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Ohio, More Definitive Statement, Capital One


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Hi All,

This is my first summons so I can use a little help. I have been reading over a lot of your discussions and have drafted an answer to the complaint. It is a motion for a more definitive statement. I’m not sure if I set it up correctly and would love a second set of eyes. Also, is this the right way to go, in a general sense.

Thanks,

Steve

MOTION FOR A MORE DEFINITE STATEMENT OR DISMISSAL OF COMPLAINT

Comes now the Defendant, Steven Borawski, and files this Motion for a More Definite Statement, pursuant to Civil Rule 12(E), or a dismissal of Plaintiff’s complaint as follows:

 

1.         DENY  The complaint filed by the Plaintiff is insufficient as a matter of law. Pursuant to Rule 10(D) of the Ohio Rules of Civil Procedure, when any claim is founded on an account or other written instrument, a copy thereof must be attached to the pleading. Defendant contends that Plaintiff’s complaint is insufficient since a proper statement of account was not attached to the complaint. There is insufficient information to differentiate this account from my father’s account with the same name.

2.         DENY  Paragraph 2 of Plaintiff’s complaint states “By use of the account, the Defendant became bound by the terms in the agreement. A copy of the STATEMENT is attached as exhibit A”.

Defendant again sites Rule 10(D) of the Ohio Rules of Civil Procedure. Various appellate courts have interpreted Rule 10 (D) in cases involving collection of credit card debts. In Brown v. Columbus Stamping and Manufacturing Co (1967), 9 Ohio App2d 123, 38 O.O.2d 143, 223 N.E. 2d 373, that Court of Appeals set forth what is required for an account to be in compliance with Rule 10(D). An account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due. (Id at 126) The Third District Court of Appeals has affirmed Rule 10(D) requirements that a copy of the account be attached, and also the Brown requirements of what an account must show. [see Parsell v. Martinez, Henry Co App No 7-07-16, 2008-Ohio-1008 ¶ 8; The Marysville Newspapers, Inc. v. The Delaware Gazette Co., Inc., Union Co. App No 14-06-34, 2007-Ohio-4365 ¶ 26.]. Plaintiff‘s Exhibit A does not satisfy the Brown requirements because Exhibit A does not state a beginning balance starting at zero, nor does it reflect the item(s), dates, charges, debits, credits, or a summarization which permits the calculation of the amount claimed to be due.

3.         DENY Paragraph 3 of Plaintiff’s complaint states “The Plaintiff has exercised its rights pursuant to the terms of said Agreement to accelerate the time for payment of the entire balance due and owing by the Defendant to the Plaintiff". Defendant contends that Plaintiff’s failure to provide a copy of said Agreement is in violation of Rule 10(D) of the Ohio Rules of Civil Procedure.

4.         DENY Defendant lacks sufficient information or knowledge about the truth and accuracy of the allegations in Paragraph 4, and therefore denies allegations contained in Paragraph 4. Plaintiff‘s Exhibit A does not satisfy the Brown requirements because Exhibit A does not state a beginning balance starting at zero, nor does it reflect the item(s), dates, charges, debits, credits, or a summarization which permits the calculation of the amount claimed to be due.

5.         DENY Defendant lacks sufficient information or knowledge about the truth and accuracy of the allegations in Paragraph 5, and therefore denies allegations contained in Paragraph 5.

6.         AGREE

 

WHEREFORE, Defendant, Steven Borawski, respectfully submits that the Court should grant the defendant’s Motion for a More Definite Statement or deny the Plaintiff's Complaint, filed herein by CAPITAL ONE BANK. and dismiss the complaint by the Plaintiff for damages of $4981.20.

 

 

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.) 

Weltman, Weinberg, & Reis

3. How much are you being sued for? 

4981.20

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

CAPITAL ONE BANK (USA), N.A

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

I was served

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

At my front door

7. Was the service legal as required by your state? 

I have to answer the summons

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

I've had no contact with the debt collector. I don't answer my phone.

9. What state and county do you live in? 

Seneca County, Ohio

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

March 2019

11. What is the SOL on the debt? 

I don't know what that means.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). 

Just got my Summons

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) 
As of yet no.


14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. 

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

 

28 day to reply

1. The Defendant applied for a Credit Card account with the Plaintiff.

2. By use of the account, the Defendant became bound by the terms in the Credit Card Agreement. Copy of the Statement and Agreement are attached hereto as Exhibits A and B

3. The Defendant defaulted under the terms of the Agreement. The Plaintiff has exercised its right pursuant to the terms of said Agreement to accelerate the time for payment of the entire balance due and owing by the Defendant to Plaintiff.

4. The Amount due and owing by the Defendant is $4,981.29.

5. Although demand has been made upon the Defendant to liquid the balance due and owing, the Defendant failed to do so.

6. Plaintiff does not seek an award of attorney fees, contractual or statutory interest after the date of charge off including any post judgment interest, and expressly disclaims any right it may have to the same.


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

They have the statements attached (no transactions in it) to the back of the packet and credit card agreement.

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17 minutes ago, Stevevil said:

There is insufficient information to differentiate this account from my father’s account with the same name.

So they attached a statement, though? 10(D) doesn't say what they attach has to positively identify you from someone else in your household with the same name. That will be settled at trial. 

27 minutes ago, Stevevil said:

Plaintiff‘s Exhibit A does not satisfy the Brown requirements because Exhibit A does not state a beginning balance starting at zero, nor does it reflect the item(s), dates, charges, debits, credits, or a summarization which permits the calculation of the amount claimed to be due.

It seems Brown is no longer the standard.

https://scholar.google.com/scholar_case?case=9128992276154103762

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Since the plaintiff has all they need to prove their case, it seems that a Motion for a More Definite Statement will merely act as a reminder for them to provide the court with an avalanche of supporting documentation. Unfortunately,  the best you can hope for against an original creditor is some kind of settlement.

 

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Okay, good to know. So I have a few questions on what to do next. 

How should I answer the summons? Just go with a Agree with all or Deny all? Should I call the law office who sent the summons? Is there maybe another option. 

Also, thanks so much for the fast replies.

Steve

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16 minutes ago, Stevevil said:

Is there maybe another option. 

Bankruptcy if you qualify.  Unfortunately Cap1 removed arbitration from their card agreement over a decade ago.  They are one of the top 3 aggressive OCs in suit as evidenced by filing against you under a year from default and only 3 months from charge off.

18 minutes ago, Stevevil said:

How should I answer the summons? Just go with a Agree with all or Deny all? 

You can deny everything and answer as planned just don't bank on it being the smoking gun to win the case.

19 minutes ago, Stevevil said:

Should I call the law office who sent the summons?

All settlement discussions will have to go through them now that suit has been filed.  They represent Cap1 and you have to communicate with Plaintiff's counsel.  You can settle any time before a verdict.  Get all terms in writing BEFORE paying.  

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