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?