Topic: Please Review My California Answer For Capital One Summons Complaint

[JohnD]

Please Review My California Answer For Capital One Summons Complaint

Please review my California Answer for Capital One Summons Complaint.

I did not receive any info with their Summons/complaint. The took over the alleged account from Chase in 2011. Which is when the alleged default happened.

I sent a letter to the plaintiff's attorney last week electing private contractual arbitration per the original agreement from chase(2006 agreement). I asked them to also dismiss the suit in the letter. I did not send them the agreement. The amount is close to 20K.

I have file my answer by this Friday/possibly Monday.

I checked box 3b. and put my Deny statements in 3.b.2 as follows:

Paragraph 7, Statement of Location/Venue : DENY. Defendant ADMITS he is a resident of this county, but has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides litigation rights in court.

Paragraph 10, CC-1, CC-2: DENY. Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's allegations. Defendant holds the Plaintiff to provide the strictest proof thereof.

I checked Box 4. Affirmative Defenses, and wrote:

1) Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff and Plaintiff's attorney of her election to arbitrate pursuant to the terms of said agreement. This court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration agreement.

2) Plaintiff failed to state a claim upon which relief can be granted. Plaintiff has brought suit against Defendant as "suit on account", but has not provided the contract or any other valid and sufficient proof of agreement on behalf of the Defendant with the Plaintiff, whether expressed or implied.

3) Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

Next, I checked box 5 for Other and wrote:

Defendant requests a copy of the account/bill of particulars in accordance with CCP 454.

Lastly in Part 6. Defendant Prays, I checked box C and wrote:

Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to governing card agreement.

I appreciate any feedback anyone can provide. Thanks in advance.

[Shadowbuddha]

It's ok but don't expect anything to come out of your 5 & 6.  If you want a BoP you'll need to write to the plaintiff directly.  If you want arbitration you'll have to do a motion to compel.  No-one reads these things until forced to.

[JohnD]

It's ok but don't expect anything to come out of your 5 & 6.  If you want a BoP you'll need to write to the plaintiff directly.  If you want arbitration you'll have to do a motion to compel.  No-one reads these things until forced to.

Thanks Shadowbuddha for the feedback. I want to get the arbitration more so than the bill of particulars. I have sent a letter to the creditor and their attorney electing arbitration per the user agreement, but have not heard anything back yet. I plan to file the MTC arbitration in a couple of weeks if they do not dismiss the suit. I need their refusal before I can file the MTC in California.

Also, if I get the bill of particulars, that does not somehow lock me out of arbitration does it?

[CleaningUp]

JohnD, your answers are some of the best written answers we've seen from a newbie in a long time.

Keep up the good work.  You may not win, but if you keep doing what you are doing, you'll give them real headaches along the way.

[JohnD]

JohnD, your answers are some of the best written answers we've seen from a newbie in a long time.

Keep up the good work.  You may not win, but if you keep doing what you are doing, you'll give them real headaches along the way.

Thanks CleaingUP for the feedback. Could not have done it without all the helpful post in this forum!

[JohnD]

Here is the sections that had info in the complaint

7. The court is the prober court because defendant lives here now.

8. The following causes of action are attached and the statements above apply to each.

• Common Counts

10. Plaintiff Prays for judgment for cost of suit:
a. damages of $22000.00

Cause of Action -Common Counts Attachment
CC-1 a. Defendant became indebted to plaintiff within the last four years.
CC-1.a.1 on an open book account for money due
CC-1.a.2 because an account was stated in writing by and between plaintiff and defendant in which it was agreed that the defendant was indebted to plaintiff.

CC-1.b. within the last 4 years
CC-1.b.4 for money lent by plaintiff to defendant at defendant's request
CC-1.b.5 for money paid, laid out, and expended to or for defendant at defendant's special instance and request.

CC-2 $22k, which is reason able value, is due and unpaid despite plaintiff's demand.

[Shadowbuddha]

Re: BoP

I doubt it would hurt your chances with arbitration but it is possible.  One way to waive arbitration is to conduct discovery.  Technically a BoP is considered to be an extension of the pleadings but be ready for the opposing side to argue you waived your arbitration rights by requesting a BoP.

[JohnD]

So maybe I should wait on the BOP?

[Shadowbuddha]

If you're planning on doing a MTC Arb in the near future I don't see any real value in doing a BoP right now. 

Again, I don't think it would waive your arb rights, but the opposing counsel will make any argument it can.