How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Dylatess Your Own Question

Dylatess
Dylatess, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 4693
Experience:  36 plus years consumer law practice
29685164
Type Your Consumer Protection Law Question Here...
Dylatess is online now
A new question is answered every 9 seconds

I am being sued by Capitol One Bank and I filed my own response

Resolved Question:

I am being sued by Capitol One Bank and I filed my own response to the court and the debt collection lawyer and answered tge summons with...
Notice to Defend / Deny for want of information.

I then requested validation of the claim by asking for...

Copy of original application with my signature.

The amount this debt was purchased for.

Itemized statement that details how this amount was calculated
including interest rates being charged.

Copy of all credit card statements issued during the life of this contract.

All I received from the lawyer in my last court appointment was 22
bank statements which was not the life of the contract because it starts
out with a previous balance of $555.04

My next court date is on October 21st and I was just wondering if there is
anything I could do since they did not provide all the information that I requested?

Any help or advice would be greatly appreciated!!!

Thank You,
Roger
Submitted: 10 months ago.
Category: Consumer Protection Law
Expert:  Dylatess replied 10 months ago.

Over 35 years, I have assisted my clients with debt problems having filed more than 32000 Chapter 7 and Chapter 13 Bankruptcy petitions.

 

Are you considering filing a Bankruptcy as your question is categorized under BK?

Customer: replied 10 months ago.
No I do not plan to file for bankruptcy any time soon because I need to get caught up on my taxes First before I can do so. The last attorney that I talked to on here was a bankruptcy attorney so that is why I chose this category. Did not see any other form of law to choose?
Expert:  Dylatess replied 10 months ago.

Note you need to have filed your tax returns but you do not have to pay the taxes owing in order to file the BK. Likewise, you already paid a response fee for this lawsuit which I wish you had not and saved the money. That is because, since you are going to file BK, I would do nothing further and let them get a judgment against you. You can then file BK and list this debt. Also note that it will take at least six months for a judgment to be entered against you from this point on. And hopefully by then, you can file the BK. Otherwise, any other advice I give you to stall this mater could work against you as there are very specific local rules to follow. And if you do not do them correctly, you can also be sanctioned by the court and be ordered to pay the court which is more money down the drain.

Please rate my answer ok or better so that I am paid for helping you.

Dylatess, Lawyer
Satisfied Customers: 4693
Experience: 36 plus years consumer law practice
Dylatess and other Consumer Protection Law Specialists are ready to help you
Customer: replied 10 months ago.
I did not have to pay any fee to file my response with the court. I am not sure when I will be filIng for bankruptcy but was trying to delay getting a judgement mainly to protect my bank accounts from being seized. I do not keep money in my accounts but I do use them to buy certain items off of eBay to make money with. Did they not have to supply everything that I asked for? And do I need to go to court on the 21st or should I not... What is better?
Customer: replied 10 months ago.
HELLO, are you going to answer???
Expert:  Dylatess replied 10 months ago.
I am a BK expert and will defer to an expert that handles civil litigation.
Customer: replied 10 months ago.
OK THANK YOU!
Customer: replied 10 months ago.
Torino the civil litigation person contact me by email after he reads my question? Thanks
Customer: replied 10 months ago.
no one else has contacted me?
Expert:  LegalGems replied 10 months ago.
Hi! Your prior expert opted out.

LegalGems here. I have extensive consumer law experience and will use this to assist you with your issue today.

Your question just came to my attention, please allow me to assist you.

If you do not show up at the court hearing, the judge will enter a default judgment - what this means is that the lender will get a judgment for all the money requested in the petition, plus attorney fees, costs, interest, etc. A judgment is very damaging to one's credit. So it is imperative to show up to court.

The good news is that the plaintiff has the burden of proof. So if the plaintiff cannot prove, to the court's satisfaction, that the debt is valid, then the court will not issue a judgment in their favor. Generally, a plaintiff is required to provide adequate documentation showing that the entire amount of the debt was in fact incurred by the defendant, before issuing a judgment for that amount.
Customer: replied 10 months ago.
do the attorney's have to supply me with everything that I asked for in my response or would 22 statements be all that they had to provide? I have no way to prove that the debt is not mine so won't they get a judgement against me even if I do go to court?
Expert:  LegalGems replied 10 months ago.
The statute is vague as to how much information is required. So for example, since the statement references a prior existing balance, generally this is considered adequate as a document produced in the ordinary course of business. However, in the courtroom, the burden is higher- the plaintiff actually must prove the debt is owing. It is not the defendant's responsibility to prove that they didn't owe it- first, plaintiff must prove the debt - all of it- is owing. Then if there is an affirmative defense (ie statute of limitations, forgery etc) then the burden switches to the defendant.

If the plaintiff goes to court with only a portion of the debt documented, the judge will likely only allow that portion. Now if the defendant does not show, the judge will, based on a default, allow the full amount, because no one is contesting the amount owing. That is why it is imperative to show up.

Since they only produced 22 statements, it is possible they don't have adequate documentation of the prior statements. You can send an additional request for these missing documents, but given the time frame that likely won't be provided in the intervening time frame. Again, the key is what they can Prove to the judge.
Customer: replied 10 months ago.
shouldn't they have to give me a copy of our original contract with my signature like I asked for?
When I contact this lawyer before we go to court what should I tell him at this point or ask for?
Expert:  LegalGems replied 10 months ago.
You should ask for all documentation that they have pertaining to the debt; i.e. original contract, all statements, etc. However, the Act is vague as to what constitutes "validation". For example, some courts will deem it sufficient if the attorney produces a statement from the prior creditor stating that the loan was for $x and that the new collector purchased it on --- for $x. But again, this goes to validation - it does not go to proof. To prove to the court the money was in fact borrowed, they would need to account for every penny - by virtue of the statements. Not having the original agreement would not necessarily defeat the claim because the subsequent statements can be considered adequate proof of the debt (since the consumer did not object to the statements after receiving them for a prolonged period of time). Judges have a wide range of discretion so it would be up to the individual judge - unless you don't show, then the judge will enter a default as they take everything in the petition as true unless the defendant shows.
Customer: replied 10 months ago.
the law suit says it is from Capitol One Bank and this local attorney is handling the suit for them. How can I find out if this law suit is really from Capitol One or if the loan has been sold to someone else? Can they file a suit as Capitol One if Capitol One actually sold the loan?
Expert:  LegalGems replied 10 months ago.
The plaintiff would be the one that is the party in interest -either the original creditor or the company that bought the loan. If the initial company sold the loan, the subsequent buyer would be listed as the plaintiff. They would not have authority to bring a lawsuit based on a prior owner.
Customer: replied 10 months ago.
is there anything that I can do to prolong this judgement so that I can possible find a way to afford bankruptcy and get that filed before they get a judgement?
Customer: replied 10 months ago.
you still there?
Expert:  LegalGems replied 10 months ago.
Hello. I'm sorry - I was taking a dinner break. Yes, I'm still here!

You can contact the court clerk and ask for a continuance. They will generally grant at least one as a courtesy - if you state that you do not have an attorney and are currently trying to engage one. This is considered one of the most justifiable reasons for a continuance. Alternatively you can request, from the other party's attorney, a stipulated continuance, and that attorney can file the necessary paperwork, providing you a copy. This would be done prior to the actual court hearing.
Customer: replied 10 months ago.
ok thank you for your time and help in this matter!!! Any last minute advice for me? :)
Expert:  LegalGems replied 10 months ago.
You are very welcome. I think we covered it - but I can't emphasize enough how a "no show" will not make this go away. I emphasize it because you would be surprised at how many people think it will delay/prevent a judgment. But I think I got that point across! Hope this resolves favorably! Take care.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Infolawyer

    Lawyer

    Satisfied Customers:

    5518
    Licensed attorney helping individuals and businesses.
< Last | Next >
  • http://ww2.justanswer.com/uploads/NY/nyclawyer/2012-6-7_22011_photo66139201112041.64x64.jpg Infolawyer's Avatar

    Infolawyer

    Lawyer

    Satisfied Customers:

    5518
    Licensed attorney helping individuals and businesses.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    2620
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/LA/lawpro/2012-6-25_171315_PT206740s.64x64.jpg Law Pro's Avatar

    Law Pro

    Lawyer

    Satisfied Customers:

    1711
    20 years experience in consumer advocacy, debt collection violations, contracts, construction
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    1415
    16 years legal experience including consumer protection law.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Lawyer

    Satisfied Customers:

    1160
    25 years of private practice
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    1065
    B.A.; M.B.A.; J.D.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Lawyer

    Satisfied Customers:

    1023
    Attorney with 14 years experience in various consumer protection areas
 
 
 

Related Consumer Protection Law Questions