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Hello. I was with a "plaintiffs original petition & request

Hello. I was with a...
Hello. I was with a "plaintiff's original petition & request for admissions" by Capital One Credit Card. They are suing me for a balance on a credit card, prejudgment and post judgment interest, as well as court fees. This petition was filed on 12/6/2011 and I was just served today. I am laid off and do not have the money to pay this or for a lawyer. Is Capital One still able to sue me since they filed it in 12/11 and just provided service on 7/30/11? What are my legal options? Thanks.
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Answered in 2 minutes by:
7/31/2012
TexLaw
TexLaw, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 4,430
Experience: Experienced in consumer protection litigation and direct negotiations on behalf of businesses and consumers
Verified
Unfortunately, Capital One does have the right to continue the lawsuit even though there is a large gap between when they filed the lawsuit and when it was served on you.

Is the lawsuit filed in your county?

What court is it in?

I look forward to hearing back from you.
-ZDN
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Customer reply replied 5 years ago
yes the lawsuit is filed in my county. it has been filed at the smith county court house. is there anything i can do since i am unemployed and do not have the money? is bankruptcy an option?
Bankruptcy is an option. However, before we get to that, you there certain steps you need to take immediately.

The first is that you need to file an answer with a general denial. Basically, you use the heading from the petition it looks like this:

Cause No. _______

Capital One $ In the ____ court

v. $ of Smith County

Your Name $

Defendant's Original Answer

To the Honorable Judge of Said Court:

Comes Now, Defendant _________, and files this Original Answer.

Defendant denies each and every, all and singular, allegations in Plaintiff's Original Petition.

Defendant shall show that Plaintiff's claims are prohibited by the Statute of Limitations.

Wherefore, premises considered, Defendant _________ respectfully XXXXX XXXXX the Court require Plaintiff to prove its claims at trial, and that after the trial the Court dismiss Plaintiffs claims, and grant Defendant such other and further relief, in law or in equity, to which he is justly entitled.

Respectfully submitted,

Your Name,
Pro Se
Contact Information

Once you have this on file, then you need to think about what the assets you have are that you want to protect.

If Capital One wins the lawsuit (which now they have to go through the act of doing since you've filed an Answer), they can get a judgment which will attach to your property. They can't force you to sell your house, but they can seize bank accounts (if they find out where they are).

Filing Bankruptcy is a much more complicated matter and actually requires money for filing fees etc. However, if you have several debtors threatening to file suit, it might be wise to consider this. But it is almost impossible to have a successful bankruptcy without hiring an attorney, and you would end up wasting more money and time than you'd save in the long run.

In the end, if you don't have any assets, then you are what we call "judgment proof", meaning that a judgment against you doesn't really have any effect because there is nothing to take. It ruins your credit and it places a lien on your house (that only activates if it is sold if the house is your homestead).

I recommend filing the answer and going from there. Please let me know if you have further question.
-ZDN
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Customer reply replied 5 years ago
hello. thanks for the quick response. i do not own a home. i have a car that i have a lien holder and i have a motorcycle that i pay a lien holder as well. i am upset down in both. i live in an apartment. capital one wants me to pay $7000. would this be the best route to go or should i speak to their lawyers about paying a lesser amount, like $3000 or so? please advise.
Customer reply replied 5 years ago
also, what are the statues of limitation to collect on credit card debt?
You need to file the answer so that you have leverage to negotiate.

File the answer, then call their attorney and see if they would take less in a settlement. This puts you in a stronger position than simply ignoring the lawsuit and calling them now. They will not settle and get a default judgment against you and then you will be completely at their mercy.

The statute of limitations is 4 years from the last payment. You always throw that into an answer in these sort of cases because usually the law firm has no access to that information and they will not know what to do.
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Customer reply replied 5 years ago
Another question if i may.

Can i just file a general response as provide above or do I need to answer each individual question on the "facts to be admitted or denied."


for instance, question 1 ask:


"admit or deny that you requested that capital one open a credit card account on your behalf?"
OK..that's a different thing

The Request for Admission is a discovery request. It does not have to be filed with the court. You have to serve your answers on the other party by sending the answers to the attorney. Everything in that will be used against you. My advice to you is to deny as much as possible and anything that would be you admitting to liability.

You definitely need to answer these too, you can't ignore it or it will simply prove their case against you. Deny deny deny
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Customer reply replied 5 years ago
thank you so much. first i file a general response denying everything. i file this with the clerk at the court house. i assume i need to serve this response on the attorney.

then i need to respond to the facts of admissions denying everything and i just mail that to the attorney and not the court house?


do you have any other statue of limitations or legal denial quotes that i could place in my general answer?
That's right.

You file the Answer just like I typed it out above. File that at the court house and send a copy to the attorney.

Then type up a "Defendant's Responses to Plaintiff's Requests for Admissions" and type every question out and under it put "Denied".

After you've done those things you should call them and see if they want to settle or will give you payment plan.
TexLaw
TexLaw, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 4,430
Experience: Experienced in consumer protection litigation and direct negotiations on behalf of businesses and consumers
Verified
TexLaw and 87 other Consumer Protection Law Specialists are ready to help you
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Customer reply replied 5 years ago
hello sir. i want to thank you for all of your help again. however, i have another question and i am more than willing to provide another tip for your great service. but i thought it would be best to reply to this question so that you already have the background.

is there any advantage to file the answer and the plaintiff's original petition & request for admissions as late as possible before the deadline or should i just get it out of the way?


additionally, i assume that i would have to provide my phone number and address on my response. how can i avoid this if i do not want an ex-stalker to get my info, which i was not granted a restraining order against him. can i simple put a po box address instead and if i do and they need to serve me again, do that have to personally serve me or will they serve the employees who work at the po box company.


finally, are there any other texas case law that can support me to not have to pay this debt due to no assets, no employment, no money, and that it was filed on 12/6/11 and just served to me on the end of july? please advise.
In regard to the advantage of waiting, as a Defendant, it is always best to wait until the very last date before filing any response or answer. Remember, you have 20 days from the date you were served with the petition to file an Answer. You have 50 days from the date you were served with the petition to file a Response to the Requests for Admissions.

In regard to your address, you can use a PO Box that belongs to you (or that you have mail delivered to) instead of your physical address. They will serve you all further information at your PO Box. However, you need to make sure that you check it regularly, as the deadlines on all following motions and discovery requests will be from when it reached your PO Box, not when you pick up the documents.

As far as the case, the only case law out there is directly against your interests. It does not matter that you don't have any assets or employment or money. These are not defenses to payment on a credit card debt. Further, in regard to the filing date and the service date, the only issue concerned here is whether they are past their statute of limitations deadline. If they filed the case within the statute of limitations, but you were not served with process until after the statute of limitations, then you have a good defense on the statute of limitations.

The most important thing right now is for you to get your answer filed ASAP.
TexLaw
TexLaw, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 4,430
Experience: Experienced in consumer protection litigation and direct negotiations on behalf of businesses and consumers
Verified
TexLaw and 87 other Consumer Protection Law Specialists are ready to help you
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Customer reply replied 5 years ago
Hi again. I have another question. I need to serve the attorneys representing capital one. can service be completed by mail or do i need to hire a process server? also, can i serve by mail or do i need to hire a process server to serve by mail? this is in reference to my written answered that i have been "commanded to appear by filing."

Now for the "request for admissions" do i need to serve the attorneys and if so, does it need to be a process server? Or can i just mail them my responses by mail and i believe earlier you stated that I do not need to serve the court this portion. Is that correct? Thanks!
Hi,

Good questions as the term used for giving the other side the documents is called serve throughout the case, but "serve" has different meanings.

For you, every document from here on out is going to be "served" on Capital One's attorneys. You "serve" them by sending them the document in the mail, but it has to be certified mail, not regular mail. If you have a fax machine, you can "serve" them by sending the document by fax to their fax number. This is the less expensive method. That's all you have to do to serve them. You do not have to hire a process server for this.

For the Court, there are only certain documents that you have to "file." Filing is the action of sending the document to the Court. You either send it in the mail (can go by regular mail to the court) or you can actually go to the court and give it to the "clerk". The information of where to send things to the court should be on the citation that was served on you. Again, only certain documents have to be filed with the court. The first document is your Answer. The only other documents which must be filed with the Court will be Motions and Responses to Motions. No Discovery Responses are filed with the Court. So your Responses to Plaintiff's Requests for Admissions does not have to be filed with the court.

Let me know if you need clarification.

-ZDN
TexLaw
TexLaw, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 4,430
Experience: Experienced in consumer protection litigation and direct negotiations on behalf of businesses and consumers
Verified
TexLaw and 87 other Consumer Protection Law Specialists are ready to help you
Ask your own question now
Customer reply replied 5 years ago
Hi again. I have another question. I was served on the evening of the 30th. I am planning to file my answer with the court and serve my answer to capital one attorneys by certified mail on Monday 8/20. In my count of days, the 8/20 should be the 21st day. Can I file and serve on that day or do I need to do it the Friday before on 17th? I ask because the documents states:

"file an answer with the clerk who issued the citation by 10am on the Monday next following the expiration of the 20 days after you were served..."

Finally, why do I have 50 days to serve the request for answers to the attorneys?
Hi,

Good question. Calculating dates for litigation matters is always a bit confusing.

In regard to the filing of your Answer, yes. You can file it on Monday the 20th because it is the Monday following the 20th day.

In regard to the Response to the Request for Admissions, you have 30 days from the date your Answer is due. The general rule in Texas for responses to discovery is 30 days from the date of service of the discovery request. When your opponent serves you with discovery requests before you have had a chance to answer the lawsuit, then you get an extra 20 days under the Rules. For any future discovery requests that they send you, you will only have 30 days from the date on the certificate of service (which is a statement in the document stating the date on which they served you with the document).

-ZDN
TexLaw
TexLaw, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 4,430
Experience: Experienced in consumer protection litigation and direct negotiations on behalf of businesses and consumers
Verified
TexLaw and 87 other Consumer Protection Law Specialists are ready to help you
Ask your own question now
Customer reply replied 5 years ago

Hello. I filed my answered on 8/17. Now I am planning on mailing my response to the "request for admissions" today on 9/17. However, I just want to confirm you response above.


 


You stated that "in regards XXXXX XXXXX response for request for admissions, you have 30 days from the date your answer is due." Based on that response I am able to mail my response on 9/17 because that is 30 days from the date i filed my answered and served to attorney.


 


However, just below you statement, you also say, "When your opponent serves you with discovery requests before you have had a chance to answer the lawsuit, then you get an extra 20 days under the Rules." So does that I can mail the response to the request for admissions 50 days from the date I served my answer? Please advise.


 


Additionally, this request for response comes in two parts.


 


The first part is titled "Facts to be Admitted or Denied." You response above states that I should Deny all, which I agree.


 


The second part is titled, "Interrogatories." For each question asked in part 1, part 2 ask, "If admission 1 is denied, state and explain every reason or basis for that denial." Is there a general denial sentence I can use for each of these questions without perjury myself on the documents? There are a total of 16 questions in part 1 and part 2 just repeats ... "If admissions ... is denied, state and explain every reason or basis for that denial.


 


Thanks for your assistance again.

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TexLaw
TexLaw
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Satisfied Customers: 4,430
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