This makes 3 in a row this week – I’ve listened to people who claim they are being sued by Capital One, when in fact it is an attorney’s office acting as a collector who is suing. What’s the difference? Plenty.
For one thing, it’s fraud. In each of the cases, the consumer called Capital One who confirmed they did not own the debt any more and had “assigned” the debt to Law Firm X. This changes the rules of the game in court significantly. If the Plaintiff in a lawsuit is a third party (not the original creditor), basically everything they say in court can be ruled as hearsay.
Why hearsay? The debt collector was not present when the debt was being formed and cannot give first-hand testify to the veracity of the debt, payments made or processed. Think about all the cases you’ve seen on Law and Order on TV. The debt collector’s testimony about a debt is tantamount to a witness who testifies that while he didn’t actually see a murder being committed, he heard about the details second hand. Second hand testimony is not valid and would be tossed out. In addition, the debt collector cannot present any documents unless they are authenticated as true and original copies by the original creditor, in this case Capital One. Can you see where this is going? With no evidence, they can’t win.
While a you can probably not get a case thrown out of court due to the “Incorrect Plaintiff” syndrome, you can:
1. Call your state’s Legal Bar Association and turn in the law firm and the attorney handling the case – this is strictly against the rules (it is fraud.) Make sure you inform the lawyer on the case that this is what you are doing. It could get them to back down and dismiss the case.
2. Have you or your lawyer file a motion to dismiss or amend the original complaint to correctly reflect the right Plaintiff
How to tell if Capital One (or indeed any credit card company) is NOT the real Plaintiff:
1. Look at past correspondence from the law firm. Does it say “This is communication from a debt collector” on it? If so, you can positively identify the law firm as the real Plaintiff.
2. How old is this debt? If it’s more than a year old, this is a red flag that the debt has been charged off. A phone call to the credit card company should confirm these suspicions.
Has this happened to you? Tell us about it! If you have a specific question – please, ask it at our forum discussion boards. We talk about this all the time!
No related posts.
On 10-10-08, I received a letter from an attorney in Cincinnati regarding a Capital One credit card account. It included the statement “This communication is from a debt collector.”
On 1-12-09, I received a summons at my home in Columbus. The plaintiff is listed as Capital One and the attorney is the one from Cincinnati. I called Capital One and they will not confirm that they own the account, only that “the account was sent to the attorney for collection.” No payment has been made on the account since 2007, but Capital One will not tell me if the account was charged off.
The complaint provides past-due account statements from Capital One through May 2008 and shows a balance then of $1043.00. The complaint claims $1139.00, “plus interest at the rate of 16.1% per annum from the date of 2008.” I am unclear as to what “date” in 2008 they’re talking about and whether they’re trying to add interest on top of interest already calculated in the $1139.00 amount. It also claims “costs.”
I would like to settle the account as painlessly as possible. With that in mind, I have three questions:
1. Is my “answer” to the complaint the proper place to offer a settlement?
2. In my answer, can I offer a settlement amount for less than the total amount claimed along with a proposed payment schedule of two or three installments?
3. If I offer to pay the $1139.00, will that likely suffice for the attorney or Capital One, or have they, by now, dug in their heels to take this to judgment?
Thanks for reading this. Your thoughts are greatly appreciated.
Guys, how many times do I gotta tell you – take this to the discussion forums where this situations has been discussed ad nauseum and every possible solution has been presented!
Did not read the hundreds of comments on this page, so was unaware of the discussion forum. Sorry to bother you.
Tracey.. If you are going to fight it try and get some sort of proof that they dont represent Cap One. I sent the judge a copy of a rip off report I found online and he basically said he believed me but for lack of solid evidence he judged aginst me. However, Paul Klemm never showed up. He sent an attorney from my area to represent him. They were suing for over $1,700 and the credit card statement only showed $900. The judge asked where the other charges came from and the lawyer said “I dont know” The judge also said that if Paul Klemm is falsly representing Cap One he is going to have a problem. The judge showed the attorney the printout I sent him on TSYS and he said he doesnt blame me for being leary. I am going to appeal and I found an attorney who might help me countersue for violations of the FDCPA. The judgment was for $900… at least they didnt get the $1700 they claimed I owe. Look into TSYS… try googling “rip off tsys Capital One” and you will see what I mean. Let me know what happens with your trial.. good luck.
I am posting what is going on in the legal forum under “being sued in ma.” I went to court yesterday. Please go over there and read it, and any advice you have is welcome!
FattyZ
Hi,
I am being sued by a citibank. It was first sent to a collection agency and I was paying them monthly, then I received a letter stating that they are no longer handling my case, it was turned over to another collection agency, I asked them to please validate the debt. I received no response, I then received a letter from a collection attorney and I requested validation and they sent me a few statements from citibank and proceeded to sue me, I answered my summons with a general denial and then requested production of documents and all they sent me was statements going back. They didnt provide me with all the documents, especially the one that I asked for requesting proof that show A contract, agreement, assignment, or other means of demonstrating that Citibank and N.A./Rubin & Rothman has the authority and capacity, and was legally entitled to collect on the alleged debt from Account Number. Do you have any suggestions?
I am being sued by Capital One I received a letter from an Attorney that states in C/O Capital One, they have attached a photocopy of original agreement dated 11 of 2000 any help on how to proceed in this matter would be appreciated.
I lost in court recently. I plan on filing an appeal. The judge dismissed the fact that the plaintiff acknowledged that there is no one with knowledge of the original debt and I think this violated the hearsay rules in Texas. Also, there was a signed application but there was no contract with terms in place. This too needs to show that there exists a valid contract. Any thoughts?
I lost in court, however I believe the collection agency was misrepresenting the plaintiff. THey listed the original creditor as plaintiff. I brought that up at court but had no proof. The judgment was against me.. BUT they only had proof of half the dollar amount of what they were suing for. I believe that is a violation of the fdcpa right there. So, I filed an appeal. They did not respond to the appeal..45 days later. I was advised by the clerk to file a judgment for non pros. I am not sure exactly what happens after I do that? Anyone have any thoughts? Thanks in advance!!
I was being sued in State Court by a law firm, Blitt & Gaines, of Wheeling, Illinois, naming 1st Capital One and the Atlantic Credit And Fince, Inc of Roanoke, Virginia for HSBC. They had the bad habit of calling several times a day, even after I told the quit.
I ended up filing a Federal Lawsuit naming Blitt & Gaines and their Officers, Capital One and their CEO, and Atlantic and all of their Officers as defendants. I started in July, 2008 and it ended in February, 2009. They settled with me.
I did this in a pro se status, which means I did it myself. If anyone wants information about how to do this I am in the process of posting forms to the group. The group is credit_card_harassment at yahoo.com
Dave, I am facing the same thing. Can you forward some information to me via my email address: I need to know what steps to take to resolve this matter: model-38@hotmail.com
Rose, I sent you an e-mail today. Basically, I filed a suit for harrassment under the FDCPA. first you file a complaint and a TRO against all concerned. Then they have to answer the complaint and ask for a dismissal. Then you answer their motion. Some of them eventually get away, but eventually they will want to settle. They are in other states, they have to pay attorney fees, those become expensive.
i received a summons for court procedings on a very old caital one debt from midlandfunding llc about debt. hasn’t the stature of limitations passed–also, the amts were not accurate, which is why it was not paid in the first place–”concerned”
Yeah i am being sued in small claims court by Valentine and Zimmerman, P.A. Topeka Kansas.
representing Capital One Bank as the Plaintiff,
thus bringing fraud upon the court.
sep of 2005 i became legally blind.i had to quit work and get on SSDI. to take care of myself the same month i had to stop paying cap one. i have so many living expenses i cant pay them back when i only get $934.00 a mo. now i am getting calls from the attorney.i dont answer the calls. it was a 3400.00 debt that is now 10200.00. what is the SOL here in GA. can they take my SSDI check? i have a home,can they put a lean on it? on my credit report it says they charged it off as a bad debt in april 2006 is that when the SOL starts or when i missed my 1st payment.. Thanks!!
Look at past correspondence from the law firm. Does it say “This is communication from a debt collector” on it? If so, you can positively identify the law firm as the real Plaintiff.
How does this positively identify Capital One Bank as not the real Plaintiff in the Lawsuit ???
I am going through hell right now (Capital One Bank USA N,A) I’ve gone to court several times and went to mediation. Legal counsel for Captial one is “Legal Recovery in San Diego California”.
Mediation didn’t do a thing, they want me to pay 100.00 per month, which I don’t have. I’m not employed, child support is exempt, that I know.
I go back to court Dec 22, I had recieved a notice from the courts and on the bottom it say’s Dismissal and Sanction hearing… Well this is the first time I checked my free credit report. It says that Capital Charged off account,
Account closed by credit grantor . Does this mean that Capital one isn’t the one actually suing me and it’s really Legal Recovery?…
HELP A.S.A.P
I would check out our legal forums, they’ve helped hundreds of people navigate this mess.
http://debt-consolidation-credit-repair-service.com/forums/forumdisplay.php?f=177
Diana,
I am going through the same thing with Capitol One here in San Diego. Don’t understand this whole mess. Filed an Answer and now have to go to court for a Civil Case Management Conference. Please email me so we can help each other through this. I am doing research now. Thanks.
Suzanne
Diana,
My e-mail is suzattic@cox.net
Thanks