Being Sued by Capital One

[njshore32]

I just found this forum while doing a search of alternatives to bankruptcy and I've been reading stickies and other threads for the past few hours. I really do not want to make a mistake (again) of any kind and I would really appreciate any help anyone can offer. Thanks in advance.

1. Who is suing you? Plaintiff: Capital One Bank, Attorney for Plaintiff: Goldman & Warshaw PC

2. For how much? $5,971.88

3. Who is the original creditor? Capital One Bank

4. How do you know you are being sued? Received a summons, served on 12/28/2007

5. How were you served? Were you served? Certified mail to my parents' house

6. What was your correspondence (if any) with the people suing you before you think you were being sued? Voicemails left by Capital One then by Goldman & Warshaw

7. Where do you live? New Jersey

8. When is the last time you paid on this account? May 2006

9. What is the status of your case (if anything has been opened)? The summons states that I have 35 days from 12/28/2007 to answer the complaint

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? No

12. Does your summons require a response? Yes

We need to know what the "charges" are. Please post what they are claiming: Plaintiff Capital One Bank says Defendant is indebted to plaintiff on an account stated and/or contract and/or for services rendered and/or for an extension of credit. Payment has been demanded but has not been made.

Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Just the summons and 2 more pages, one of which outlined in my response to the "charges" question above.

14. What is the SOL on the debt? NJ: 6 years oral, 6 years written, 6 years promissory, 3 years open-ended accounts.

The bottom line is that I cannot afford to pay this debt in full. I am going to the courthouse to pick up an answer form tomorrow and I will have it filled out and certified mailed to the court and to the plaintiff's attorney by the next day at the latest. How should I answer the complaint? Should I deny? What are my options? I really appreciate anyone taking the time to help me out, thanks again.

[Amerikaner83]

you last paid less than a year and a half ago - the OC is suing you...so SOL and "chain of custody" are not in your favor...

5 G's and some change? Hmm I may venture to talk settlement...say 1G? then work your way up?

We cant really advise you on denying if we don't see the actual interrogatories...or wahtever they sent with the Summons...

[njshore32]

Thanks for responding so quickly. I didn't receive interrogatories with the summons. What I received in the mail contained three pages. The first page says "SUMMONS" at the top and explains that I am being sued and that I must file an answer to the complaint within 35 days, resolve the dispute, or hire a lawyer.

The second page says "Summons and Return of Service" on the top and lists the attorney's address, the plaintiff, my name as defendant, the court, and the docket number.

The third page again has the info listed above but also contains a paragraph that says:

Plaintiff CAPITAL ONE BANK with its principal office at 4851 COX ROAD, GLEN ALLEN, VA, 23060, says Defendant(s) is indebted to plaintiff on an account stated and/or contract and/or for services rendered and/or for an extension of credit. Payment has been demanded but has not been made. The balance due after payments and other credits is $5,339.80 plus any additional accrued interest, contractual attorney fees (if applicable) and costs WHEREFORE, plaintiff demands judgment as alleged together with interest from the date of this complaint, contractual attorney fees (if applicable), and costs of suit

TRIAL DESIGNATION AND CERTIFICATION PURSUANT TO RULE 4 5-1

Pursuant to R 4 25-4, (lawyer's name, Esq.) is hereby designated as trial attorney. I hereby certify that the matter in controversy is not the subject of any other action pending in any Court or of any pending arbitration proceeding, and that no other action nor arbitration proceeding is contemplated, and that I know of no other party who should be joined in this action.

Sorry I couldn't explain what the summons contained more succinctly but as you can tell I'm very new to all of this and I could use any help I can get. Please let me know if there's anything else you need from me to clarify the situation. Thanks again.

[Amerikaner83]

That's all they sent? Hmm...

I'm not too familiar with being on the receiving side of a lawsuit...*knock on wood*, but you should be able to go to the court tomorrow and find out the proper procedure (per your state/county RCP [rules of civil procedure]) states you do next.

It doesn't sound to me as if you're disputing the debt or anything along those lines, is that right? Also sounds to me as if you just want to pay, but can't pay in full and want to do some sort of settlement?

[njshore32]

That's correct for the most part. I'd like to pay but there's no way I can pay the full amount. I'll ask around when I go down to the courthouse tomorrow. I'd like to have that complaint answer mailed out tomorrow though. Any idea on how I should answer the complaint? Should I deny? Also, are you familiar at all with how law firms go about settling debts like this? Can you negotiate for a lower total and also pay that total over time or is it one or the other? I know I'm asking like a million questions and I appreciate your help.

[Amerikaner83]

no matter how you go about settling with the lawyer, make 1000% sure you do everything in the timely manner with the Court. Two different things. Keep them separate until your lawsuit gets dismissed due to settlement.

That being said - you may not need to file an answer tomorrow. The Court doesn't give you extra brownie points for sending paperwork in early.

Might be worth it to find out when you do need to file with the court, and get your Answer questions answered here during that wating time...time which you could use to make contact with lawyerdude and talk settlement.

Regarding how settlement happens - no idea. But I don't see why letters back and forth (CMRRR of course) won't hurt anything.

But like I said - anything you do regarding settlement - is SEPARATE from the timetable for Answers the Court gives.

make a little bit of sense?

[njshore32]

Yeah that makes sense. I'll pick up the answer form from the courthouse tomorrow and then come back here and see if I can get the questions answered correctly. I guess at that point I'll write a letter to the attorney and see what type of settlement they can offer me. Are there any settlement templates on the forums that you know of?

[Amerikaner83]

there's one in the "sample letters" area...here:

http://www.creditinfocenter.com/forms/sampleletter6.shtml

Basically that's it...jus tailor it to your situation...be sure to include provisions such as these:

Creditor agrees this is settled in full and will not sell assign or otherwise transfer any balance...

Creditor agrees that the terms of the settlement, and the existence of he settlement itself is not to be disclosed to any 3rd party, including credit rpeorting agaencies , including but not limited to EQ, TU, EX, and Innovis. (this is for when you dispute, they can't verify )

[ShortBus]

Oddly enough I was sued for Cap1 for almost the exact same amount of money four years ago. I didn't get the summons so they got a default judgment (long story...). But they haven't been able to collect a dime of it since they tried garnishing a bank account I had previously closed before I moved out of state.

Now that I'm trying to fix my credit, I contacted a local consumer credit lawyer regarding the matter. He told me to offer them $2k but to be prepared for a counteroffer of no less than $3k. But my debt was older than yours, with a different group of bottom feeders, and they already had the judgment. On the other hand, Cap1's rate of defaults has rocketed in the past year. They might be more willing to amicably work things out than they used to be. Good luck.

[njshore32]

there's one in the "sample letters" area...here:

http://www.creditinfocenter.com/forms/sampleletter6.shtml

Basically that's it...jus tailor it to your situation...be sure to include provisions such as these:

Creditor agrees this is settled in full and will not sell assign or otherwise transfer any balance...

Creditor agrees that the terms of the settlement, and the existence of he settlement itself is not to be disclosed to any 3rd party, including credit rpeorting agaencies , including but not limited to EQ, TU, EX, and Innovis. (this is for when you dispute, they can't verify )

Thanks, I'll definitely use that sample. How should my initial letter attempting to settle to the attorney be worded? I'd much rather just send them certified mail then speak to them on the phone.

[njshore32]

Oddly enough I was sued for Cap1 for almost the exact same amount of money four years ago. I didn't get the summons so they got a default judgment (long story...). But they haven't been able to collect a dime of it since they tried garnishing a bank account I had previously closed before I moved out of state.

Now that I'm trying to fix my credit, I contacted a local consumer credit lawyer regarding the matter. He told me to offer them $2k but to be prepared for a counteroffer of no less than $3k. But my debt was older than yours, with a different group of bottom feeders, and they already had the judgment. On the other hand, Cap1's rate of defaults has rocketed in the past year. They might be more willing to amicably work things out than they used to be. Good luck.

Thanks for the info. It would definitely be helpful if I could get it down to around $2k. Do you know if you're allowed to pay off a settlement in monthly installments or something or do companies usually just make you pay in one lump sum?

[brokeinok]

Your letter to the attorney should start lower, offer them $1500, payable in three installments of $500. First payment due 30 days after your receipt of the signed settlement agreement, with payments of $500 due each consecutive 30 days.

Remember to include a line stating that the offer is an attempt to settle the matter and not an admission of the debt or the amount stated.

I know in my past letters in this, I have stated that I've spoken with a BK attorney and that I will pursue that avenue should a settlement not be forthcoming. This lets them know that if they want some of the money, then they need to bend a little. Getting a judgement in court on you does them no good if you turn around and file for BK.

Also remember to include the lines that AK suggested and make sure to tailor the letter to fit your situation. It's better if it doesn't sound like a form letter you copied.

Also, work on the settlement first. You have 35 days to answer the summons so don't rush into that.

Good Luck!

[njshore32]

Your letter to the attorney should start lower, offer them $1500, payable in three installments of $500. First payment due 30 days after your receipt of the signed settlement agreement, with payments of $500 due each consecutive 30 days.

Remember to include a line stating that the offer is an attempt to settle the matter and not an admission of the debt or the amount stated.

I know in my past letters in this, I have stated that I've spoken with a BK attorney and that I will pursue that avenue should a settlement not be forthcoming. This lets them know that if they want some of the money, then they need to bend a little. Getting a judgement in court on you does them no good if you turn around and file for BK.

Also remember to include the lines that AK suggested and make sure to tailor the letter to fit your situation. It's better if it doesn't sound like a form letter you copied.

Also, work on the settlement first. You have 35 days to answer the summons so don't rush into that.

Good Luck!

That makes sense, I'll put together a settlement letter and send that over to the attorney. Once I answer the complaint would settlement not be possible?

[brokeinok]

No, the settlement and the answer to the court are mutually exclusive things. You want to try the settlement route first so that if it works, you haven't wasted your time putting together an answer you don't need.

It's very possible that if you cannot reach a settlement, when you get to court, the judge is going to push everyone in the direction anyway... and possibly wonder why they were so difficult which is good for you.

[Amerikaner83]

broke is 100% correct.

[brokeinok]

broke is 100% correct.

ohhhh.... i get all swooney when i hear a man say that....

[Amerikaner83]

[njshore32]

No, the settlement and the answer to the court are mutually exclusive things. You want to try the settlement route first so that if it works, you haven't wasted your time putting together an answer you don't need.

It's very possible that if you cannot reach a settlement, when you get to court, the judge is going to push everyone in the direction anyway... and possibly wonder why they were so difficult which is good for you.

Ok, sounds good. Thanks for the help. I'll let you know how the settlement offer turns out.

[one who knows]

to njshore32, while the advise you have already received is correct,you should file an answer to the complaint as soon as possible,only because if you don't file within 35 days and have not been able to sttle then a automatic deflt jdgmnt will be entered against you by the court, and at that point trying to sttle for less then the full balance becomes very difficult. if you are able to sttle before the 35 days as expired make sure that the attys agree to dismiss their complaint with prejudice.

[Amerikaner83]

I disagree.

While the Answer nees to be filed before the due date...there is no extra credit for "as soon as possible".

[jetscarbie]

My best advice when dealing with Cap1...get an attorney if you are not real sure how to proceed in court. Cap 1 can sting pretty bad.

Even to settle with them...I would still try to find an attorney that could write up the papers and such for you.

[Lecasbas]

Keep your eye on the calender and do make sure your Answer is timely. 35 days may seem like a lot of time but it slips away a day at a time, especially if you are otherwise busy.

Don't rush into a settlement either. If you prepare a good Answer you very well may bring the OC around to a reasonable agreement or defeat it altogether. These guys are generally not prepared to go much past the summons and interrogatories.

Once you answer then typically the Plaintiff will send you Request for Admissions, Request for Documents and Interrogatories. Once you answer those then it will probably be months befoe a trial date is set.

Typically, if you show that you are going to make the Creditor work for its money then you can usually pressure a likeable agreement or possibly make them dismiss its case against you altogether.

Have you thought of any Counterclaims?

Also, you should go to your Courts Online to monitor the case and research what Cap1 has done in the past on other claims against other defendants. I would narrow down the search to your county. You may, in addition, find a lawyer who has defended its client against Cap1.

[trueq]

Despite original OC suing:

You can:

1.)Challenge standing (bank is not registered in your state or has in personam jurisdiction)

2.)Challenge subject matter jurisdiction

3.)Deny you have recived a verified copy of the contract (which is required to prove it up)

4.) Deny you have a verified general journal accounting of the debt (which is also required)

5.) Challenge that officers, with authority to authorize this action, do not have personal knowledge of the action, (its a felony to sue in someone else's name without their consent!) (This can happen if debt lawyer made decision to sue because it was sold or assigned to them. If you ask this right, 3 or 4 ways in discovery, you get all kinds of crazy and conflicting answers to nail them with!)

Statements of counsel are not facts before the court! They cannot testify to the facts.

They will need a fact based witness. If you motion to strike their OC affidavits along the way (because they are inadmissable if person signing is not available to cross examine for you.), your affidavit of with the above items should be left as the facts (put in both answer and affidavit.)

You will note #3 and #4 does not deny the debt! So if you are guilty, you are not lying to the court.

#3 and #4 are powerful because the Plaintiff needs to prove those, once you assert, to get the judgment through a fact witness in court!

That does not happen very often.

I think settlement talk is pre-mature if you play your court response right!

I'm not a lawyer and you should absorb my free speech on the matter at your own risk and peril.

[one who knows]

to amerikaner83,the reason i suggested that njshore32 file his/her ans asap is because in new jersey,defaults are automatic 35 days from a sac being served.

some people think that if they contact the atty office that constitute an answer

and begin to try to sttle then this tolls the time to answer,believe me it does not.

[njshore32]

I've decided to go the settlement route and have prepared a letter to send to the attorney. I was wondering if someone wouldn't mind looking over it and pointing out any mistakes I may have made or anything I may need to add before sending it out. Also, how should I fill out the Answer? Should I deny the debt in case a settlement cannot be worked out before the end of the 35 days (which happens to be on or around January 31st)? Thanks again for everyone's help. Here's the letter:

"Due to the complaint filed on December 18, 2007 on behalf of CAPITAL ONE BANK (CREDITOR), DOCKET NUMBER DC-xxxxxx-xx, in the SUPERIOR COURT OF NEW JERSEY, LAW DIVISION UNION COUNTY, SPECIAL CIVIL I would like to offer a settlement.

This settlement offer is an attempt to settle this matter and is not an admission of the debt or the amount stated. My settlement offer is the sum of $1500.00 (one thousand five hundred and no/100 dollars) as full payment. The acceptance of the payment will serve as a complete discharge of all monies due. The payment shall be made in cash in $300.00 (three hundred and no/100 dollars) increments commencing on 30 days from receipt of a signed settlement agreement and continuing every consecutive 30 days until paid in full.

In addition, upon accepting of the $1500.00, the CREDITOR will notify all Credit Reporting Agencies that account is PAID AS AGREED, and delete any entries showing this account as ever being late. The CREDITOR agrees this matter is settled in full and will not sell, assign, or otherwise transfer any balance. The CREDITOR agrees that the terms of the settlement and the existence of the settlement itself is not to be disclosed to any third party, including credit reporting agencies, including but not limited to EQ, TU, EX, and Innovis.

Due to my current financial situation I have recently spoken with a bankruptcy attorney. Should a settlement not be forthcoming I will have no choice but to pursue that avenue. Please use certified mail with a return receipt to make all contact with me from this point forward."

That's it. Again I'm not sure what needs to be stated and what doesn't so I just used suggestions from posters in this thread and parts of the settlement sample letter. Thanks.