Author Topic: Capital One "Dismissal" Letter  (Read 1488 times)

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Gusto

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Capital One "Dismissal" Letter
« on: May 26, 2011 02:14:33 AM »
I just wanted to let anyone that's followed my case with Cap One, provided tips or is simply looking for hope that after filing and sending my MTC back in March I received a simple one page one sentence Dismissal letter from their attorney. I was just starting to contemplate my next move after not getting any response far past the allowed time to do so in Kansas, i.e. outlining a new motion (request a hearing?) and contacting the district court office in regards to the "status of my motion".

Coincidentally in the mail also was the judge's Journal Entry and Orders  in which she granted a stay in the case pending arbitration. This is a huge relief for me.

The plaintiff however dismissed the case without prejudice which I do have some questions about. I am aware that cases dismissed without prejudice can be refiled and litigated again at a later date, presumably within my states SOL.

I am guessing that since the judge granted a stay in the case that the only way they would be able to refile would be through arbitration??? And I don't see any advantage to this... does anyone else?
Does anyone think that I have an argument to file motion to dismiss with prejudice or should I just take this as a victory and assume that I am through with Cap One???

Shadowbuddha

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Re: Capital One "Dismissal" Letter
« Reply #1 on: May 26, 2011 03:09:10 AM »
If they tried to retry this through the court system (except in the narrow exception of bringing the lawsuit solely for a MTC Arb) they would likely have a very upset judge as most judges would see this as them trying to do an end run around a judge's order and judges really dislike having their orders being ignored.

Personally, I think they'll sell the debt to try to get some money out of it although I have been told Cap1 doesn't really sell much debt.  If they do, you have a slam dunk MTC issue at the ready for the poor poor JDB who bought a lawsuit waiting to happen.
"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

kevinmanheim

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Re: Capital One "Dismissal" Letter
« Reply #2 on: May 26, 2011 11:07:56 AM »
I would keep an eye on the docket, expecting them to file it again before the SOL runs out.

If a judge called them on it, they would blame it on a clerical error - and most likely get away with it.


xtroublex

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Re: Capital One "Dismissal" Letter
« Reply #3 on: May 26, 2011 06:24:33 PM »
I just wanted to let anyone that's followed my case with Cap One, provided tips or is simply looking for hope that after filing and sending my MTC back in March I received a simple one page one sentence Dismissal letter from their attorney. I was just starting to contemplate my next move after not getting any response far past the allowed time to do so in Kansas, i.e. outlining a new motion (request a hearing?) and contacting the district court office in regards to the "status of my motion".

Coincidentally in the mail also was the judge's Journal Entry and Orders  in which she granted a stay in the case pending arbitration. This is a huge relief for me.

The plaintiff however dismissed the case without prejudice which I do have some questions about. I am aware that cases dismissed without prejudice can be refiled and litigated again at a later date, presumably within my states SOL.

I am guessing that since the judge granted a stay in the case that the only way they would be able to refile would be through arbitration??? And I don't see any advantage to this... does anyone else?
Does anyone think that I have an argument to file motion to dismiss with prejudice or should I just take this as a victory and assume that I am through with Cap One???

The user name you chose is ironic since the lawyers that Cap1 is using in my case is "Gusto Chargo" or something like that... lol

Gusto

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Re: Capital One "Dismissal" Letter
« Reply #4 on: May 26, 2011 11:18:07 PM »
I was going to research this a bit a more, but before I do, offhand does anyone know what are legitimate grounds to motion to dismiss with prejudice?

CleaningUp

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Re: Capital One "Dismissal" Letter
« Reply #5 on: May 26, 2011 11:37:49 PM »
Grounds are, essentially, that the party failed to meet the burden of proof necessary to to sustain the claim.

How they failed may or may not be relevant in the court's thinking. However, if the litigant is given the opportunity to prove and doesn't, he is usually deemed to have forgone future claim.

A litigant finding himself in that position usually moves for dismissal w/o prejudice before he gets too far in the tank so as to preserve his options.






Gusto

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Re: Capital One "Dismissal" Letter
« Reply #6 on: May 27, 2011 02:42:55 AM »
So in my case, since the judge already granted my MTC and stayed the proceedings pending arbitration, but the plaintiff dismissed the case without prejudice, would it be advisable to go ahead and just role the dice with a motion to dismiss with prejudice? Even though the plaintiff dismissed the case (w/out prejudice) they still cannot relitigate this case because I did file a MTC and it was granted, right? So wouldn't the judge be likely to grant me a dismissal with prejudice????

CleaningUp

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Re: Capital One "Dismissal" Letter
« Reply #7 on: May 27, 2011 02:47:14 AM »

That would be a stretch.

However, if they ever file suit again, I would be asking for an immediate dismissal with prejudice and filing a counterclaim for their obvious, willful violation of the FDCPA and your state's UCC.


chiquita55

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Re: Capital One "Dismissal" Letter
« Reply #8 on: May 27, 2011 03:39:53 AM »
Congrats Gusto!   We have been in this together with Cap One.  I hope someday I can post what you did but I haven't had the luck to get the judge to rule in my favor for mtc.   My judge is so pro creditor it isn't funny.   I pray I don't have to appeal his answer tomorrow.

Gusto

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Re: Capital One "Dismissal" Letter
« Reply #9 on: May 27, 2011 05:04:18 AM »
chiquita55... the judge in my case seemed to play a neutral role though there were times that I felt she was taking the side of the creditor --- when she accused me of "ghost written pleadings"... and there were other times that she seemed to take my side like when she reversed her summary judgment and granted me my motion for relief from judgment due to my attorney's excusable neglect.

Good luck to you!