Thanks for everyone's input. I have been doing some research. Found the decision in the Florida Case that Cap 1 was talking about. Also found A Glossary of Terms published by Capital One that specifically states that their card holder agreement is subject specifically to the laws of Virginia. Also I plan on making the Plantiff produce orginal card holder agreement that I signed. I think I can plainly speak to those cases to get my point across without falling all over my words. Since I feel that this company is a predator anyway, it shouldn't be too hard for me to shed the "what's right" and go for the jugular, which, as was plainly stated, is the only way I am going come out of this with a possible dismissal. If I get a dismissal, I have another one of these in October and maybe I will be able to go with the same agrument. If the decision is in my favor for the first case, maybe the lawyers will not continue with the 2nd one. It's the same law firm. With everyone's help, I feel much better about the ammunition I have now, which is so much more than when I first started talking and asking questions. I found out the JP handling this case is NOT A JUDGE, per se, but a retired investigator who has common sense, intelligence and apparently will listen to both sides. Hope he listens to me on this one.
Just remember, when they keep asking "do you or do you not owe this debt." The answer is, "that's not the issue. The issue is whether they can even bring this action to ask the question. According to their terms and conditions, they cannot because they waited too long. Therefore, I move for dismissal." Don't let them rope you into hanging yourself.
"Your Honor, instruct the defendant to limit his answers to yes or no" You must raise the SOL as an affirmative defense in your answer, if not you are out of luck.
Why do you think that it must be raised as an affirmative defense? The theory that is being espoused here is that the debt is out of stat because the terms of the agreement state that the laws of Virginia will apply in any litigation between the parties. If the defendant was unaware of the clause in the Virginia contract and therefore did not have that argument available then the 4 year Texas statute would be applied. If the plaintiff didn't file timely and waited until the Texas SOL were almost up then I'd agree that a laches defense would be appropriate and that could only be raised as an affirmative defense. As a matter of fact I believe that laches should also be raised in this and similar instances but not as part of any affirmative defense. Quite frankly, I think that a two pronged attack would be much better here than any affirmative defense. I think the first prong should be motion to dismiss for failure to state a claim upon which relief can be granted and laches should be the second prong so that in the event the court refused to apply the Virginia clause laches could then kick in. Personally speaking, I'm very much opposed to using any form of defensive response under almost any conditions. History proves that neither battles nor wars are won by hiding behind defenses. Battles and wars are only won by those who mount an overpowering counter attack. I also tend to think that CCBob was at least partially correct in that suggestion. Let us examine that in the light of this particular instance. I think the proper answer to that hypothetical question would be NO because if the Virginia law applies as argued then the defendant does not legally owe the money. Of course, the lawyer isn't likely to want to take no for an answer so may well try other more difficult avenues to relsolve his problem.
To Court Next Week Well, my court date is next Tuesday and I am putting together my case and have run into a snag. Please help!!!! As discussed previously, the argument I can use is the SOL for Virginia is applicable and has run on in November of 2008. When I pulled up the statue for Virginia, it states that contract SOL is five years. Unwritten Contracts or 3 years. What is a Credit Card Agreement???? Where does "Open Account" fall in this statue? I am presenting the Statue to the Judge as proof of default by the plantiff. Also, since I don't have a copy of the original agreement, at what point do I ask for that and how will I ever find the clause about "subject to the laws of the state of Virginia while I am standing in front of the judge????? We all know how complicated those are. I guess if they don't come up with one, case is dismissed. State of Virginia Statue on Limitations § 8.01-246. Personal actions based on contracts. Subject to the provisions of § 8.01-243 regarding injuries to person and property and of § 8.01-245 regarding the application of limitations to fiduciaries, and their bonds, actions founded upon a contract, other than actions on a judgment or decree, shall be brought within the following number of years next after the cause of action shall have accrued: 1. In actions or upon a recognizance, except recognizance of bail in a civil suit, within ten years; and in actions or motions upon a recognizance of bail in a civil suit, within three years, omitting from the computation of such three years such time as the right to sue out such execution shall have been suspended by injunction, supersede as or other process; 2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not; 3. In actions by a partner against another for settlement of the partnership account or in actions upon accounts concerning the trade of merchandise between merchant and merchant, their factors, or servants, within five years from the cessation of the dealings in which they are interested together; 4. In actions upon any unwritten contract, express or implied, within three years. Provided that as to any action to which § 8.2-725 of the Uniform Commercial Code is applicable, that section shall be controlling except that in products liability actions for injury to person and for injury to property, other than the property subject to contract, the limitation prescribed in § 8.01-243 shall apply. (Virginia Code 1950, §§ 8-13, 8-17, 8-23; 1964, c. 219; 1966, c. 118; 1977, c. 617.)
1. In the instant action, Plaintiff, Capital One Bank, has filed a Complaint to seek monies purportedly owed under a Capital One credit card. In particular, according to the allegations of the Complaint, XXXXX purportedly entered into a credit card customer agreement with Capital One Bank, a copy of which is purportedly attached to Plaintiffâ??s response to Defendantâ??s Request for Production of Documents. 2. Page two (2) of the purported Customer Agreement provides: Applicable Law: This agreement will be governed by Virginia Law and Federal Law. 3. This was an Open Account as there was a situation where there had been running or current dealings between the parties and the account had been kept open with the expectation of further dealings. 4. The Virginia legislature carved out a specific accrual time for an Open Account. Code of Virginia (1950) 8.01-249(8.) â??In actions on an open account, [the accrual period begins] from the later of the last payment or last charge for goods or services rendered on the account.â? A copy of the aforementioned statute is attached hereto as Exhibit â??Dâ?. 5. By so doing, and not addressing an Open Account in Code of Virginia 8.01-246, the legislature thereby considers an Open Account to be distinct from a written contract, oral contract, quasi-contract, or implied contract. A copy of the aforementioned statute is attached hereto as Exhibit â??Eâ?. 6. From information and belief, the last charge for goods and services purportedly made by the Defendant was xx/xx/xx. 7. From information and belief, the last payment purportedly made by the Defendant was xx/xx/xx. 8. This instant action was filed on xx/xx/xx. etc........
The plaintiff didn't default. You were the one who defaulted. The plaintiff merely waited too long to bring the case. That's not a default. That's part of your problem. You should have asked for that in the discovery phase. You should have done that at the same time you filed your response to the court. Now that you are in the hearing phase and still haven't filed the right motions as I told you to do in my earlier post you may not ever be able to get that document. Whether or not you will be able to make them dig it up now will depend on the judge. Good question and probably what will cook your goose. The answer is that without it the judge isn't likely to rule in you favor. Not likely. You will not have properly completed discovery, have not filed the proper motion, have not demanded hearing on that motion, are trying to force the laws of Virginia upon a Texas judge without case law to back you up and more. I'd say you have less than a 50-50 chance to win. All of that and the part that I have snipped for the sake of brevity sounds mighty powerful indeed except for at least one little problem. How does he force or convince the Texas judge that the laws of Virginia is what he has to go by in making his ruling? Even given that the judge does go along with that argument how does the defendant prove that he has a right to that claim? The defendant will also need proof of when the last payment to the creditor was made. The defendant will also have to determine what both Virginia law and Texas law have to say on that point. There could also be a difference in how each state says that the starting point is to be determined and be able to prove that. If they agree on that point then s/he is in much better shape than would otherwise be the case. Given the errors that have already been made a win in local court is unlikely. Of course, the defendant could file a federal case and see how a federal judge would rule on which statute is applicable. While FDCPA does have a section which deals with the issue the problem would be to get a federal judge to rule the same way a couple of state level judges have ruled. That's not going to be a sure thing either.
Well, the court case is over and I must say, I surprised the heck out of the plantiff's lawyer and the Justice of the Peace. The JP didn't enter a Judgement today because he required a brief from the plantiff's lawyer within 10 days. I guess that is the argument of the plantiff why the foreign SOL should not be used as a defense. After the JP receives the brief, at that time, the JP will make his ruling. The JP was very concerned about my argument and said I had lots of good points. The only thing that I didn't do was make a request for an affirmative defense of Foreign Statue of Limitations. I want to try and get that into the case before a final judgment is made, can't hurt. I have tried all afternoon to find a sample of how to write one of those notifications to the court but to no avail. Can anyone help? Here was my defense which I read: Your honor, I request a â??motion to dismissâ? for failure of the plaintiff to state a claim upon which relief can be granted because the Statute of Limitations has expired under the laws of the State of Virginia under which the purported agreement was issued. I would like to direct your attention to Exhibit â??Aâ? in your packet of documentation a â??Capital One Bankâ? on line glossary of terms under Card Holder Agreement â?? Rules for imposing changes vary from state to state, but the rules that apply are those of the home state of the issuing bank, not the home state of the cardholderâ? This information is available to anyone that chooses to look it up on the internet which by the nature of access becomes general knowledge that the laws of their credit agreement are that of the State of Virginia, the home state of Capital One Bank, N.A. Capital One Bank, represented by their lawyers has filed a Cause to seek monies purportedly owed under a Capital One Bank credit card. In particular, according to the allegations of the Cause, I purportedly entered into a credit card customer agreement with Capital One Bank, a copy of which is purportedly attached to Plaintiffâ??s documentation. AT THIS TIME, I REQUEST A COPY OF THIS AGREEMENT DULY SIGNED BY BOTH PARTIES AND EVIDENCING THAT IT IS NOT UNDER THE LAWS OF THE STATE OF VIRGINIA ! If this is not done, request dismissal due to no proof that agreement existed.) (If this is done, continue to the following) Your Honor, I direct your attention to Page ____________of the purported Customer Agreement provides as follows which states: Applicable Law: This agreement will be governed by Virginia Law and Federal Law. By Virginia Law, this was an Open Account as there was a situation where there had been running or current dealings between the parties and the account had been kept open with the expectation of further dealings. Governing Law: â??This Agreement is to be construed in accordance with and governed by the laws of the United States of America and by the Internal Law of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause this 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 permitted by Federal Law). Furthermore, the Virginia legislature â?? fixedâ? a specific accrual time for an Open Account. Code of Virginia (1950) 8.01-249(8.) â??In actions on an open account, [the accrual period begins] from the later of the last payment or last charge for goods or services rendered on the account.â? A copy of the aforementioned statute is in your packet of documentation marked as Exhibit â??Bâ?. And, by so doing, and not addressing an Open Account in Code of Virginia 8.01-246, the legislature thereby considers an Open Account to be distinct from a written contract, oral contract, quasi-contract, or implied contract. A copy of the aforementioned statute is in your packet of documentation marked as Exhibit â??Câ?. From information and belief, the last charge for goods and services purportedly made by myself was on or about October 2005 From information and belief, the last payment purportedly made by myself was October 2005. A copy of Experian Credit Report evidencing time of last payment is in your packet of documentation marked as Exhibit â??Dâ? Open accounts under Code of Virginia 8.01-246, (4) are subject to a 3 year Statute of Limitations. The latest date to file under this agreement would have been October 2008. This citation was filed on July 23, 2009. If an agreement between the parties is in effect then it is equally binding upon all the parties. Therefore, if they expect me to be bound by the terms and conditions of the agreement then it is only fair that they also be bound to the terms and conditions of the same agreement . They are claiming I broke the agreement by not paying, but if the Virginia laws clause of the contract is not to be enforced by the Texas Court, then the contract is null and void and no part of it can be enforced. Per the agreement, Virginiaâ??s State Law was adopted which created an ambiguity that should be resolved against the drafter of the document by in fact giving the debtor the benefit of Virginiaâ??s SOL. The court would not and could not give the creditor a longer SOL by virtue of the creditor having chosen the Virginiaâ??s state laws in its cardholder agreement-but a shorter one may perhaps be afforded the debtor. If the court is willing I would like to request YOUR HONOR to uphold a time-honored principle of contract law- that ambiguities are construed so as to favor the party that did not write the document and grant a motion to dismiss. I was rough, I know but I gave it a try. Thanks again for everyone's help. I have another one of these, in October. Same plantiff, same lawyer, same judge. Want to tune up my defense as best I can. I should be getting the results from the first case just about the time I have to do the next case. SFsugar
Cap1 Thanks very much. You should have seen the Capital One's attorney, when I was reading my defense, he was jumping around like he was barefoot on a hot sand beach LOL. Judge said he had never really heard of this argument before. Thanks for your help. If you hadn't been so adamit about your conviction to hit with all barrels, then I would not have made it this far. Still, not sure, they might win but I gave it a good shot. sfsugar
I'd be preparing a motion to dismiss with prejudice and an order of the court for the judge to sign granting your motion. I would not want to actually file the motion. I tend to fear that doing that might anger the judge and do more harm than good but having it all prepared and ready to go after you hear the judge's decision can't hurt you. If he rules in your favor then all you should need to present is your order of the court for the judge to sign. If he wants a motion first then you have that ready to go too. You will want one copy of each for the court, one for the lawyer and one for yourself. If he rules against you then you will have lost only the time and paper to prepare it all. I'd ask Apex what he thinks of that idea because he is an experienced attorney and he may have some better plan to suggest.
Well both cases are done and I won both of them. The first case judgment was in my favor because Cap One Bank's attorney didnâ??t present original signed contract. Even though the judge didn't accept the SOL argument for Texas, he did accept the argument regarding the null and void contract and contract law argument that the contract must be equal to both parties, and when it is not, the judgment goes to the non writer of the contract. The second case, Cap One attorney never showed up so I motioned to dismiss with prejudice because no one showed up and it was granted. WOOHOO!!!! Now the SOL for Texas has kicked in so we are home free as far as that is concerned. When I made a motion to dismiss because no one showed up, the JP asked me what law school I went to. LOL When I told him I didn't have a law degree, he said well you learned well somewhere. Thanks everyone that submitted guidance and encouragement and tough choices. All of that help me tremendously. I am not sure which makes me feel better, the compliments from the JP or the fact that the plaintiff never turned in a brief as ordered by the JP for the first case or that they didn't show up for the second case. They found out that these cases weren't auto judgments because of a "no show" and that the defendant did her homework to prepare for the case. Actually, I "Stuck It" to a predatory lender and that feels good too! Thanks again Y'all.
I accept: the JP is not going to be sympathetic to anything except how to get the conflict resolved and the plaintiff happily on the way to getting their money no matter how that has to occur. If that means scaring, chiseling, browbeating, outright thievery, freezing bank accounts, garnishing wages.
