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Dylatess
Dylatess, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 5156
Experience:  36 plus years consumer law practice
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I am being sued by Capitol One Bank and I filed my own response

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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

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 3 years 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?

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: 5156
Experience: 36 plus years consumer law practice
Dylatess and other Consumer Protection Law Specialists are ready to help you
Customer: replied 3 years 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 3 years ago.
HELLO, are you going to answer???
I am a BK expert and will defer to an expert that handles civil litigation.
Customer: replied 3 years ago.
OK THANK YOU!
Customer: replied 3 years ago.
Torino the civil litigation person contact me by email after he reads my question? Thanks
Customer: replied 3 years ago.
no one else has contacted me?
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 3 years 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?
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 3 years 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?
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 3 years 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?
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 3 years 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 3 years ago.
you still there?
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 3 years ago.
ok thank you for your time and help in this matter!!! Any last minute advice for me? :)
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.