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Author Topic: Sued by Captial One - Where to start?  (Read 7628 times)
Fighting the Good Fight in FL
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« 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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VexatiousLitigant
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« Reply #1 on: January 16, 2007, 05:42:44 PM »

$750 seems very excessive for attorneys fees for just a boiler plate complaint.
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imnotpaying
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« Reply #2 on: January 16, 2007, 08:38:26 PM »

Are you being sued by Hayt, Hayt and Landau? your complaint loks nearly identical to mine.
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Fighting the Good Fight in FL
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« Reply #3 on: January 16, 2007, 09:09:56 PM »

YES, HH&L.
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Fighting the Good Fight in FL
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« Reply #4 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...........
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imnotpaying
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« Reply #5 on: January 17, 2007, 09:46:59 AM »

Quote from: "grossman"
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...........



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

If the debt is recent they may not need signatures. They have to prove you owe the debt and have a right collect it though. I just fought the law team you are up againest. They are not afraid to keep tring to collect on stuff they dont have the paperwork to rightfully collect. They seem to be over worked and you can bog them down in paperwork though.

I would do discovery on them. They wont respond, you will have to have the judge compel everything so you will want to request discovery, them send a "good faith letter" in 30 days, them do a motion to compel, then ask for a motion hearing.  

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

If you do choose to settle and make payments they will try and make you give up your right to refuse garnishment. Probably not a good idea to do that. Pay in full or make them change there terms.

3. Go to required pre-trial mediation and see what happens...........

You have to answer the complaint and do your defenses and counterclaims BEFORE pre-trial. Mediation sucks, if you admit you owe the debt they will just try to make you pay the whole thing. If you deny the debt they will set it for trial. At my pre-tial the lawyer for the JDB ran it. Not much mid-ground

You probably will want to review my case on this site as I fought the same lawyers with the same complaint. I made mistakes but I did at least get them to give up at the end. Review mine (imnotpaying), rubyruby27's and fraudfighter's posts here and at http://debtorboards.com/.

Seems like your next step is answers, defenses, counterclaims. ... and discovery. You might try a motion to dismiss for failure to attach, but they probably have attached enough.

(Note: Im not the most legaly compedent here. Double-check eveything.
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DUSTY
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« Reply #6 on: January 17, 2007, 06:05:37 PM »

my Crap One.  Was the initial rate of interest 20%+???
It's amazing how the max. interest rate charged was allowed to increase just when interest rates went down.
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Fighting the Good Fight in FL
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« Reply #7 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!!
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gulfbreeze
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« Reply #8 on: January 29, 2007, 02:47:00 PM »

it appears they offered more with their claim on yours than they did with mine. i got nothing. no statement, no signature, nothing. they didnt even list the complaint with my middle name and when it was served, the server, when he came to the house, asked my son his name and gave it to him since he has the same name. i wasnt home.

i was thinking of going to court if it goes that far with him as the defendant and have a laugh. he is 17 years old and doubt they could prove it was his account since he is a minor.

usually in cases like this, they drop it right before the date of trial. they just want to see how far they can get without wasting attorney fees on cases like this. mine is clearly past the oral sol and coming up soon to the 5 year mark as well. it was last paid may2002 and went delinquent june2002...so june2007 they have no shot at collecting either way.

i recently was sent a letter by their attorney asking for an extension because of needed time and witness etc....stalling? i dont think they are ready or were ever ready. if they had everything, they wouldnt be asking for more time.
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debtfree
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« Reply #9 on: January 31, 2007, 01:30:19 PM »

Quote from: "gulfbreeze"
it appears they offered more with their claim on yours than they did with mine. i got nothing. no statement, no signature, nothing. they didnt even list the complaint with my middle name and when it was served, the server, when he came to the house, asked my son his name and gave it to him since he has the same name. i wasnt home.

i was thinking of going to court if it goes that far with him as the defendant and have a laugh. he is 17 years old and doubt they could prove it was his account since he is a minor.

usually in cases like this, they drop it right before the date of trial. they just want to see how far they can get without wasting attorney fees on cases like this. mine is clearly past the oral sol and coming up soon to the 5 year mark as well. it was last paid may2002 and went delinquent june2002...so june2007 they have no shot at collecting either way.

i recently was sent a letter by their attorney asking for an extension because of needed time and witness etc....stalling? i dont think they are ready or were ever ready. if they had everything, they wouldnt be asking for more time.


This is interesting;

usually in cases like this, they drop it right before the date of trial. they just want to see how far they can get without wasting attorney fees on cases like this. mine is clearly past the oral sol and coming up soon to the 5 year mark as well. it was last paid may2002 and went delinquent june2002...so june2007 they have no shot at collecting either way.

I thought once the case is filed before SOL expired , the plaintiff's case was active untill final judgement.
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rubyruby27
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« Reply #10 on: January 31, 2007, 02:19:41 PM »

I think the SoL is tolled at the servicing of the complaint until disposition of the case ie either they drop it or  or somone wins.  final order then the SoL starts again, if it is inside the SoL.
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gulfbreeze
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« Reply #11 on: January 31, 2007, 04:10:50 PM »

i was talking about any further attempts in collecting if they choose to drop this. if they do and then refile, they dont get to go back to the other one. but i doubt they would, otherwise they would have in the first place or case....
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Fighting the Good Fight in FL
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« Reply #12 on: February 02, 2007, 11:54:46 AM »

OK, thanks everybody for the responses so far. I have been doing some more research and come with some ides that I want to pass by you experts.

Since the lawyer suing me seems to have a pretty good case, I have to look at other avenues to increase my strength

The lawyer suing me (HH&L out of Miami– ALLEN, JOSEPH D actual attorney listed on county clerk website - Robert J. Orovitz, PA listed on paperwork) sent me an initial contact letter (via US Mail) in Oct 2006:

*****************************************************

LAW OFFICES OF
HAYT, HAYT & LANDAU
GALLOWAY PROFESSIONAL PARK
7765 SW 87th AVENUE
SUITE 101
MIAMI, FLORIDA 33173
TELEPHONE 3056616660
FACSIMILE 3054123242

October x, 2006

ME
My Address

Re: Client: Capital One Bank
Debtor(s): ME
File Number: xxxxxx
Principal Amount Due: $xxx.xx Interest to Date: $xxx.xx
Total Amount Due: $xxxx.xx

Dear ME:

Please be advised that Capital one Bank will decide whether to file suit within the next 10 days. In order to settle this case now my client will settle for a lump sum payment of less than the full amount owed. Any reasonable offer will be considered. Payment must be received within I0 days.

If Capital One Bank does file suit, this offer will be withdrawn and in addition to the full principal and interest, my client will also seek court costs and attorney's fees. If you have any desire at all to resolve this case, now is the time.

Please understand that any information we obtain will be used for the purpose of collecting this debt.

If you have any questions or wish to discuss this matter in further detail, please feel free to contact me.

Very truly yours,

Hayt, Hayt & Landau

By:

Robert J. Orovitz, PA
 
*****************************************************


The letter was NOT signed but just had a blank align above his name.

Now, also attached to me summons was the following letter (followed by a Stipulation for Entry of Final Judgment Execution Withheld):


*****************************************************

LAW OFFICES OF
HAYT, HAYT & LANDAU
GALLOWAY PROFESSIONAL PARK
7765 SW 87th AVENUE
SUITE 101
MIAMI, FLORIDA 33173
TELEPHONE 3056616660
FACSIMILE 3054123242

ME
My Address

Re: Capital One Bank vs. ME
File Number: xxxxxxxxx

Dear ME:

You have now been served with a Complaint by Capital One Bank to collect the outstanding balance due and owing on your account. I am enclosing for your review and signature a Stipulation for Entry of Final Judgment Execution Withheld. As you will note, the amount of the monthly payments has intentionally been left blank. Kindly contact my office upon receipt of this letter so that we may mutually agree to the terms and conditions of said stipulation.

If we agree on an amount, you will not have to go to court.

Please understand that any information we obtain will be used for the purpose of collecting this debt.

If you have any questions or wish to discuss this matter in further detail please feel free to contact me.

Very truly yours

HAYT, HAYT & LANDAU

By: Robert J. Orovitz

Robert J. Orovitz, PA

****Please contact extension 152****

THE ATTACHED STIPULATION IS A PROPOSAL OF SETTLEMENT ONLY.
THE TERMS ARE NEGOTIABLE. YOU DO NOT HAVE TO AGREE TO ANY OF THE TERMS AND HAVE THE RIGHT TO GO TO COURT.
THE ATTACHED IS NOT A LEGAL PLEADING UNLESS AND UNTIL BOTH PARTIES AGREE TO THE TERMS AND SIGN IT.


*****************************************************




My thoughts on these letters are as follows (please correct me if I am wrong):
1.   Letter 1 is a violation of FDCPA 809(a)(4) for failing to mention validation options.
2.   Letter 1 may be a violation of FDCPA 807(11) for failing to mention that they are debt collector. (SLIM, I know)
3.   Letter 2 may be a violation of FDCPA 807(9) for attaching a STIP agreement that is a formal pleading document. (SLIM, I know)
4.   Letter 2 may be a violation of FDCPA 807(10) for attaching a STIP agreement that is a formal pleading document. (SLIM, I know)
5.   Letter 2 may be a violation of FDCPA 807(15) for concealing the importance of the attached papers and stating that I WILL NOT HAVE TO GO TO COURT.



I am hoping to gain some ground here with a counter claim and all I really need is for any 2 of the above to stick to provide enough leverage.

Any thoughts?

Fraudfighter, can you give me reality check?  :wink:

Thanks!!
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