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Several years ago, I was a member of this forum. I had to create a new account as password recovery didn't find me...

I was served with 2 complaints recently. One from JDB that I'm feeling confident for now that I can deal with. The second is from an OC and I'm now in the first phase of discovery. I'd like to hash it out a bit. 

1. Who is the named plaintiff in the suit?  Capital One

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Johnson Mark, LLC

3. How much are you being sued for? Approx 6,000

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

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

6. How were you served? left on doorstep

7. Was the service legal as required by your state? Unknown, probably yes

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

9. What state and county do you live in? Idaho

10. When is the last time you paid on this account? SOL not up

 

11. When did you open the account (looking to establish what card agreement may be applicable)? Not sure, 2013-14?

12. What is the SOL on the debt? To find out:Time has not expired  

13. What is the status of your case? Suit served? Motions filed? Served. Answered Summons/Complaint, denied all but my name. Used Failure to State Claim as affirmative defense as absolutely nothing attached to their complaint. Filed my answer at the clerk's office and sent certified/return receipt copy to Plaintiff's attny. I've sent my first set of discovery requests to attny. I received Plaintiff's 1st set of Discovery requests and am now working my way through my answers.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No I have not.

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 disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').No I have not. 

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing was sent with the summons. I can't find if they were required to attach anything in Idaho? This is one of my questions. 

18.  How did you find out about this site? Internet questions

I've mailed my first request for Discovery/Interrogatories/Request for Docs. Mailed it to them 01/09/19. One day later, I received a packet from them containing Plaintiff's 1st set to me. Looks like they're still using the exact same questions as they did several years ago!

I'm aware an OC is a whole different ball game then JDB, but I'm slightly hopeful I can pull through. I'm diligently searching and reading and studying, trying hard to find my own answers to my questions. Just need some encouragement and a little nudge in the right direction now and then. 

Their interrogatories contain the standard questions, along with asking if I've ever been convicted of a felony, been party to a civil suit, identify books/papers/records I used to answer...(answered these with: Objection, irrelevant and not likely to lead to admissible evidence. Or, with Defendant without sufficient information or knowledge, etc.).

I answered all of the requests for Admission with: Defendant states after a reasonable inquiry, information known or readily obtainable is insufficient to enable to admit or deny therefore denies. With the exception of the last request. 

Request: True and correct copies  of the documents referenced in these Requests for Admission are attached hereto as Exhibit "A." 

It contains some 1. old past due statements  with the last 4 digits of the account referenced in their complaint, 2. a piece of paper that reads, "Your account has charged off. It is now being serviced by Recoveries department. Call 1-800-xxx-xxxx if you have questions about this notice." 3. a Capital One Customer Agreement (from 2014), 4. a Capital One monthly billing statement with a DIFFERENT account ending number (!)  Obviously, Mr. Attny didn't pay close attention to what he was sending in his exhibit "A".  

I started answering this final admission with, "Objection. Plaintiff's Exhibit "A" does not contain "True Copy" as all the documents contained within  fail to have been notarized to certify that the copy is a "true" copy of the original document. As to whether they are "correct" or not, Defendant objects. Defendant is w/o sufficient information or knowledge sufficient to form an opinion as to the truth or accuracy of the information and to draw a conclusion based on hearsay or speculation. 

Should I go ahead and send my answers to the Plaintiff's attny, or is their Exhibit "A" weak enough that I should take another route at this point? I don't think Johnson Mark has any other evidence, no affidavits, etc. Thank you in advance for reading this long book...

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2 hours ago, Lauri32 said:

I started answering this final admission with, "Objection. Plaintiff's Exhibit "A" does not contain "True Copy" as all the documents contained within  fail to have been notarized to certify that the copy is a "true" copy of the original document.

Does Idaho require it be notarized to certify it as a true copy?  Most states do not.

2 hours ago, Lauri32 said:

I don't think Johnson Mark has any other evidence, no affidavits, etc.

They do not need affidavits.  Cap1 is the original creditor and can attest to their own records without them.  

2 hours ago, Lauri32 said:

I answered all of the requests for Admission with: Defendant states after a reasonable inquiry, information known or readily obtainable is insufficient to enable to admit or deny therefore denies.

BIG mistake to answer everything the same way.  It tends to anger the court.

2 hours ago, Lauri32 said:

1. old past due statements  with the last 4 digits of the account referenced in their complaint, 2. a piece of paper that reads, "Your account has charged off. It is now being serviced by Recoveries department. Call 1-800-xxx-xxxx if you have questions about this notice." 3. a Capital One Customer Agreement (from 2014), 4. a Capital One monthly billing statement with a DIFFERENT account ending number (!)  Obviously, Mr. Attny didn't pay close attention to what he was sending in his exhibit "A".  

The first 3 are enough to prevail in the suit.  They can withdraw #4.  The court will have several questions for you and you cannot lie:  did you open the account?  Is that your name/address on those documents?  And, did you stop paying?  If you answer honestly you are done.  Cap1 also removed arbitration as an option several years prior to your opening the account so that is not an option either.

It appears you are relying on techniques that worked great in the paper era and during the recession.  A LOT has changed since then and Cap1 is one of the most aggressive OCs to sue.  They will prevail in the suit.  Your best option is to settle.  

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2 hours ago, Lauri32 said:

I started answering this final admission with, "Objection. Plaintiff's Exhibit "A" does not contain "True Copy" as all the documents contained within  fail to have been notarized to certify that the copy is a "true" copy of the original document.

Does Idaho require it be notarized to certify it as a true copy?  Most states do not.

2 hours ago, Lauri32 said:

I don't think Johnson Mark has any other evidence, no affidavits, etc.

They do not need affidavits.  Cap1 is the original creditor and can attest to their own records without them.  

2 hours ago, Lauri32 said:

I answered all of the requests for Admission with: Defendant states after a reasonable inquiry, information known or readily obtainable is insufficient to enable to admit or deny therefore denies.

BIG mistake to answer everything the same way.  It tends to anger the court.

2 hours ago, Lauri32 said:

1. old past due statements  with the last 4 digits of the account referenced in their complaint, 2. a piece of paper that reads, "Your account has charged off. It is now being serviced by Recoveries department. Call 1-800-xxx-xxxx if you have questions about this notice." 3. a Capital One Customer Agreement (from 2014), 4. a Capital One monthly billing statement with a DIFFERENT account ending number (!)  Obviously, Mr. Attny didn't pay close attention to what he was sending in his exhibit "A".  

The first 3 are enough to prevail in the suit.  They can withdraw #4.  The court will have several questions for you and you cannot lie:  did you open the account?  Is that your name/address on those documents?  And, did you stop paying?  If you answer honestly you are done.  Cap1 also removed arbitration as an option several years prior to your opening the account so that is not an option either.

It appears you are relying on techniques that worked great in the paper era and during the recession.  A LOT has changed since then and Cap

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Thank you, Clydesmom. I know they'd removed the arbitration clause. 

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10 hours ago, Clydesmom said:

Does Idaho require it be notarized to certify it as a true copy?  Most states do not.

They do not need affidavits.  Cap1 is the original creditor and can attest to their own records without them.  

 

I added the bold.

Check your state laws very, very carefully.

I faced Cap 1 back in the old days.  My state had laws saying the documents had to be attested to by someone with firsthand knowledge of the case.  I had perhaps the most consumer-friendly judge in the entire state for that case.  Judge ruled that the litigation specialist or whatever the title was for Cap 1 did not have first hand knowledge of the case.  Eventually Cap 1 gave up and let the case be thrown out for lack of prosecution.  (I also took them to arbitration, which they ignored).  

What is the moral?  Had it been a different state, or almost any other judge in the same state, that would not have worked.  Because I knew the details of my state's laws, I was able to win the case.  

Which means -- you need to see if there is anything in YOUR state's laws and rules of evidence that would preclude Cap 1 from using the evidence they gave.  If so, you have to know the law, and be able to convince a judge your interpretation is correct.  If not, you WILL lose.  

@Clydesmom's suggestion of settling is correct unless you can find a way out in your state's laws AND convince the judge you are correct.  Even then, there is a good chance they will come up with evidence that DOES pass muster, and you lose anyway.  

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@Clydesmom and @BackFromTheDebt thank you for the responses, I always love the dose of reality in these matters.

I called an attorney as I have one of those plans through my work. I sent him everything I've received so far and am supposed to talk to him Monday once he's had a chance to look it over. He says it can be settled.

I did not speak with him yet about my JDB matter. It's Portfolio, same attny. I have not received anything as way of Discovery from them yet. No attachments to the complaint, zero. If he filed suit with absolutely nothing, not even there normal junky exhibits, would sending a motion to dismiss be a good step? But if I were to do that before settling the Cap1, I'm on the other hand worried it would effect negotiation as it's the same attny suing. I was served both suits on 12/27. Ansered both on 1/4. Any thoughts?

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2 hours ago, Lauri32 said:

I did not speak with him yet about my JDB matter.

It is the same attorney and if you do not tell yours about the second suit their firm most certainly will.  

2 hours ago, Lauri32 said:

I have not received anything as way of Discovery from them yet. No attachments to the complaint, zero.

Many consumers assume that the evidence must be attached to the complaint.  Few states actually require this.  I do not know Idaho's requirement.  Most likely they do not require it.  Discovery would be required to get the evidence they plan to use.  Even that may not be possible.  GA does not allow discovery in Magistrate Court cases and Texas only allows discovery in Justice Court with permission from the court.  You would have to find out ID requirements for the court the case is in.

2 hours ago, Lauri32 said:

If he filed suit with absolutely nothing, not even there normal junky exhibits, would sending a motion to dismiss be a good step?

If the attachments were not required then it might not be the right action to take.  DO NOT assume they have nothing.  They don't necessarily have to have it when they file but do have to have it for the actual trial.

2 hours ago, Lauri32 said:

I'm on the other hand worried it would effect negotiation as it's the same attny suing. I was served both suits on 12/27. Ansered both on 1/4. Any thoughts?

Discuss it with the attorney Monday.  He maybe able to negotiate a 2/1.  

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