Affirmative Defenses against OC in CA?

[phoenix02]

Hello all,

I am dealing with a lawsuit from Capital One in California, brought by Hunt & Henriquez. It is original creditor, so I am a little stumped as to what to use as affirmative defenses. Amount prayed is just over $2800. Requesting interest in the amount of 0.0000% since September 19, 2018, but no indication of when defaulted or charged off, and no note of account number of any identifying information. All I can come up with is to use the general denial PLD-050, and add an affirmative defense that plaintiff has not proven validity of claim under 2. AFFIRMATIVE DEFENSES-

"Plaintiff’s complaint is unverified and does not even reference an account number, Defendant cannot tell if the claims set forth by plaintiff in complaint are valid. Defendant demands verification of the debt and strict proof of the terms of the alleged account at specific times, including the time Plaintiff alleges it went into default, the complete terms of the account agreement and the owner of the account at that time, and proof of any charges, credits, offsets, and payments on said account, including fees and interest charged before and after the account was charged off. Defendant reserves the right to plead further once proof of these matters has been produced."

I lifted the verbiage from online and modified it a bit. Also will file for BOP at the same time I am down to file my GD. I live about an hour from the courthouse, so trying to get as much accomplished at once as I can. The key I see here is that there is NO verification whatsoever and no identifying information in the complaint that actually connects me to any account, it's just a sloppy declaration. 

I am hoping to file tomorrow- was served 7/13, so I do have a couple days if I need to, but I'll be down that way tomorrow.

Thanks all!

[Clydesmom]

48 minutes ago, phoenix02 said:

All I can come up with is to use the general denial PLD-050, and add an affirmative defense that plaintiff has not proven validity of claim under 2. AFFIRMATIVE DEFENSES-

There are two major problems you have with an OC lawsuit in ANY state.  First:  Capital One removed arbitration as an option a decade ago so that is not an option.  Second; there are only two affirmative defenses to an OC suit;  the SOL and identity theft.  Since the account is yours that is not an option.  If they filed within 4 years of the DOFD the SOL being expired is not an option either.  When did you default?

50 minutes ago, phoenix02 said:

The key I see here is that there is NO verification whatsoever and no identifying information in the complaint that actually connects me to any account, it's just a sloppy declaration. 

My understanding is a Plaintiff CAN file a complaint as verified in CA but it is not required.  Verifying the complaint changes your defense options but does not make or break their case per se.  They also do not have to provide all their proof in the filing.  That is what discovery and trial are for.

Absent affirmative defenses or the ability to use arbitration to get a better settlement your only options are settling, bankruptcy if you qualify or judgment.  Cap1 is extremely aggressive among the creditors and as an OC they will not need affidavits to attest to their own records.  They will have ALL the proof they need to win.  Settle or file BK.  Chances of winning are slim to none on this one.

[BV80]

1 hour ago, phoenix02 said:

 

Hello all,

I am dealing with a lawsuit from Capital One in California, brought by Hunt & Henriquez. It is original creditor, so I am a little stumped as to what to use as affirmative defenses. Amount prayed is just over $2800. Requesting interest in the amount of 0.0000% since September 19, 2018, but no indication of when defaulted or charged off, and no note of account number of any identifying information. All I can come up with is to use the general denial PLD-050, and add an affirmative defense that plaintiff has not proven validity of claim under 2. AFFIRMATIVE DEFENSES-

"Plaintiff’s complaint is unverified and does not even reference an account number, Defendant cannot tell if the claims set forth by plaintiff in complaint are valid. Defendant demands verification of the debt and strict proof of the terms of the alleged account at specific times, including the time Plaintiff alleges it went into default, the complete terms of the account agreement and the owner of the account at that time, and proof of any charges, credits, offsets, and payments on said account, including fees and interest charged before and after the account was charged off. Defendant reserves the right to plead further once proof of these matters has been produced."

I lifted the verbiage from online and modified it a bit. Also will file for BOP at the same time I am down to file my GD. I live about an hour from the courthouse, so trying to get as much accomplished at once as I can. The key I see here is that there is NO verification whatsoever and no identifying information in the complaint that actually connects me to any account, it's just a sloppy declaration. 

I am hoping to file tomorrow- was served 7/13, so I do have a couple days if I need to, but I'll be down that way tomorrow.

Thanks all!

Have you been sued in limited civil?

[phoenix02]

Limited civil, common counts.

[phoenix02]

Also, honestly my target is to prolong to try to get some money together to settle. I have nothing now- am going to use a fee waiver for the filing fee. I know being an OC there isn't much I can do. 

 

Alternatively, I have no major assets to my name, our house is in my wife's name, I am self employed and don't have a regular paycheck to garnish. Is trying to prolong just going to rack up lawyer fees for them to tack on to my bill? Much as I hate to do it, am I better off letting them get a default and then deal with settling or paying whenever I can?

 

Thanks!

[BV80]

5 hours ago, phoenix02 said:

Limited civil, common counts.

Well, you have CCP 96 & 98 on your side.  Plaintiffs don’t always abide by those rules and end up losing. 

@RyanEX

@sadinca

[RyanEX]

I don't think facing an OC is quite as dire a situation as described above. In terms of what they can produce, an OC does have an advantage over a junk debt buyer in that if they wanted to, they could produce a witness to attest to the records/documents they would want to submit as evidence. The operative word there is "IF". There have been CA members who have fought an OC and won because the OC was not willing to produce a live witness. If they are unwilling to produce a live witness at trial, then they face the same obstacles that a JDB does - you can object to documents, affidavits & bills of sale, etc. because under CA code those items don't stand on their own (so long as you object) - it doesn't matter if it's an OC or not - in CA you have a right to cross examine a  live witness (Elkins vs Superior Court).

 

 

HotWheels96 beat an OC twice, and it seems one of those was a case for more than $10K

Here are links to 2 of HotWheels96's threads (though they are both about the same Capitol 1 suit):

https://www.creditinfocenter.com/community/topic/319158-my-capital-one-trial-was-today/

https://www.creditinfocenter.com/community/topic/319164-how-i-beat-capital-one-triumphs-and-tragedies/

[Clydesmom]

3 minutes ago, RyanEX said:

Here are links to 2 of HotWheels96's threads (though they are both about the same Capitol 1 suit):

It should also be noted that this was SIX years ago at the tail end of the recession.  It was a lot easier to beat OCs and JDBs back then.  Much has changed and it is not so easy these days.

[RyanEX]

53 minutes ago, Clydesmom said:

It should also be noted that this was SIX years ago at the tail end of the recession.  It was a lot easier to beat OCs and JDBs back then.  Much has changed and it is not so easy these days.

Only if OC's are now more likely to produce a witness. JDBs, in CA, have it just as hard now as they did then.. CA code has not changed - we can still get evidence tossed if a witness is not produced. I'll need to search for more recent threads when I have some time.

[BV80]

14 minutes ago, Clydesmom said:

It should also be noted that this was SIX years ago at the tail end of the recession.  It was a lot easier to beat OCs and JDBs back then.  Much has changed and it is not so easy these days.

Whether SIX years ago or today, CCP 98 prevails.   See Target National Bank v. Rocha and Meza v. Portfolio Recovery Associates.

[phoenix02]

Thanks everyone! I decided to wait to file my response until I heard back some more from this group. I'm heading down on Thursday to file. Is my best bet just a general denial without any noted affirmative defenses? I don't want to acknowledge anything unnecessarily- I did have an account with the plaintiff, but as they did not note any account info or anything, as I see it I have nothing to go by to agree with anything in the complaint other than my name being right. Is the GD the right way to go as I am thinking? I don't want to be splitting hairs too much or not acknowledging something that would get me on the bad side of the judge or the law.

[phoenix02]

Well, I filed and served the general denial and a Demand for BOP. Got a trial setting date on Oct 8th. Seems kinda soon, doesn't it?

Anyway, back to the grind- going to wait to see what the BOP comes back with and figure it out from there.

[phoenix02]

Well, that was fast. I just received special interrogatories, set one, requests for Admission, set one, and demand for production of documents, set one- 35 days to respond. 

 

No response to the BOP request. Researching now- wonder if I should respond asap so I can deny pretty much everything bas3d on not enough information known due to a lack of response on my BOP request. I have no paperwork to materially fully admit or deny their interrogatories and have received nothing as of yet. If I wait to get the BOP, I have to pretty much admit to everything and the case is closed, right? If they produce all the documentation, I can't under oath deny  it all, but until I get it in my hands, I have nothing material to prove or disprove anything they allege or ask.

 

Am I on the right track here?