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TJ, Esq.
TJ, Esq., Attorney
Category: Consumer Protection Law
Satisfied Customers: 11779
Experience:  JD, MBA
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I received a motion judgement in credit card lawsuit and

Customer Question

Hi I received a motion for summary judgement in credit card lawsuit and need to submit my opposition answer to court
JA: Because laws vary from place to place, can you tell me what state this is in?
Customer: New York
JA: Have you talked to a lawyer yet?
Customer: No
JA: Anything else you think the lawyer should know?
Customer: No
Submitted: 4 months ago.
Category: Consumer Protection Law
Customer: replied 4 months ago.
In the plaintiffs motion for summary they just provided credit card statements. What opposition response can use to file my response back to the court?
Customer: replied 4 months ago.
Credit card lawsuit with Capital One. They sent me a motion for summary judgement with copies of the credit card statements. I need to file a opposition answer to their motion for summary judgement.
Expert:  TJ, Esq. replied 4 months ago.

Hello and thank you for the opportunity to assist you. My name is ***** ***** I'll be glad to help if I can. Please tell me more about the case. What is your defense to the allegations? Thank you.

Customer: replied 4 months ago.
My answer to the lawsuit was the following and then they sent this motion for summary judgement. This was the answer I submitted with my affirmative defense:
1. Denied knowledge or information as to all allegations of complaint
2. Lack of personal jurisdiction
3. Court lacks subject matter jurisdiction
4. Failure to state a cause of action
5. Plaintiff, violated the Fair Debt Collections Practices Act, and is prohibited from collecting alleged debt
6 a Plaintiff is not a proper party to this action
7. Failure of Plaintiff to satisfy condition precedent.
Expert:  TJ, Esq. replied 4 months ago.

Hi again.

That list doesn't really tell me anything about your defense. For example, why would the court lack subject matter jurisdiction? Why is the plaintiff not a proper party? Bear in mind that those defenses are useless unless you have facts to support them. So what facts do you have to support a viable defense?

Thanks.

Customer: replied 4 months ago.
I don't really know. What are some facts I can use in my defense?
Expert:  TJ, Esq. replied 4 months ago.

Hello again. Unfortunately, I don't know the facts of your case. I'd be making it up.

Let's start at the beginning. Do you owe the debt? If so, when was the last time you made a payment?

Customer: replied 4 months ago.
Last payment was made May 2013 then it was charged off
Customer: replied 4 months ago.
I do not know what credit card this is for as it doesn't look familiar to me. They sent copies of the statements and last payment was May 2013
Expert:  TJ, Esq. replied 4 months ago.

Hi again.

Since the last payment was in 2013, the statute of limitations wouldn't apply (i.e., they have 6 years to file a lawsuit).

You can certainly argue that you never took out the credit card. But my suggestion would be to immediately file a report of identity theft with the police. If you do not, then your claim that you didn't open the account would probably not be very believable. If the police investigate and there seems to be evidence that it is not your account, then that is certainly a viable defense. Of course, all of that would be pointless if they have a signed agreement from you, or if they can show that you made payments (i.e., canceled checks, or money transfers from your bank account). Also, bear in mind that it is a crime to falsely report to the police that your identity was stolen. Accordingly, you will need to be sure of what you're doing.

If you know that you cannot win with an identity theft argument, then my suggestion would be to attempt a settlement. This could involve a lump sum payment for less than what is owed, or a payment plan, or both. Ultimately, if the amount owed is just too large to deal with, bankruptcy is an option.

I know this isn't the type of answer that you were hoping for, but under the circumstances I hope you understand why this is the answer, and how best to proceed.

Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied.

Customer: replied 4 months ago.
can I file a motion for discovery of production of documents? Original Credit card contract, credit card agreement, copies of all assignments, "chain of title" and "proper party", proof of mailing of all monthly statements, etc? How can I respond
Expert:  TJ, Esq. replied 4 months ago.

Hello again.

You don't file a Motion for Discovery. Instead, you merely send your Discovery requests to the plaintiff. If the plaintiff does not respond, then you can file a Motion to Compel. However, there are 2 important points: (1) there are certain deadlines for Discovery, so you should check with the court for any Order that provides such a deadline; (2) only certain courts allow Discovery. If you're in the Supreme Court, then yes. If not, then the answer is likely no. But check with the court clerk.

If you do send discovery, then I would ask for the documents that you mention.

Expert:  TJ, Esq. replied 4 months ago.

Hello again. I didn't hear back from you, so I'm just checking in to make sure that you don't need more help on this issue. If not, then please remember to provide a positive rating via the stars (and note that your positive rating is the only way that I'll get credit for helping you, so I greatly appreciate it). Thank you!