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!
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I have the identical situation as Cheryl (posted 6/13/11) except that I took the action as far as the trial date and whimped out and settled. This was my first rodeo so I didn’t have the information I have now. I have been told that Cap 1 securitized most? of their CC accounts and Actually found a pooling and servicing agreement for a pool of their CC accounts. Now I am wondering if the attorney was really representing Cap 1 or lying about the real Plaintiff (Cap 1 was listed and the attorneys paperwork says they are debt collectors). Also, the account number they list is not the same number that is on the statements I received, although everything else is correct. There was never any dunning letter that I recall before the summons so no validation letter was sent. Is it too late for that now? I would like to stay / challenge the settlement agreement until some of this can be verified, if it can. Going after fraud, etc. and ask for the return of all monies already sent if they can’t prove up. Thoughts?
I just found out that I have a default judgement against me after getting my credit report for the first time in over 5 years. Its a default judgement from Nelson & Kennard on behalf of Capital One. Capital One is listed as a plaintiff. On the phone they claim that they have assigned the debt to an outside source. And the bottom of the letter the “law firm” sent me (discovered it in court documents I dug up from the court site using my docket number) that they are a debt collector… Also, they have served me at a wrong address so I never even knew about it… I want to get this judgement vacated. Any help would be greatly appreciated. I am also willing to share the particulars of my case for the benefit of people.
I was served with a Summons several months ago from Legal Recovery Law Office of San Diego, CA “representing” Capital One Bank N.A. I answered the complaint with a Demurrer because there was no contract or Card Holder Agreement attached as evidence that I owed Capital One any money. The Demurrer was Sustained, but the Judge gave the Plaintiff 30 days to file an amended complaint. The law firm missed the date by 9 days and the Court rejected their papers. I filed a Motion to Dismiss the complaint as that is what the Judge directed me to do if the Plaintiff didn’t respond in the 30 days. I had the Motion to Dismiss hearing last Thursday. The Plaintiff’s attorneys filed a Motion to Oppose Dismissal while they admitted they screwed up in pleading. The Judge directed me to answer their Motion within 15 days, which we are doing. Going over the papers submitted with their Motion, we find a Card Holder Agreement dated 2005, a separate signed obligation page dated 1998 and copies of statements starting 2004. Since I had two business credit cards with Capital One, the 1998 age relates to the other card. The credit card breach of contract I am being sued on did not have any charges until January, 2003. All of the statement copies submitted, with dates starting in 2004, have been paid and I can prove that. While preparing the response to their Motion, I called Capital One today five times and talked with five different people about the account in question and was told the account is no longer in Capital One’s system. The only thing anyone could tell me is the account was “assigned” to Legal Recovery Law Office in San Diego, CA and their telephone number.
Both myself and someone else are dealing with this as well right now. I’m being sued “on behalf” of a bill collector…but the lawyer sent me collection notices, and the other person is being sued “on behalf” of Cap 1…and received collection notices from the lawyer. Two different law firms, AND they had actually previously gotten a letter from the law firm in my suit…lol.
I am being sued by Federated capital who aledges to have purchased a debt aledged to be mine from Advanta. They produced 4 scraps of paper with a string of numbers labeled wire transfe which happened to be for the last four months of the Statutes of Limitation I rep[lied produce proof that I transferred money from mine or any. My submit for summary is Friday I have also paid fee for jury if it goes that way.
I’m being sued by Capital One through Forster & Garbus. Or so I thought. I looked at a letter I received before the summons from Forster & Garbus and it states that they are a collection agency. I answered the summons and denied that I ever having a relationship with the Plaintiff. My first court date is October 18th. Any advice on how to approach this? Is it possible to get evidence from Capital One stating they are not the ones suing me? Thanks!!
I just got a call from a debt collector for debts well over 16yrs old . Do limitaions last that long? I live in Georgia.
I am being sued by cap one I live in Idaho and the firm representing cap one is also in Idaho but the lawyer is in Utah website says jurisdiction: Utah can I do anything with this,
thank you.
I receive a letter from Palisades Collection assignee of an XX Bank. First I dont live in the adress the letter was sent. 2 This account is already out of my credit reports and have over 10 yrs old of last payment make. Which are my rights if I live in Puerto Rico. Thank’s for your attention
for kevin:9/3/11 POST
yes you should win this!
what state are you in?
Feb 17th 2011 i got a folded post card from Cardworks servicing saying that I owe Merrick bank $1926.33 and that I can settle for $963.17 and that after settlement is complete Merrick bank will forgive any remaining balance and report the debt settled to credit bureau’s.
Nov 30th 2011 I got a civil complaint letter from local JP Plaintiff merrick bank.
The complaint just says that Merrick bank issued me a card and I used it and refused to pay.
Is this a third party suing me? shouldn’t plaintiff be Cardworks servicing?
I have to defend myself so whats the best tactic for me? thanks
A person came to our door with a summons and handed it to my husband and it was addressed to J XXXXX. My husbands first name is not J. I have to reply with my answer in 21 days. We did not sign the certificate of service that the woman took with her. This debt is being collected by Portfolio Recovery/Associates LLC as assignee of Capital One Bank. On the bottom of the complaint in the last sentence, it states that they are a debt collector attempting to collect a debt and any information obtained will be used for that purpose. My question is: 1. when I send a Notice of Appearance with my answer to the person who signed the paper, which is the Lawyer for Portfolio Recovery/Associates- should I sign the document after dating it with my full legal name or should I sign it as the current resident of the address that it was delivered to? Question 2. Should I then file the Notice of Appearance with my answer to the court without the certificate of service that proves I corresponded with that Lawyer or should I wait until I get a certified certificate of service back from the Lawyer whom is suing me before I visit the CO Clerks office to submit my Notice of Appearance with the answer? Question 3. If the first name on the Summons was incomplete or not correct or possibly an initial; even if there was no “.” placed after the letter, should I answer ” I deny any and all complaint, Jurisdiction, or “count” 1-2 or 3 because I do not know whether the statement is true or not.
The person who serves you in person does not need your signature….they file a doc to the court indicating you were served on such a date. So…..you have been served…..and should file your response in a tmely fashion.
Something many do not realize….is that you or anyone can go in person to the court house involved and ask the court to see the file….and be able to ake sure you have whatever is inthe file –make copies.
Also there should be that document indicating you were served….and is a key part before the plaintiff can proceed.
The answer is “No I do not owe that debt”
If the the attorney at Law has: This communication is from an attorney firm acting as a debt collector.If so, you can positively identify the law firm as the real Plaintiff.
Yea I just got a Certified letter Saturday from LVNV about a capital one credit card that was written off in 2008… So I am pleading Not Guilty Tuesday . I am using the Heresay ruling, the fact that they wont have all the proper paperwork on this account, and the fact that the debt is over 4 years old
should that be enough to get this case ruled in my favor?
Marc, sorry for the delay in responding. My motion to set aside the stipulated settlement failed due to, apparently, waiting too long to file. In Colorado you have either 6 months or 1 year depending on what you claim and it has been over a year. So now I’m going after Cap 1 because they show no reduction of the balance owed and amount past due on all three credit reports. (as I stated in several QWR’s, they are either the owner of the debt and violating the fair debt reporting act or they sold the debt and were not the plaintiff in the case) As you all probably know, when you call Cap 1, they give you no information except a phone number to a “attorney referral” outfit that only gives the phone number of the attorney’s office. Soooo.. is anyone sure of whether I can file the suit against Cap1 in my home state if they don’t have a branch here but obviously conduct business here and all transactions occurred here?
I have been unemployed for 3 years. I paid Citibank faithfully for the first 2 years but when they doubled the minimum I couldn’t do it. That was May 2011.
On October 9 a letter was sent to me by Citibank demanding that I contact them within 30 days
On November 3, 2011 I contacted Citibank regarding an debt and with the intention of making payment arrangements. and was told by “Kathy’ that I had multiple options including a one time payment at a significantly reduced rate. I was also told that I should consider my options and that a decision must be made on or before Nov 8.
On November 7, 2011 I once again contacted Citibank and at that time I was told that I would not be able to pay the debt to them, that they had sent this debt to collections. (I subsequently received a phone call from Kathy at Citi apologizing for the position that her misinformation had put me in)
On November 21, 2011 Cohen and Slamowitz attempted to contact me regarding a debt without identifying whom they represented.
Subsequently Cohen and Slamowitz has left messages on the phones of my family members
stating that they were collecting on a debt pertaining to me including dollar amounts. (This is in direct violation of the FTC fair practices for debt collection protocol and a complaint has been with the FTC and the New York Attorney General’s office.)
On the evening of January 31, 2012 a three page document which included the names ‘Citibank’, ‘Cohen and Slamowitz’ and ‘my name’ was found on my driveway. (no envelope…just a summons with dollar figures for anyone to see) I have no way of knowing whether this document was hand delivered or mailed to one of my neighbors and subsequently brought to my driveway.
So..this summons is dated Jan 9 and obviously they’re hoping for a default judgment. I have contacted the court and am spending my weekend perparing a response to the summons, and a request for verification. According to my credit reports Citi has charged off the debt and the summons states ‘This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose.’
If anyone has any suggestions I’d love to hear them. Would appreciate any assistance I can get this. Wish me luck.
I got a summons today said Plaintiff is Capital One Bank. I checked my credit report and the account has been charged off. The letter says a Debt Collector. Kevin I’m in Colorado. What is a stipulated settlement? Let me know about going after Capital One. Oh and in the documents they didn’t provide anything with a contract or signature.