that site several times and typically get my forms there as well. Are you recommending I post the entire summary of judgement and leave out the identifying details, or just what CO and attorney are claiming? 

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15 minutes ago, Gorbah said:

Thank you @Brotherskeeper I've been to that site several times and typically get my forms there as well. Are you recommending I post the entire summary of judgement and leave out the identifying details, or just what CO and attorney are claiming? 

The plaintiff is the original creditor? I suggest you post enough information for members here to see what facts plaintiff alleges and what evidence plaintiff has submitted to support those facts. We know nothing about your case.  

Did plaintiff provide the alleged contract? If so, does it contain an arbitration section? 

9 hours ago, Gorbah said:

1. The papers say I need to file an "Opposition" if I'm contesting the summary what do you recommend I contest? Post the motion and the evidence.

2. Should I amend my answer and file complaint/counter claim? We can't say without seeing your answer. Did you make an error? Do you have any counterclaims?

3. How is it they are able to place burden of proof onto me? The burden is on plaintiff to prove its claims. Once it does, you must come forward with evidence to dispute. If you assert an affirmative defense, your burden is to prove it.

4. I do have a court date so is there a way to get it to trail or dismissed before this? If plaintiff prevails on its motion for summary judgment, it won't go to trial. If the contract has a binding arbitration clause, you might be able to get a dismissal. If the statute of limitations has passed or if there is another bar to claim or a defect, maybe.

 

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Filed answer with admitting to having an account with original creditor (OC) along with claiming a FCDPA as I'm currently disputing charges with OC.

Plaintiff filed and sent Motion for Summary Judgement through attorney and states "due to  defendant not having recognizable defense and there being no issue of law or fact remaining." Along with a Notice of Motion for a hearing and an "Opposition" must be filled or it's considered I agree with it. 

Law & Argument

A. Summary Judgement Standards

Plaintiff brings Motion for Summary Judgment pursuant Nevada Court Rule of Civil Procedure 56 J.C.R.C.P.  56 states in pertinent part:

A.         A party seeking to recover upon a claim... may, at any time after the expiration of 20 days from the commencement of the action... move with or without supporting affidavits for a summary judgement in the party's favor upon all or any part thereof.

B.                ...

C.        ...the judgment sought shall be rendered forthwith if the pleadings, depositions, answeres to interrrogatories, and admissions on file, together with the affidavit, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment to as a matter of law.

JCRCP 56.

Summary judgment is appropriate when no issue of material fact remains for trail and one party is entitled to judgement as a matter of law. Burnett v. Security Services, 107 Nev. 787,788,820 P.2d 750, 751 (1991). Summary judgement is appropriate where the pleadings and affidavits on file show that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  Montgomery v. Ponderosa Contruction, Inc., 101 Nev. 416, 418, 705 P.2d 625, 55, (1985). A genuine issue of material fat is one where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Valley Bank v. Marble, 105 Nev. 336, 367, 775 P.2d 12778, 1282 (1989).

The pleadings and proof offered in a motion for summary judgment are construed in the light most favorable to the non-moving party. Hoopes v. Hammargren, 102 Nev. 425, 429, 725 P.2d 238, 241 (1986). However, when a Motion for Summary Judgment  is made and supported by the relevant law, the burden of proof showing there are genuine issues of material fact shifts th the non-moving party. Garvey v. Clark County,  91 Nev. 127, 532, P.2d 269 (1975). The non-moving party must, by affidavit or otherwise, set forth specific facts demonstrating the existence of a genuine issue for trail or have summary judgment entered against him. Collins v. Union Federal Savings and Loan, 99 Nev. 284, 294, 662, P.2d 610, 618-619 (1983). The non-moving party's documentation must be admissible evidence and he or she "is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture. " Id.  99 Nev, at 302, 662, P.2d at 621 (quoting  Hahn v Sergeant, 523 F.2d 461, 467 (1st Cir. 1975)). The non-moving party must set forth specific facts showing that there is a genuine issue for trial and the opponent must show that he can produce evidence at the trail to support his claim. Van Cleave v. Kietz-Mill Minimart, 97 Nev. 414, 417 633 P.2d 1220, 1222 (1981). General allegations and conclusory statements contained in affidavits are not sufficient to create a genuine issue of material fact. Bond v. Stardust, Inc.,  82 Nev. 47, 50, 410, P.2d 472, 473 (1996).

 

B. Defendant has breached the contractual duties to plaintiff, therefore summary judgment is mandated as a matter of law.

Here they are using NV statue "NRS 97.A150" which is a chrdholder is personally liable for all charges incurred on credit card account by: (a) The cardholder or an authorized user; and (b) Any other person if the charges result in a beneficial use to the cardholder.

It goes on to say that in NV statue "NRS 97A. 160 that (a) The issuer may establish that the cardholder is contractually liable for the debt owed by submitting written application for a credi card account submitted to the issuer by the cardholder or evidence that the cardholder incurred charges on the account and made payment thereon. (Emphasis added) In section (b) The amount owed may be established by photocopies of: (1) The periodic billing statements provided by the issuer; or (2) Information stored by the issuer on a computer, microfilm, microfiche, or optical disc which indicate the amount of debt owed. (2) The content of such records must be authenticated by submission of a written affidavit.

I do have what appears to be a "robo affidavit" in exhibit A and billing statements in exhibit B.

The account number does not match what has been provided on court papers vs my creditkarma account which is why its currently being disputed. So i'd like to amend my answer and don't know if this is possible. Also, original creditor states in the terms and service of their website that agreement is to be enforced by Virginia Law, do I challenge jurisdiction what other affirmative defenses are available? I believe original creditor has breached agreement as well as they do state in agreement that no action will be taken while dispute is investigated and was served while in dispute.

 

 

 

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33 minutes ago, Gorbah said:

Filed answer with admitting to having an account with original creditor (OC) along with claiming a FCDPA as I'm currently disputing charges with OC.

(I am not an attorney.) FDCPA  does not apply to original creditors collecting their own debts, except under certain circumstances. See: https://www.ftc.gov/news-events/blogs/business-blog/2015/12/think-your-companys-not-covered-fdcpa-you-may-want-think

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39 minutes ago, Gorbah said:

The non-moving party must, by affidavit or otherwise, set forth specific facts demonstrating the existence of a genuine issue for trail or have summary judgment entered against him. Collins v. Union Federal Savings and Loan, 99 Nev. 284, 294, 662, P.2d 610, 618-619 (1983). The non-moving party's documentation must be admissible evidence and he or she "is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture. " Id.  99 Nev, at 302, 662, P.2d at 621 (quoting  Hahn v Sergeant, 523 F.2d 461, 467 (1st Cir. 1975)). The non-moving party must set forth specific facts showing that there is a genuine issue for trial and the opponent must show that he can produce evidence at the trail to support his claim. Van Cleave v. Kietz-Mill Minimart, 97 Nev. 414, 417 633 P.2d 1220, 1222 (1981).

Above is what you must do to have the summary judgment denied. Your court rules govern amendment to an answer and affirmative defenses. You've admitted to having an account in your answer, but not the account plaintiff suing on?  Or, your dispute is the account number doesn't match court documents and Credit Karma records? 

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Yes admitted to having an account in the answer. Which is why it needs to be amended due to credit bureaus account numbers not matching alleged debt owed. So to have this denied, I must fill out an affidavit and submit an amended answer along with an opposition, and motion of discovery or demand for dismissal correct?

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NRCP 15 – AMENDED AND SUPPLEMENTAL PLEADINGS RULE 15. AMENDED AND SUPPLEMENTAL PLEADINGS

(a) Amendments. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.
[As amended; effective January 1, 2005.]

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
[As amended; effective January 1, 2005.]

"The Nevada Court of Appeals explained that NRCP 15(a) contemplates the liberal amendment of pleadings, which in colloquial terms means that most such motions ought to be granted unless a strong reason exists not to do so, such as prejudice to the opponent or lack of good faith by the moving party. On its face, NRCP 15(a) makes no reference to whether leave has been requested before or after the close of discovery, or before or after any other deadline imposed by the trial court.

One rule that frequently overlaps with NRCP 15(a) is NRCP 16(b). NRCP 16(b) requires, among other things, the district court to set deadlines in each case for various events, including deadlines for conducting various types of discovery and for filing various kinds of motions. One deadline specifically contemplated by NRCP 16(b) is one by which motions seeking to amend the pleadings must be filed with the court. Moreover, NRCP 16(b) recites that the deadlines imposed by the court under this rule shall not be modified except upon a showing of good cause.

Thus, when a party seeks leave to amend a pleading pursuant to NRCP 15(a) after a deadline set under NRCP 16(b) for filing such a motion has already elapsed, such motions implicate NRCP 16(b) in addition to NRCP 15(a) because they effectively seek a waiver or extension of that deadline so that the merits of the motion may be considered. If this were not so, and a motion seeking leave would be considered only under the standards of NRCP 15(a) no matter when it was filed, then the deadlines required to be imposed under NRCP 16(b) would become meaningless and could be blithely ignored.

The Nevada Supreme Court has never defined what constitutes good cause under NRCP 16(b), but NRCP 16(b) is based in relevant part upon Rule 16(b) of the Federal Rules of Civil Procedure. Multiple federal courts of appeal have held that, although Rule 15(a) governs the amendments of pleadings in general, Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired.

In determining whether good cause exists under Rule 16(b), the basic inquiry for the trial court is whether the filing deadline cannot reasonably be met despite the diligence of the party seeking the amendment. Courts have identified four factors that may aid in assessing whether a party exercised diligence in attempting, but failing, to meet the deadline: (1) the explanation for the untimely conduct, (2) the importance of the requested untimely action, (3) the potential prejudice in allowing the untimely conduct, and (4) the availability of a continuance to cure such prejudice. However, the Court explained that the four factors are nonexclusive and need not be considered in every case because, ultimately, if the moving party was not diligent in at least attempting to comply with the deadline, the inquiry should end.

Even where good cause has been shown under NRCP 16(b), the district court must still independently determine whether the amendment should be permitted under NRCP 15(a). Thus, the Court determined that when a party seeks leave to amend a pleading after the expiration of the deadline for doing so, it must first demonstrate good cause under NRCP 16(b) for extending the deadline to allow the merits of the motion to be considered by the district court before the merits of the motion may then be considered under NRCP 15(a)."

 

(IANAL) I believe you would have to either get permission from plaintiff or  file a motion for leave to amend. Sample motion for leave to amend

http://www.cmkmdiamondsinc.com/documents/motion-to-leave-12-24-07.pdf

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25 minutes ago, Gorbah said:

Yes admitted to having an account in the answer. Which is why it needs to be amended due to credit bureaus account numbers not matching alleged debt owed. 

Do the debt amounts listed on plaintiff's MSJ exhibits (final account statement and/or other demands for payment,) on CRA reports and the amount plaintiff is suing for match?  Did you have more than one account with the OC? Is there any confusion as to which account you're being sued for?

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No the MSJ does not show final account statement. In Exhibit B MSJ shows monthly billing statements with final month showing total amount they are suing for but no official "Final Account Statement" and No Demand for Final Payment or Collection Letters have been received. The better half has an account as well and they do refer to me as female in the MSJ i.e. "Defendant has breached her contract".

However, the confusion as to which account I'm being sued for due to accounts not matching and being closed/charged off by original creditor. What started this was me disputing this on my credit report. For example, credit bureaus read account number ending in 6789. After I sent in complaint and dispute, I got slapped with a Summons that reads account as 4321. (Not Actual Numbers). Hopefully that makes sense. The billing statements also read account ending in 4321 which again does not match credit bureaus reported account numbers.

This makes me want to challenge jurisdiction as contract specifically states Virginia Law governs agreement. Thus NV law should not or can not be applied. They guard case law from the original creditor making it difficult to reference other successful cases as well.

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@Gorbah

Plaintiff is the original creditor. Plaintiff has submitted its own account statements via  a records custodian's affidavit that match the amount it's suing for. This debt amount agrees with what's reported on your CRAs.  Other than a difference in account numbers, are there any other discrepancies, such as with dates or address?  

What benefit would Virginia law give you?  3 year SOL? 

  NRS 11.020  Effect of laws of limitation of other states or countries.  When a cause of action has arisen in another state, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against the person in this State, except in favor of a citizen thereof who has held the cause of action from the time it accrued.

      [1911 CPA § 5; RL § 4947; NCL § 8504]

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It's not the law that would benefit, it's jurisdiction of the matter. Virginia Law would have to be applied as it governs agreement.

There are several discrepancies. It's a matter of following the rules of the court and filing correctly, really don't want to go another route but will if I'm forced.

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Such "technical" arguments are a waste of time and effort that should be put toward dealing with the judgement - like having judgement "stipulated" on a payment plan.

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@Gorbah

(IANAL) From what you've described or unless I misunderstand your counterclaims, I don't think  leave to amend  your answer is likely to be granted.   I suspect plaintiff would argue it would be futile. I'm not trying to discourage you, I'm just not informed enough to see the strength of your argument. @Goody_Ouchless characterizes  them as "technicalities." The judge is likely to agree--without a strong argument based on fact and law. 

@BV80 What are your thoughts on different account numbers ?

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3 hours ago, Gorbah said:

...due to credit bureaus account numbers not matching alleged debt owed.

I just checked a copy of our CR and they remove the last few digits - probably for security reasons. That could be why the ends don't match.

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1 hour ago, Gorbah said:

It's not the law that would benefit, it's jurisdiction of the matter. Virginia Law would have to be applied as it governs agreement.

That would depend upon the language in the agreement and your state law.   You are a resident of NV.  If you were sued in the correct county court, then that court would have personal jurisdiction to hear the matter.

To what are you referring?

 

1 hour ago, Brotherskeeper said:

@BV80 What are your thoughts on different account numbers ?

I would not go by my credit report.  Perhaps I missed it, but has the OP stated which account number is referenced in the summons?    Does the account number match the one on the billing statements?

3 hours ago, Gorbah said:

In Exhibit B MSJ shows monthly billing statements with final month showing total amount they are suing for but no official "Final Account Statement" and No Demand for Final Payment or Collection Letters have been received.

Does NV law require a an official "Final Account Statement".

Would it be possible for you to post the statements (especially the latest one) with your personal information redacted?

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3 hours ago, Gorbah said:

What started this was me disputing this on my credit report. For example, credit bureaus read account number ending in 6789. After I sent in complaint and dispute, I got slapped with a Summons that reads account as 4321. (Not Actual Numbers). Hopefully that makes sense. The billing statements also read account ending in 4321 which again does not match credit bureaus reported account numbers.

@BV80 ^ ^ ^

23 minutes ago, BV80 said:

Perhaps I missed it, but has the OP stated which account number is referenced in the summons?    Does the account number match the one on the billing statements?

 

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There's a lot of lessons buried in this thread, but let's see if I have this figured out roughly correctly:  You disputed an account on your credit report, promptly got sued by an original creditor for something that is apparently within SOL, admitted to an account with the OC in your answer and counterclaimed under a completely inapplicable Act, and now are looking for a way to "win".  Did I get that about right?

Let's start here:  trying to do a credit report clean up with defaulted debt within the statute of limitations.  Such an attempt frequently suggests to a creditor that someone's thinking about buying a house, they must have a down payment saved up, and now would be a perfect time to file that lawsuit.

Now, as I understand it,  charges should be disputed under the Fair Credit Billing Act.  This dispute:  Did you make your dispute at the time of the billing for the charges and document your steps to resolve the issue?  Or was this just something you whipped up in the hope of cleaning up your credit report?  If you have a documented dispute, that can stop a motion for summary judgment in it's tracks.  If you "disputed" under the FDCPA in an attempt to clean up your credit, well, that's probably not going to work out so well.

I've sat at the courthouse and watched defendant after defendant go "Well, your Honor, I lost my job. . ."  Now the judge may be hardcore anti-pro se, pro debt collector, or totally pro-consumer, outrageously sympathetic and secretly cheering the pro se on.  It doesn't make one bit of difference because "I lost my job" is not a legal defense and the result is going the same way under either type of judge.

What Credit Karma and/or your credit report says doesn't matter one iota.  It's irrelevant, without foundation, hearsay--in the case of Credit Karma, it's hearsay about hearsay.  Even if you have a completely sympathetic judge, it's an argument that's going absolutely no where.

You have to focus exclusively on the evidence CO presents--and, unlike a JDB with standing issues--their evidence is probably going to stick unless you have a legitimate legal strategy to counter.

Arbitration strategy could possibly work, certainly SOL if that's legitimate, arguing under Virginia law is possible (I've done it in my state, but I had to follow court rules regarding apprising the court of intent to use laws of a different jurisdiction) (you'll have to figure out NV law or use it in arb), certainly if it's identity theft and you're willing to swear under penalty of perjury to same  (and if it isn't, I wouldn't perjure myself--going to jail over a credit card debt is just dumb), these might work.  But the bottom line is probably this:  I don't see anything legitimate or promising to work with here.  Cap 1 was always one of the better record keepers among the major creditors before the crisis, and they're probably even better now.  The aggressively pursue in the courts, they usually have the evidence they need,  and don't miss very often.

Good luck.

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@MisterLoon Thank YOU! 

I'll update this shortly and just to inform everyone that there has been a massive discovery that should win this case. .I have to reply to an opposition. What do I attack in MSJ and do I file my own MSJ?

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