SGB2112 Posted October 2, 2008 Report Share Posted October 2, 2008 Date served: 29 September 2008By: Capital One Bank(USA) NAATTY, Linebarger, Goggan, Blair, & SamFor: Breach of contract: $1,100, 5% interest & attorney fees & all court costs.Questions..1. I know the statute of limititations in TX is 4 years, and I opened the account in 2002 but have no idea when I made the last payment..is Capital One required to provide me with this information?2. Does Linebarger & associates have to provide proof that the SOL has not expired? Is it already available at the courthouse?3. How should I respond to the lawsuit if I cannot verify the SOL?4. They called me today, Oct 2, 2008 to inform me ..1. I am being sued.2. Would I like to settle now?I told the person I am having a legal consultation next week..they tried twice to find out what firm but I told them that should I hire a lawyer I will inform them..WTF?Is them wanting to settle right on the phone a sign of weakness regarding the lawsuit? 5. Will they be violating the FDCPA if they continue to call me now that I have been notified of the impending lawsuit? I have never sent them a stop calling letter since I have recieved only one prior call & letter total. Thanks in advance. Link to comment Share on other sites More sharing options...
JustaTexan Posted October 2, 2008 Report Share Posted October 2, 2008 Hello my fellow Texan! Have you seen your credit reports recently? If not go to annualcreditreport.com and you can get all 3 for free. You need to get some dates from your reports pertaining to this Cap 1 account. The report should show you when your last payment or date of delinquency was. Find this out first and post it as this will help with answers. I would agree with you that wanting to settle on the phone is a sign of weakness but I'm no expert on legal matters. Link to comment Share on other sites More sharing options...
Andy Simmons Posted October 3, 2008 Report Share Posted October 3, 2008 1. I know the statute of limititations in TX is 4 years, and I opened the account in 2002 but have no idea when I made the last payment..is Capital One required to provide me with this information?--yes, if you serve them with a proper discovery request for the information. I hit them with a combination of interrogatories, requests for production and requests for admission. Meanwhile, I suggest that you try to find this information from your own bank records.2. Does Linebarger & associates have to provide proof that the SOL has not expired? Is it already available at the courthouse?--no, this is an affirmative defense that you have to prove. Once you have proved it by putting forth some evidence that the SOL has expired, then the burden of proof shifts back to Cap One to prove you wrong. 3. How should I respond to the lawsuit if I cannot verify the SOL?--hire a lawyer, honestly. There are other ways to defend these cases, but it takes a lawyer to know if you have a defense. There are a few of us here in Texas who I know of who do these cases on a routine basis. If you know a local lawyer who you trust, your local lawyer might take the case. Otherwise, find someone who knows how to defend these cases. I don't know the lawyers at the Heston firm, but have seen their website and they certainly appear to know what they are doing and have done a bunch of these cases. They often have an ad with a link to their website here. I also handle these cases. My websites are: (site removed) and (site removed) I usually stick to Travis County on these cases, but I have taken some from other parts of the state. I have handled a few cases with Linebarger / Cap One. I keep telling people in this forum to take them seriously. From what I have seen, they have better documentation than what we typically see in many of these debt collection cases. There are also a few lawyers in the DFW area who handle these cases.4. They called me today, Oct 2, 2008 to inform me ..1. I am being sued.2. Would I like to settle now?I told the person I am having a legal consultation next week..they tried twice to find out what firm but I told them that should I hire a lawyer I will inform them..WTF?--if you have hired a lawyer, they'd like to know who, because once you have hired a lawyer to represent you, they need to stop talking to you and start communicating with your lawyer. That is an ethical rule. They are probably just trying to follow the rule.Is them wanting to settle right on the phone a sign of weakness regarding the lawsuit? --no.5. Will they be violating the FDCPA if they continue to call me now that I have been notified of the impending lawsuit? I have never sent them a stop calling letter since I have recieved only one prior call & letter total. --no, not just by calling you to discuss the case. Link to comment Share on other sites More sharing options...
SGB2112 Posted October 7, 2008 Author Report Share Posted October 7, 2008 DeannaTX, I have an online copy of my Experian report.Is it the 'Date of Status' or the oldest 'Charge Off' used to determine SOL?My Date of Status is 9/2005 & oldest charge off is '30 days as of Mar 2005'.Andy or anyone else..if I am SOL(.... out of luck) and must pay, cann an Attorney..A. Negotiate on my behalf to lower the $1100 owed ANDB For it to make financial sense for ME..ie not lower it to $900 plus a $300 dollar attorney fee.Thanks. Link to comment Share on other sites More sharing options...
deltadawn Posted October 7, 2008 Report Share Posted October 7, 2008 To the best of my knowlege, EQ is the only one that shows:Date of 1st DelinquencyThat will give you the date on which to determine SOL.TU will provide you with Estimated date that this item will be removed. Link to comment Share on other sites More sharing options...
SGB2112 Posted October 7, 2008 Author Report Share Posted October 7, 2008 9/10/2005.Looks like settlement time, as they offered. Need to find out if a lawyer can negotiate a better deal. Link to comment Share on other sites More sharing options...
JustaTexan Posted October 7, 2008 Report Share Posted October 7, 2008 Hey again! It looks like this debt is within the SOL, which means without any other defense, they can sue you and win. However, you are in our great state of Texas so they can't take much from you, especially if you don't have anything. But, a judgement on your credit is never a good thing, especially if it is only for a grand. The thing is-if the debt is only around a thousand dollars you would probably spend atleast that on a lawyer. If this were me, I would call them up and ask them to present you with a written settlement offer. You can always counter if you feel the need to. Good luck and please stay in touch! 1 Link to comment Share on other sites More sharing options...
mycorrado Posted October 8, 2008 Report Share Posted October 8, 2008 I would do more homework on the date of first delinquency and wouldn't rely on the credit report data if it is close.Earliest charge-off date of March 2005 puts the original delinquency 120 days or so before it, correct? in other wordsworking backwards from the true OC charge off, you have 90 days late, 60, 30 etc. the charge-off occurs no earlier than 30 days after 90 days late.my estimate would be December 2004. mycorrado Link to comment Share on other sites More sharing options...
JustaTexan Posted October 9, 2008 Report Share Posted October 9, 2008 I would do more homework on the date of first delinquency and wouldn't rely on the credit report data if it is close.Earliest charge-off date of March 2005 puts the original delinquency 120 days or so before it, correct? in other wordsworking backwards from the true OC charge off, you have 90 days late, 60, 30 etc. the charge-off occurs no earlier than 30 days after 90 days late.my estimate would be December 2004. mycorradoHer credit reports show her being 30 days late March 2005. Texas is a 4 year SOL state and she has already been served. Link to comment Share on other sites More sharing options...
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