Mediation with Capital One Bank

[drivers86]

Hello,

I have received a Mediation Order from Gwinnett County Court here in Georgia. It's on April 12th

Creditor - Capital One Bank

Collection Agency - Trauner, Cohen & Thomas, L.L.P.

Amount - approximately $4000.00

Opened - 09/08/2000

Last Payment - Not provided

I have been using Lexington Lawfirm to assist with credit repair since July 2005. They have been submitting debt validation requests to the bureaus who seem to validate it but the only contract or evidence I've ever received was for a card for which there was a judgement and had to pay back by means of garnishment.

The mediation order for this case came after I sent a letter to the court, Capital One Bank and the collection agency showing that I have yet to receive an original contract or anything from Capital One Bank or the collection agency to validate the debt for the case opened against me.

I have just come across the list of forms provided on your site. I would like to know what steps should I take from here? Should I send the detailed debt validation letter to Capital One Bank, the collection agency and the credit bureaus? or should I present these forms at Mediation?

Thanks in advance!

[someonesomewhere]

I have received a Mediation Order from Gwinnett County Court here in Georgia. It's on April 12th

...

I have been using Lexington Lawfirm to assist with credit repair since July 2005.

So, how come Lexington Lawfirm isn't representing you?

They have been submitting debt validation requests to the bureaus

CRAs aren't required to do squat with DV letters, timely or otherwise.

Should I send the detailed debt validation letter to Capital One Bank, the collection agency and the credit bureaus?

OCs and CRAs aren't required to do ANYTHING with DV letters. Only CAs and only if it's timely.

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=742753&postcount=2

[someonesomewhere]

Now my ernest attempt to help. You're 11 days from a mediation hearing, and I honestly think you're going to get caught flat-footed when you walk in there.

If I were you, I would:

1) Cancel my subscription to Lex Law

2) Start reading here and here for starters

3) Post a little history on what contact you've had, over the phone or in writing, with the CA and OC on this account

4) Consider perhaps springing for a paid CIC consult or talking to a lawyer here or here

When the dust settles on this mediation hearing, you ought to talk with a lawyer about bringing suit against Lex Law.

[drivers86]

Well, I read the forms and one reason I'm in mediation is because I sent a letter to Clerk of Court, OC and CA with dates from Lexington Lawfirm where they attempted to get debt validation and where I again requested validation of debt in the form of the original contract. At the time I did not know that I could have requested for payment history as well. I noticed the debt validation form on this site states that I can request payment history and date of last payment as well. If the CA doesn't provide this information during mediation everything I've read says deny and demand proof. If there's no proof then there's no case. Is this correct? I also notice that the SoL in my state is 6 years and I'm pretty sure that has passed since the time period of my last payment would have been around April 2001. I was unemployed from April 2001 - January 2003 so there weren't any payments made.

[someonesomewhere]

I just know I'm going to regret this in the morning.

I noticed the debt validation form on this site states that I can request payment history and date of last payment as well.

Under federal law, you also have to timely DV. That means within 30 days of first written contact from the CA. GA law may have something more consumer friendly, as in TX, but I don't know.

If the CA doesn't provide this information during mediation everything I've read says deny and demand proof.

Well, I'm not a GA lawyer, and in fact I'm no kinda lawyer. Since this is a mediation hearing, the rules will probably be a bit more relaxed. Preponderance of evidence is the standard for civil matters. Don't know what the standard is under GA law in order to permit this to go to trial, but certainly no higher than preponderance of evidence.

If there's no proof then there's no case. Is this correct?

Again, it's preponderance of evidence. Neither they nor you are required to show proof beyond a reasonable doubt.

I also notice that the SoL in my state is 6 years and I'm pretty sure that has passed

SOL in GA is 4 years for oral or open-ended accounts. 6 years for written and promissory notes.

http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml

If this is a CC with Cap 1, then it's a 4 year SOL. Date of importance is the DOFD, although DOLA should be after that. In either case, having a current hardcopy of all 3 CRs should provide that proof for you--assuming they haven't been re-aging it on your CRs. If you have any old CC statements and notices from the OC, those should also help establish the DOFD.

I was unemployed from April 2001 - January 2003 so there weren't any payments made.

Neither a judge nor a lawyer, but that statement doesn't convince me of anything either way. You'll want to try and stick to facts. Things you can prove or support by documentation.

Just because you weren't employed doesn't mean you didn't make payments. I mean you might have stopped paying all your bills, maxed out your cards via cash advances, wheeled and dealed in the stock market, made a buttload of money (wired to your Cayman Islands Bank Account), and continued to pay bills. That's my wild-haired plucked from the air story. The person representing the CA or OC will have a better, more plausible one.

I'll again pitch this because my conscience won't let me avoid saying it.

You still have more than a week before the hearing. Plenty of time to contact a lawyer at one of these two links.

http://www.naca.net/find-consumer-protection-attorneys/

http://www.myfaircredit.com/s/national-coverage-map/georgia

I see several of them in Decatur, just one county over. Ya might start calling and see if you can't get a free phone consult. Maybe even see about whether you can get a free in person consult. Bring ALL documentation you have. If you have to, maybe spend $200 or so to consult and have them review your documentation and advise you on how to proceed.

I just have this feeling that you might not quite be adequately prepared, but it sounds like the SOL effectively kills any case.

[drivers86]

Okay, it is a CC with Cap 1 that is CO. I just started getting a CR from each of the Big 3 over the past 2 years. Nowhere on those forms do I find information regarding the DOFD or DOLA.

My understanding of the DV page is that they should be able to show payment from me within the past 4 years. If this is correct then as you said, the SOL effectively kills any case.

I don't want you regretting this but believe me when I say that you are providing an invaluable service. Thank you so much! I will definitely contact one of those lawyers from the links you provided.

Since I did respond within the 30 day period to their letters requesting DV and they have yet to prove I owe them, what is the purpose of mediation? It sounds like a waste of time. I don't want to sit around with those people if they aren't going to give me proof of the debt. I've been informed that it's going to cost $165 dollars and hour for mediation. That's crazy!

[someonesomewhere]

I just started getting a CR from each of the Big 3 over the past 2 years. Nowhere on those forms do I find information regarding the DOFD or DOLA.

EQ seems to have the most detail of dates, at least on the form, even if they aren't filled in.

- DOFD is shown as "Date Maj. Del. 1st Rptd".

- DOLA is shown as "Date of Last Activity"

If you have any old CC statements, when it went to CO or COLL, that would show DOFD. What's the DOLA on your CRs?

My understanding of the DV page is that they should be able to show payment from me within the past 4 years. If this is correct then as you said, the SOL effectively kills any case.

The SOL runs from DOFD, not DOLA. The DOLA is going to be on or after the DOFD, so if the SOL has run using the DOLA it has certainly run using the DOFD.

Since I did respond within the 30 day period to their letters requesting DV and they have yet to prove I owe them, what is the purpose of mediation? It sounds like a waste of time.

I agree, and a lawyer can probably coach you thru how to minimize the mediation.

If the CAs original letter didn't comply with § 809(a), that's a violation.

If they failed to validate after you timely DVed, that's another violation.

Each letter or phone call you received after they received your DV letter is a violation.

Reporting to the 3 CRAs is 3 violations.

Bringing suit against you is another violation.

http://www.creditinfocenter.com/legal/FDCPA.shtml#809

If you have the docs to back up any of these violations, it's a $1,000 per violations for which you can sue them.

"Your honor, Trauner, Cohen & Thomas violated several provisions of federal law under the Fair Debt Collection Practices Act. Here is the initial letter I received from Trauner, Cohen & Thomas. It lacks the information required by 15 USC 1692g(a), which is one violation.

I sent a letter by certified mail requested validation, and Trauner, Cohen & Thomas never responded. Under law, they can take as much time as they need, but they are required to cease all collection activity until they validate the debt.

Here is a copy of that letter I sent, the certified mail receipt, and the return receipt requested green card.

Trauner, Cohen & Thomas continued their collection efforts in violation of 15 USC 1692g(.

Here are the 3 dated letters, each one a violation, I received from Trauner, Cohen & Thomas after they received my validation letter.

Here are recent copies of my credit reports from each of the three major credit bureaus. Trauner, Cohen & Thomas is continuing to report this account on all three reports, three more violations.

Finally your honor, by filing suit against me, Trauner, Cohen & Thomas has again violated 15 USC 1692g(.

Thank you."

[drivers86]

The account on the credit report has a DOLA of 6/01 and date closed of 12/01. The original letter from the CA is 10/06 interventions and disputes were submitted by LexLaw for me. Then a summons was served 12/06.

I'm trying to find the U.S. and State Code for GA. that states the statute of limitations expires for cc/open-end accounts after 4 years. I'm headed to Mediation in the morning and wanted to get that information along with the other laws collected. If you know the code and or site where I can print it and take with me, please share!

[someonesomewhere]

http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=396482&postcount=11

[drivers86]

Thanks! I am confused by the short title UCC 11-1-101. Is it a code that sets a standard for business transactions?

[someonesomewhere]

Looks like.

TITLE 11. COMMERCIAL CODE

ARTICLE 1. GENERAL PROVISIONS

PART 1. SHORT TITLE, CONSTRUCTION, APPLICATION, AND SUBJECT MATTER OF TITLE

O.C.G.A. § 11-1-101 (2006)

§ 11-1-101. Short title

This Title 11 shall be known as and may be cited as the "Uniform Commercial Code."

[drivers86]

I went to mediation and it was like being double teamed. I started to wonder if the Mediator worked in the CA's office as well. The rep for CA provided no documents or proof of debt. He kept asking what I wanted to accomplish. I told him, you have my DV letter, you know I want the original documents, payment history and proof that SOL has not expired. He said my letter did not indicate that I was denying the debt. So I will have to find out if another letter needs to be sent stating that I deny the debt they claim I owe until adequate proof has been provided.

They both kept trying to get me to take ownership of the debt and I kept saying I deny their claim. It's been disputed since 7/05 with the OC and CRA's. Now the CA joins and I have yet to receive any documents requested to validate the debt.

I can't wait to hear back from the lawyers reviewing my case. The Mediator and rep for TTC were telling me that the laws under FDCPA regarding DV and SOL would not be judged in my favor. They went on and on about attorney fees and when I lost I would be responsible for even more money.

[drivers86]

I am happy to announce that TCT dismissed their case for Crap1 against me. I hired a local lawyer from the NACA. Fortunately they had already won cases againts TCT.

My attorneys were prepared to defend me based on the SOL of 4 years and the fact that the cc agreement is not a binding contract.

In Georgia there has yet to be a ruling from the State that has distinguised cc agreements strictly under SOL of 4 years. So some judges rule 6 years while other rule 4 years.

I just knew that I had to have someone well versed in this arena to present my case.

My suggestion is if you can get a payment plan with a Consumer Advocate attorney to present your case, do it!

[someonesomewhere]

Outstanding! I am so glad for you.

[secondchances]

but I brought the suit against them and not vice versa. Did Crap One delete from your CR report?