Motion 4 Summary Judgment against Capital One filed today. - Credit Repair Forum from Creditnet
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  1. #1
    billbauer is offline Senior Member
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    Motion 4 Summary Judgment against Capital One filed today.

    I filed my motion for summary judgment against Capital One today. Hearing is set for September 30th at 1:30.

    You can bet that Love, Beal & Nixon P.C. attorneys for Plaintiff Capital One are not going to like that one little bit. (LOL).

    How will that turn out? Well, we will know by about 3:00 or 4:00 P.M. on September 30th. Should be interesting indeed. What will their response be if any? Naturally they will have to file a response so what will it be?

    I suppose they might try to dismiss their case but last time I talked to the lawyer and suggested that they do so she said Capital One didn't want them to do that. I suppose not.

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  3. #2
    tkslush is offline Junior Member
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    Re: Motion 4 Summary Judgment against Capital One filed today.

    was this based on violations? let me know how it turns out, i just won a case against capital one for providing no evidence of the debt being my account. I was going to countersue but thought filing my own complaint would be better. Let me know if you win. Good Luck my friend.

  4. #3
    billbauer is offline Senior Member
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    Re: Motion 4 Summary Judgment against Capital One filed today.

    We went to court yesterday over my motion for summary judgment. I introduced new evidence and the judge ruled, among other things, that we were going to have to go back to discovery to get to the bottom of this thing. He said that both sides were a very long ways away from getting a summary judgment.

    Judge keeps on asking me why I don't take them to federal court. He has obviously had far more of this fight than he wants. Problem is that I need to get closure to this case in order to move on properly. Yes, I can go to federal court but I've got until at least February to do that and I am not going to take them until I have to unless we get a settlement in the case where they go away and leave me alone and pay me for my time and trouble. That's not likely to happen in local court. I think they will get a judgment in local court and since I have hundreds of examples of their violations they have no chance of a win in federal court. What violations? How about providing false and misleading information to a consumer and admitting to it in court multiple times just for starters?

    But the judge isn't going to get it out of his courtroom very fast either.

  5. #4
    Dumb Bob is offline Senior Member
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    Re: Motion 4 Summary Judgment against Capital One filed today.

    Quote Originally Posted by billbauer View Post
    He said that both sides were a very long ways away from getting a summary judgment.
    So you lost.

    Judge keeps on asking me why I don't take them to federal court. He has obviously had far more of this fight than he wants.
    Dumb Bob bets.

    where they go away and leave me alone and pay me for my time and trouble. That's not likely to happen
    Anywhere. Why should they pay you for your time and trouble in a settlement? Everyone goes home, you each get to keep your own balls; it was always fair when we were kids. In case that wasn't clear, Dumb Bob is saying that you both pay your own costs, fees, etc.. Asking for more than that will just prolong an already far too prolonged ordeal. Unless you like this sort of thing.

  6. #5
    billbauer is offline Senior Member
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    Re: Motion 4 Summary Judgment against Capital One filed today.

    Quote Originally Posted by Dumb Bob View Post
    So you lost.
    Yes and no. What really happened was that I just got nowhere and we are back to the discovery phase again. Coming up with the discovery demands is going to be a bit tougher this time than last.
    Dumb Bob bets.
    Bets what?
    Anywhere. Why should they pay you for your time and trouble in a settlement? Everyone goes home, you each get to keep your own balls; it was always fair when we were kids. In case that wasn't clear, Dumb Bob is saying that you both pay your own costs, fees, etc.. Asking for more than that will just prolong an already far too prolonged ordeal. Unless you like this sort of thing.
    It is obvious that you don't understand the situations. First of all I will eventually lose in local court unless they can't come up with the documentation to prove how much I owe. I think they can eventually do that IF I give them enough time which I have no intention of doing. But they might sneak in under the wire somehow. I'm ready to accept that but there are many other questions before the court at this time, all of which are unanswered. If I can force the answers out of them I might win in the end.

    Another point is attorney fees. They have already been paid the court costs and attorney fees up front by Capital One. We have the proof of that but don't know how much, not that it is important or even discoverable in any case. Point is they may have been paid as much as $1400 for attorney fees even though something more like $1200 is more like it. How much fighting are they willing to do for that amount of money?

    They already lied to me in a court filing in which they said they had the right under 12 O.S. 937 to increase attorney fees exponentially if I keep on fighting. That was a total falsehood and is actionable under FDCPA for providing false and misleading information to a consumer. If the court had tried to do that or anything similar it would amount to an illegal attempt to deny me my due process rights under the law. Since lawyers can't deny due process rights that didn't happen, of course. ,br/>
    They lied several times over in other court proceedings and actually got dumb enough to admit it to the court in writing. Each and every one of them is a new cause of action. So I not only have many causes of action against them for various acts of providing false and misleading information to a consumer. They cannot deny their guilt in federal court because they admitted to them in lower court records. So that's just one reason to take them to federal court,l reach a settlement on that violation which will cost them the court costs, attorney fees which I get as a Pro Se and any statutory damages I can get them to agree to or the court to award. Now where is their $1200 to $1400 attorney fees from Capital One?

    How about trying to collect sums of money not authorized under the terms and conditions of the contract? Another violation of FDCPA. Another round of court cases and more expense for them while I go for free. How many times do you think they will go to court before paying me what I want which isn't cheap.

    And what about the judge telling them that he is going to sanction them for their conduct in his court. He told them he wasn't going to go easy on them when the time come. Hard telling what the judge has in mind there. He won't talk about that until the case itself is decided. This one is going to go hard on them no matter what the final outcome might be.

    I might end up owing them 3 or 4K or maybe less but it makes no difference to me. They can't get a crying dime out of me no matter what the do. So where do they think they are going? Judge told them they ought to just hang it up and dismiss but they don't want to do that so the fight goes on. Where she stops nobody knows.

  7. #6
    Dumb Bob is offline Senior Member
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    Re: Motion 4 Summary Judgment against Capital One filed today.

    Quote Originally Posted by billbauer View Post
    Yes and no. What really happened was that I just got nowhere and we are back to the discovery phase again.
    Your motion for summary judgment failed. If it allowed you to reopen discovery, if that's what you want, then maybe you have gained an advantage.


    Coming up with the discovery demands is going to be a bit tougher this time than last. Bets what?It is obvious that you don't understand the situations.
    Dumb Bob doesn't claim to understand anything, that's why he's DUMB Bob.


    First of all I will eventually lose in local court unless they can't come up with the documentation to prove how much I owe. I think they can eventually do that IF I give them enough time which I have no intention of doing.
    Yet you want to reopen discovery? This will allow them to legitimately add more documents within this new case time line. If you had moved forward towards trial, if it was after the discovery deadline, anything they might suddenly find might not be allowed in. It seems odd to Dumb Bob that an original creditor can't find these documents.


    Another point is attorney fees. They have already been paid the court costs and attorney fees up front by Capital One. We have the proof of that but don't know how much, not that it is important or even discoverable in any case. Point is they may have been paid as much as $1400 for attorney fees even though something more like $1200 is more like it. How much fighting are they willing to do for that amount of money?
    If they have a contract that says that the loser pays the attorney fees for both parties, then after they win whatever you originally owed them, expect them to come forward and present a bill for some amount to the court. You may find these fees "reasonable" only in the sense that they will be less than the current US national debt. They are not just "costs", but whatever the lawyer would reasonably bill for the time it took to deal with your entire case. That might be considerable time and therefore a considerable amount of cash.


    They already lied to me in a court filing in which they said they had the right under 12 O.S. 937 to increase attorney fees exponentially if I keep on fighting.
    Exponentially? Isn't that increasingly increasing? Are the lawyers taking constant pay raises?


    That was a total falsehood and is actionable under FDCPA for providing false and misleading information to a consumer.
    In what ways does the FDCPA apply to lawyers? Dumb Bob is a little out of touch, but doesn't it apply only when they aren't doing the duties of lawyers?


    If the court had tried to do that or anything similar it would amount to an illegal attempt to deny me my due process rights under the law. Since lawyers can't deny due process rights that didn't happen, of course. ,br/>
    They lied several times over in other court proceedings and actually got dumb enough to admit it to the court in writing. Each and every one of them is a new cause of action.
    This could go on forever! Have you read Dickens' "Bleak House"?

    How about trying to collect sums of money not authorized under the terms and conditions of the contract?
    Do they have a valid contract? If they have that, the above mentioned loser pays lawyers' fees thing and the perhaps very high interest rate may be of some concern.


    Another violation of FDCPA. Another round of court cases and more expense for them while I go for free. How many times do you think they will go to court before paying me what I want which isn't cheap.
    Dumb Bob doesn't know but he suspects that they won't want to roll over and get a reputation for being easily bullied.

  8. #7
    billbauer is offline Senior Member
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    Re: Motion 4 Summary Judgment against Capital One filed today.

    Quote Originally Posted by Dumb Bob View Post
    Yet you want to reopen discovery? This will allow them to legitimately add more documents within this new case time line. If you had moved forward towards trial, if it was after the discovery deadline, anything they might suddenly find might not be allowed in. It seems odd to Dumb Bob that an original creditor can't find these documents.
    It's not a case of an original creditor who can't find the documents. Should be no problem at all and they may well do it. Either they or the lawyers don't want to do it because that would prove they are lying in court and would also open them up to additional counts of attempting to collect sums of money not authorized under the terms and conditions of the contact. There are other possible ramifications that come to mind as well but since I'm not the least bit sure about those I won't go into them. [/quote] If they have a contract that says that the loser pays the attorney fees for both parties, then after they win whatever you originally owed them, expect them to come forward and present a bill for some amount to the court. You may find these fees "reasonable" only in the sense that they will be less than the current US national debt. They are not just "costs", but whatever the lawyer would reasonably bill for the time it took to deal with your entire case. That might be considerable time and therefore a considerable amount of cash.[/quote] True enough but in this case the contract states that the attorney fees shall not exceed 15% of the unpaid balance at the time of charge off. They want to use 12 O.S. 937 to claim they can add attorney fees exponentially. 12 O.S.937 says that the terms and conditions of the contract shall apply if one exists. Discovery has produced evidence that the Creditor already paid more than $2300 in costs of the sale, attorney fees, and other unidentified costs. and is charging that amount in the total sued for.

    Lawyers must get paid up front for such things as court costs because they are not allowed to advance court costs by law in any normal type of lawsuit. They can work on fee contingency but the rate of actual recovery from judgments is so low that they would go broke trying to collect them. This law firm made $9 million in pure profits last year alone. They file untold hundreds of lawsuits every year all across Oklahoma. They work for all the big companies like Capitol One and many more. They are members of several attorney networks including The National Attorney Network (NAN) which is owned by a debt collection firm in Georgia known as TSYS. They get all the Cap One cases and farm them out to various lawyers who are in their NAN network. These lawyers belong to about 6 or 8 such networks which are all known to be bottom feeders just to be nice to them. Every major debt collection law firm belongs to those scumbag networks.
    Exponentially? Isn't that increasingly increasing? Are the lawyers taking constant pay raises?
    They would like to, of course. It is a scare tactic, of course
    In what ways does the FDCPA apply to lawyers? Dumb Bob is a little out of touch, but doesn't it apply only when they aren't doing the duties of lawyers?
    FDCPA applies to lawyers in most debt collection situations both in and out of court and almost everything they do in the process
    This could go on forever! Have you read Dickens' "Bleak House"?
    Yes, it might and yes, I read all of Dickens many long years ago. Far too long ago to remember much about it however.
    Do they have a valid contract?
    Yes. And when they produced that as a result of discovery it just about ruined their case for them. I don't think they want to go through another round of that if they can help it.
    If they have that, the above mentioned loser pays lawyers' fees thing and the perhaps very high interest rate may be of some concern.
    Not when the contract limits the fees to 15% of the unpaid balance upon default they don't want to admit what that amount might be or at least have not revealed that information as of yet.
    and Dumb Bob doesn't know but he suspects that they won't want to roll over and get a reputation for being easily bullied.
    Quite so, but that's just the tip of the iceberg. The part most defendants don't understand is that the debt collection lawyers really don't care whether a judgment ever gets paid or not. They have always been well paid in advance and in some cases might be able to hike their fees exponentially but not in this case. They have been paid up front to get a judgment and that is what they fully intend to do if at all possible. They will get paid even more if they collect anything. Often 25% or more of all moneys collected through the court system. The fight isn't about whether I owe them money or not but rather how much. Right now they are talking about just over $10,000. I just proved the amount couldn't possibly be that much. Too high by about $4K to $5K. So that should cut the amount of any judgment to about $4 or $5K. Attorney fees have already been added and paid to the attorney by admission of the Plaintiff. That cuts it by another $200 or so. Assuming they got about $1200 in Atty fees and the judge already told them he was going to sanction them heavily let's assume they get sanctioned maybe $500 or even as much as $10,000. Now what they got left for their time & trouble?

    Now lets talk about their costs to go to federal court and lose even one case. Does anyone imagine they will want to pay up the sanctions, maybe get their case dismissed entirely by the now angry judge, then have to try to defend against well proven and well pled FDCPA charges in federal court?

    They will want to talk settlement very quickly and the terms and conditions will be much stiffer than any sanctions the judge might impose on them. I'm not in this just to play games.

  9. #8
    thegyn is offline Junior Member
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    Re: Motion 4 Summary Judgment against Capital One filed today.

    Honestly, I say go after them with BOTH barrels. They seem to drag every person in court with the intention on dismembering a family member if they could. I would not show an ounce of mercy. Good luck Bob.

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