After being served with a summons for credit card default lawsuit, I'm planning to counterclaim when filing an answer. It will be in the vicinity that the plaintiff has no legal authority nor jurisdiction over me and defrauding me to pay them money when they're pretending to represent Capital One, when I know they are like Junk Debt Buyers. How do I obtain proof to support the counter claim, if the plaintiff refuses to cooperate with my discovery?
Just some additional comments to what the other attorneys said....if your case is in small claims, then you have to request leave to conduct discovery (permission from the court/you can file a motion). Then you may move for lack of standing for failure to show that they own your debt. You may also bring up the defense of failure to prove account stated. The statute of limitations may also affect the amount of proof required. For example, the statute of limitations to sue on a written contract is 10...for a verbal contract is 5.
The information in this answer is not intended as legal advice nor do I intend to create an attorney-client relationship with any reader simply by answering this question or contributing as a member of AVVO.
The term you're searching for is standing. They may, or may not, have standing to enforce the debt. That will depend on the wording of the credit card contract you entered into when you first got the card. Remember all that fine print? Better pull it up and check, FIRST.
Second, did you serve discovery? Did you make reasonable efforts pursuant to 201(k) to resolve the issue? If so, if that failed, did you file a motion to compel? If small claims, did you get a court order granting you leave to serve discovery pursuant to local rules?
Talk to an attorney in your area for specific guidance. It sounds like you're way in over your head.
You need an attorney's help with this. Your credit card debt has likely been legally sold to the company suing you. You are likely wasting your time claiming the plaintiff has no standing. See that attorney so you can do this right and not waste time and money on a bogus defense.
So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.
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