Author Topic: Need answer help  (Read 1465 times)

0 Members and 1 Guest are viewing this topic.

OverMyHead88

  • Valued Member
  • Posts: 4
Need answer help
« on: May 25, 2017 09:17:26 PM »
Husband is being sued by RSIEH on behalf of Capital One for a charged off credit card. We are Texas residents.  Last payment was in 2015 so we are not beyond SOL.

I've been reading the boards for suggestion and found some but after so much reading it all just jumbles together and becomes overwhelming. I would appreciate any guidance on answering some of the questions.  Or, should I call the representing atty and work out a settlement or wait until after an answer is filed.  Also note, there was zero proof/documentation (bills, statements, etc) provided to go along with the CfDC and Petition.

On the Citation for Debt Claim it lists Plaintiff: Capital One Bank (USA), N.A  vs  Defendant:  (husbands name) BUT, my husband is a Jr. and it only lists first and last on this and the Plaintiff's Original Petition.
At the bottom of the CFDC it says

Plaintiff's address:  ,(Attny Name)  Could this be a point argued since it's obviously a typo and they put the attorney's name?
Plaintiff's attorney and address:  (attny name and full address)

1.  The address for Plaintiff, Capital One Bank (USA) NA is 1680 Capital One Drive, McLean, VA 22102

Answer: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation and therefore denies

2. Defendant ( Husband's name *just first and last w/out the Jr.*) may be served with process at (our address), or other such places as the Defendant may be found.

Answer:  The above named is not the complete legal name of said defendant. Therefore, there is not sufficient evidence to form an opinion as to the truth or accuracy of the allegation

3. Plaintiff seeks only monetary relief of $100,000 or less, including damages of any kind, penalties, costs and expenses

Answer: Plaintiff's statement is conclusory and offered without admissible evidence.   Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation regarding the amount and therefore denies. Defendant admits only that the amount claimed does not exceed the jurisdiction of the court.

4. Plaintiff asserts that the above named court has jurisdiction over the subject matter of this case and the person(s) of Defendant(s)  and that the damages sought are within the jurisdictional limits of the court

Answer: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation

5. Venue of this action is proper in the county named above because Defendant is/are individuals believed to be residing in said county at the time of commencement of suit.

Answer: Admitted

6. On or about April 28, 2010, Defendant opened a credit account with Capital One Bank NA in the Defendant's name under account number ending in xxxxxxx.  Defendant used account and thereby became obligated to pay for the balance owed on the credit account.  Plaintiff's records indicate Defendants last payment on the account occured on x/x/2015.  Defendant defaulted on the obligation to make monthly payments  on the credit account and the account was subsequently cancelled.  The credit account was subsequently closed due to non payment and or charged off to profit and loss on or about February 24, 2016. The balance remaining on the credit account is presently due and payable in full

Answer:  Plaintiff's statement is conclusory and offered without admissible evidence.  Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation and therefore denies.

7.  After allowing for all just and lawful offsets, credits and payments on the credit account, the total balance due to Plaintiff by defendant on the Account is $4260.62 (I believe the credit limit was only $3000)

Answer:  Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation regarding the amount,  interest rates or fees and therefore denies.

8.  The Plaintiff has made demand upon the defendant for payment of the amount due and payable in full.  The Defendant(s) have failed, neglected, and refused to pay the amount requested.

Answer:  Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation and therefore denies.

9.  Plaintiff has performed all conditions precedent to filing of this action or all such conditions precedent have been performed or have occured.

Answer:  Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation and therefore denies.

10. Plaintiff is entitled to recover on account stated claim because (1) transactions between the Plaintiff and Defendant(s) gave rise to indebtedness, (2) there existed an agreement between the Plaintiff and defendants which established the amount due to Plaintiff, and (3) the Defendant(s) promised to pay the Plaintiff of the indebtedness.

Answer: Plaintiff's statement is conclusory and offered without admissible evidence as no application with the defendant's signature has been offered in evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation  and therefore denies.

11. Plaintiff seeks damages on it's liquidated claim in the amount of at least $4260.62, which is within the jurisdictional limits of this court.

Answer: Plaintiff's statement is  offered without admissible evidence.Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation and therefore denies.

12.  All conditions precedent to Plaintiff's claim for relief have been performed or have occured.

Answer: Plaintiff's statement is  offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation and therefore denies

13.  The undersigned attorneys hereby give notice that they and the Plaintiff are attempting to collect a debt and any information obtained will be used for that purpose. Plaintiff's attorney's are debt collectors.

Answer:   Plaintiff's statement is  offered without admissible evidence. No agreement as been entered into with Rausch, Strum, Israel, Enderson & Hornik LLC, nor has proof been provided that they may represent Capital One Bank (USA), N.A. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation  and therefore denies

14.  For these reasons, Plaintiff asks the court issue citation for Defendant to appear and answer, and that Plaintiff be awarded a judgement against Defendant for the following:

a. Actual damages in the amount of $4260.62
b  Court costs
c.  All other releif to which Plaintiff is entitled, disclaiming all allowable attorney fees.

Answer:  Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation and therefore denies

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: Need answer help
« Reply #1 on: May 26, 2017 12:40:50 PM »
You do NOT want to send something like that to the court. It's way too involved and has too many mistakes. You should be in JP Court for that amount. You should use the court form; this is Harris County, but yours should be the same, just look it up on line.  Typos, etc. are meaningless in court, all they will do is allow them to correct them.


http://www.jp.hctx.net/forms/2013%20APPROVED%20FINAL%20RULES%20-%20WEBSITE%20DOWNLOADABLE%20FORMS/CV-Answer%20502.5.pdf



Arbitration was removed in June 2010, so you'd have quite a fight on your hands if you tried to elect it.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

OverMyHead88

  • Valued Member
  • Posts: 4
Re: Need answer help
« Reply #2 on: May 26, 2017 02:33:10 PM »
Thank you for your feedback and yes, it is in JP court.  Do you have a suggestion on wording for general denial for all claims?  We have until Thursday to file an answer.  I'm a complete novice at this so I have no clue how to answer and what I thought I'd found was incorrect it seems  :(.  I have the proper answer form from our county website.


Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: Need answer help
« Reply #3 on: May 26, 2017 02:45:42 PM »
The form should have the answer on it. The sample does.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

OverMyHead88

  • Valued Member
  • Posts: 4
Re: Need answer help
« Reply #4 on: May 26, 2017 03:12:03 PM »
I see the example in the link now, I missed it before coffee this morning.  Thank you for your help.

Bubbles

  • Valued Member
  • Posts: 1382
Re: Need answer help
« Reply #5 on: May 26, 2017 06:14:39 PM »
After you file the court form general denial, think about settling.

The court usually likes to see a good faith effort to settle.

Therefore, even if you find yourself in a trial situation, having timely answered the complaint and evidence that you then made an attempt to settle, would be in your favor. The plaintiff knows that too, and will probably want to settle and avoid a trial.

 

CleaningUp

  • Valued Member
  • Posts: 10749
Re: Need answer help
« Reply #6 on: May 26, 2017 06:55:52 PM »
Be careful, OMY88, you are not allowed to represent your husband unless you are a licensed attorney admitted to practice in your jurisdiction.  Unlicensed practice of law. 

Whatever is put in the answer, your husband is going to be on the hook for aswering if questioned in these proceedings.  You cannot do it for him.


Bubbles

  • Valued Member
  • Posts: 1382
Re: Need answer help
« Reply #7 on: May 26, 2017 07:05:30 PM »
+1

Be careful, OMY88, you are not allowed to represent your husband unless you are a licensed attorney admitted to practice in your jurisdiction.  Unlicensed practice of law. 

Whatever is put in the answer, your husband is going to be on the hook for aswering if questioned in these proceedings.  You cannot do it for him.

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: Need answer help
« Reply #8 on: May 26, 2017 09:23:37 PM »
Since TX is a community property state, you could file for intervenor status to be added to the case since the outcome can affect you financially. That allows you to defend YOUR interest, which just happens to be the same as hubby's. It is Texas Rule 61.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

CleaningUp

  • Valued Member
  • Posts: 10749
Re: Need answer help
« Reply #9 on: May 27, 2017 01:41:07 AM »
The onus is on you to file.  It doesn't happen automatically.

Your husband is still going to have to be prepared to speak before the Court, and it is likely that he is going to be asked to speak first.


OverMyHead88

  • Valued Member
  • Posts: 4
Re: Need answer help
« Reply #10 on: May 30, 2017 02:41:58 PM »
Be careful, OMY88, you are not allowed to represent your husband unless you are a licensed attorney admitted to practice in your jurisdiction.  Unlicensed practice of law. 

Whatever is put in the answer, your husband is going to be on the hook for aswering if questioned in these proceedings.  You cannot do it for him.

I understand that.  He'll be signing the paperwork and filing the answer with the court, I'm just doing the legwork since I sit in front of a computer all day in an office and he spends his traveling in a vehicle. This card was only in his name and doesn't appear anywhere on my credit, although, I do know judgement in a community property state could affect me as well.

 

credit