HockeyFan

Sued in GA by OC (Cap1) - Aldridge Pite Haan as defense

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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.)

  • ALDRIDGE PITE HAAN, LLP

3. How much are you being sued for?

  • ~$3,000

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

  • PLAINTIFF

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

  • SERVED

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

  • IN PERSON

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?

  • DV SENT IN AUGUST

9. What state and county do you live in?

  • GEORGIA, COBB

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

  • INSIDE SOL

11. When did you open the account (looking to establish what card agreement may be applicable)?

  • 2015

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

  • 6 YEARS, INSIDE SOL

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) 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, NO ANSWER SENT AS OF YET, COUNTERCLAIM TYPED UP (Attached)

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

  • NO

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

  • YES, LETTER ATTACHED - They responded by sending me over 100 pages of statements

16. How long do you have to respond to the suit? (This should be in your paperwork). 

  • 30 DAYS FROM NOV 28, COMPLAINT ATTACHED

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

  • 1 LOUSEY STATEMENT FROM OC, ATTACHED WITH COMPLAINT

 

I have attached all the docs listed above. I also have recorded voicemails that were left at my work phone from Cap1 with the same exact recording each time which are listed in the counterclaim.  I have not filed an answer yet as I wanted to pop in this forum and get some pointers on if I am taking the right course of action. 

ANSWER_Redacted.pdf

DV_Redacted.pdf

Main Complaint_Redacted.pdf

TCPA Counter_Redacted.pdf

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1 hour ago, HockeyFan said:

1 LOUSEY STATEMENT FROM OC, ATTACHED WITH COMPLAINT

GA does not require they attach any evidence and as you are aware Magistrate Court does not allow discovery.  The major problem you have is this is an OC suit.  They can attest to all their own records without an affidavit and do not need GA business records exemptions to do so.  They will have ALL the records for the account on the date of trial.

Why are you filing a formal answer in Magistrate Court?  A simple pre-printed answer form for Cobb County is all that is needed with "denial" checked off.

Your DV letter could not be worse but that ship has sailed.  It is clearly cut and pasted from the internet and riddled with errors.  90% or more of what you demanded is not required for validation.  ALL they are required to provide is the name/address of the OC and amount they claim you owe.  Proof, documents, their right to collect etc. is a waste of time and all you did demanding that is show what you do not know and that you can cut and paste a document.  BIG mistake.

Your counter claim is severely flawed.  You repeatedly quote the FDCPA which does not apply to Cap1 as an original creditor.  Your first 3 counts of the counter claim fail on that alone.  The second problem with those claim(s) is that if you provided your work phone number to Cap1 as part of the application (and yes they do require it) then until you or the employer sent notification to cease calling it then it isn't even a violation of the TCPA.  Count 4 fails as skip tracing by contacting a relative in attempts to locate you and make contact is allowed under Federal and GA law and there is NO way the court would consider a single phone call on 2 separate days as harassment.  The last count is a stretch but has a slim chance of working.  The major problem is you revoked permission for the law firm to call you NOT Capital One.  Your counter claim clearly states that the Plaintiff is the one who contacted you by phone.  You messed up in not sending the revocation of permission to call a cell phone or employer to Cap1.  My opinion is that the court will deny your counter claim on the basis that Cap1 had your permission and they placed the call(s) and that the FDCPA does not apply to them as an OC.  

You had some success in the past but that was with junk debt buyers which are much easier to defeat.  The defenses you read about and used then are based on JDBs not an OC.  Cap1 is a VERY aggressive OC and they removed arbitration from their card agreements a LONG time ago.  It is not an option as a defense.  They are known for hiring extremely aggressive law firms on these cases and from what I see on Google there is not a lot of dirt on them like Freddie Hanna or his ilk like Greene and Cooper or Cooling and Winter.  My suggestion: settle.  If you try to battle this one you are going to lose.  

 

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I would get a copy of all 3 credit reports as soon as you can.  I would scrutinize all 3 for conflicting or incorrect information regarding this cap1 account.  I would also look for other violations, such as abusively calling your cell phone non-stop.  I would want to file a counter claim against Cap1.  The counter claim does not have to be filed at the same time as your answer, but it must be filed before your hearing date (which will be at least 30 days from the day you file the answer).  When the attorney meets with me in the hall prior to going into court, I would be looking to agree to a mutual dismissal with prejudice.

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Hmm, ok that is good information. I will rework what I have and see what I can come up with. 

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On 12/10/2017 at 8:27 PM, Clydesmom said:

GA does not require they attach any evidence and as you are aware Magistrate Court does not allow discovery.  The major problem you have is this is an OC suit.  They can attest to all their own records without an affidavit and do not need GA business records exemptions to do so.  They will have ALL the records for the account on the date of trial.

Why are you filing a formal answer in Magistrate Court?  A simple pre-printed answer form for Cobb County is all that is needed with "denial" checked off.

Your DV letter could not be worse but that ship has sailed.  It is clearly cut and pasted from the internet and riddled with errors.  90% or more of what you demanded is not required for validation.  ALL they are required to provide is the name/address of the OC and amount they claim you owe.  Proof, documents, their right to collect etc. is a waste of time and all you did demanding that is show what you do not know and that you can cut and paste a document.  BIG mistake.

Your counter claim is severely flawed.  You repeatedly quote the FDCPA which does not apply to Cap1 as an original creditor.  Your first 3 counts of the counter claim fail on that alone.  The second problem with those claim(s) is that if you provided your work phone number to Cap1 as part of the application (and yes they do require it) then until you or the employer sent notification to cease calling it then it isn't even a violation of the TCPA.  Count 4 fails as skip tracing by contacting a relative in attempts to locate you and make contact is allowed under Federal and GA law and there is NO way the court would consider a single phone call on 2 separate days as harassment.  The last count is a stretch but has a slim chance of working.  The major problem is you revoked permission for the law firm to call you NOT Capital One.  Your counter claim clearly states that the Plaintiff is the one who contacted you by phone.  You messed up in not sending the revocation of permission to call a cell phone or employer to Cap1.  My opinion is that the court will deny your counter claim on the basis that Cap1 had your permission and they placed the call(s) and that the FDCPA does not apply to them as an OC.  

You had some success in the past but that was with junk debt buyers which are much easier to defeat.  The defenses you read about and used then are based on JDBs not an OC.  Cap1 is a VERY aggressive OC and they removed arbitration from their card agreements a LONG time ago.  It is not an option as a defense.  They are known for hiring extremely aggressive law firms on these cases and from what I see on Google there is not a lot of dirt on them like Freddie Hanna or his ilk like Greene and Cooper or Cooling and Winter.  My suggestion: settle.  If you try to battle this one you are going to lose.  

 

I appreciate your bluntness and attention to detail for me. I should have come here first before sending the DV, oh well, live and learn.  For the answer I couldn't find the answer form on the Cobb website so I just used one I previously drafted and edited it. I plan on eFiling it next week.

I actually ended up "winning" a battle against another OC last year by settling for far less than the amount owed.  And in that case I used pretty much the same counterclaim that I have here and they were wanting me to dismiss that claim pretty badly. So we'll see what I can do here. 

Any other suggestions you can throw my way would be super. 

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8 hours ago, fisthardcheese said:

I would get a copy of all 3 credit reports as soon as you can.  I would scrutinize all 3 for conflicting or incorrect information regarding this cap1 account.  I would also look for other violations, such as abusively calling your cell phone non-stop.  I would want to file a counter claim against Cap1.  The counter claim does not have to be filed at the same time as your answer, but it must be filed before your hearing date (which will be at least 30 days from the day you file the answer).  When the attorney meets with me in the hall prior to going into court, I would be looking to agree to a mutual dismissal with prejudice.

Pulled my reports. No incorrect info on any of the 3. Boo....

Cap1 did call my cell non-stop for awhile but I don't have the records of that. I might be able to get them from my cell company, but I doubt it. 

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Your answer is titled TCPA counter claim but you talk about FDCPA in the text.  If you actually changed it to TCPA violations, it would have more merit. 

I assume they responded to your DV prior to filing the suit against you?

Just remember to file your answer before the deadline while you work on a potential counter claim.

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