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I need to help my uncle settle this dispute with Capital One Bank because he's not very good at speaking and understanding English, but I'm not very good myself with law and court stuff. My uncle's been summoned because Capital One Bank had a complaint with him saying he owes about $10,000 because he opened an account with them and made purchases he didn't pay. However, he himself had never opened an account or had a credit card with them. Instead, Capital One Bank had mistaken him for his brother, because they have the same name. He had cleared this problem before in his credit report. He went through Experian and they deleted it. He has proof of it also. The thing is, he needs to answer to the complaint and I don't know exactly how to. At first I thought of just writing a paragraph explaining the situation, but after I looked online, it seems the wrong thing to do.
the complaints are as followed:
1. Plaintiff CAPITAL ONE BANK (USA), N.A., is a national bank and the Defendant(s) ______ is/are a resident of _____ county, Illinois.
2. The Defendant(s) opened an account agreeing to make monthly payments as required by the terms of the Charge Agreement, for purchases charged to the account.
3. The Defendant(s) did make purchases and charged same to the account but failed to make the monthly payments called for on the account. There is a balance due and owing $10326.71.
4. Plaintiff declared Defendant(s) to be in default and demands payment of balance.
WHEREFORE, the Plaintiff, CAPITAL ONE BANK (USA), N.A., pray for judgement against the Defendant(s), ______, in the amount of $10326.71 plus costs.
So how do I answer to this? I hope I can find an answer soon; I will need to give this to him tomorrow
Instead, Capital One Bank had mistaken him for his brother, because they have the same name.
Brothers with the same name?
Basically he sends a letter to the court something like this:
To Whom it May Concern,
I am responding to summons dated <insert date> <insert docket number or other info from summons>. It is my Intent to Defend against this suit because I have never had an account with the Plaintiff. I believe this account belongs to my brother who has a similar name.
That's all that's needed. Then send a copy to the plaintiff with a request for verification of the debt.
1. Is his name and the location of residence correct? If yes, he answers " Defendant is without information or knowledge to form an opinion as to the truth or accuracy of the former and admits the latter allegations contained in paragraph 1." as you don't know for a fact that the former is true, you only know if you are the defendant so-named residing in that location. If the name and/or location are incorrect, then you reply that "Defendant is without information or knowledge to form an opinion as to the truth or accuracy of the allegations contained in paragraph 1.
2. Defendant denies the allegations contained in Paragraph 2 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
3. Defendant denies the allegations contained in Paragraph 3 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
4. Defendant denies the allegations contained in Paragraph 4 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
Your defense is what Scott gave you in his post. But since you wanted the point by point answers, there they are. You are deny 2 through 4 based on it being the wrong person. Use the above, and add the letter that Scott gave you.
You might want to visit the Bankruptcy forums for additional info. Validation letters are available there. Mr yet has posted examples.
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Posts: 8,269
Quote:
Originally Posted by DisabledinMD
Answer to complaint:
1. Is his name and the location of residence correct? If yes, he answers " Defendant is without information or knowledge to form an opinion as to the truth or accuracy of the former and admits the latter allegations contained in paragraph 1." as you don't know for a fact that the former is true, you only know if you are the defendant so-named residing in that location. If the name and/or location are incorrect, then you reply that "Defendant is without information or knowledge to form an opinion as to the truth or accuracy of the allegations contained in paragraph 1.
2. Defendant denies the allegations contained in Paragraph 2 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
3. Defendant denies the allegations contained in Paragraph 3 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
4. Defendant denies the allegations contained in Paragraph 4 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
Your defense is what Scott gave you in his post. But since you wanted the point by point answers, there they are. You are deny 2 through 4 based on it being the wrong person. Use the above, and add the letter that Scott gave you.
You might want to visit the Bankruptcy forums for additional info. Validation letters are available there. Mr yet has posted examples.
The correct phraseology to denials of allegations are as follows:
The defendant denies the allegations contained in paragraph _ and demands strict proof thereof.
1. Is his name and the location of residence correct? If yes, he answers " Defendant is without information or knowledge to form an opinion as to the truth or accuracy of the former and admits the latter allegations contained in paragraph 1." as you don't know for a fact that the former is true, you only know if you are the defendant so-named residing in that location. If the name and/or location are incorrect, then you reply that "Defendant is without information or knowledge to form an opinion as to the truth or accuracy of the allegations contained in paragraph 1.
2. Defendant denies the allegations contained in Paragraph 2 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
3. Defendant denies the allegations contained in Paragraph 3 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
4. Defendant denies the allegations contained in Paragraph 4 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
Your defense is what Scott gave you in his post. But since you wanted the point by point answers, there they are. You are deny 2 through 4 based on it being the wrong person. Use the above, and add the letter that Scott gave you.
You might want to visit the Bankruptcy forums for additional info. Validation letters are available there. Mr yet has posted examples.
This advice is incorrect under these circumstances - Scottgem IS correct; Twinkiedooter IS correct.
OP should check the "credentials" and number of posts of people responding before taking action. Don't pretend to be an Attorney!
I'm afraid that doesn't satisfy my uncle. He would like to know how to answer these questions.
And how does my suggestion not answer the questions? Unless he's going to hire a lawyer then he's better off NOT getting involved in legalese. If he's going to go pro se to defend himself, then he should keep it as simple as possible.
Location: Shoveling snow from my driveway into your driveway.
Posts: 8,269
DisabledinMd - You obviously have no legal training other than the internet.
The added "stuff" about his brother's name is similar to his and the fact he never had an account with these people should be outlined in the area called "Affirmative Defenses" in his Answer to the Complaint and not where you indicated they should be addressed.
Denial of allegations are quite different from Affirmative Defenses.
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