Help !! I'm being sued by Cap 1
Date: Wed, 01/20/2010 - 12:31
The plaintiff is listed as Capital One Bank (USA) NA.
This is what they wrote in their suit:
"Now comes the Plaintiff in the above styled action, etc.
1)Defendant, a resident of this county... etc.
2) The Defendant is indebted to Plaintiff in the amount of $5,000+ as principal, $500 as interest, plus attorney fees of 15%, etc.
3) The principal and interest are past due and Defendant refuses to pay.
4) Plaintiff, by this Complaint, gives the Defendant written notice in accordance with the requerements of 13-1-11 of the O.C.G.A. that Plaintiff intends to enforce the provisions of the agreement relative to payment of all costs of enforcement, including attorney's fees, in addition to principal, interest, and court costs herein demanded are not received within 10 days from the receipt of this complaint by Defendant, Defendant will be liable for attorney's fees set out for in 13-1-11 of the O.C.G.A. in addition to the principal, interest, and court costs.
WHEREFORE, Plaintiff demands Judgement against Defendant in the principal sum of $5K+, attorney fees of $600, interest, court costs, etc."
Can anyone suggest how to respond to this suit? Should I refer to the DV letter I sent them, as it was within 30 days of their DV letter.
Thank you for any suggestions !!
They pulled the same thing with us, even attached some random cr
They pulled the same thing with us, even attached some random credit card agreement to their complaint with handwritten notes claiming the time period the contract was in force. Here's how we answered:
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COMES NOW, _____________, Defendant in the above-styled cause and files this Answer and Affirmative Defenses as follows:
Plaintiff's Complaint fails to state a claim upon which relief may be granted.
Plaintiff's Complaint is barred by the Statute of Limitations in that the right of action did not accrue within four (4) years before the commencement of this action.
Plaintiff's claim is barred by the doctrine of laches in that Plaintiff unnecessarily delayed in bringing suit, causing prejudice to Defendant.
Plaintiff is not a proper party to this action as there is not, and has never been, any privity of contract between Plaintiff and Defendant, and Plaintiff does not hold a valid assignment of any alleged right, title or interest to pursue an action against Defendant.
Defendant asserts the affirmative defense of failure of consideration, as to the best of Defendant's knowledge and belief, Defendant has received no money, grant of credit privileges, or other consideration from Plaintiff on which any claim can be based Defendant. Noticeably absent from the form credit card agreement attached to Plaintiff’s Complaint is any admissible evidence demonstrating that: (1) the agreement matches the account allegedly held by Defendant; (2) the time frame that the agreement applied to the alleged account; (3) how and when the agreement was actually offered to the defendant; and (4) any and all material terms sufficient to establish an enforceable agreement between the parties including original credit card application; monthly statements, charges incurred by Defendant; itemization of the total dollar amount allegedly due; interest rate payable and accrued on the alleged account; fees or penalties the Plaintiff has assessed; specific terms of repayment; and full account history evidencing any credits or payments.
The claims asserted by Plaintiff reflect a complete absence of any justiciable issue of law or fact such that could be reasonably believed and/or that a court would accept said asserted claims, and lack substantial justification as set out in O. C. G.A. ? 9-15-14.[FONT=Times New Roman][/FONT]
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Defendant further denies each and every allegation of said Complaint which is not otherwise answered herein. Defendant avers that nothing is owed to Plaintiff.
Paragraph 1 of Plaintiffs Complaint is admitted.
The allegations contained in Paragraph 2 of Plaintiff's Complaint are denied.
Defendant shows that Plaintiff's Complaint is styled "SUIT ON ACCOUNT" and no valid and enforceable contract or agreement exists as a condition necessary to the recovery of attorney fees by O.C.G.A. ?13-1-11, and is therefore legally deficient in praying for attorney fees in this action.
Defendant shows that Plaintiff has not laid a proper foundation or properly authenticated the alleged Customer Agreement for purposes of admitting into evidence.
Defendant shows that Plaintiff’s handwritten notes on the unsigned, form “Customer Agreement” template constitutes inadmissible hearsay, namely an out-of-court declarant attempting to establish the period of enforceability without any testimony from the Plaintiff.
Defendant renews her disputes regarding the validity of this alleged debt and requests written validation of the alleged debt from Plaintiff pursuant to 15 U.S.C. ?1692g(b).
Defendant further denies each and every allegation of said Complaint which is not otherwise answered herein. Defendant further shows that Defendant owes nothing to Plaintiff.
WHEREFORE, having answered fully, Defendant prays that the Court dismiss the action against Defendant with prejudice, with all fees, costs and expenses taxed against Plaintiff.
If you sent a dv letter within the 30 day window and they filed
If you sent a dv letter within the 30 day window and they filed a lawsuit without validating, I suggest getting a consumer attorney and counter suing.....did you send it CM RRR????? Hopefully you did.
Read over the credit card agreement and see what state laws govern it.....sometimes NH law only applies so it would be a lower SOL than other states.
The SOL in GA is 4 years.
Also contact the courts to make sure the lawsuit is real.
Go to the debt settlement forum. Look at recent posts on Capita
Go to the debt settlement forum. Look at recent posts on Capital One. Poster Maggie22 has found a way to possibly stop lawsuit. Has something to do with "Arbitration".
May want to send Maggie22 personal message. He can refer your to board with more info..
Hope this helps. I am also on their hit list.
Thank you "Screw Hanna & Associates" for the information you pos
Thank you "Screw Hanna & Associates" for the information you posted !
Pokertramp, excellent suggestion to counter-sue because they failed to answer the DV letter. They broke the law doing that, right?
OZZIE69, thanks for the post, I'm looking at the maggie 22 posts now.
Thanks all !!