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Help with Capital One Case- Plaintiff proceeding 3 yrs later!!!


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I received a lawsuit from Capital 1 back in 2020 for a Credit card debt.  I filed my answer letter, went to discovery, then did a mandatory mediation and in the end decided we were going to go to court.  That was the last I heard of the case until May 2023 when the court sent myself and the plaintiff a "Notice of intent to dismiss for want of prosecution".  The plaintiff then filed for a motion to retain the case on the docket.  The deadline was June 23rd and I filed a motion to dismiss for want of prosecution before the deadline.  However, it looks as though the judge granted the request to retain the case on the docket before I had even filed said motion.  Bench Trial is set for Mon the 25th.  I am really leaning on rule Tex. R. Jud. Admin. 6.1 subsection 2 of subsection a :

  1. (a) Civil Cases Other Than Family Law.

    1. (1)Civil Jury Cases. Within 18 months from appearance date.

      (2)Civil Nonjury Cases. Within 12 months from appearance date.”   

Furthermore, they don't have the full chain of custody.  This will be my first time representing myself in a bench trial.  Any advice or anything would be so greatly appreciated.  Thank you so much

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11 hours ago, Monolithic Cheesecake said:

I received a lawsuit from Capital 1 back in 2020 for a Credit card debt.  I filed my answer letter, went to discovery, then did a mandatory mediation and in the end decided we were going to go to court.  That was the last I heard of the case until May 2023 when the court sent myself and the plaintiff a "Notice of intent to dismiss for want of prosecution".  The plaintiff then filed for a motion to retain the case on the docket.  The deadline was June 23rd and I filed a motion to dismiss for want of prosecution before the deadline.  However, it looks as though the judge granted the request to retain the case on the docket before I had even filed said motion.  Bench Trial is set for Mon the 25th.  I am really leaning on rule Tex. R. Jud. Admin. 6.1 subsection 2 of subsection a :

  1. (a) Civil Cases Other Than Family Law.

    1. (1)Civil Jury Cases. Within 18 months from appearance date.

      (2)Civil Nonjury Cases. Within 12 months from appearance date.”   

Furthermore, they don't have the full chain of custody.  This will be my first time representing myself in a bench trial.  Any advice or anything would be so greatly appreciated.  Thank you so much

Is Capital One the plaintiff?

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47 minutes ago, Monolithic Cheesecake said:

Do you think I would be able to mount a defense on the fact that it's been 3 yrs since they've done anything with the case? 

That would be a laches defense.  It is the legal term for waiting way to long to pursue the case.  You will need to have some Texas case law supporting your defense to counter their claims they did not.  

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1 hour ago, Clydesmom said:

That would be a laches defense.  It is the legal term for waiting way to long to pursue the case.  You will need to have some Texas case law supporting your defense to counter their claims they did not.  

That's good stuff.  Thank you.  My main hurtle now is trying to find reasonable ways their delay has caused me prejudice.  Do you think I could bring up the fact that this delay has caused additional unnecessary damage to my credit, or to my obtaining a loan?  An unreasonable amount of stress brought on by a case I thought was finished?  

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17 hours ago, Monolithic Cheesecake said:

Bench Trial is set for Mon the 25th.

Not much you can do to as they are the Original Creditor so you can't use hearsay defenses. In three months since they revived case did you try to settled?  I personally would try for a settlement even if it has a stipulated judgement.  At least then you can avoid a judgement on your credit reports. See if you can gat a moment to speak with attorney before case is hear to settle' 

 

5 minutes ago, Monolithic Cheesecake said:

That's good stuff.  Thank you.  My main hurtle now is trying to find reasonable ways their delay has caused me prejudice.  Do you think I could bring up the fact that this delay has caused additional unnecessary damage to my credit, or to my obtaining a loan?  An unreasonable amount of stress brought on by a case I thought was finished?  

caused additional unnecessary damage to my credit  (how did this happen no judgement has been granted yet )  You credit will suffer if a Judgement is entered. 

An unreasonable amount of stress brought on by a case I thought was finished.  (what you thought was the status of the case doesn't matter) 

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1 minute ago, Bulldoger said:

Not much you can do to as they are the Original Creditor so you can't use hearsay defenses. In three months since they revived case did you try to settled?  I personally would try for a settlement even if it has a stipulated judgement.  At least then you can avoid a judgement on your credit reports. See if you can a moment to speak with attorney before case is hear to settle' 

 

caused additional unnecessary damage to my credit  (how did this happen no judgement has been granted yet )  You credit will suffer if a Judgement is entered. 

An unreasonable amount of stress brought on by a case I thought was finished.  (what you thought was the status of the case doesn't matter) 

I'm sorry- I'm clutching at straws here.  So in all honesty; do you think the fact that they've taken this long to move forward can be used to as a successful defense?  Cause really; that's all I've got goin for me here.  Any suggestions?

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4 hours ago, Monolithic Cheesecake said:

I'm sorry- I'm clutching at straws here.  So in all honesty; do you think the fact that they've taken this long to move forward can be used to as a successful defense?  Cause really; that's all I've got goin for me here.  Any suggestions?

2020 was when COVID-19 went crazy.  Yeah 2.5 -3 years may be what the going time to dismiss for want of prosecution. 

    Did you keep what they provided in discovery? Did it include all the statements from initial 0.0 balance to last balance.  If so that is  all the Judge needs to see to issue judgement.  If not that maybe a way you can attack the amount owed.   Are you being sued for breach of contract or amount stated. 

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A "Notice of intent to dismiss for want of prosecution" is sent to let the Plaintiff know the case will be dismissed if no further action is taken by a certain date.  In order for the court to keep the case active, I believe the Plaintiff needs to show good cause.  Did Capital One provide any explanation for why there's been no activity for all this time?  That may have been something you could have challenged.

You've known all these years that this case was pending, so the passage of time hasn't prejudiced you.  If anything, you've had additional time to review the discovery and work on your defense.

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17 hours ago, Bulldoger said:

2020 was when COVID-19 went crazy.  Yeah 2.5 -3 years may be what the going time to dismiss for want of prosecution. 

    Did you keep what they provided in discovery? Did it include all the statements from initial 0.0 balance to last balance.  If so that is  all the Judge needs to see to issue judgement.  If not that maybe a way you can attack the amount owed.   Are you being sued for breach of contract or amount stated. 

Yes, I have the statements they presented in discovery and no, they do not have all the statements from a 0 balance.  In fact they are missing the first full year of statements.  I'm being sued for defaulting on my payments, or not paying it off.

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15 hours ago, LaneBlane said:

A "Notice of intent to dismiss for want of prosecution" is sent to let the Plaintiff know the case will be dismissed if no further action is taken by a certain date.  In order for the court to keep the case active, I believe the Plaintiff needs to show good cause.  Did Capital One provide any explanation for why there's been no activity for all this time?  That may have been something you could have challenged.

You've known all these years that this case was pending, so the passage of time hasn't prejudiced you.  If anything, you've had additional time to review the discovery and work on your defense.

No, in their request to keep the docket open they gave no good cause.  Which is why I was so surprised that the judge allowed it before the date provided or even before I could file my own motion for dismissal.  That is what I mainly plan on challenging, but I'm just not sure how to go about it.  There is no reason for them to have waited all this time

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On 9/22/2023 at 7:04 PM, Bulldoger said:

2020 was when COVID-19 went crazy.  Yeah 2.5 -3 years may be what the going time to dismiss for want of prosecution. 

    Did you keep what they provided in discovery? Did it include all the statements from initial 0.0 balance to last balance.  If so that is  all the Judge needs to see to issue judgement.  If not that maybe a way you can attack the amount owed.   Are you being sued for breach of contract or amount stated. 

Looking over the paperwork I Am being sued for breach of contract.  Does anyone know how that will affect my case?

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I have defeated a suit based on lack of prosecution, but that was with lawyer. The plaintiff countered with arguments from the wrong court, so we won. I would certainly see what I could find on viable reasons for delaying that long. As mentioned, that was at the beginning of the 'Vid, so that they may be granting plaintiffs large leeway.

 

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