Looking for help in establishing damages.

[mattclaeys]

This has been an exiting week. I love this board as it has helped me to clean up my report greatly over the last 6 months. This is where it gets fun now.

I received a letter from Cap1 dated 9/29/04 saying that they purshased an account from Household that the SOL ran out in May of this year. Because the SOL had expired, I sent them the below letter.

Matt

*******

Portland, OR

October 4, 2004

Capital One Bank

PO Box 85522

Richmond, VA 23285-5522

(888) 298-2919

Re; inquiry dated September 29, 2004: your

Account # **********

Greetings:

Thank you for your recent inquiry.

This is not a refusal to pay, but a notice that your claim is disputed.

The Rules Of Civil Procedure of my State of Oregon provide a Statute Of Limitations limiting the time frame for any legal collection activities.

Under my State of Oregon Code , the subject account type has a 6 year limit for filing any legal action for collection.

This notification is formal notice to you that any filing of such action by you, or your representitives or assigns, is therefore time-barred.

Under the FDCPA, any such action, or threat of such action is a violation of the law,and grounds for fines and civil sanctions.

807. False or misleading representations

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.

Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(2) The false representation of-

(A) the character, amount, or legal status of any debt; or

(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

This notification to you is of applicable legal statutes, codes and laws. Other Federal and State laws may apply.

Under the laws of my State, continued collection activities, including reporting, verification or reinsertion of accounts, beyond their legal collection date to any consumer credit reporting agency, may be considered extortion and/or fraud and subject to criminal as well as civil prosecution.

Therefore, I require that you cease and desist any and all collection activities including any further reporting of this legally uncollectible account.

In addition, this is your notice that any assignment, transfer or sale of this account to another entity for the purpose of continued collection activities will be considered a violation of the FDCPA.

I reserve the right to take appropriate action to recover from you any damages that I may incur from any such continued collection activities.

Please note that proof of your receipt of this notice may be used by me or my legal representative in further action, and will be used as an implied consent to taping any telephone calls from you or your agents.

Best regards,

Matt

That was the last I had heard from them. I had pulled an EX report on 10/25/04 and it was not appearing. I pulled another report from EX on 11/11/04 and I saw that they had added the tradline onto my EX report. Needless to say, I went crazy. I got no reponse from my first letter, and then they deside to add it onto my report anyways. So I sent them off this letter below on 11/12/04.

November 12, 2004

Capital One Bank

PO Box 85522

Richmond, VA 23285-5522

888-298-2919

Re: Account#: **********

To Whom It May Concern:

This letter shall serve as formal Notice of my Intent to Sue you for violations of the state and federal (FDCPA/FCRA).

You have been including the following erroneous information on my credit report dated November 11, 2004, even though I have advised you of this error on October 4, 2004.

As stated in my attached copy of the letter sent to you on October 4, 2004, This account is time-barred. At the time of my letter, you had just acquired the account, and were not reporting it on my Experian report. In fact my report dated October 25, 2004 had no reference to the above account. When I checked my report again on November 11, 2004 you had inserted the above account onto the credit report. The account was not listed as disputed, and the insertion of the account constitutes continued collection activity of an account to which you know is not valid, and which was reported to you as disputed.

I regret to inform you that your company will now be the target of a lawsuit due to your disregard for the previous notice sent to you, and your violations of the Fair Debt Collection Practices Act as well as the Fair Credit Reporting Act. As of today, the account is only being reported on my Experian Credit report, so you are only liable for one Violation of the Fair Credit Reporting Act. Should you report this account to either Transunion, or Equifax, you will be held liable for another $2000.

I am willing to settle this matter and save us both the aggravation of fighting this out in court. I will be filing the suit within 30 days of this letter. I am willing to not file, should you want to settle this matter out of court, if you meet the following demands:

1. A check for $2,000.00. ($1000 for the FDCPA Violation, and $1000 for the FCRA violation.)

2. Deletion of the account from my credit file with Experian.

3. Receipt of a letter stating the accounts will be blocked from reappearing on my credit file and will not be sold or transferred to another company.

If you wish to settle this matter, you may contact me at the address listed below. If you decline this offer of settlement, I will seek the full amount available in county court and a court order from the judge ordering the information to be removed. I look forward to your response.

Sincerely,

Matt

Address

Well I thought everything was fine, and then on 11/13/04 I got another letter from Capital one. This letter was just another collection letter offerring my options to settle the account. There was no mention of my original letter, no validation, nothing, just continued collection. So I just finished a follow up letter and made sure to send it CMRRR. Here is the third letter.

November 15, 2004

Capital One Bank

PO Box 85522

Richmond, VA 23285-5522

888-298-2919

Re: Account#: *********

To Whom It May Concern:

This is a follow up letter to my letter dated November 12, 2004. This letter shall serve as formal Notice of my Intent to Sue you for violations of the state and federal (FDCPA/FCRA). Due to your ignoring my original letter dated October 4, 2004, and your effort to continue collection activity without providing validation of the debt, you are adding additional violation of the FDCPA, and FCRA. Although 1st class mail is sufficient in communication, this letter is being sent Certified mail so that I will have proof of its receipt by you for my future suit.

As stated in my original letter dated October 4, 2004, which is attached, this debt is not a valid debt. In that letter I gave you notice that your claim was disputed. I will repeat this notice to you again in this letter. This is notice that your claim is disputed. Please provide complete validation of the debt and your right to collect it. I want to advise you to stop all collection of this debt until you provide complete validation, and mark this account as disputed on any credit reports that you are reporting it too.

You have been including the following erroneous information on my credit report dated November 11, 2004, even though I have advised you of this error on October 4, 2004.

As stated in my attached copy of the letter sent to you on October 4, 2004, this account is time-barred. At the time of my letter dated October 4, 2004, you had just acquired the account, and were not reporting it on my Experian report. In fact my report dated October 25, 2004 had no reference to the above account. When I checked my report again on November 11, 2004 you had inserted the above account onto the credit report. The account was not listed as disputed, and the insertion of the account constitutes continued collection activity of an account to which you know is not valid, and which was reported to you as disputed.

I received a letter from you on November 13, 2004, that I have attached. This letter constitutes continued collection activity on your part without providing any validation of the debt in question. This is yet another violation of the FDCPA, and will be noted for use in my lawsuit.

I regret to inform you that your company will now be the target of a lawsuit due to your disregard for the previous notice sent to you, and your violations of the Fair Debt Collection Practices Act as well as the Fair Credit Reporting Act. As of today, the account is only being reported on my Experian Credit report, so you are only liable for one Violation of the Fair Credit Reporting Act. Should you report this account to either Transunion, or Equifax, you will be held liable for another $1000 per report.

I am willing to settle this matter and save us both the aggravation of fighting this out in court. I will be filing the suit within 30 days of this letter. I am willing to not file, should you want to settle this matter out of court, if you meet the following demands:

1. A check for $2,000.00. ($1000 for the multiple FDCPA Violations, and $1000 for the FCRA violation.)

2. Deletion of the account from my credit file with Experian.

3. Receipt of a letter stating the accounts will be blocked from reappearing on my credit file and will not be sold or transferred to another company.

If you wish to settle this matter, you may contact me at the address listed below. If you decline this offer of settlement, I will seek the full amount available in county court and a court order from the judge ordering the information to be removed. I look forward to your response.

Sincerely,

Matt

Address

So should I only be asking for $2000? I will be filing it locally in Small Claims, should I get no response. Should I just get an attorney to handle this, or is it easy enough to do on my own. Help, imput, anything that will help me get them would be greatly appreciated. If I should be taking a different angle, or doing things differently, I would love your help and imput. Thanks in advance.

Matt

[luckyduck]

Isn't it just amazing that CAP1 is now a JDB. Is that how they keep their interest rates so low?? It may be that Capital One does not think that they fall under the FDCPA because "collections" are not their primary activity. Oh, as big as their pockets are, they should have bought better information. BTW, I got a Cap 1 letter for exhubby on debt at least 7 yrs. old. he's been a fugitive since 97, so it's at least 3 yrs. over SOL. but they were slick with it. They offered him a credit card. For each $100 he pays on the owed debt, they would extend $25 credit to him. Oh how nice is that. Pay us on a debt you haven't owed for three years and we'll reward you by giving you credit you can get free elsewhere. Dummys. That's not a binding contract anyway.

Additionally, if you default on Cap 1, they charge exhorbinant interest fees. $415 turned into $1136 in 15 months. What the &*(&^. I had a debt several years ago with them where $4000 turned into $9000 in the course of about 4 years. (Yes, the idiots gave me another card when I already owed them 9 grand). Point is that once you become delinquent they don't feel that they are bound by any laws. I've personally just sent them a request for explanation of the over doubled amount on my debt.

It sounds to me as though Capital One wants to get sued, whether it's for illegal inflation of debts, attempting to persuade consumers into binding themselves to an unlawful contract, or collecting on junk debts in violation of fed and state laws.

Personally, I think asking a collector for money in an intent to sue letter is a little tacky. I know people do it, and I'm sure it works sometimes. My outtake is this though: I say if someone wants my money, let them sue me. If they just want me to perform an act, then I might give in. I'm not going to damage myself (fork over money) over threat of suit. But I might be willing to perform a simple task that causes me no harm over it. Again, that's my stance. If you got the ba**s to ask me for money, then you better have em enough to follow up on your threat, and you better be smarter than me in court. There's a chance I might win. But if all you want me to do is make a phone call it's worth saving the hassle of dragging my a$$ out of bed and going to court over. Many people will go to court over money. They will not go to court over things so simple as doing nothing, which is all you want them to do.

Regarding how you pursue it, this is Capital One. It is not some rinky dink little collection agency. Yes, facts are facts, laws are laws, with or without an attorney, the law is on your side, but this is Capital One - who's in your wallet. Get em out of your wallet, and dig in theirs. Definitely hire an attorney. Even your suit with attorney's fees aren't enough to make them blink an eye. But your suit without an attorney may not even be enough for them to pencil in the courtdate. The agenda isn't just to sue (okay maybe for some of us it is), but to stop the illegal activities( I personally look forward to them). Do what is going to damage them the most. Hire an attorney. I'm sure you can find one to do contingency against Cap 1.

[rdahlke1105]

Isn't it just amazing that CAP1 is now a JDB. Is that how they keep their interest rates so low?? It may be that Capital One does not think that they fall under the FDCPA because "collections" are not their primary activity. Oh, as big as their pockets are, they should have bought better information. BTW, I got a Cap 1 letter for exhubby on debt at least 7 yrs. old. he's been a fugitive since 97, so it's at least 3 yrs. over SOL. but they were slick with it. They offered him a credit card. For each $100 he pays on the owed debt, they would extend $25 credit to him. Oh how nice is that. Pay us on a debt you haven't owed for three years and we'll reward you by giving you credit you can get free elsewhere. Dummys. That's not a binding contract anyway.

You know I recently received one too. This was for a repo that happened back in 95. Same thing, we'll give you this card if you pay this debt off. Luckily, I have gotten this off of my credit report a couple of years ago. I think in MO the SOL is 5 years. Needless to say, I kept this so called "offer". Just to cover my rear.

[Recovering Attorney]

I would not expect cap One to answer any of your letters. Not that they aren't persuasive.

You must dispute with the CRAs to get it off. Use " not mine," or whatever else you want. If the date of last activity ( date of your default or last payment to the OC) is within 7 years and change, there is no prohibition on the default appearing on your CR. Once the 7 years is up, it must be removed ( unless Oregon has a local law).

CapOne may come after you, but you have the SOL as a defense. And these letters put Cap One on notice. They and whatever lawyer they use to sue you to collect will have to answer their FDCPA violation in trying to collect this debt.

I caution you about waving teh SOL in the air. Essentially, it can be inferred that you admit to owing the debt. So just dispute it as " I dispute owing this debt and even if it could be proved, it is time barred.

[Xanathos]

Oregon doesn't have any laws regarding how long an account can be reported.

I don't see you requesting validation in any of the letters--the first one is saying "leave me alone, it's time barred" and the last 2 were ITS letters. I hate to say it, but I'm not seeing any violations here.

You can't get an FCRA violation until you have EX launch a dispute...if it comes back verified with inaccurate information (date, balance, etc.) then you've got a 623b. The FDCPA violation...you need to send in a DV and let them send you a collection letter after that before you can do anything there (unless they threaten litigation or send you a note on attorney letterhead, etc.). Attempting to collect when the SOL has run isn't against the law--they just can't bring litigation on.

There might be something here I'm missing, but I don't really think so. I know you don't have any state laws to quote for a violation (Oregon's laws are not particularly consumer friendly, though our judges from Circuit on up to Federal almost universally are)

[rdahlke1105]

RA & Xanathos- I have received the same letter. Do you think I should send them a DV even though it doesn't show on my CR? Or do you think I should leave well enough alone, like I have been doing?

[luckyduck]

Are all of these letters coming from our lovely crooked Capital One Who's in your wallet, Capital One? Are they using the name "Capital One"? Are they coming from Capital One's office in Virginia on Capital One Drive? Is there any other name they are referencing themselves to be? Is there any way that if I looked up "capital one" in a collection agency licensing search that I would be looking for the wrong name? Does your state require a collection agency to be licensed/bonded? Mine does.

Guess What!! Capital One is not licensed as a CA in the state of Indiana. Capital One is acting as a collection agency. They are buying junk debts, and attempting to collect on those debts, regardless of how they are disguising it, and in mattclaeys's case, they aren't even disguising it (are they?).

Capital one is not affiliated by common ownership with these places is it??

Can anybody tell me how Capital One might not fall under the definition of "Debt Collector"???

(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6), such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include --

(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;

( any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts;

© any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties;

(D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;

(E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and

(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

Check your state and see if they are licensed. They are not licensed in their home state of Virginia because Virginia does not require licensing or bonding. Therefore, you need to check your own state and if it requires licensing, bonding, and they are not licensed or bonded, I smell a winner.

I have no legal claims against CAP1 myself, but plan to go after their CA. I hate CAP1, but they haven't tried to collect someone else's debt from me so this wouldn't apply to me. Anyone in a state with requirements interested in starting a class action, I think you got a good shot here.

Oregon Revised Statute 697.005

Any person collecting third-party debts or acting as a repossessor of collateral due to another person must be registered as a collection agency. A $10,000 surety bond or irrevocable letter of credit is required for registration.

LISTINGS IN OREGON OF ACTIVE REGISTRATION #s for search "Capital one"- I do not know what they are registered to do under these names, or if they are bonded, or even who is affiliated with the main company and who is not.

CAPITAL ONE AUTO FINANCE, INC - 641327-81 (based out of TX)

CAPITAL ONE HOLDINGS, LLC - 132387-95 (based in OR)

CAPITAL ONE INSURANCE AGENCY, INC. - 540750-81 (based in VA capital one drive)

might want to check and see if they are bonded there as a collection agency. It doesn't look like it to me.

Missouri - No bond or license required. - Very anti consumer state - you're pretty much out of luck on the non licensure. Sorry.

[mattclaeys]

Two things. They are acting under "The Westmoreland Agency" A Capital One Company.

Secondly. I got an attorney to look at everything. She thinks that I am not asking for enough, and she is taking over the case for me. She isn't charging me anything, and will just tack it onto the settlement as attorneys fees.

[luckyduck]

is that out of boise ID. Damn the luck. They're licensed here in Indiana, and most likely everywhere else. The letter I saw for the open a credit card, pay this debt, and we'll give you credit I thought was straight from Capial One. It may be a different "business" under the same umbrella.

[sacha71]

What recourse would I have if 3 years ago I had agreed to accept one of those stupid (I know better now) agreements to pay Cap 1 for an old Discover account?

DOLA on Discover was May 1996. Received offer in Dec 2001 (when I was resident of TN) My DH paid 1 payment with HIS checking account, then nothing else. I never used the credit card because it was over the limit when I received it.

It's only showing on TU and with an opening date of Dec. 2001.

Cap 1 verified it just a few weeks ago when I disputed as not mine.

Am I totally screwed in regards to this account?