Cindo

Capital One Lawsuit -complaint without exhibits or documents

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Hi.

I'm in California.   I had a complaint from Midland Funding dismissed using step by step what Astmedic did.  Thanks again Astmedic!

Now I'm being sued by Capital One and the complaint had no exhibits or anything attached.  It's just the complaint stating I owe an alleged debt.  I've already answered general denial and I was going to request production of documents or should it be a request for bill of particulars?  Or should I file a motion and if so what motion?  I just don't know how to proceed further since no exhibits were attached like they were for the Midland Funding complaint.

If you can help me out, it would be greatly appreciated.

Thanks so much

 

 

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I don't believe they have to attach any items to the complaint, so I don't think there is any motion to file/pursue. I would proceed as normal - if you want to see what they have you can make a BOP request or for production of documents. Or both.

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On 10/24/2018 at 3:24 AM, Cindo said:

Hi.

I'm in California.   I had a complaint from Midland Funding dismissed using step by step what Astmedic did.  Thanks again Astmedic!

Now I'm being sued by Capital One and the complaint had no exhibits or anything attached.  It's just the complaint stating I owe an alleged debt.  I've already answered general denial and I was going to request production of documents or should it be a request for bill of particulars?  Or should I file a motion and if so what motion?  I just don't know how to proceed further since no exhibits were attached like they were for the Midland Funding complaint.

If you can help me out, it would be greatly appreciated.

Thanks so much

 

 

Are you sure it's Capital One?

The reason I ask is because any misrepresentation is a violation of the Fair Debt Collection Practices Act, and a violation of State consumer protection/debt collection laws as well.

Capital One can sue you, in which case use of their name is not a misrepresentation.

Capital One can contract a collection agency to collect the debt for them. In such instances, the debt collector's fee is a percentage of what is collected. Use of Capital One's name is not a misrepresentation, but generally the contract has to specify that the collection agency can take legal action in the name of Capital One, and you can attack that.

Capital One can assign the debt for collection. Anyone can assign any debt for any reason. The one assigning the debt is the assignor, and the one receiving the debt is the assignee. Once a debt is assigned, the assignor forfeits all rights. The assignee's use of the name Capital One as the Plaintiff is a misrepresentation.

Capital One can sell the debt. In doing so, Capital One also forfeits all rights and use of the name Capital One as Plaintiff is a misrepresentation. Note that many junk debt buyers try to claim they are the "Holder in Due Course." You can only be a Holder in Due Course if you acquire a negotiable instrument for consideration. Credit cards are not negotiable instruments, and neither are "accounts stated." Any claim they are is deceptive and a misrepresentation.

 

 

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11 hours ago, TowerRat said:

Are you sure it's Capital One?

The reason I ask is because any misrepresentation is a violation of the Fair Debt Collection Practices Act, and a violation of State consumer protection/debt collection laws as well.

Capital One can sue you, in which case use of their name is not a misrepresentation.

Capital One can contract a collection agency to collect the debt for them. In such instances, the debt collector's fee is a percentage of what is collected. Use of Capital One's name is not a misrepresentation, but generally the contract has to specify that the collection agency can take legal action in the name of Capital One, and you can attack that.

Capital One can assign the debt for collection. Anyone can assign any debt for any reason. The one assigning the debt is the assignor, and the one receiving the debt is the assignee. Once a debt is assigned, the assignor forfeits all rights. The assignee's use of the name Capital One as the Plaintiff is a misrepresentation.

Capital One can sell the debt. In doing so, Capital One also forfeits all rights and use of the name Capital One as Plaintiff is a misrepresentation. Note that many junk debt buyers try to claim they are the "Holder in Due Course." You can only be a Holder in Due Course if you acquire a negotiable instrument for consideration. Credit cards are not negotiable instruments, and neither are "accounts stated." Any claim they are is deceptive and a misrepresentation.

 

 

While such misrepresentation can happen, any attorney who would take that chance is risking his license to practice law.  In addition, debt buyers don’t need to use that tactic due to the fact that the majority of the lawsuits they file end up unanswered and with default judgments in their favor  

All the OP has to do is look at his credit report and check Capital One’s entry.  If it shows “sold” or “transferred”, the account has been sold. 

However, if it only shows a charge off and still shows a balance, Cap One still owns the account.  

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