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Author Topic: Capital One vs SOL protected debtor  (Read 81296 times)
gulfbreeze
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« on: October 23, 2006, 04:01:04 PM »

Capital One's local hired hand just sent me a summons for small claims court here in Florida. It is for Nov 20something and has no real info in it. It has a couple of pages of why they are asking for the amount of approx. $2500, but no account number, dates, statements, sigs...nothing. I cant remember which of the three accounts I had with them it is. I have looked on my credit report and have a couple around that figure, but have no idea which it is. Both of them were last paid for around April/May 2002.

It claims that there is an attached "exhibit A", but nothing in my summons is marked such. so, shouldnt it be in the claim or thrown out? or at least they havent shown it to be a written contract and argue that at my pretrial for a quick dismissal based on oral sol of 4 years? i have gone to court on a couple of occasions on stuff like this and have found that tey are looking for easy defaults and give up the fight if you show up and contest it.

i will use the fernandez case along with my defense of sol. any ideas of other defenses? do i admit it is mine even though they have not furnished anything? or do i go to the court house and see if they filed something that wasnt included in the summons? what do i send the attorney...via certified USPS...validation?

all i have is my credit report to show that it is over 4 years. since this is being brought to court by the OC, i cant use the other stuff such as defenses for them not being the owner and showing proof, but i should check to see if they sold it since it went into default...right?

i appreciate any advice in advance....
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rubyruby27
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« Reply #1 on: October 23, 2006, 04:20:11 PM »

CapOne is an OC, you have to know what breach of contract is, time computation.

Know what is considered a written contract by Fla law and what is oral.

Never admit it is yours unless you are sure it is outside the SoL.

Why would you admit to an account that you don't know is yours.

You can file a mtd based on SoL-timebarred and the court doesn't have jursidiction.

You need to read everything on this site that Imnotpaying and Ruby has posted.

Know your rcps especially for small claims you need to file your answer 5 days before pre trial.
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fraudfighter
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« Reply #2 on: October 23, 2006, 05:45:46 PM »

Quote from: "gulfbreeze"
Capital One's local hired hand just sent me a summons for small claims court here in Florida. It is for Nov 20something and has no real info in it. It has a couple of pages of why they are asking for the amount of approx. $2500, but no account number, dates, statements, sigs...nothing. I cant remember which of the three accounts I had with them it is. I have looked on my credit report and have a couple around that figure, but have no idea which it is. Both of them were last paid for around April/May 2002.

It claims that there is an attached "exhibit A", but nothing in my summons is marked such. so, shouldnt it be in the claim or thrown out? or at least they havent shown it to be a written contract and argue that at my pretrial for a quick dismissal based on oral sol of 4 years? i have gone to court on a couple of occasions on stuff like this and have found that tey are looking for easy defaults and give up the fight if you show up and contest it.

i will use the fernandez case along with my defense of sol. any ideas of other defenses? do i admit it is mine even though they have not furnished anything? or do i go to the court house and see if they filed something that wasnt included in the summons? what do i send the attorney...via certified USPS...validation?

all i have is my credit report to show that it is over 4 years. since this is being brought to court by the OC, i cant use the other stuff such as defenses for them not being the owner and showing proof, but i should check to see if they sold it since it went into default...right?

i appreciate any advice in advance....


It is best to always keep all your old credit card records.
You would be in a better position to know the exact fact of what account numbers were yours and when the delinquency commenced and on what account, and what the correct amount would be, and the terms of the agreement, and which card holder agreement applied to your account, and when the last account statement was rendered.

Never throw away any credit card account statements or other account documents.

The FCCPA, F.S. 559, does apply to OCs as well as JDBs, but it requires proof of intent.

Don't admit that the account is yours unless you can conclusively prove the expiration of the SoL.

You could try calling their recovery department and ask them when the account went delinquent, charged-off, was sold and to whom.

If this is Cap1, the OC, they likely still have their records on this account and can produce account statements. So, this is not going up against a JDB and scaring them off with your appearance in the case.

What did they allege in their complaint?

You may have to defend against an account stated claim. rather than just breach of contract.

When was the last statement rendered to you by Cap1 on this account?

The Cap1 recovery department may have information on when the last statement was rendered also.

Account Stated has a 4 year SoL from the date of the statement.
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gulfbreeze
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« Reply #3 on: October 23, 2006, 06:12:45 PM »

as i stated, i have not paid on any of these account since april or may 2002...and i dont have any statements from these credit card (thought the whole purpose of sol was to protect people whom being sued over stuff that records could have been lost or witnesses gone). from what i understand, i could ask for a dismissal on sol oral 4 year time based on fla staue in rcp that says they must provide with the claim any proof of it being a written contract. you would think that since they are the OC, that they would have included that in the summons as part of their claim instead of some paragraphs asking the court to find in their favor and why.

i have heard that you should not admit it is yours, but how do you go about claiming it is out of sol if you know when it went into default or delinguent? from the summons, it says no mention to what account and any dates so i dont know what they have. that is why i am wondering if i can have this dismissed based on nothing being provided for me to defnd myself?

thx
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rubyruby27
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« Reply #4 on: October 23, 2006, 06:59:15 PM »

You simply state, if this alleged account is proven to be yours it is outside the SoL as you have not had an open account since date.

With an OC they can use the acct stated so check that out, actually anyone can use it but a JDB can't prove it.

Know what the State of Florida says a written contract is as it is 5yrs and tolling applies, where oral is only 4 yrs and no tolling.

You are not past the 5 yrs for written if they prove it and yes they will be given time to prove it and amend thier complaint.
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gulfbreeze
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« Reply #5 on: October 27, 2006, 10:51:49 PM »

Quote from: "rubyruby27"
You simply state, if this alleged account is proven to be yours it is outside the SoL as you have not had an open account since date.

With an OC they can use the acct stated so check that out, actually anyone can use it but a JDB can't prove it.

Know what the State of Florida says a written contract is as it is 5yrs and tolling applies, where oral is only 4 yrs and no tolling.

You are not past the 5 yrs for written if they prove it and yes they will be given time to prove it and amend thier complaint.


acct stated?
My defensive for arguing in FLA SC court that its an oral will be with use of the case law of a few which I have seen here. It is a regular Cap1 credit card (not a store sponsored one). I will have to check my lastest CR and see if it was transfered/sold since default, the actual date it went into default etc...

Would you not think that if they still had any signed records and statement/receipts, they would have offered them into evidence exhibit with the summons claim? Instead they just had a lawyers type out a standard two page breakdown why they are seeking damages and unjust enrichments. I was hoping to get by till June 2007 to be totally in the clear with SOL, but looks like I will have to go into the courts once again to fight oral vs written. I have won 3 other cases before. The difference here being this is the first time I will be going up against a OC and not a JDB.
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rubyruby27
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« Reply #6 on: October 28, 2006, 08:01:45 AM »

According to how I read the RCP 1.130 and the reference books I have.

A party who makes a claim or defense based on a written instrument must attach a copy of the instrument to the pleading in which the claim or defense is raised.

I would think they are stuck with the 4 yr SoL since they didn't attach, however in my case they were given time to produce a signed contract.-that again doesn't constitute a written contract under Florida statutes

Don't forget to file counterclaims for filing on debt that is time barred. Both FCCPA and FDCPA.

Go to the court house and see what they attached. If it isn't legible motion to strike it.

You need to read Berman's, Padovano, La Coe, there are reference books called pleadings under the Fl rules of civil procedures they  have forms in the books to show how to write the motion.
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gulfbreeze
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« Reply #7 on: October 29, 2006, 09:25:15 AM »

If you are referring to proper wording in motions, in my past dealings with FLA SC, I realized I didnt need to be so formal with motions but I appreciate the help.

As for the missing attachments, I interpretated it the same way. If it is not included in the filing (in which I should have been given a copy in summons) it can not be used. The court must observe the lesser of the two types, written/oral in which case would be oral.

Not sure what i can file with FCCPA and FDCPA. That part I have never done. I just have won or had cases thrown out and left it at that. I would not know where to began or what to do. I am not even sure what violations they have broken aside from attempting to collect on a SOL acct.

It really just comes down to some of these cases , where they are hoping to win a quick default or scare you into paying on it. I dont buy into it and will be there ready to defend myself and they will just be out a $155 filing fee on top of it after all is said and done.

I do thank you ahead of time for any help I might need in the future or if you find something else I might be able to use against them.

Thanks
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rubyruby27
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« Reply #8 on: October 29, 2006, 11:58:11 AM »

All I know in regards to Cap1 is what I read and they retain thier records.

Each district is different and I am glad yours is more relaxed then others.

While I was reading the reference material, it stated they don't have to attach thier evidence to prove thier case, just to support the coa.

Without an attachment of a signed contract then they are stuck with oral statute.

If it is the OC-Cap1 and they are claiming acct stated, then you have to fight that issue, and from what I have read that can be difficult.

Acct stated SoL runs from the time of the last statement, that changes the SoL.

What are thier coa's in the summons:  acct stated, breach of contract, money lent, unjust enrichment.

I am glad that all you  had to do is show up in court and claim sol and that was the end of it, that wasn't my case at all.

Good Luck
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gulfbreeze
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« Reply #9 on: October 31, 2006, 12:21:30 PM »

Quote from: "rubyruby27"
All I know in regards to Cap1 is what I read and they retain thier records.

Each district is different and I am glad yours is more relaxed then others.

While I was reading the reference material, it stated they don't have to attach thier evidence to prove thier case, just to support the coa.

Without an attachment of a signed contract then they are stuck with oral statute.

If it is the OC-Cap1 and they are claiming acct stated, then you have to fight that issue, and from what I have read that can be difficult.

Acct stated SoL runs from the time of the last statement, that changes the SoL.

What are thier coa's in the summons:  acct stated, breach of contract, money lent, unjust enrichment.

I am glad that all you  had to do is show up in court and claim sol and that was the end of it, that wasn't my case at all.

Good Luck


This is my first dealing with Cap1 or even a OC...I have dealt with JDB in the past and they are easily defeated or chased away when they know you are going to fight and have the facts.

As the OC, I would think they would have the records, but I hope I am right in that if they had them, they would have given a sample in the filing. They offered nothing but three typed up pages of what they were asking the court to consider. Nothing was mentioned as far as the account, dates, amounts, etc...

As far as the courts here, what I meant was all I needed to do when filing a motion was submit a piece of paper with the case number, name and my request. Nothing formal and all....

Sorry if this sounds dumb, but please explain what you mean by ACCT STATED and what you meant by last statement.....

Trust me, the Judge here is not pro-consumer, but she is not pro-debit collector either. As long as I present my case and it is by the law, she observes it...

Thanks
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fraudfighter
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« Reply #10 on: October 31, 2006, 07:50:22 PM »

Quote from: "gulfbreeze"
Quote from: "rubyruby27"
All I know in regards to Cap1 is what I read and they retain thier records.

Each district is different and I am glad yours is more relaxed then others.

While I was reading the reference material, it stated they don't have to attach thier evidence to prove thier case, just to support the coa.

Without an attachment of a signed contract then they are stuck with oral statute.

If it is the OC-Cap1 and they are claiming acct stated, then you have to fight that issue, and from what I have read that can be difficult.

Acct stated SoL runs from the time of the last statement, that changes the SoL.

What are thier coa's in the summons:  acct stated, breach of contract, money lent, unjust enrichment.

I am glad that all you  had to do is show up in court and claim sol and that was the end of it, that wasn't my case at all.

Good Luck


This is my first dealing with Cap1 or even a OC...I have dealt with JDB in the past and they are easily defeated or chased away when they know you are going to fight and have the facts.

As the OC, I would think they would have the records, but I hope I am right in that if they had them, they would have given a sample in the filing. They offered nothing but three typed up pages of what they were asking the court to consider. Nothing was mentioned as far as the account, dates, amounts, etc...

As far as the courts here, what I meant was all I needed to do when filing a motion was submit a piece of paper with the case number, name and my request. Nothing formal and all....

Sorry if this sounds dumb, but please explain what you mean by ACCT STATED and what you meant by last statement.....

Trust me, the Judge here is not pro-consumer, but she is not pro-debit collector either. As long as I present my case and it is by the law, she observes it...

Thanks


The legal theory of account stated is of a secondary agreement between the creditor and debtor, based on prior transactions between the two, where an existing debt remains to be paid. The account stated is the agreement between the parties for a sum certain, aks a balance struck.
That is the express form of account stated. The implied form of account stated is where the creditor renders an account statement for the existing debt and the debt fails to object to the statement in a reasonable time. The law infers acceptance by the debtor and implies a promise to pay occurred, thus creating the cause of action.
An implied account stated fails if their is error involving the balance claimed versus the actual balance struck, also if no proof of rendering of the account statement exists, also, if no prior transactions occured between the parties, since the account stated is a secondary agreement. Also, if the debtor provides proof of objection, the account statement cannot ripen into an account stated.

They have to allege the existance of a debt, that a statement was rendered and kept without objection, and the balance of the statement is the balance they are claiming, to properly state an AS CoA.
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gt95stang302
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« Reply #11 on: November 01, 2006, 07:51:07 AM »

Cap One still had documentation from my account that I defaulted on in 11/2001, but they kept open until 11/2002.  I was sued on an account stated basis and breach of contract.  

Small claims carries a different RCP, in small claims documentation does not have to be attached and can be entered at a later date.
 
You also do not have to respond to a small claims summons, but I would advise you do so.

I settled with them, and then they played dirty.  The law firm stated that they cancelled the pre-trial conference / dismissed, but I went anyway and my name was called....
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gulfbreeze
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« Reply #12 on: November 01, 2006, 05:45:57 PM »

Trust me, I will be there unless I get something official from the court saying it was dismissed. I still am not sure from what I read which applies to me on stated or implied.

I have not paid since may 2002 and have had no communications with them ever since. Its past the 4 year sol on oral and since it is a acct that was expecting repeated transactions and carried no definite amount on balance, i will argue using case laws, that its an oral acct, thus 4 years sol.

my understanding on the attached documents was rcp but it was also for fla sc too....

i dont go to court till the end of the month of nov.

what and who should i send what to?lol

thx
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gulfbreeze
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« Reply #13 on: November 05, 2006, 01:43:35 AM »

Quote from: "gt95stang302"
Cap One still had documentation from my account that I defaulted on in 11/2001, but they kept open until 11/2002.  I was sued on an account stated basis and breach of contract.  

Small claims carries a different RCP, in small claims documentation does not have to be attached and can be entered at a later date.
 
You also do not have to respond to a small claims summons, but I would advise you do so.

I settled with them, and then they played dirty.  The law firm stated that they cancelled the pre-trial conference / dismissed, but I went anyway and my name was called....


Florida's Small Claims Court RCP....

RULE 7.050. COMMENCEMENT OF ACTION; STATEMENT
OF CLAIM
(a) Commencement.
(1) Statement of Claim. Actions are commenced by the filing of a statement of claim in concise form, which
shall inform the defendant of the basis and the amount of the claim. If the claim is based on a written document, a
copy or the material part thereof shall be attached to the statement of claim
.
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gulfbreeze
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« Reply #14 on: November 14, 2006, 10:00:32 PM »

no account statement, no signature, no specifics on anything concerning this account were included on the summons. it just list my name with no middle name (my son has the same name). this account could belong to anyone with that same name...
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