val

What Joshua has said is correct. Every bit of it including the need to determine who the lawfirm actually is and what their actual role is. As Joshua pointed out, whether the law firm is an actual employee of capital one or an independent firm acting on behalf of capital one is of the utmost importance. They don't usually tell you which way it is so you have to use some inferences. Those inferences can be made by an examination of the letter they sent you claiming that they had validated the debt. If the only evidence of debt they gave you was some kind of statement on their letterhead then they did not comply with the requirements of FDCPA and that was their 1st violation.

I believe that their second violation was illegal continued collection activity, the first of which was filing a lawsuit against you. I believe that their third violation occurred when you were served with the resulting summons and complaint.
Now we can move on to other possible violations. The summons requires you to respond within a certain number of days so you prepare your response whatever that might be, you file it with the court, prepare a certificate of mailing and quite possibly also prepare your first discovery request. You send all of that to the plaintiff's attorney and then sit back and wait for the results whatever they might be. I believe that anything they do either in or out of court constitutes further violations. For instance, they are required to respond to your discovery demands within a certain number of days as determined by your state and local rules of civil procedure. In my personal opinion their response would constitute further illegal continued collection activity. Then they end up actually in court which in and of itself would constitute further illegal collection activity in my personal opinion.

The result of their lawsuit is a judgment against you and let us assume that their next step is to get a court order allowing them to freeze your bank account and grab all the money in it. More illegal continued collection activity. So they actually do freeze your bank account. More illegal continued collection activity. Maybe you could also stretch that a bit and sue for illegal garnishment of your bank account. If they do that which is illegal for them to do then that is a separate cause of action and you might sue for that alone in federal court, get a ruling from the court as to whether or not garnishment was illegal because they had not properly validated upon your demand. If the court rules in your favor on that point then you might have a grounds to sue for illegal garnishment in local court. Yes, I'm making a bit of a stretch here but you just might be able to make the point stick.

The point here is that if the federal court agreed with you then you still have your original illegal continued collection complaint intact and can bring another action against them with all the previous violations already approved by the court. You could probably wrap them up so tight they will think you are Tar Baby. (LOL).

Yes, I'm telling you that I'm sticking my neck out a bit here and I'm doing so hoping somebody such as Apex or other actual attorney in this forum will tell me how far off base I might be or whether I am on target or not. I know that some of what I have said is correct.

 

Well, I don't know about that smart because i may be as green as a gourd and about as dumb as a fence post but I do have a bit of experience. With that having been said plus the fact that I am not an attorney and I'd be ashamed to admit it if I were therefore can't give you any legal advice, I think that with only two days left before trial you don't have a crying chance to get much of anything done.

I've got a very similar situation going on myself right now. Big difference is that I'm watching the judge's docket like a hawk. I can do that on line to see when the case is set for hearing. I can check the judge's docket every day for the next month or so to see when the case gets set for trial. In my case there is a drop dead date by when they must set the hearing and that drop dead date is also mighty close. If they set the hearing date after the drop dead date I'm going to have some fun with that too.

But you have your hearing in only two days so all of that isn't going to do you any good. I'd say that there just isn't time left to help you and while I don't want to chide, you should have been seeking your remedies long before this.

I'd say you need to start worrying about what you are going to do to protect your assets now instead of how you are going to keep from getting a judgment.

The keys to success are (1.)Validation and (2) Learning your rules of civil procedure and how to argue in court. You can't do that if you wait till you are almost hung out to dry before starting to get pro active.

I'd love to help you but there just isn't time left in order to do that. Sorry.

 

Yes, it does make a huge difference. Yes, you do have time to prepare a response to the court and get it filed. You also need to prepare a certificate of mailing and send a copy of your response and the certificate of mailng to the plaintiff's attorney. You should take two copies of your response to the clerk of the court who will stamp them both and return one to you. That is just about the way all courts everywhere do it. Never heard of any doing it any differently.

That's not validation.

I can't really answer that question in open forum. I'm not a lawyer and I can't give you legal advice but I can tell you that there are many ways to respond. You could just deny everything or you could respond to their accusations point by point. I realize that don't help you much if at all but since I'm not a lawyer that's about the best I can do even though I do know how to prepare and present good defenses.

No, you don't have to use any discovery at all unless you want to. They can be very useful but are not necessary and are not allowed in some courts. You have to find that out by studying your rules of civil procedure both state and local. For example, here in Oklahoma we can't use discovery in small claims courts. Discovery isn't likely to get you off the hook or give you any great advantage over the plaintiff. Under all normal circumstances discovery isn't likely to win the case for you or keep you from getting a judgment against you. On the other hand I'm not saying not to bother with it if you can use it. I would use it at every possible opportunity myself if I were sued and court rules allowed me to use it.

But discovery is no magic silver bullet because lawyers know discovery inside and out. They know how to use it effectively and win cases with it so they think that is their key to winning or at least most of them seem to think that way. The only way to use discovery effectively is to know more about discovery than most of them do. That really isn't too hard either. It is all right there in the rules of procedure. Since lawyers know and study discovery and how to use it extremely well they are going to be much better at it than a Pro Se is likely to be but Pro Se litigants can use it effectively as well. But it isn't any magic silver bullet. It takes more than that to win. Much more.

In order to win you must know the law better than they do and use it more effectively than they do. You must know it well enough to catch them making mistakes and use their mistakes against them. It takes what might be called dirty tricks to win and as I see it from what you have described you already have one of those dirty tricks available to you and now it is up to you to exploit it to the maximum extent possible.

You said they didn't validate and so if I understand the FDCPA correctly I think it says that 3rd party debt collectors are not required to validate upon your demand. I think it says that they don't ever have to even respond your demand but if they don't validate and do it properly then they can't move forward with any continued collection activity until they do validate the debt.

I also seem to remember that it says that nothing that the debt collector has in their records or in their computer files can be considered as validation of the debt. I think it says that if you demand validation within the first thirty days after their initial contact with you they must contact the original creditor and obtain the validation from them then forward it to you. So in my way of thinking each and every thing they do once they sent you their version of compliance on their letterhead would seem to me to be a violation.

Once you know and understand all of that then the next question becomes how to use their violations against them. Their violations aren't going to help you in local court because their violations are not your defense. You have to prove that you don't owe the debt somehow in order to win or you have to find at least one or more local rules they violate if you want to win in local court.
As an illustration, let's say that the local rules say that they must request a hearing within some time certain after service of summons and they fail to do that. Once that drop dead date has been reached you might want to file a motion to dismiss. If you don't know your rules of procedure you would never know that any such drop dead date even existed and you might lose a valuable chance to get their case dismissed. A busy lawyer might not realize that their drop dead date had passed and give you a chance to pull a dirty trick on them by demanding that the court dismiss their case. That's just one possible illustration. Good lawyers know all the tricks and exploit them to the fullest extent possible. Those kinds of lawyers are extremely difficult to find indeed and are usually very expensive because it takes lots of time and study to learn all those tricks, how to use them and when to use them. They have to spend lots of time at the law library to keep up with all that stuff. I'm pretty lucky because we have at least one law library that has many floors and two basements full of law books. It is a very big and tall building. I don't know how many floors it has but I'm guessing at least 10 floors. I'll be going there tomorrow morning to do some research myself. I usually spend at least half a day every week or two studying some law or other. That library is usually packed with law students doing their homework but hardly any attorneys go there.

I also study at home using one or more of my computers. I usually work at a desk that is about 3 foot square. It has a desktop and two laptops plus 3 external hard drives and other equipment on it. If I swivel my chair to the left I have another desk with a laptop, an all in one printer, a fax machine and an external hard drive on it. Then if I swivel to my right once again I have another desk with 3 more computers and other equipment on it. On another shelf there is another computer with 7 one terrabyte hard drives hooked up to it, a laser printer and a microwave for heating coffee. Across the room is another computer my Mrs. or guests can use to do whatever they want. My Mrs. uses it to play solitaire on. (LOL).
Then I have another office upstairs with a computer and two printers in it. All of them are networked together and I use them all. Each of the desktops also have at least one or more 1 terrabyte hard drives. I don't plan on using up all that space any time soon. (LOL).

But the point is that in order to win you have to know all of the rules of civil procedure and how to use them to your advantage or you need the help of someone who does know them and how to use them. If you can find an attorney who can prove that s/he knows them and isn't afraid to use them then by all means you should hire that attorney to represent you. If you can't then you need to find someone who does know them and can teach you even though that person may not be an attorney. In any case that level of help isn't likely to come for free.

The way I see it you have an excellent chance to win but it isn't likely that you will be able to win at the local level. I tend to think that in order to win you will have to become a plaintiff yourself and take them to federal court. That is the only way I know of to win in most cases. Use the local courts to the best of your ability to get more and more violations and when that is all over then take them to federal court.

One of the things that Pro Se litigants don't understand is that judges aren't squirrels. They don't run around looking for all the nuts that litigants point to. They are far too busy for that. So while you might know and understand all the little points you want the judge to consider the judge don't know what you know. That means you have to make your point in writing then find the law or court case that backs you up and quote that point by point as well. You have to be really, really thorough in your statements and case quotes. You can't just say that it is illegal for the attorney to drink whiskey while in court. (for instance) You have to find the law that says just that and you have to quote it word for word then if you can find any relevant court cases where a court has ruled that it is illegal for attorneys to drink whiskey while in court as well and quote those cases and what the judge actually said just before he threw the bum in jail. (LOL)

I try to make all the stuff I can available for free and that is why I use google docs, google sites and other web sites to help people learn as much as possible for free.