Dunning Received & Disputed - Next Steps? Capital One | Hunt & Henriques | California

[SWIM2071]

Good ole' Swim got a letter in the mail from Hunt & Henriques (H&H) recently....

 

The letter claims the amount owed to CapitalOne (CO) is ~$6,000.00.

Swim responds well within 30 days via Certified Mail Return Receipt Requested (CMRRR), with a simple request for validation. Something along the lines of...

"I dispute this. Validate. P.S. Don't call me."

H&H wastes no time and sends about a years worth of statements from the alleged CO account, which includes a page from CO that the account was charged off. That's it.

 

A few days later H&H sends their notice of intent to file suit:

Swim lives in Southern California, and already checked -- arbitration is out the window due to CO removing that clause.

From what Swim can tell, H&H didn't actually validate the debt, and the SOL is in effect for a few more years. Not sure is CO owns the account and H&H represent them -- or if H&H is a Junk Debt Buyer (JDB). And at this point does it make a difference?

Should Swim respond and further dispute the alleged debt? Or simply sit back, continue to read up on California threads on https://www.creditinfocenter.com to formulate a game plan, and wait for their next move (which is likely to be what?)?

Presumably, with COVID, H&H has collections up to their eyeballs, and Southern California courts are experiencing delays... it could be some time before this makes its way into a courthouse? Or is that wishful thinking?

Good ole' swim isn't an easy target, and isn't going to roll over. What's the best course of action to get a jump start to defend against this alleged debt, presuming H&H follows through on their intent to file suit?

Thanks!

~Swim

[Clydesmom]

1 hour ago, SWIM2071 said:

From what Swim can tell, H&H didn't actually validate the debt, and the SOL is in effect for a few more years.

You are wrong.  They not only validated but went above and beyond what they were required to do under Federal and California law.  

1 hour ago, SWIM2071 said:

Not sure is CO owns the account and H&H represent them -- or if H&H is a Junk Debt Buyer (JDB). And at this point does it make a difference?

it makes a difference in how the case is defended.  Cap1 has not sold the debt.  The letter from H&H tells you that.  H&H is a large national debt collection law firm not a JDB. They will sue you.

1 hour ago, SWIM2071 said:

Should Swim respond and further dispute the alleged debt?

There is no further dispute.  This is an original creditor and one of the top 3 aggressive litigating ones to collect money owed to them.  Worse they hired one of the most  aggressive law firms in the country to do it too.

1 hour ago, SWIM2071 said:

Or simply sit back, continue to read up on California threads on https://www.creditinfocenter.com to formulate a game plan, and wait for their next move (which is likely to be what?)?

Start reading up on ORIGINAL CREDITOR lawsuits in California and get ready because the next move will be a summons for the suit they will file.

1 hour ago, SWIM2071 said:

Presumably, with COVID, H&H has collections up to their eyeballs, and Southern California courts are experiencing delays... it could be some time before this makes its way into a courthouse? Or is that wishful thinking?

SoCal courts were backed up long before covid.  It takes 2-3 years to get to trial without covid.  Plenty of time for you to research what you need to do.

 

[BV80]

11 hours ago, SWIM2071 said:

Good ole' Swim got a letter in the mail from Hunt & Henriques (H&H) recently....

 

The letter claims the amount owed to CapitalOne (CO) is ~$6,000.00.

Swim responds well within 30 days via Certified Mail Return Receipt Requested (CMRRR), with a simple request for validation. Something along the lines of...

"I dispute this. Validate. P.S. Don't call me."

H&H wastes no time and sends about a years worth of statements from the alleged CO account, which includes a page from CO that the account was charged off. That's it.

 

A few days later H&H sends their notice of intent to file suit:

Swim lives in Southern California, and already checked -- arbitration is out the window due to CO removing that clause.

From what Swim can tell, H&H didn't actually validate the debt, and the SOL is in effect for a few more years. Not sure is CO owns the account and H&H represent them -- or if H&H is a Junk Debt Buyer (JDB). And at this point does it make a difference?

Should Swim respond and further dispute the alleged debt? Or simply sit back, continue to read up on California threads on https://www.creditinfocenter.com to formulate a game plan, and wait for their next move (which is likely to be what?)?

Presumably, with COVID, H&H has collections up to their eyeballs, and Southern California courts are experiencing delays... it could be some time before this makes its way into a courthouse? Or is that wishful thinking?

Good ole' swim isn't an easy target, and isn't going to roll over. What's the best course of action to get a jump start to defend against this alleged debt, presuming H&H follows through on their intent to file suit?

Thanks!

~Swim

How did they not sufficiently validate the debt?  What do you believe they are required to provide?

In order to determine if Cap1 still owns the account, check your credit report.  When an original creditor is reporting an account to the credit reporting agencies then sells the account, it is required to update the balance owed to $0.  That is because the balance is no longer owed to the original creditor.  It is owed to the new owner of the account. 

If Cap1’s entry still shows a balance owed, then it still owns the account and is owed the balance.

[nobk4me]

CA is one of the few states where the procedures favor the consumer, from what I've read.  @RyanEX may have some advice?

[SWIM2071]

Good 'ole Swim received a visit the other day form an uninvited guest and they dropped off a summons. 

 

 

1. Who is the named plaintiff in the suit?

Capital One Bank

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

Hunt & Henriques

3. How much are you being sued for?

$ ~6k 

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

Capital One 

5. How do you know you are being sued? 

Served 

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

Served in person 

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?

Dunning received, request for verification sent, ~12 months statements received along with an intent to file suit

9. What state and county do you live in? 

San Diego, CA

10. When is the last time you paid on this account? 

Within Statue of Limitations

11. When did you open the account (looking to establish what card agreement may be applicable)?

2016

12. What is the SOL on the debt?  

4 years 

13. 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).

Suit Served

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

Yes

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').

Yes

16. 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?

30 days after the summons

The action is a limited Civil Case, does not exceed $10,000 The cause of Action complaint with 4 common counts:

Plaintiff alleges the defendant became indebted to the plaintiff

1. A. Within the last four years
   1. on an open book account for money due
   2. because an account was stated in writing and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff. 
2. Within the last 4 years
   1. for money lent by plaintiff to defendant at defendant's request
   2. for money paid, laid out, and expended to or for defendant's special interest and request. 

In the civil case cover sheet the case type is a Contract - Rule 3.740 collections (09). 

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

No additional evidence provided. 

===

 

My next step is to draft a general denial. My question is, how should I approach the general denial. I've searched the forums here, while there's examples of a lot of other forms and templates, I haven't see any examples of a general denial. Some threads suggest adding all of the affirmative defenses one can, while others suggest to keep it simple.

Can I just send a general denial based on the complaint isn't verified? Should I include separate affirmative defenses as well (such as Failure to State a Cause of Action or ambiguity) or will that cut it?

Next should I send a Bill of Particulars (BOP), requesting all items of the case?

@RyanEX I see you're in SD, any insight would be much appreciated.  

Thanks!

~Swim

[RyanEX]

Hey swim. You can send a BOP right away. It's not required, but it makes them work and is sometimes useful further along in the process.

You can use the downloadable GD if your complaint is not verified. Here: PLD-050. Once you fill in case info, you just need to put your name on line 1, sign & date, and that takes care of the denial.

If you want to include an affirmative defense, you can check box 2 and fill in - but the only affirmative defense I understand to be useful is the SOL, which you mentioned above does not apply.

You'll want to include a proof of service with the BOP and/or GD. Here: POS-030. Certified mail is recommending for the BOP, but isn't necessary for the GD.

 

You are dealing with an original creditor rather than a junk debt buyer. Technically speaking, an OC should have a better shot at proving it's case than a JDB does, but I have yet to see that happen with a CA member on this board. CA has very favorable rules for defendants in these cases. You can read up the following thread for a rundown on how a defense is executed & why we typically have the advantage. It's an old thread but still applies.

https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

[SWIM2071]

Ryan, thank you for the input. 

Regarding the POS, do I include those in the mailings themselves?

Should I also be e-filing everything I'm sending to the attorney. Do I need to e-file the GD as well?

Thanks!

[magali]

On 9/15/2021 at 8:09 PM, RyanEX said:

Hey swim. You can send a BOP right away. It's not required, but it makes them work and is sometimes useful further along in the process.

You can use the downloadable GD if your complaint is not verified. Here: PLD-050. Once you fill in case info, you just need to put your name on line 1, sign & date, and that takes care of the denial.

If you want to include an affirmative defense, you can check box 2 and fill in - but the only affirmative defense I understand to be useful is the SOL, which you mentioned above does not apply.

You'll want to include a proof of service with the BOP and/or GD. Here: POS-030. Certified mail is recommending for the BOP, but isn't necessary for the GD.

 

You are dealing with an original creditor rather than a junk debt buyer. Technically speaking, an OC should have a better shot at proving it's case than a JDB does, but I have yet to see that happen with a CA member on this board. CA has very favorable rules for defendants in these cases. You can read up the following thread for a rundown on how a defense is executed & why we typically have the advantage. It's an old thread but still applies.

https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

 

Can the form PLD-050 be used when it is a debt collector and the debt is 7k? or only the PLD-C-010?