Sued by Capital One in CA. Don’t know what to do.

[Unnamed]

I’m not sure what to do. I’m not employed and don’t have funds to settle. I filed a general denial with affirmative defenses. My case management conference is imminent but I haven’t filed a statement (nor have they as far as I know).

– Is it ever too late to file a case management statement? What do I put in it? What about the duty to meet & confer (I haven’t done that)?

– Should I try to compel arbitration? My account was opened before the arbitration clause went away, I believe.

– I’m unemployed and have no funds. Am I uncollectable? Can I get them to see that?

I’m grateful for anyone’s help. Thanks.

 

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

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

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

3. How much are you being sued for?  $10-25K

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

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 & mailed

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  Received letter from N&K authorizing lawsuit. I have not contacted them.

9. What state and county do you live in?  CA (county withheld)

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  Less than 4 yrs ago

11. When did you open the account (looking to establish what card agreement may be applicable)? Before arbitration was removed from cardholder agreement

12. What is the SOL on the debt? To find out:  4 yrs in CA, unless VA choice of law applies from agreement

Statute of Limitations on Debts

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, general denial filed with affirmative defenses, case management conference soon, no motions filed.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  No

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’). No

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?  A single Cause of Action — Common Counts alleging indebted “on an open book account for money due” and “because an account was stated in writing.” I’ve already responded with a general denial with affirmative defenses.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  Nothing. Only a verification statement from the lawyer.

18. How did you find out about this site?  Google

36. Read these two links:

Using Arbitration To Defend A Debt Collection Lawsuit

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

[BV80]

@Unnamed

Since you are in CA, are you being sued in limited civil court?  If so, take advantage of CCP 96 and CCP 98.  CCP 96 tells you that the plaintiff has to send you certain information before a trial.  The plaintiff must provide a witness at trial in order to authenticate business records.  Or, they can use an affidavit in lieu of live testimony by following CCP 96.

CCP 98 is a help to you.   If the plaintiff wants to use an affidavit in lieu of a live witness, you follow CCP 98.  You can send a subpoena requiring attendance in court of the affiant who signed the affidavit.  The plaintiff must have provided an address within 150 miles of the courthouse at which the affiant will be available to be served the subpoena.  The affiant must be at that location within 20 days before a trial.  If the affiant is not present to be served at that location, the affidavit signed by the affiant will not be admissible in court.  If the defendant follows that rule to a “t”, and sends a subpoena to the affiant, the affiant must be at court for the trial.  Without that affiant in court, the plaintiff is pretty much out of luck.

Search posts by calawyer and @RyanEX on the subject.  Note that most posts are regarding JDBs, not original creditors, but the rule does apply to original creditors.  When an affiant lives out of state, most JDBs dismiss lawsuits in CA when defendants use that rule because they don’t want to spend the money for transportation and lodging to get the affiant to a location within 150 miles of the court.  However, original creditors are more willing to spend the money to make sure an out-of-state affiant is available.  But who knows?  It’s worth a try. 

Here is CCP 98(a).  It says that a party’s affidavit will be admissible at trial if…

(a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

Also, read the ruling of the CA Supreme Court about CCP 98 in Meza v. Portfolio Recovery.

https://scholar.google.com/scholar_case?case=10912338867560789346&q=“Meza+v.+Portfolio”&hl=en&as_sdt=4,104

 

[Unnamed]

@BV80

Thanks for the detailed answer. I read a bunch of posts as you suggested. Seems like a big topic is whether to force arbitration or stay in court with CCP 96 and 98 on my side. This is an OC, and the lawsuit amount is large ($10-25K), so not sure arbitration is a good idea. The cause of action is for common counts "on an open book account for money due" and "because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff." I'm not sure what those mean and how do I defend against them.

My CMC is tomorrow morning. I quickly put together a case management statement, had an adult serve a copy to N&K via mail, and hurried to the courthouse to file it. I realize it's super late but I haven't seen anything from N&K. The statement doesn't say much, since we haven't done much nor conferred. I'm worried what the judge might say about filing the statement so late or ask about the case, since I don't know what I'm doing.

What's my next step? Discovery? Is that what I tell the judge? What should I ask for?

I read that sometimes lawyers don't show up. What should I do if that happens? Should I ask to dismiss?

Thanks again.

[BV80]

6 hours ago, Unnamed said:

@BV80

Thanks for the detailed answer. I read a bunch of posts as you suggested. Seems like a big topic is whether to force arbitration or stay in court with CCP 96 and 98 on my side. This is an OC, and the lawsuit amount is large ($10-25K), so not sure arbitration is a good idea. The cause of action is for common counts "on an open book account for money due" and "because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff." I'm not sure what those mean and how do I defend against them.

My CMC is tomorrow morning. I quickly put together a case management statement, had an adult serve a copy to N&K via mail, and hurried to the courthouse to file it. I realize it's super late but I haven't seen anything from N&K. The statement doesn't say much, since we haven't done much nor conferred. I'm worried what the judge might say about filing the statement so late or ask about the case, since I don't know what I'm doing.

What's my next step? Discovery? Is that what I tell the judge? What should I ask for?

I read that sometimes lawyers don't show up. What should I do if that happens? Should I ask to dismiss?

Thanks again.

I’m hoping @RyanEX will pop in.  That poster is from CA.  Until he shows up, just research CA posts for “discovery”.  If you haven’t seen this already, give it a read.  Hope it gives you some guidance.

https://www.courts.ca.gov/1064.htm?rdeLocaleAttr=en

[Unnamed]

So I had my CMC. The lawyer representing Cap1 was not from N&K and represented a few other creditors/debt collectors, too. The judge saw my case management statement but didn't see N&K's so he asked the lawyer what the status was. Didn't know. Also saw on "meet & confer" on my statement that I hadn't heard from N&K so the judge asked the lawyer why not? Didn't know. So then the judge asked me for my reaction. I wasn't sure, so I said I was willing to chat with N&K and the judge continued the CMC for another 3 months. Now I'm kind of kicking myself... was that an opportunity for me to ask for a dismissal?

Interestingly, later that afternoon, I received their case management statement in the mail, but it was dated before the CMC. Guess it didn't make it in time?

So now I have another 3 months. Should I try to reach out to N&K? The pandemic was rough on me -- became unemployed, on public assistance, have no assets, no savings, no property. Should I talk to N&K about my situation? Not sure how to do that without admitting anything about the debt. And should I request anything formally from N&K? I read about asking for a BOP, so is that next? Or do I wait for them to reach out to me?

Hoping that some of folks familiar with California and recommended by others (@RyanEX) can help. I'm already learning a lot just by reading others' experiences. What a great site and group of people you are.

Thanks.

 

[Bulldoger]

13 hours ago, Unnamed said:

Now I'm kind of kicking myself... was that an opportunity for me to ask for a dismissal?

You can always ask for dismissal whether or not you get it is up to Judge. 😀