Thread: Capital One Lawsuit

Hello,

I"m currently being sued by Capital One by a law firm in Michigan. On Tuesday I will have a hearing on a motion I filed for Insufficiency of Service Process. Should I lose I will then need to file my answer to the complaint. The complaint states two causes of action 1) Breach of Contract and 2) Account States.

The complaint failed to list the date of my last payment to establish the SOL. It's within the Michigan SOL. It came with an Affidavit from a Litigation Support Representative (authorized agent of Cap One) stating that I had an account and what my balance was at the time of the Affidavit. In addition it contained a copy of a statement when my last payment was made, a "Capital One Cycle Facsimile Report", and a Customer Agreement copyright 2005 (I originally signed up in 1999).

I'm getting ready to draft my answer to the claim and would like some advice.

Bill Bauer I have read some of your posts on how Cap One most likely isn't the suing party even though their name is listed. Isn't it fraud for a law firm to file a suit in Capital One's name if Cap One didn't hire them. Sounds like an opportunity to go on the offensive and file a RICO suit. Thoughts?

One thing I noticed on the Customer Agreement is the following:
"Governing Law. WE MAKE THE DECISION TO GRANT CREDIT , OPEN AN ACCOUNT AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be constructed in accordance with and governed by the laws of the United States of American and by the internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect."

I signed the agreement in 1999 while a Virginia resident. Could I get it thrown out of the MI court for Virginia jurisdiction where it would be over the 3 yr SOL?




Thanks,
Chad

Originally Posted by datadink

The complaint failed to list the date of my last payment to establish the SOL. It's within the Michigan SOL. It came with an Affidavit from a Litigation Support Representative (authorized agent of Cap One) stating that I had an account and what my balance was at the time of the Affidavit.

This is interesting. Can you provide me with a copy of that affidavit? It could prove to be quite valuable but it is going to be necessary to see all of it very clearly so I can make out all the little fine details. When I need to get that kind of details I use a 1200 DPI setting on my scanner. That is a setting I don't normally use on documents because it uses too much ink. You may not have the ability to adjust that setting unless you go into your control panel, click on the icon for scanners and cameras and use the resulting wizard. Then it is easy to adjust your DPI and type of picture settings. Don't use the color setting because that makes the background a shadow which obscures detail instead of enhancing it. You can't upload or show it here so you will need to go to Google Docs and set up an account then upload it to your docs and send me a link to it via P.M. You will want to use Microsoft Paint to paint out the personal details. such as your name and case number before you upload it to me. I don't need any of your personal info. The reason I need it is because there is an excellent chance that the affidavit can be used to beat the case but I'll have to see it in order to be able to tell you whether it is a phony or not. If you can't block out the personal information I'll download it and do it for you and then you can simply delete it from the google docs site you set up.

I'm getting ready to draft my answer to the claim and would like some advice.

Bill Bauer I have read some of your posts on how Cap One most likely isn't the suing party even though their name is listed. Isn't it fraud for a law firm to file a suit in Capital One's name if Cap One didn't hire them.

No, that isn't a fraud and even if it were you would not be the real victim.

Sounds like an opportunity to go on the offensive and file a RICO suit. Thoughts?

I don't think you would get anywhere with that.

One thing I noticed on the Customer Agreement is the following:
Governing Law. WE MAKE THE DECISION TO GRANT CREDIT , OPEN AN ACCOUNT AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be constructed in accordance with and governed by the laws of the United States of American and by the internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect.

That's worded a bit differently than most I've seen.

I signed the agreement in 1999 while a Virginia resident. Could I get it thrown out of the MI court for Virginia jurisdiction where it would be over the 3 yr SOL?

Not a chance. You wouldn't want that to happen even if you could get a judge to go along with you. The MI court has jurisdiction because you are a resident of MI and not of Virginia. On top of that, if you were successful they could then sue you in VA and you would have to travel there or get a default judgment against you which could then easily be domesticated into MI for collection and then you really would be in a world of hurt. You might be able to use the VA statute of limitations argument but in order to do so you would have to know how to argue it and I can see that you don't.

The first thing you would need after you learned how to present the argument is some relevant case law dealing with that issue. It is possible that FDCPAEXPERT.COM might have some references to such cases but I tend to doubt that it does. That site has been up for quite a long time now and while it can be quite good for research purposes it is still lacking in some areas.

I just started a similar project in my google docs pages but dealing with the 50 U.S. Codes. It too is a work I will never get completely done with because of the complexity of it and the fact that I'm only interested in the sections dealing with consumer protection but when I get done each of the 50 titles will at least have a small RSS fed headline rotator beside each of the 50 links so a student can watch the rotator and as new topics come along the student can click on the rotator and be taken to whatever place that discussion is taking place. Doing the research to complete the research will take a long time because I intend to include all of the applicable laws within the 4 corners of Title 15.

In order to understand the complexity one must first understand how the 50 codes have been constructed over the years as new law is written and applied. The titles themselves are never changed nor added to. As new acts are introduced into law multiple titles and sections might be affected so there has to be a way to keep up with those changes and see how they might apply to the various Titles. FDCPA is contained (for the most part) within Title 15 but other Acts are also referenced in section 1692. What those other acts are can be important in any given situation but most FDCPA students tend to ignore that fact.

Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 also lies within the 4 corners of Title 15. The Fair and Accurate credit transactions act also falls in that same category. So does TILA, FBA, Grahm, Leach, Blighley, FACTA and ect. Any of those acts might be amended at any time and old law is often superceded by new law and melded into one or more of the 50 titles.

Those who do not understand how that works often come up with some really dumb intrepretations. An example of that is HJR 192 which was repealed and replaced by Title 31 § 5118. According to the fringe lunatics when HJR 192 was repealed that act took us off the gold standard and left us with no way to pay our debts since gold and silver are the only legal currency according to the Constitution. Since we no longer have any legal currency we have no way to pay our debts and therefore can't be held responsible for them. (LOL) It just gets crazier and crazier from there. Try that argument and see how far you get.(LOL)

From what you have said in your post here it looks to me like you need some serious help in getting your act together. Maybe if you will upload that affidavit as I suggested we might accidentally find an escape route for you. No promises, but just maybe.

Bill,

Thanks for your reply. Here is the link to my documents. I've posted the Complaint, Affidavit, and Customer Agreement.

Looks like I haven't been a member long enough to post a link. Please add an H to the beginning of this url and paste into your browser.

ttp://docs.google.com/leaf?id=0B2j2IPY9zBEyMjc5YjkyOTAtY2Y1YS00M2VjLTk4NjEtN2E0MTRhYTIzZGY4&hl=en

Originally Posted by datadink

Bill,

Thanks for your reply. Here is the link to my documents. I've posted the Complaint, Affidavit, and Customer Agreement.

Looks like I haven't been a member long enough to post a link. Please add an H to the beginning of this url and paste into your browser.

ttp://docs.google.com/leaf?id=0B2j2IPY9zBEyMjc5YjkyOTAtY2Y1YS00M2VjLTk4NjEtN2E0MTRhYTIzZGY4&hl=en

Sorry but the link don't work even putting the h in front of it. I didn't take it from the post but from the email that notified me you had posted so it was all in one nice straight line and not cut in two as above. I'll bet you forgot to share it properly so it might be that is why it don't show up. You have to set the sharing.

Bill,

Watch your email for and invite.

Thanks,

Chad

Originally Posted by datadink

The complaint failed to list the date of my last payment to establish the SOL.

The complaint doesn't need to include this.

It's within the Michigan SOL.

Can they quote you on that?

It came with an Affidavit from a Litigation Support Representative (authorized agent of Cap One) stating that I had an account and what my balance was at the time of the Affidavit. In addition it contained a copy of a statement when my last payment was made, a "Capital One Cycle Facsimile Report", and a Customer Agreement copyright 2005 (I originally signed up in 1999).

If this is from Cap One, it would seem to be a simple business record. Someone from the company can testify to the authenticity of a business record.

I signed the agreement in 1999 while a Virginia resident. Could I get it thrown out of the MI court for Virginia jurisdiction where it would be over the 3 yr SOL?

When did you last pay? When did you live in Virginia? This is complicated. Ha.

Originally Posted by Dumb Bob

The complaint doesn't need to include this.

I've probably never seen one yet that did. Not in the complaint at least.

If this is from Cap One, it would seem to be a simple business record.

I'd almost guarantee that it is authentic and comes directly from an actual Cap One employee.

Someone from the company can testify to the authenticity of a business record.

The chances of that happening are slim to none. Even if the defendant successfully compelled an appearance by the affiant it would only go worse for the defendant who was likely to get hung out to dry no matter what s/he did.

When did you last pay?

The only way that might make any difference is if the defendant can raise a SOL defense. In order to do that the defendant would either have to prove that his last payment was made more than 6 years ago or that the Michigan statute does not apply and try to argue that the shorter Virginia statute applies. That can be done but its not an easy task in most courts

When did you live in Virginia?

That might help prove the Virginia SOL had expired but s/he must first get the judge to go along with all the terms and conditions of the contract and not just the parts the plaintiff wants to enforce.

This is complicated. Ha.

What is complicated about it? Maybe I'm missing something here but it all seems pretty simple to me.

I was sorry to hear that the defendant failed to demand validation in a timely manner so has now lost that valuable tool. I don't know what s/he filed as a response to the complaint but whatever it was the chances that it was a viable response aren't all that great. However good or bad the response was, it would have been little more than a formality, an appearance which gave the defendant his/her window of opportunity to fight if indeed there was any viable opportunity to fight. Having failed to properly invoke timely demand for validation one of the most valuable options was lost before the fight ever started.

From what I can gather the defendant also failed to start the discovery process in a timely manner so probably has also lost the advantage there. There may still be some weapons left with which to fight if it has been more than 3 years between the time of the last payment plus 30 days or more and the time the case was filed and only if the defendant can successfully argue that the Virgina Statue applies rather than the Michigan Statute. The chances that such an argument might succeed are not great but the defendant has nothing to lose by making the attempt if the requirements to qualify are in place.

My thinking is that defendants should never allow a default judgment to occur even if they have zero chance of winning but the preparations for the fight should be in place and well understood several months before the original default and subsequent charge off ever happens.

No matter how well prepared the defendant might be nor whom they might hire to help them their chances of escaping a judgment are normally very slim indeed. In my opinion loss of the first battle does not have to mean that the war is also lost. Tomorrow is another day.

As General MacArthur once said, I shall return.

I'm going to assume that this defendant also has other problems which have not been revealed here as of yet and may never be revealed. I'm assuming that because that is the normal situation. I'd guess that most people we hear from in this forum have additional problems they don't tell us about.

Let's assume for the purposes of conversation that this poster also has other problems such as student loans in default, IRS is after him/her and maybe other creditors as well. Who all might be after this person or any other isn't important to us here and now. If other creditors are also likely to come after defendants should that be a reason to think that BK might be the best way out. I happen to think not. Although I know very little about BK my understanding is that BK won't wipe out judgments or government related debt. If that is true then what is the point of filing BK?

The Affidavit . . . mmmmm boy! Hearsay, hearsay, hearsay, UNLESS, the affiant is present. And, if they are, cross them like there is no tomorrow.

Originally Posted by apexcrsrv

The Affidavit . . . mmmmm boy! Hearsay, hearsay, hearsay, UNLESS, the affiant is present. And, if they are, cross them like there is no tomorrow.

Ok, so for the purposes of conversation let's agree that your contention that complaining to the court that the affidavit is nothing but hearsay and is therefore not allowable in court. (a very valid point) That being accepted by me as being a good and valid argument what is to be done when the judge rules that the court will accept the affidavit as being true and correct and admissible as evidence? How do we fight such a ruling by the court? I've seen that happen on multiple occasions.

In one case I am aware of several years ago I sat in on a hearing with a friend of mine here in OKC in which they had an actual live witness to testify. The problem was that the witness could not possibly have had actual first hand knowledge of the circumstances and did not make any of the entries to the account which she also had in her hands. She was the manager of an apartment complex and had only been recently hired. The judge said and I quote, I'll allow the testimony of the witness because if I don't allow it they don't have a case.
Obviously they didn't have much of a case because they wanted about $1700 and after 3 different court appearances by the lawyer they walked out with an $80 judgment and the court awarded the lawyer 10% of that for his attorney fees. (LOL)

Obviously the proper response to the judge's rulng should have been something to the effect of [br]Well, the fact that they don't have a case is obvious whether the witness is allowed or not.[/b] or maybe better yet would be to have demanded that the judge certify the question of allowing hearsay evidence by the court was correct or not then if necessary take it to appeals. Would that be a good thing to do or are there better ways than that?

I realize you might not want to discuss that in open forum but in that case I would appreciate a phone call to learn what your suggestions might be.

On another point, I was sued on Friday and served this morning. The summons says I have 35 days to respond but the complaint says that if I demand validation within the 30 days, yada yada yada. It says that both on the summons and complaint. Could that be construed by the least sophisticated consumer as being misleading and potentially capable of causing that least sophisticated consumer to pay more attention to the 35 days than to the 30 days and thereby miss his 30 day window of opportunity?

Of course, I already demanded validation more than 30 days ago and the attorney failed miserably so in my case that would only be a very minor bone of contention but on the other hand every litter bit can help. (LOL)