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61  Flordia Debtor / Post a Question / Sued by Captial One - Where to start? on: January 22, 2007, 07:43:03 AM
OK, guys, Thanks for the advice. I have spent a few days thinking about htis and want to run a few more ideas past you knowledgeable folks.

My main interests lie in fighting this outright (that means going the whole way, MTD, going to trial etc…) or at least getting myself in a stronger negotiating position (again, by fighting this, swamping them with paperwork, etc… but W/O going to trial).

So here are a few of my thoughts/questions about weaknesses in their case and/or my defenses:

1.  I make them provide a signature. Does this matter? Do I want to argue from a written contract point or oral agreement point?

2. The customer agreement is copyrighted 2005. Can I argue that this customer agreement is irrelevant? Try to make them prove account was opened in 2005, even IF account is mine (I will not admit unless judge rules that way), this customer agreement does not apply, etc….

3. They have provided the last 3 account statements, none of which show a payment. Their court papers state a default in Sept, 2005, but their own evidence shows a default of at least July 2005 at the latest. Could I argue SOL if they cannot provid proof of my last payment? (I know, likely they can, but I am just throwing this out there….)

4. Since they have figured default date wrong, then final amount calculation is wrong. Can I ask for validation at this point (first communication and all), request all account statements, proof of payments, etc…? Make them prove amount….

5. The account statements they attached also show no use of the credit card…..I guess I am really looking for a way to fight the Account Stated charge…….

6. If Judge does rule that this account is mine, will I then have an opportunity to provide more defenses, such a breach of contract by Cap One, etc….(just bear with me, I have some ideas)?

Thanks for any help you guys can provide!!
62  Flordia Debtor / Post a Question / Sued by Captial One - Where to start? on: January 17, 2007, 08:02:46 AM
I am kind of worried about the Virginia part. I figure my options are:

1. Fight it in court. MTD, etc...Force them to produce signatures and such.....

2. Settle with them before court date.......not my prefered option.

3. Go to required pre-trial mediation and see what happens...........
63  Flordia Debtor / Post a Question / Sued by Captial One - Where to start? on: January 16, 2007, 09:09:56 PM
YES, HH&L.
64  Flordia Debtor / Post a Question / Sued by Captial One - Where to start? on: January 16, 2007, 01:42:32 PM
Hello,
I have been lurking on this board for a couple of weeks in anticipation of a need of information. Looks like a wealth of information!!
Anyways, here goes...

I was served with small claims court papers last week. I am being sued by Capital One by an attorney out of another county than where I live. I have attached the complaint below along with some of their "evidence."

I did some research on the county Clerk of Courts site and this attorney has been pretty active for the last couple of years with Capital One accounts. Thought I would post my stuff and see what everyone thinks about fighting this or settling out of court. I am really most interested in not getting a judgment on my credit report AND NOT paying this scumbag $750.00 in lawyer’s fees as he is requesting below. The lawyer also attached a typical offer for a “Stipulation for entry of final judgment execution withheld” letter on the end of the complaint with blanks for attorney fees and to be paid in a certain amount monthly. No way I am agreeing to this without going to court required mediation first!!

I may just offer to pay a whole lump sum along as he agrees to dismiss the lawsuit………

OR I may fight the whole thing since they did not attach anything with my signature…………but they might be able to get or “CREATE” such evidence………..not a terribly old account.

Any thoughts?

CAPITAL ONE BANK, Plaintiff,
vs.
ME, Defendant(s)

COMPLAINT FOR DAMAGES
 
COMES NOW the Plaintiff, CAPITAL ONE BANK by and through its undersigned counsel and sue(s) the Defendant(s), ME and states as follows:
GENERAL ALLEGATIONS
1. This is an action for damages that is within the jurisdictional limits of this Court.
2. Defendant(s) is/are resident(s) of this County.
3. In the event this matter is resolved by way of default a reasonable attorney’s fee would be $750.00.
4. Plaintiff at Defendants special instance and request issued a credit card with the account number of XXXXXXXXXX to the Defendant(s).
5. That the Plaintiff is due interest from the date of default which is September 12, 2005.
6. All conditions precedent to the bringing of this action have occurred.
COUNT I (Contract-Credit Card) Plaintiff realleges paragraphs I through 6 above and further states:
7. Defendant(s), by use of the credit card, have accepted the terms and conditions of the credit card holder agreement. (See Exhibit “A” attached hereto).
8. The Defendant(s) has breached the Agreement by failing to comply with the terms of the Agreement.
9. Defendant(s) caused various charges to be made through the use of said card.
10. Defendant(s) owe Plaintiff the sum of $888.73 that is due with interest. (See Exhibit B” attached hereto).
11. The contractual interest rate is 20.300%.
12. Plaintiff has made demand upon Defendant(s) for payment.
13. Defendant(s) has/have failed and refused to pay the sum due and owing to the Plaintiff
14. Plaintiff is obligated to pay the undersigned a reasonable fee for which Defendant(s) is/are liable pursuant to the cardholder agreement.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant(s). ME in the principal amount due of $888.73, together with interest, court costs, reasonable attorney’s fees and any other relief this court may deem just and proper.
COUNT II (Account Stated) Plaintiff realleges paragraphs 1 through 6 above and further states that:
15. The Defendant(s) requested an account, which is owned by the Plaintiff, and the credit card holder agreement was sent to the Defendant.
16. Before the institution of this action Plaintiff and Defendant(s) had business transactions between them and they agreed to the resulting balance.
17. Plaintiff rendered a Statement of it to Defendant(s) and the Defendant(s) did not object to the statement. (See Exhibit “B” attached hereto).
18. Defendant(s) owes Plaintiff $888.73, that is due with interest at the rate of 20.300% per year on the account.
WHEREFORE, Plaintiff demands judgment in its favor and against the
Defendant(s) ME in the principal sum of $888.73, together with interest, court costs and any other relief which this Court may deem just and proper.
COUNT III (Money Lent) Plaintiff realleges paragraphs I through 6 above and further states that:
19. The Defendant(s) owes Plaintiff $888.73 that is due with interest since September 12,2005, for money lent by Plaintiff to Defendant(s) at various times.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant(s). ME in the principal amount due of $888.73, together with interest, court costs, reasonable attorney’s fees and any other relief this court may deem just and proper.



Exhibit “A” is a generic Customer Agreement
Headings:

Welcome to Capital One
Assignment
Using Your Account
Exchange Rate
Cash Equivalent Transactions
Your Credit Limit
Additional Benefits and Services
Making Payments
Periodic Statement
Finance Charge
Temporary Reduction in Finance Charge
Other Fees and Charges
Cash Advance Fee
Membership Fee
Transfer Fee
Foreign Transaction Charge
Credit Bureau Information
Security Interest
Future Offers
Default
Account Closure and Suspension of Credit Privileges
Changes in Terms
Governing Law – WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT,  AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be construed in accordance with and by the laws of the United States of America and by the internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of parties. This agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal Law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect.
Waivers
Lost or Stolen Cards or Account Access Checks
Communications
ARBITRATION. PLEASE SEE ENCLOSED “ARBITRATION PROVISION.” Please not that the terms included in the arbitration provision are part of your customer agreement.
©2005 Capital One Services, Inc.
Arbitration Agreement
Exhibit “B” is  3 Credit Card Statements with my name and address dated July, august, and September 2005.
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