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Court tomorrow Cap. One lawsuit


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I will be going with a friend tomorrow for a pre-trial. She is being sued by Capital One, in Florida, for a the amount of a little over $3500 plus $400 attorney fees. Every thing on the summons appears ligit. It is not a third party lawsuit and they have enclosed the original agreement. She does not have the money to pay them as she is on SSI Disability. The problem is she and her husband own a house, and she has not told her husband about the credit card or the lawsuit. My question is where to go from here? Is it too late to try to negotiate the debt down? Should she just fess up and risk whatever problems (and they will be big ones) this will bring into the marriage?

Edited by Kreative Kat
Forgot State
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If she hasn't told her husband, that implies other problems. Best to deal with this now and work it out with her husband than face a big mess in family court later. I am convinced that me fighting our debts has had a huge positive impact in our marriage. OTOH, I have a friend whose wife ran up a few thousand in CC bills, got sued, lost the case, and the husband wound up with his paycheck garnished. (WI is a community property state). They got divorced a few months later. The lawyers' fees for the divorce were more than triple what they owed on the card.

There are two strategies she could use. FLAlawyer would know about the second strategy far, far, far better than I would.

1. Your friend should write up a Notice of Election of Arbitration. Look around this forum, and especially the Arbitration sub-forum, for advice on how to do this. Give that to the judge in the pre-trail. That will freeze the lawsuit in its tracks. If it doesn't, file a Motion to Stay for Arbitration. Cap One has an arbitration clause. At this point, the lawsuit is completely frozen, at least for a while. They cannot arbitrate, and they cannot continue the case.

2. If things work out badly, see if your friend is judgment proof. There are a few things that could go badly. The judge could rule that an alternate forum is required. If I remember what FLAlawyer has written, this has happened in Florida. Or, the judge could force HER to initiate arbitration, Cap 1 could file a counter claim, and win. So, find out if she is judgment proof. Cap 1 cannot touch her SSI. I have no idea if they could go after her husband or her house in Florida. FLAlawyer would have a much better idea of that. Is her husband's name on the card?

3. After the case is stayed for arbitration, that might be the best time to tell her husband. Which is better: Saying "honey, I got us into a big mess" or saying "honey, I got into a mess, but I seem to have found a way out of it"?

At some point her husband will find out. Better to hear from her than through other channels. I am amazed he doesn't know about this by now.

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Admin posted some good advice while I was writing my post.

If she is in a position to negotiate, that is still possible before trial. However, if she invokes the arbitration clause, her negotiating position may suddenly improve substantially. Invoke arbitration, and then offer 10% IF SHE CAN AFFORD THAT. Some say that 10% is an insult. Not so. Another forum member got 10% with BoA. I offerred 10% to FNBO, and they countered with 25%. I was willing to go higher, but I wouldn't have gotten such a low counter offer unless I had started out low. The best negotiators always say, start with a lowball offer. Sometimes it is accepted, other times it leads to a better deal than if you had started out with a 'reasonable' offer.

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I have been there in the Florida courts for credit card problems and each time I have been lucky to negotiate a deal for monthly payments with the lawyers. Most of the time they only appear via telephone so it is more like talking to the judge stating you had some problems and would like to work out some payment arrangements. All in all takes about 2 minutes and the judge usually pushes the lawyers to work with any payments you think you can handle. After that it is just keeping up with your payments till the debt is gone...Good Luck

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What is the deal about owning a house. Florida has homestead protection and your friend is on SSDI. They are rather limited on sources of recovery.

Research Florida wage garnishment exemptions and the Florida homestead exemption.

Have they only listed her on the complaint or is the husband listed as well?

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Okay, I have been reading everything on arbitration posts and there is an arbitration clause in the contract from Cap. One. It lists a JAMS office in Ca, a AAA office in NY and a NAF office in MN. Does this mean the hearing will be in one of these states? Will the defendant have to attend? Who picks up the costs? Would it just be better to offer them a settlement of say 25%?

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The addresses are the main office, the hearing normally has to be in you state. However the current arbitration situation is that they can not file with any of the three. NAF is legally barred from hearing Consumer Debt arb, AAA does not want to get in the same boat so they are rewriting their rules and JAMS never has heard Consumer Debt cases.

However the tricky part is that no one knows just when AAA will start hearing those cases again and what those rules will be. Trueq has written a lot on the subject so you may want to review those posts. You will want to get the Judge to require them to initiate, if you initiate with JAMS, they are allowed to counter claim a Consumer Debt.

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