McLawless

Help with COBA suit.

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Been working on my case on my own based on the knowledge shared from all you experts from the forum, but now I'd like to share details just to see if I'm missing any potential attack angles here:

1. Who is the named plaintiff in the suit? Capital One Bank (N.A.)

2. What is the name of the law firm handling the suit? Moss Law Firm

3. How much are you being sued for?  $12k

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

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? Texas, Yes.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Harris, TX

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2018, not outside of SOL.

11. When did you open the account? 2014

12. What is the SOL on the debt? To find out: 4 years I believe.

13. What is the status of your case? Set for trial,  rescheduled 3 times.

Suit served? Yes. Currently with Order to Mediation non-DRC, I have not not responded to this yet.

Motions filed? I filed 1 motion for continuance, and Motion for Discovery. No MSJ yet from either party.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Not yet.

15. Did you request debt validation before the suit was filed? Note: No

16. How long do you have to respond to the suit? Answered within 15 day time frame including answers to their Discovery requests, also filed my own Motion for Discovery to the Court, which they already answered partially and objecting to most of it.

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

- Affidavit from “Litigation Specialist” from Crap1’s  affiliate company, alleging “Personal Acquaintance with the facts” stated on the affidavit. Has my name on it and unlikely to be robosigned. Contract appears to be based on the back of the statements from 2016.

- Initial compliant had a couple statements, then submitted a couple months later separately into evidence full stack of bank statements (past 2yrs).

18.  How did you find out about this site? Have posted here before.

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Any help is appreciated, folks. Thanks in advance for your time.

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You have a few problems:  first you are being sued by an original creditor and Cap1 is one of the more aggressive ones. The defenses you read about on sites like this are based on being sued by a junk debt buyer.  Cap1 will have all the evidence they need to prove their case and does not need a live witness to attest to their own records.  2 years of statements is more than enough to show the account is yours and you defaulted.  Next is there are only two defenses to an OC suit:  identity theft and SOL; neither of which are available to you.  Last:  Cap1 removed arbitration from their card agreements over a decade ago so that is not an option.  You will have to defend the suit.  

You can see if there are some angles to pursue through the Texas Finance Code.  For the amount they are seeking ($12k) they will be tough negotiators when it comes to settling before trial.  Since TX is very debtor friendly and they cannot garnish wages if they do get a judgment you can take steps to live unbanked until you can settle the judgment. If you have a lot of other debts a conversation with a couple of BK attorneys might be in order as well.

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