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Being sued by Cap 1 in Florida


jgd1971
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Hello.

I am being sued by Cap 1, and I could use your help. I have read many of the postings on this site, and I feel confident that I have come to the right place for help.

I live in Florida. Yesterday, I received an advertisement from an attorney asking if they could represent my husband in a civil case that was filed against him on behalf of Cap 1. The case number was listed on the advertisement. I went directly to the clerk's website, and sure enough, there is a civil suit. The docket says that a summons was issued on the 10th of November, but as of today (17th), we have not received a summons. I am not even sure of the amount we are being sued for. However, unless Cap 1 has gone interest and late fee crazy, it should not be more than 20k. If this is the cc I am thinking of, they originally told my husband (when the loan was first issued last year) that the monthly bill would be $100. When we received the first statement, it was three times that amount. We could pay the amount at the $100 price, but not three times that. We would not have taken the loan if we knew they would want that much a month. My husband called them (many times), and tried to negotiate with them to lower the monthly payment, but to no avail. He recieved an anwer to the effect of "too bad, so sad. You should have read the fine print, sucker." (I am paraphrasing, but this is pretty close)

I was wondering if I should send a DV to Cap1 (since I haven't received a summons yet), or would this be a waste of time at this point?

I have noticed that mediation seems to be a fairly helpful tool to several on this site, but I have also seen a few other ways that people have won against them.

I am a student with no income, and my husband has lost his overtime hours, which constituted a large amount of our income. At this point in our lives, we are unable to make any type of settlement with Cap1, so I am in desperate need of help. Any help you could provide would be greatly appreciated. I do not like to shirk my repsonsibilities, but I feel that Cap 1 should take as much of the blame for their refusal to work with us.

Please, can anyone give us any help and direction?

Thanks,

Worried in Florida

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First things first, wait for the summons and read the complaint. See what evidence if any they have attached to the complaint.

After you recieve the complaint, you will have to answer it. There are many great people here from Florida who know their way around the Florida court system so they will be able to help you in answering and your defenses.

Once you get the complaint, in the sticky threads, there is a questionaire to fill out about the complaint. That will help everyone on here see where you stand.

But the first thing to do is calm down. You are in the right place. Many of us came on this site panicked and scared. Once you arm youself with information and helpful, smart people, you don't feel so alone.

This site is very empowering. You will have some decisions to make but DVing after you recieve the summons and complaint is pointless. Answering and defenses are what you need to focus on. There are stickies for those, too.

And stop worrying. It doesn't do any good anyway!

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  • 3 weeks later...

Thanks Lilq for your encouragement. I really needed to hear that others have been in the same boat as me, but have come through it.

So, we received the Summons. We are being sued by Atlantic Credit & Finance Incorporated as an assignee of Capital One. I did some research on these guys and they are shady fellows. They have gotten in trouble many times by violating the FDCPA.

My questions are thus:

1. I know I should deny all the counts against me in the complaint. My question is: should I do one lump sum, general denial, or should I answer with a denial of each one.

2. What kinds of affirmative could I use? The SOL is not up. The only one I could think of was that they did not attach a "jr." to the end of my husbands name. His legal name is with a "jr." at the end of his last name. Does this make a difference?

3. Should I ask for Discovery in my Answer, or should I wait?

4. If I ask for arbitration, should I do so in my Answer?

5. If I ask for arbitration in my Answer, do I forfeit my right to Discovery and a trial?

I have listed, below, the counts. I am not sure the legalese I should use in my response. PLEASE HELP!!!! Thank you all very much in advance!

Count I- Account Stated

1. This is an action for damages that exceed $15,000, exclusive of interest and court costs.

2. Before the institution of this action , Capital One and the Defendant had business transactions between them and agreed to the resulting balance.

3. Capital One rendered a statement of it to Defendant , a copy being attached, and Defendant did not object to the statement.

4. The Defendant owes $15,687.20 that is due with interest,in accordance with the attached account.

5 Capital Once has assigned the account to the Plaintiff.

Wherefore, Plaintiff demands judgment against the Defendant in the sum of $15,687.20, together with interest and court costs.

Count II-Open Account

6. This an action for damages that exceed $15,000, exclusive of interest and court costs.

7. The defendant owes Capital One $15,687.20 that is due with interest, in accordance with the attached account.

8. Capital One has assigned the account to the Plaintiff.

Wherefore, Plaintiff demands judgment against the Defendant in the sum of $15,687.20, together with interest and court costs.

Count III- Unjust Enrichment

9. This is an action for damages that exceed $15,000, exclusive of interest and court costs.

10. capital One has conferred a benefit on the Defendant, who has knowledge thereof.

11. Defendant voluntarily accepted and retained the benefit conferred.

12.The circumstances are such that it would be inequitable for the Defendant to retain the benefit without paying the value thereof to capital One in the sum of $15,687.20

13. Capital One has assigned their interest in the debt to the plaintiff.

14. Defendant would be unjustly enriched if allowed to retain the benefit without paying the value thereof.

Wherefore, Plaintiff demands judgement against the Defendant in the sum of $15,687.20, together with interest and court costs.

Count IV-Money Lent

15. This is an action for damages that exceed $15,000, exclusive of interest ans court costs.

16. Defendant owes Plaintiff $15,687.20 that is due with interest for money lent by Capital One to Defendant.

17. Capital One has assigned the account to the Plaintiff.

Wherefore, Plaintiff demands judgment for damages against Defendant in the sum of $15,687.20, together with interest and court costs.

Thanks again everyone!

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What county are you in. You can PM me the county if you wish.

You will need to file an answer with affirmative defenses - lack of standing, failure to perform conditions precedent, etc.

If you are going to deny the allegations it's safest to do so paragraph by paragraph.

If you want arbitration, file a Motion to Stay and to Compel Arbitration first and set it for hearing.

If you do not want arbitration, then go ahead and file your MTD, Answer, Affirmative Defenses, and requests for discovery.

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