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CapOne Strikes Again - Newbie sued


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Hello All -

I was just served a summons (State - CA) and have 30 days to respond. I verified that the lawsuit was legitimate (checked with the court online) and I plan on filing an answer within the next 30 days.

I checked the prior posting on lawsuits involving CapOne, and it seems that the consensus is they keep great records, genuine debtors (me! me!) have a snowball's chance of winning, so the best recourse is to avoid default, hope for a decent settlement, and get out from under without a wage garnishment. My problem (aside from being sued, of course) is that I disagree with the amount they're seeking in the lawsuit, a little less than $3K.

Question - Should I (1) contact the attorney and try to negotiate a settlement, (2) file the answer, then contact the attorney with a settlement offer, or (3) file the answer, wait for the attorney to contact me, and just allow the suit to proceed? Any thoughts, advice, suggestions, comments (well, not all comments), or additional questions would be welcome. Thx in advance ... :slapface:

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OK, I'll try, but it's difficult, since your situation is different than my own experience.

Given what you've stated, that you're being sued by the Original Creditor, and the debt is in fact yours, and that you would be satisfied with an outcome that involves you settling for a lesser amount than you are being sued for (and presumably you have the money to pay)...

Go with Option 1, and call the attorney in an attempt to settle for an amount you are satisfied with. I believe attorneys actually like this to happen; they collect for their clients with a minimal effort.

I suggest Option 1 because if you resolve the matter quickly enough, you won't have to file an Answer, and thus you will save that expense. Furthermore, the less effort the lawyer has to expend, the lower the amount he may be willing to settle for. If you can't reach a speedy resolution, you can always file the Answer, making sure you meet the 30 day deadline.

I would suggest you keep the following in mind as you negotiate:

- Don't admit the debt is yours. Take the line "I'm not admitting this debt is mine, but in the interests of putting this matter behind us as quickly as possible, I am willing to pay you $X to close the matter."

- Get any agreement in writing before you pay. The agreement should include dismissing the lawsuit.

- If the negotiations stall, you might try suggesting that if an agreement can't be reached, you will defend yourself vigorously in the lawsuit, demand that documentation be produced, etc. Maybe he'll balk at having to work hard for his fee.

Good luck.

DH

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Hello All -

I was just served a summons (State - CA) and have 30 days to respond. I verified that the lawsuit was legitimate (checked with the court online) and I plan on filing an answer within the next 30 days.

I checked the prior posting on lawsuits involving CapOne, and it seems that the consensus is they keep great records, genuine debtors (me! me!) have a snowball's chance of winning, so the best recourse is to avoid default, hope for a decent settlement, and get out from under without a wage garnishment. My problem (aside from being sued, of course) is that I disagree with the amount they're seeking in the lawsuit, a little less than $3K.

Question - Should I (1) contact the attorney and try to negotiate a settlement, (2) file the answer, then contact the attorney with a settlement offer, or (3) file the answer, wait for the attorney to contact me, and just allow the suit to proceed? Any thoughts, advice, suggestions, comments (well, not all comments), or additional questions would be welcome. Thx in advance ... :slapface:

Wait.....

Capital one card agreements ( which they like to submit as evidence) has a choice of law provision that states they agree to be bound by the laws of Virgina.

virgina has a three year SOL on Credit cards, and usually in a conflicts of law statute a written contractual choice rules the day.

This has been argued sucessfully in florida and a few other states.

I don't know if it's been done in CA.

IF it's beyond the 3 years SOL, it's worth a try if you can find other contract law to back it up.

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Depends.

If this is a reasonably new CO, they will NOT 'settle' for less than 80%.

If older (6 years plus) they may go to 60%.

No matter what you setlle for, and no matter what they tell you, be prepared for the settlement amount to be on your report for 7 years from the date of the settlement. It may or may not be accompanied by other, similar TLs from Crap One which will also report incorrectly.

They are evil, If you can not settle and get the suit dismissed, IN WRITING, then just answer the complaint and dispute the amount as a reponse in your answer.. If over 3 years old, use the VA SOL if your state has a choice of law provision...it may work or not.

good luck.

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Thanks to everyone for their input ... truly appreciated.

Unfortunately, I recall making the last payment on this account back in spring 2007, so even if it's VA COL, I'm still under that SOL - but thank you for the suggestion. I completely overlooked the VA COL SOL issue when reading the other posts.

I've already accepted that whatever happens, it will remain on my credit report for basically a decade. I don't worry about that overmuch though, b/c I should be living on a "cash-n-carry" basis anyway.... Credit (and it's irresponsible use) is what got me in this situation in the first place. :<img src=:'>

Well, time to stop "ostriching" and just bite the bullet. I'll go with Option 1 & touch base with the attorney. From some of the other postings, I gleaned that Erica Brachfeld & A$$ aren't exactly the most ethical bunch, so I'll insist on having all settlements in writing, signed by a lawyer, and faxed to me. Now I just have to see if the attorney is going to be a complete jerk ("I want it all and I want it RIGHT NOW") or if we can reach a compromise somewhere in the middle.

Thanks against folks -- Mucho gordo gracias!!!

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I'd fight them. It may not actually be Capital One who is the Plaintiff. Even if it is Capital One, people have fought Capital One in court and have won. At least answer the lawsuit and see what they have.

Here are some must reads for you...

http://www.creditinfocenter.com/wordpress/2008/07/30/debt-collectors-suing-consumers-naming-capital-one-as-plaintiff/

http://www.creditinfocenter.com/wordpress/2009/02/26/capital-one-admits-third-party-collector-is-handling-account-though-lawsuit-names-them-as-plaintiff/

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Well, pooh all over that!!! :medusa:

That changes my entire approach. From the other posts, I thought CO was pretty ruthless, never selling their collection accounts, suing right before the SOL expired, maintaining every record on the account from day one, etc. Guess that ain't necessarily so ...

Looks like I need to do some add'l homework ::rtfm::

BTW, you guys are great (but you already knew that :D)

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Hello All --

I mailed my answer to Erica & friends CMRRR, still waiting to get the greenie back. I haven't filed my answer in court yet, will do before the 30 days expires, and I noticed that the POS has not been filed with the court yet.

HOWEVER, I was doing some random research on the court's website and tripped over another lawsuit involving Ms. Brachfeld and another debtor, complaint filed on the exact same day as mine (does she sue in bulk? :evil:). This debtor didn't respond to the complaint and wound up with a default judgment.

My concern is that the process server listed a southern CA address, with service occurring almost 400 miles away. The date of the service was about 20 days after the complaint was filed, but the POS wasn't filed with the court until almost six weeks later. I'm wondering -- has anybody heard of process servers falsifying the proof of service, i.e., working in tandem with the OC/CA/JDB, in an effort to get defendants to miss the 30-day deadline to file the answer with the court? If that's the case, I'd have to jump through add'l hoops to get the default judgment vacated :troll: but would git 'er done regardless.

I'm considering just going ahead & filing my answer sooner than I'd planned. I was going to wait until my 29th day - just to mess w/the lawyer xshakeitx - but if this is a possibility then I'll just go down to the courthouse this week and get it over with.

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I think you may have messed up a little here, but not fatally.

If memory serves, when you file an Answer, here's what you're supposed to do: You take your paper, all signed and dated, and make 2 photocopies. This includes a "Proof of Service" form. You take these to the courthouse, and the original is stamped and kept by the court. The copies are similarly stamped by the clerk as "endorsed copies". One of these you keep, and one you mail to the plaintiff's attorney. You don't need to send it CRRR, but you need to have that Proof of Service form included with all copies.

So you can still do all this -- but you may have wasted 5 bucks on that first mailing.

Regarding the Proof of Service filed by the process server: some of them just take a while to get their paperwork done. It doesn't mean anything, and has no effect on when the defendant's Answer is due. The Answer is due 30 days from when they were served, not from when the Proof of Service was filed. Actually, if they wait 6 weeks before filing it, they only mess up the plaintiff, because the plaintiff can't file an Entry for Default Judgment before a Proof of Service is on file. And there's always a chance that if a defendant files an answer after 30 days but before the Proof of Service is filed, if the plaintiff then tries to file for Default Judgment the judge will say "Too late, an Answer has been filed."

Good luck.

DH

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Hi DH,

Well, see, now, I thought the court wouldn't file the answer until the defendant showed proof of service to the plaintiff, and I couldn't demonstrate POS if I hadn't served the plaintiff yet. I had planned on filing the answer with the court with the POS, then just sending an endorsed "Filed" copy to the plaintiff regular mail.

I figured most of the time the answer/response was filed w/the court and served at the same time. And it was a bit of attempt at strategy, too -- let the plaintiff know that I wasn't going to just default, that I was paying attention. Now, of course, I look like a dimwit for serving a copy of my unfiled-with-the-court answer :oops:, but hey, it's a learning process, and we are nothing if not students of life :shock:, and dealing with creditors is just detention. :spank:

:IThankYou:

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Just by way of another update ...

I looked at some of the filings in the other cases, and the pattern looks like this -- Erica B. files/serves the complaint & summons, files the POS w/the court 60 days or so after service, the defendant doesn't respond and Erica B. then files a Request for Entry of Judgment w/the court and is awarded a judgment for whatever amount she claimed in damages.

HOWEVER, this one defendant (and I think I may have a new hero) appears to have negotiated some sort of a settlement w/Erica B. to take funds directly out of his checking account (MISTAKE!!! but - wait for it, wait for it ...), she then reneged on whatever their deal was :thefinger:, and he turned around and cross-claimed against her under the Unruh Act (gotta look that up) for breach of contract. After he filed his answer/cross-complaint, Erica B. filed a Request for Dismissal of the entire action (but without prejudice, hmmm). That was the last activity on the case, back in April.

I guess the lesson is to keep up the good fight, and make 'em work before you pay them anything. I suppose, in my case, getting sued was actually a blessing, b/c now I'll actually look at my CRs and see what I've done to myself, maybe get proactive in addressing old debts. I kind of enjoyed being oblivious, but gotta grow up sometime ...

xjawdropx

Thanks for the encouragement, mucho gordo gracias!!!

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  • 2 weeks later...

ADMIN: i *love* how you always buck the trend and urge people to fight--especially when brachfeld/cap one are the plaintiffs--because i'm a defendant in such a case right now. i always become discouraged reading threads like this that become more and more pessimistic, but you always seem to pop in and write "i'd fight 'em..." :D it gives me confidence. and you're right--the true plaintiff may not be capital one; i've never thought for a moment that capital one had anything to do with the case that erica brachfeld brought against me (except that she listed them as the plaintiff, ostensibly to give her claim more legitimacy/scare-power).

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i've seen that (i'm being sued by brachfeld in ca); however, she IS licensed to practice law in ca, and i don't see how her scams in texas can help those of us who are in ca...

(this was in response to the poster who linked the bud hibbs url)

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i've seen that (i'm being sued by brachfeld in ca); however, she IS licensed to practice law in ca, and i don't see how her scams in texas can help those of us who are in ca...

(this was in response to the poster who linked the bud hibbs url)

If you can show a "pattern" of offences it can work to your advantage,

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"she IS licensed to practice law in ca, and i don't see how her scams in texas can help those of us who are in ca..."

You're kidding, right?

It's those very scams that you can use against her by citing applicable case law.

Also, she is a well-known scam artist so use all of the legal procedures at your command to frustrate her into thinking that this will be too time-intensive and expensive for 'her' to pursue.

Try not.

Win.

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"

You're kidding, right?

Sorry, I wasn't kidding; just a "student of credit." :roll:

Thanks for the tip, however. When I read this about Ms. Brachfeld eslewhere--and got to the part where it stated that it was all about her status in TX--my heart sank, as I felt that it was then irrelevant to my case. At the same time, I was also a bit spooked by the wrath I'd been reading that some judges can pour on pro se litigants who bring up/say/allege something that cannot be said due to this rule or that, and I was feeling like the more I stay within a *defensive* mode, the safer I am (being a newbie)...

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Hello All -

I filed my Answer last week, and this weekend, bright 'n early, I get a call from Erica & friends. They left a VM, and I have yet to actually speak to someone from her office. I'm tempted to just let the court process continue & see what they've got, but at the same time, I kinda want the whole mess to go away and work on a settlement, if the $$$ is right.

Two questions -

(1) I searched the site & Google'd for a sample "Bill of Particulars" for CA but couldn't find one. Any thoughts on whether I should pursue this, and if so, can someone point me to a workable version?

(2) Any suggestions on what I should/shouldn't say to the CA, once I speak to them (aside from not admitting/agreeing to anything)? I'd like to have a script handy so I don't get caught up in the hostilities. Thx!

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