Need advice, here is my situation...

[wanttobedebtfree]

I had a credit card with Capitol One, I have not paid on in over 2 years. I lived in Michigan when I got the card, and now live in Virginia. A collection agency in Virginia (Glasser and Glasser) now has the debt. The original credit card was for $500, and now the collection agency says I owe around $1100. I sent a validation of debt letter, and received back a computer generated copy of statements from Capitol One, the total owing on those statements was only around $840. Since they were copies of statements I sent them a letter informing them that they were in violation of the FDCPA law. Now they are suing me. I go to court next Wednesday. What do I need to do to prepare myself? My argument is Debt Validity. What do I need to bring? What can I expect to happen??

If they do get a Judgment, than what happens? I am a SAHM, so I do not work. This debt is solely in my name. Can they put a levy on mine and my husbands joint bank account? What about a bank account just in my husbands name? Can they go after my husband for the debt?

Is it common to be sued for such small amounts? I was shocked I was being sued over such a small amount. Any advice and information would be helpful and appreciative, thank you!

[LUEser]

If you've been summoned, you'll want to respond for sure.

Sample forms can be found here:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=252142

You say that this company now has the debt. Did they buy it, or are they assigned to it by Cap 1? If they bought it, then the people filing suit will be representing a plaintiff that is not Cap 1 but instead a debt buyer. And if it was in fact sold, and they're suing on behalf of Cap 1 and not a JDB, then they lack standing to sue, which should be included in your affirmative defenses, also found in the topic above.

As far as a balance increase goes, it depends on the usury laws of your state, and how much is allowable under those statues for fees and interest.

Unfortunately, they're not in violation of the FDCPA for producing copies and sending them to you, actually they went above and beyond all that is required from a DV.

If you wanted to find out how they got those fees, you would request a 623 investigation under the FCRA, and would have had to dispute the account with the CRAs and then send the investigation request to the OC.

However, you still may be able to get this done in discovery, or through the FCBA. (Someone correct me if I'm wrong).

You absolutely should file a response with the court. However, most jurisdictions give you 30-45 days to do that after a summons. If it's been longer than that, you may have waived your right to file an answer. But if it's small claims court, they tend to be informal, and you may get a judge who will let you argue your case verbally. Be wary though, this requires some skill.

I would definitely check the statues governing your state regarding debt. You may be able to dispute it and get another court date set.

If a judgment is entered, the collectors have new tools at their disposal. They can garnish your wages, put a lein on your bankaccounts and real property and assets. But most of them act in good faith and let you settle with them on a payment plan monthly. After that, your state may have an option to file a motion to slow pay, which can make your payments really low and on a monthly basis.

I wish you the best of luck. I advise you look up the stock "answer" form in the above mentioned topic, and file it if you still can.

Disclaimer: I am not a legal professional, just knowledgable about what what has worked for me and many others on this forum.

[wanttobedebtfree]

Thank you. It seems that this collection agency is on behalf of Capitol One, also, they are a law firm.

How do I find out the procedure for my state, when fileing an answer to the summons. And how do I exactly do that? I recived the summons on July, 11th. So I think I have time still, even though the court date is next week.

Also, can they go after my husband or levy his personal bank account? He is not on the debt, it is solely in my name.

What usually happens in these sorts of cases, do I actually talk to the judge? What do I need to bring with me to court?

Sorry, I have alot of questions. We can't afford to have our bank account attacked, my husband is in school and we live paycheck to paycheck mostly. If we take my name off of our joint account, will that protect us from a bank levy?

If I do go into a payment agreement with the collection agency, will that stop them from trying to do a bank levy?

The amount owed is only $1100 (according to the last letter I recieved, the court summons says less at $848). I do not have any assets, besides being on my husbands joint bank account.

Also, I forgot to add. Capitol One already sued me once in Michigan (I was not present), and it was dismissed (received the dismissal papers in the mail). I have papers for that. Does that help me any?

[ALVA]

My summons included an answer form, time to answer (I had only 2 weeks) and the number of the court clerk. Yours had nothing regarding what you were supposed to do?

Call the court clerk and ask for the rules and procedures. Often they have these in a faxable form or even on the web. You can also look it up in the state statutes.

[wanttobedebtfree]

My summons included an answer form, time to answer (I had only 2 weeks) and the number of the court clerk. Yours had nothing regarding what you were supposed to do?

Call the court clerk and ask for the rules and procedures. Often they have these in a faxable form or even on the web. You can also look it up in the state statutes.

No, nothing. I even thought it was fake at first because it was not even stamped by the court. I called the court though, and there is a court date set. The only thing telling me what to do, was a box that was checked saying that it I want to dispute, I need to appear for the judge to set a trial date.

[CreditFixCD]

this debt belongs to cap1 and is being handled by Glasser and Glasser.

this can get tricky, it depends on what part of VA. your going to court in.

Some judges will agree with cap1 that it's a written contract but a lot of judges in VA. says it doesn't meet the definition of written contract and go with the implied contract -3 year sol.

I got the them to drop or non-suit my case by claiming it's a open account.

I guess either they didn't want the judge to rule on my case or they just didn't think it was worth fighting.

the thing about va is : there is no sol for open accounts in Va. code

so you can argue that 801-248 applies;

§ 8.01-248. Personal actions for which no other limitation is specified.

Every personal action accruing on or after July 1, 1995, for which no limitation is otherwise prescribed, shall be brought within two years after the right to bring such action has accrued.

Look thru all my post - you can do this by clicking on my nic in this post.

Look at the warrant in debt- what has a x by it. If the x is by open account then you should have no problem.

but in my case they had a x by contract and a x by other(explain) and on that line they put: default credit agreement.

They were saying it was a written contract with a 5 year sol but called it a credit agreement on my warrant in debt. I also had that in my grounds of defense.

Let me find my other post and I'll come back and add the link.

BTW- If your going to say anything to the judge about the FDCPA or FCRA

you better have them printed out to show the judge. My judge didn't have any idea what I was talking about. He knew nothing about the FDCPA or FCRA. Or what a debt validation is.

With all that said let me say that this my not work for you.

I have heard that the judges in Richmond go along with just about anything cap 1 says.

also look at the right half of the warrent toward the bottom. If the x is by,

(To dispute this claim, you must appear on the return date for the judge to set another date for trail.)

the judge will ask you if you own this debt. If you say something like, I may , but If this is my account , then I believe the amount is wrong , they may have my account mixed up with someone else, also If this is my account the SOL may have ran.

Then the judge should order them to give the you a bill of the particulars.

and you to do a grounds of defense. and set another date for trail.

REMEMBER THIS ABOVE EVERYTHING ELSE:

I'm not a attorney, the info I'm providing comes from my case in my county.

It may not be the best thing for you to do.

[CreditFixCD]

I'm not sure about what they can do after they get the judgment.

If the bank account is in both you names , they may be able to touch it , if it's not in your name and just your husbands, I wouldn't think they could.

Really I have no Idea ,

I would still ask for the Bill of particulars and if they have everything correct. then you can try to work out a payment plan.

[wanttobedebtfree]

I am in Virginia Beach.

My Warrent in Debt says Contract, and defaulted.

Also, Capitol One already sued me in Michigan and it was dismissed. Does that help me? I have the Dismissal Form from the court in Michigan.

[organizedgirl]

Hi, to let you know I JUST WON IN COURT TODAY. I did not have a lawyer. These collection agencies do not have any proof of these debts, they sue you and hope that you will settle with them.

You guys, you can win in court. NO judge is going to rule in their favor without proof of these documents.

Any one who is being sued and want advise,you can send me a private email.

[organizedgirl]

# 1. They are suppose to sue you in the state which you signed the contract and resided at the time you signed the contract.

#2 A computergenerated statement is inviolation you are right. That is not proof.

They need to send you acopy of the document that says they are now the assigners of that debt, and the original credit card agreement between you and the OC.

#3 They do not have either of the above, so they will loose in court, no judge will award them money with out proof.

I know, I just won in court today against a colection agency, as a matter of fact they decided to dissmiss the case because they have no proof. It was dismissed with prejudice.

When you go to court, the attorney for the debt collector, is going to try to get you to settle, before you go before the judge. Tell them you will not settle on a debt you do not owe, #2 where is the contract that states you owe money, and where is the document that say they are authorized to collect. You may not get thta far. "THEY DO NOT HAVE IT.

You can do 2 things on your court date

Have a copy of the letter and the post office receipt with you. Have a copy of the FDCPA ??? that they are in violation of.

9 times out of 10 they will ask for an adjounrment to see what they can dig up. Or you can ask the judge for a 3 month adjounrment your self.

But dont worry, it is small claims, it is very informal. you will not be crossed exmine or anything trust me. If the attorney and CA know that you are willing to challenge them to prove you owe money. 9 times out of 10, they are probably going to ask to dissmiss the case with out prejudice.

I won, they asked to dismiss the case, because they saw that I was willing to make them prove it.

FYI

Collection agencies buy these debts from OC's for pennies on a dollar. 9 times out of 10 all they got from the OC was your name, the amount you owe and your address, they dont get the original documents, so that is why they sue people, because people will get scared and settle with them without them proving it.

They dont sue you becuase they want to take you to court, it is just to scare you into paying them before going to court, because in court they will loose. they only usually get money from settlements outside of court because a lot of consumers do not know thier rights or do not take the time to research the FDCPA laws.

You can send me a private email if you want.

[organizedgirl]

Yes that helps , just take the dissmisal letter to court, this is in the bag. You WON

[wanttobedebtfree]

Thank you Organized, I was starting to feel a bit hopeless.

I was going to take a motion to dismiss letter with me to court, to hand in when I dispute. (not really sure how all this works, I have never been to court before). I spoke with a lawyer today though and he said not to do that, and advised me to dispute and ask for a Bill of Particulars.

So how do I present my argument??

I do not want to walk into court thinking I have all my ducks in a row, just to be blindsided. Can someone give me the run down of how this will work? What I need to have? Do I bring paper work to hand over?

[CreditFixCD]

you are not dealing with a DC, you are dealing with the OC. and cap 1 usually keep good records.

there really is nothing you can do right now, you can't do a grounds of defense till you get your Bill of Particulars.

I do believe the attorney told you the same thing I did.

I gave you an Idea of what to say in my other post.

[Robert Nashville/Savannah]

There is some questionable information being thrown around this thread and assumptions/conclusions being drawn while ignoring some important points.

First; there is a hell of a lot of difference between taking on a JDB with no records and taking on an OC like Capital One…by all accounts, CapOne is known to keep excellent records; to think they are going to bother to sue and walk into court without every piece of evidence they need is reckless at best.

Second, creditors can generally sue in either the state where the debt originated OR the state where the debtor now resides. They’ll often choose the one they feel is most favorable to their position (and/or SOL statutes), etc….however, those being sued can generally get the cases transferred to where they live if the case wasn’t filed there (since traveling to another state to defend is burdensome).

Real court and small-claims are two very different animals; small-claims are courts of equity which to put it simply, whatever the judge thinks is “fair” is how the decision will go…they aren’t usually concerned about the finer points of the law. Parties in small-claims are usually given a lot of leeway since the judge doesn’t expect legal expertise.

When you are in superior/general sessions, etc court; you had better know what you are doing or have an attorney representing you…courts will give some leeway but don’t count on that for long.

Getting a case dismissed in Michigan may or may not help you in a Virginia court; it all depends on the facts and why the case was dismissed…it sure isn’t a “slam dunk”.

The SOL argument may be your best hope here but you are going to have to have your case researched and organized.

Nothing said by the OP would lead me to think the debt isn’t legitimate – that being the case and since it’s a relatively small amount; settling and avoiding a judgment should at least be considered.

[LeslieR]

Robert is 100% correct.

OrganizedGirl, it's really pretty irresponsible of you to mislead the OP into thinking he has some sort of open and shut dismissal here. Cap1 is suing him, and Cap1 is known to keep the best records in the biz.

I know you're trying to help and be positive, but your info is flawed.

[Bigwoodystyl]

I was reading this too and wondering about all the questionable advice until I realized this is an almost all newbie thread...

[CreditFixCD]

I was reading this too and wondering about all the questionable advice until I realized this is an almost all newbie thread...

If I gave any questionable advice , would you please point it out.

I don't want to mislead anyone.

[wanttobedebtfree]

you are not dealing with a DC, you are dealing with the OC. and cap 1 usually keep good records.

there really is nothing you can do right now, you can't do a grounds of defense till you get your Bill of Particulars.

I do believe the attorney told you the same thing I did.

I gave you an Idea of what to say in my other post.

I am not so sure it is the OC, because the letters I recieved from the collection agency, say collection agency, and the warrent in debt says both cap 1, and the collection agency name as the plantiff. According to the credit info website, even if it is a lawfirm/collection agency on behalf of the OC it is still a collection agency and DV still applies.

Anyhoo... I did not notice you mentioned the Bill of Particulars before, that is also what the Lawyer I spoke with advised me to request. So I am just going to do that, and hope to work somthing out as far as a payment agreement.

Thanks for all the advice.

[Robert Nashville/Savannah]

.....

Only the creditor has standing to sue you; an attorney/CA, etc has no authority of their own to sue.

From what I understand, Capital One rarely if ever sells their accounts and they keep excellent records.

Bottom line is, it this debt is within SOL and it is your debt then you would probably be wise to settle it rather than have a judgment issued against you.

Good luck.

[wanttobedebtfree]

Only the creditor has standing to sue you; an attorney/CA, etc has no authority of their own to sue.

From what I understand, Capital One rarely if ever sells their accounts and they keep excellent records.

Bottom line is, it this debt is within SOL and it is your debt then you would probably be wise to settle it rather than have a judgment issued against you.

Good luck.

So just so I can have some understanding on what to do. If I am going to settle, and ask for a payment plan. 1. Do I bother with the Bill of Particulars, or just ask to come up with a settlement agreement?

2.do you think $50 a month on a $1100 debt is reasonable to ask for? Would I be likely to get that?

[Robert Nashville/Savannah]

If you are being sued (not being threatened but a case has actually been filed) then you MUST deal with that and do so within the timeframe allowed by the court...don't just ignore the lawsuit.

What they'll take to settle I have no clue...it depends too much on the facts of your situation such as how old the debt is, how strong their case against you hapens to be and how easily they believe they can enforce a judgment, etc.

Whether they'll take a payment plan at all is questionable...all you can do is lay your cards on the table and if they can accept what you can do, great.

Under no circumstances should you agree to a settlement that is more than you can handle (whether it's a lump sum or a payment plan) or you'll be in a worse situation than you are now.

I do wish you well.

[nascar]

There is some questionable information being thrown around this thread and assumptions/conclusions being drawn while ignoring some important points.

No! How can that be!?

[Robert Nashville/Savannah]

No! How can that be!?

It's probably because you weren't here to keep everyone straight.