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.
How do you prove or what documents do you have to present that a debt collector / law firm is the real party of interest in a court case & not Capital One Bank ?
Mostly by asking for documentation during discovery.
Thank you , OK I am not the smartest student in class.
What do I specifically ask for in Discovery for them to produce that they are working for themselves and not bank capital one ?
I mean the law firm Is going to respond & lie in discovery that they have been hired by capital one bank ?
I’d go tour discussion forums. They have covered this there.
well here is a new one being sued by capital one for credit card debt and fees we live in one part of state and they filed 2 hours away we just got a change of venue granted and mail from them today finally tell me its a 3rd party debt collection lawyer using capital one name and if i want to dispute this i have to do it in writing in the next 30 days but we already have a court day set i have read what i could find on this subject if you could email me a link for more info i would be in your debt virginia, by the way. thanks so much
Hope, I’d go to our discussion boards: http://debt-consolidation-credit-repair-service.com/forums/
Hello,
I have been served a complain and it lists Capital One Bank (USA), N.A. as the Plaintiff but is served upon by a lawfirm, who was previously attempting to collect the debt. Is their reason to believe they own the debt and are using CAP ONE as the plaintiff?
I recommend reading the article linked from this blog post. This guy is on top of it.
The S&C was served on me from a local law firm listing Capital One Bank (USA), NA as the Plaintiff. Can I assume the the law firm is the actual Plaintiff and they purchased the debt from Capital One?
My Answer is due tomorrow (3/5/10) and I know I’ll get something put together. HOwever, I don’t have time to serve it through the mail for Service by Mail….I have to do an Affidavit of Personal Service instead.
Along with the Answer that is in an envelope do I give the receptionist the original Affidaviat of Personal Service and keep a copy? When I was served with the S&C, I was not given anything about service. Though I remember the date of service, I have nothing on which to refer.
I sorta understand the answers for the Answer but I am not clear on the Affirmative Defenses.
How should I proceed?
This may help. This is a section of the FDCPA which relates:
15 U.S.C. § 1692j § 812
– (a) It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is particiapting in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating.
India, interesting. I suspect that the atty on my summons is the actual owner for he did not attach a document of assignment showing he was assigned by the CC for the debt collection. Only thing is, it doesn’t make sense to me to call CC company..isn’t that the last thing I should do? Call and have conver with them at this point if there is a possibility they are the plaintiff? Am I starting something there that could be a problem for me in the long run thru the suit? If they are not will they tell me they no longer own debt. Is there another way to find out who owns the debt??
I am being sued by capital one and whenIi did discovery I asked for all recipts that I sighned that agreed to pay each transcaction.The laywer admitted he had none and a third party had them and he did not have to have them because I did not dispute in a timely manner.All they gave me were statements.I demanded the signature and the transactions if I owed.The Judge was going to deny me when I filed for sanctions but stopped when she found out I paid for a jury trial.Doe’s Capotol One’s Laywer have to show PROOF of these or not ? Ands just say I did not disputre, I did not have knowledge I though this account was closed in 90 days. What will the jury do?Ialso asked for the names of his wittnesses he had none but will get me a name because I said I had to hire a court reporter and take his statement as to what he is going to testify on.Thank you
The Plaintiff responded to your Discovery request, though did not give you everything you requested. If the lawyer admitted a third party had them, I would submit further discovery requests asking for an affidavit of how the documents came into their possession. I’m surprised this guy admitted it. I’d also take this question to our legal discussion boards here:
http://debt-consolidation-credit-repair-service.com/forums/forumdisplay.php?f=177
I am receiving phone calls from a debt collector which identifies itself as Capital One. They are attempting to reach another party, but persist in calling our number instead of that of the other party. They’ve been informed on their answering recording that the party they’d like to reach is not here, and has not been here for more than a dozen years. Yet, we continue to receive their #@$$calls.
I’m trying to find the blog of the man who is said to be in the middle of a lawsuit with Capital One Bank, at this very moment… I saw it the other day and now it’s gone…? Also, I’m horrified now, that I actually (and probably mistakenly) spoke with a cedit card debt lawyer over the phone this morning… He basically told me that everything I’ve learned here, on this website, is false and misleading and that he doesn’t see where the attorney’s for Capital One Bank are in violation of any laws… And that Capital One Bank IS, in fact, the Plaintiff who is suing me… (Whaaaaaaat?) ‘Told me, too, that I didn’t need to have a date and signature when being served,… after I read here, that in TX, “…delivery, in person, a true copy of the citation with the date of delivery endorsed thereon…” Pretty much, everything I thought I had gathered, in my defense, is not good and he called me a fool to try and defend myself in court and said that I’d get a default judgment in doing so… Geeze! Can someone please tell me that he just didn’t want me to believe that I could do this all on my own b/c he just wanted for me to retain his services?? :/
I just updated the post. You might want to read it.
I would really like an answer to the question-Should we call Capital One and ask if they still retain the account or if they sold or assigned it or should we request it from the attorney in discovery?
I should clarify that I am submitting a Motion to Dismiss on the grounds that CapOne is not the true plaintiff. I’m not an attorney. Should I call Cap One (I’m quite sure I, too, am being led by an “attorney”) to attempt to confirm the debt has been sold or just wait?
Sure – that’s usually the best way: call them and find out if they own the note.