Being sued by Capital One, repesented by Nelson and Kennard. Questions regarding thier practices.....

[Willd323]

Good day,  

some info in regards to my suit, questions are listed at the bottom......

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

2. What is the name of the law firm handling the suit? Nelson & Kennard

3. How much are you being sued for? $3,297.51 (Debt validation letter response) $2,965.51 (listed on Court summons)

4. Who is the original creditor? Capital One

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

6. How were you served? (Mail, In person, Notice on door) via another person within my household

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None, I believe the suit derived from my 1st set of 609 letters sent to the big 3 to verify accounts.  

9. What state and county do you live in? Riverside County, CA

10. When is the last time you paid on this account? 9/01/2017 (credit bureau) 9/22/2017 (Nelson&Kennard)

11. What is the SOL on the debt? 4 yrs

12. What is the status of your case? Suit served? Motions filed?  Notice of Mandatory Settlement Conference and Trial Date set

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes

14. Did you request debt validation before the suit was filed? No, a letter was sent after suit and a CC statement was sent with a balance of $2,536.39 (6/10/2017) Card was opened in 10/19/2015

15. How long do you have to respond to the suit? Court date set

16. What evidence did they send with the summons? None that I'm aware of. I received a copy of the summons, civil case cover sheet, cert of counsel, complaint, cause of action, verification from N & K. 

 

Questions----- 

1. I honestly don't have any recollection of opening this CC that is trying to be collected. The card was opened at a previous address which I use for my mailing address (L.A. county) but I reside in (Riverside county)... is the correct venue for this suit, Riverside County or should it be held where the address listed for the card, which is L.A. county? 
2. Upon receiving the summons I responded with a debt verification letter and received a CC statement with a balance of 2,536.39 dated from 6/10/2017-5/10/2018 with 2 transactions listed between those dates. Is a credit card statement suitable as proof of debt when the balance isn't starting at $0? 
3. Among the items sent as proof of debt I received another persons Debt File Balance Sheet. Am I to notify a particular agency or the person of this privacy breach? Is this something I should report? 
4. Before responding to the summons I sent a Pay for deletion letter in the amount of $1,186.21, I'm pretty sure trying to repair my credit awakend the monster but if I can get this removed from my credit asap, I'm Ok with it. The Nelson & Kennard response to my pay for deletion letter was the same documents sent in response to my debt verification letter but only difference was another persons Debt File Balance Sheet wasn't included, instead two of my Debt File Balance Sheet were included. Is this N & K way of bombarding you with paper work and pretending they don't understand what I was offering?
5. Answer to the summons was filed on 6/21/21 and this week(7/7/21) I received a Request for entry of default with the Clerks Judgment check off dated 7/1/21 from the N & K office but it wasn't filed with the court, as the docs don't have the clerks stamp and it isn't listed in the Case summary. What am I to do with this piece of paper, Request for entry of default? There is also a different amount owed on the Entry of default in the amount of $3,267.51 which brings the grand total to 3 different amounts they are trying to collect. $2,965.51 (listed on Court summons) $3,297.51 (Debt validation letter response) $3,267.51 (listed on the Request for entry of judgment) Now with different amounts, I'm concerned I'm being scammed in to paying something I can't deny since my name and mailing address are on the statements. Is there another document I can request to verify the debt amount? 

Appreciate this forum and the info it provides. Any information in regards to this matter is appreciated. 

Thank you for your time. 

[Clydesmom]

1 hour ago, Willd323 said:

is the correct venue for this suit, Riverside County or should it be held where the address listed for the card, which is L.A. county? 

Yes.  The suit should be filed in the county you live in NOW not when you opened the account.

1 hour ago, Willd323 said:

Upon receiving the summons I responded with a debt verification letter and received a CC statement with a balance of 2,536.39 dated from 6/10/2017-5/10/2018 with 2 transactions listed between those dates. Is a credit card statement suitable as proof of debt when the balance isn't starting at $0?

They didn't have to respond to this at all.  Once they sue you sending a DV letter is absolutely pointless.  They are free to ignore it so what they did or didn't send is irrelevant.

1 hour ago, Willd323 said:

Before responding to the summons I sent a Pay for deletion letter in the amount of $1,186.21, I'm pretty sure trying to repair my credit awakend the monster but if I can get this removed from my credit asap, I'm Ok with it. The Nelson & Kennard response to my pay for deletion letter was the same documents sent in response to my debt verification letter but only difference was another persons Debt File Balance Sheet wasn't included, instead two of my Debt File Balance Sheet were included. Is this N & K way of bombarding you with paper work and pretending they don't understand what I was offering?

No.  You are being sued by an original creditor and a top 3 aggressive one in suing at that.  Original creditors rarely settle for one third the amount owed when the SOL for suit is very much alive and they can collect the balance, attorney fees, court costs and post judgment interest.

The defenses you read about on sites like this are based on being sued by a junk debt buyer not an original creditor.  Research the California threads.  There is a lot of information there you can use to defend this.

[BV80]

@Willd323

Let’s take this one step at a time.

Does the credit card statement show your name and the address at which you resided on the statement date?  If it does, are you sure you didn’t open that account?

In regard to debt validation, according to the FDCPA, a consumer’s right to debt validation is triggered only after receiving an initial communication (first communication) from a debt collector.  See 15 U.S. Code 1692g(a) of the FDCPA.  However, the FDCPA specifically excludes a summons and complaint as an initial communication.  Therefore, a summons and complaint does not trigger your right to request validation.  See 15 U.S. Code 1692g(d).  The law firm was not required to respond to your request.

 

 

 

[BackFromTheDebt]

You have some good advice so far. 
 

Realize that Cap 1 is very hard to beat.   

I beat them because I used Wisconsin laws which do not apply to most other states.  In my state, the consumer may demand an accounting back to zero balance certified by someone with first hand knowledge of the account.  Cap 1 sent the accounting certified by a “Litigation Support Specialist “.  I filed a motion to throw out the Cap 1 affidavit.  The judge agreed.  Cap 1 gave up on that case.  
 

I don’t know the California laws.  Others have beaten OCs using California laws.  Which is why @Clydesmom wisely advised you to look up the California threads.  You may learn something.  
 

The immediate point, of course, is determining whether this account really is yours.  Which is why you were advised to check the address on the one statement you were mailed.  
 

If this is not your account there is a good way to fight this in all 50 states.  It starts with filing a police report for identify theft and filing reports with various credit reporting agencies. Then a sworn affidavit to the court that the account isn’t yours  

It would be a crime to file a false police report or to file a perjured affidavit.   Only follow these steps if you honestly believe the account is not yours.   

 

 

 

 

 

[nobk4me]

Another option:  Cap One uses Virginia law, where the SOL is 3 years.  California has a borrowing statute, case law is Resurgence v. Chambers.  So the SOL expired Sept. 2020.

@Bulldoger is in Virginia; maybe he can help out here?