Served by Cap 1 in OH

[jilliep80]

Hi Everyone,

I apologize for the length of the post!!

First off I live in Ohio. The Capital One account was opened in FL in 2001. The last payment that they received from me was in March of 2005. The first delinquency was May 2005 and the major del. first reported date was December 2005. According to my CRs the official charge off date of the account was 12/2005.

I was served on Friday and have the summons. It says I have 28 days to respond. There is no court date listed on the summons however it says if I don't respond a judgment by default will be rendered against me. I obviously intend to respond.

The summons looks like everything is there. They have a copy of the card member agreement which is very blurry and nearly impossible to read. However the one line I was able to make out is that it states This agreement will be governed by VA Law and something else I can't make out I think Federal Law. They also included the original application with my signature from 2001. (a Copy), and also a bill from oct-nov 2005. The bill was also sent to an address that I did not reside at.

Since I have opened the account in 2001, I have lived in several different states. Florida (account opened), Illinois, Nevada, and most recently Ohio. I have been in Ohio for almost two years.

I called capital one to try and settle this account back in May of 2008. They referred me to a law office in Illinois that was handling my account, so I first DV'd them and then offered a settlement to them. They refused the settlement offer. They had apparently been trying to serve me there since 11/20/2006. They issued various summons' but they all came back returned as I did not live in Chicago nor in the state of IL.

So finally on 10/21/2008 the case was dismissed without prejudice in the state of IL in cook county. I knew it would only be a matter of time before I received something from the next group of attorneys representing cap 1 in Ohio. Sure enough on Nov 11, 2008 I got my initial letter from a law firm. I dv'd them on December 3rd 2008. I am kicking myself because I cannot find the email read receipt. However they wrote me back on Jan 28th 2009. I'm guessing they received the letter no later than December 8th. So they did not get back to me within 30 days. Not sure again if that means anything.

So after they gave me my response they than filed a suit against me on the 18th of February and summons was issued on the 19th. Not even 30 days after their response to my initial DV.

So I guess I am wondering what I put in my response to the summons? Do you think using the VA law governs is valid? Any help would be greatly appreciated!!

Thanks in Advance,

Takecare

[IrishDMBF]

What was the law firm in OH??

It wasn't Weltman weinberg and Reis by any chance??

Trust me I am in the middle of some stuff with them and Crap One right now.

Their work is shoddy at best.

They can be beaten though......which is contrary to what most people say on here about OCs.

Find an answer in the stickys that is relevant to OCs and file it with the clerk of courts in your county.

If you don't file an answer you will lose by default.

After you file your answer then work on sending out discovery requests......but thats a little ways off. Get the answer first.

The Virginia thing could be relevant because OH does have a choice of law provision. VA's SOL is 3 years so if the last time you paid on the card was over 3 years ago then you can argue VA's SOL but you have to have some sort of proof.....like bank statements cancelled checks etc that it was over3 years ago.

[jilliep80]

It is not the same law firm, but I'm sure they are equally as shady!!

Do you think my credit report is proof. On EQ and EX it says the last payment date. ON TU it just says the account was charged off as a bad debt and closed on 12/05. Which would have been three years in Dec. 08.

Do you know if the SOL goes from last payment date or charge off date or date of first del?

Thanks again!!

[IrishDMBF]

Do you think my credit report is proof.

Thanks again!!

Credit report is not proof as it is a third party business document......thus it is hearsay.....and will almost certainly be objected to as such.

SOL is from date of last payment.

the problem with the VA SOL, is if the judge doesn't buy your argument that this credit card is subject to VA SOL then you have admitted to the debt and will lose because OH has a 15 year SOL on written contracts, 6 years on oral.

So you are within that.

What I found out in the course of my dealings with Crap One is that they only keep documents for 7 years so if you opened your account prior to that they will not have a copy of the contract. They will produce all statements from 7 years until you got charged off.

Object to Cap One not being the Real Party In Interest that is where the winning lies and find out the details through discovery.

[jilliep80]

They do have a copy of my signed agreement and they provided me with the card member agreement where it states that VA law governs.

I want to settle with them. I do not want to have to go to court. It will be easier settling with them knowing that they don't have a leg to stand on in court.

I had this account when I was in college so I don't have any proof that I didn't pay it other than my credit report and some old bills stating i'm past due.

[astiman]

Must be Javitch, Block and Rathbone

[jilliep80]

The Virginia thing could be relevant because OH does have a choice of law provision. VA's SOL is 3 years so if the last time you paid on the card was over 3 years ago then you can argue VA's SOL but you have to have some sort of proof.....like bank statements cancelled checks etc that it was over3 years ago.

[admin]

You could try to put the burden of proof on them as far as the SOL. One thing they need to prove in court was how the amount of the debt was calculated. If they provide that, they may provide evidence against themselves, as your date of last payment may be there.

[IrishDMBF]

Can you tell me where I can find the Choice of Law provision that OH has?

Thanks

I have it bookmarked lol

http://codes.ohio.gov/orc/1304.85

[jilliep80]

Thank you so much Irish!! I really have my work cut out for me. You don't happen to now any case law that utilizes choice of law?? Hey you never know!!

Thanks again

[legal_loansharking]

First thing to remember is that cap1 or capone as in al capone thus my name "legal loansharking" lol....

No really, call cap1 and punch in your acct number, your call will be routed to Trak America a attorney referral network aka collection agency, they assigned this to the atty that filed suit. So this is really a second collection agency

Anything on the summons that the attorney states and signs is heresay, he has no knowledge of the debt, he was not retained by capone.

Another item, they send you the ch agreement that states it is governed by VA state law and federal laws, yes thats how they get away with charging you interest and fees on the balance. They cannot have it both ways not using VA SOL and using VA interest laws.

By the way when was the last time they sent you a statement? Not since they charged it off, look at your CR you will see inconsistent amounts of interest being charged monthly when you look at the balance by month. This month 27.00 next month 150.00 etc....

Call a CRA and ask for a certified copy of your CR that has cap1 on it. Basically they will send you a copy of your CR with a (notarized if they can) letter stating the CR is a true and correct copy and admit that as evidence.

[jilliep80]

First thing to remember is that cap1 or capone as in al capone thus my name "legal loansharking" lol....

No really, call cap1 and punch in your acct number, your call will be routed to Trak America a attorney referral network aka collection agency, they assigned this to the atty that filed suit. So this is really a second collection agency

Anything on the summons that the attorney states and signs is heresay, he has no knowledge of the debt, he was not retained by capone.

Another item, they send you the ch agreement that states it is governed by VA state law and federal laws, yes thats how they get away with charging you interest and fees on the balance. They cannot have it both ways not using VA SOL and using VA interest laws.

By the way when was the last time they sent you a statement? Not since they charged it off, look at your CR you will see inconsistent amounts of interest being charged monthly when you look at the balance by month. This month 27.00 next month 150.00 etc....

Call a CRA and ask for a certified copy of your CR that has cap1 on it. Basically they will send you a copy of your CR with a (notarized if they can) letter stating the CR is a true and correct copy and admit that as evidence.

Thanks so much Legal Loansharking. I was wondering how they were able to charge interest on a charged off account? So what should my response be to the summons? Do you recommend a certain CR? Or shuld I just get certified copies of all three to be safe. I do have some hard copies of my reports from over a year ago,I will compare the difference in the amount owed.

Also, when the attorneys in Chicago had my case they were trying to sue me for somewhere around $2,400 with court fees included. That was as of Just fall of last year. Now this attorneyin ohio is asking for like $3600. The official amount charged off was around $2,100.

[Cva1965]

Hello..I wanted to shoot out a reply to IrishDMBF..as I have just been served by them out of Pittsburgh..and I live in PA...any advise on dealing with these guys would be greatly appreciated...