Capital One threating to sue

[kcjab]

My account with Cap 1 is 7 months past due. I have settled two other accounts in the last few months but Cap 1, just will not come down to something I can handle. I am looking for guidance for my next step. Rec'd a call the the account is going to the legal dept and i have a couple days to figure out how to handle. Do I agree to make a payment and keep this out of the legal system or do I wait it out and see what happens? I am a newbie to all this and have no idea what my next step is. Does Cap One ever settle for reasonable amounts? How likely am I to actually get sued? Any advice would be appreciated.

[kcjab]

ok, well thanks for the help:(

[Massive]

You don't owe Cap One any money.

[FL4answer58]

'Rec'd a call the the account is going to the legal dept'

If anything ...Cap One owes you money.

[Massive]

'Rec'd a call the the account is going to the legal dept'

If anything ...Cap One owes you money.

That is a correct statement.

[willingtocope]

You don't owe Cap One any money.

And you say that because?

[Massive]

And you say that because?

Because the Plaintiff listed does not own the DEBT. It's called SECURITIZATION. If they own the debt, you make them prove it, you just don't get sued by a law firm and not make them prove their pleadings. Make the law firm prove they have authority to file suit. Make them prove "Cap One" has Standing to file suit in the alleged debtors home State. Make them prove Cap One owns the alleged debt.

[willingtocope]

So...."You don't owe Cap One any money"...really means "let them take you to court and if you are slicker than their rent-a-lawyer, the judge may throw out the suit".

Hmmmm.....

[Freddy01]

In my experience Cap one is holding onto accounts (even small balances). If you have called and offered any type of settlement with them they know you owe the debt and will be quick to sue.

FYI: Cap one keeps very good records and will use this in court.

[Athena_Sword]

They are absolutely the worst. By using the tactics I've learned on this forum I've kept them at bay for nearly a year by requesting validation of debt, validation that the most recent band of thugs (I'm on my 3rd group for the same debt) is has legal authority to collect etc.

Hang in there.

[Massive]

They are absolutely the worst. By using the tactics I've learned on this forum I've kept them at bay for nearly a year by requesting validation of debt, validation that the most recent band of thugs (I'm on my 3rd group for the same debt) is has legal authority to collect etc.

Hang in there.

That's it, they don't have legal authority to collect the debt. You have no rights if you don't use them. You are doing a good job, Keep it up.

[Massive]

In my experience Cap one is holding onto accounts (even small balances). If you have called and offered any type of settlement with them they know you owe the debt and will be quick to sue.

FYI: Cap one keeps very good records and will use this in court.

lol, If they keep good records then they should be able to prove they own the debt. Why do all these original creditors shy away from proving anything?? They just provide the same regurgitated crap; generic cardmember agreements, alleged account statements, and bogus affidavit of debts from someone that they can't even provide employment records on. They keep good records alright. lol They don't want to address their Master Trusts or anything either about securitization. Yeah, they keep great records, lol.

[Massive]

So...."You don't owe Cap One any money"...really means "let them take you to court and if you are slicker than their rent-a-lawyer, the judge may throw out the suit".

Hmmmm.....

No, it's not about being slick. It is about sufficiency of pleadings, it is about the truth of the matter. Who really has Standing to file suit. It's really quite simple when you break it down, that is if you know what you are doing and don't fall for the B.S. lol!!

[kcjab]

So you are saying stand my ground and don't make any payment or settlement? I hate the idea of going in to the legal system.

Just an FYI, I added an authorized user and that person made all the charges on the account. Does that give me any reprise in owing the money?

[mentalcompass]

The same thing happened to me. Be careful because Capital One always owns the original debt, they only farm out collections to third-party lawyers, many of whom are very nasty. You can call Capital One directly and ask for a settlement on the original amount. They are not likely to give you much of a break and, even after you settle, and the settlement will appear on your report as a "charged off balance." Be ready for one thing - they will give you, at the most, six months to repay your debt so divide it out. In the meantime, they'll add the interest each month to your credit report until it's paid off. Don't let them sell off the debt to an attorney firm because you can get a better settlement deal from Capital One directly. I did go to court, mediation, with Capital One and had a judgement against me, although it was never reported on my credit file because I paid the settlement and got the release. I know two other people sued by Capital One's third-party lawyers. Best to call them. This debt is just 7 months old, it's worth working a deal. If it was three or four years old then I'm not sure what to say. Make sure you also know how long credit debt can be collected in court in your state. Each state is different.

[mentalcompass]

FYI - even though they added interest and increased my high balance each month, it had nothing to do with the settlement I paid, they just did that as an ugly way to force me to pay off the settlement. It hurt my credit too because that high balance kept going up each month. Both my Capital One cards now have a zero balance but it's listed as a charge off. I was with Capital One for 10 years, never missed a payment in all that time, I had a child in 05 that was disabled and I went broke. I called them way back then when I knew I was in trouble, they declined to work with me. I will never do business with them again and I'm super glad the debt is closed. Worst company ever.

[mentalcompass]

why don't you Google this topic, Capital One is going after people in court, you don't want to be in court because it cuts you off from making a direct deal with Capital One, a deal with the devil, yes, but you don't want a judgement on your record, that stays 10 years I believe, I'm sure someone will correct me if I'm wrong. I know there's ways to fight them but since I didn't, I don't have that advice for you.

[kcjab]

Thanks MC, I took your advice today and gave Cap 1 a call. They settled for 75% and I took it. I will have to take a loan out of my 401K to meet their down payment, then they gave me a payment amount for the remainder. Account balance is locked, no interest and 20 payments to pay off the balance. And you are correct, I do not want court and judgement or anything further held against me. I'll have to just figure out how to pay the payments. Thanks for everyone's help. i am too nervous to go through the legal stuff and get a lawyer and may end up having to pay court and attorney fees and the entire balance.

[kcjab]

and yes, I will NEVER, EVER to business with them again!

[mentalcompass]

I'm glad you find an offer you could deal with. I'm sorry you had to borrow against your 401K , that's awful, but at least you didn't have to pay the entire amount and it's a done deal.

[mentalcompass]

If you run into trouble paying one month, make sure you call them ahead of time, they'll work with you, at least they told me that. I paid $600 a month for six months. Sucked.

[FL4answer58]

You don't owe Cap One any money.

'Rec'd a call the the account is going to the legal dept'

If anything ...Cap One owes you money.

And you say that because?

Found on a google search, ...although yours is not a JDB.

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JUNE 25, 2008

When good people give bad advise...be careful "I just saw a fairly recent post from a "The Credit InfoCenter Blog." It was arrogantly entitled "Now I'm Giving Advice to Consumer Attorneys." To me, this post highlighted why a consumer ought not to seek legal advice from someone who is not an attorney."

"In this person's post, she suggests that a debt should counter sue a creditor who files a suit without the proper documentation to prove the debt. Here is the problem. The law in this area has already been decided. If you review my previous posts (May 4, 2008 entitled "Attorneys for Debt Buyers beware...they are on to us!), you will see that unless a debtor drafts a lawsuit to allege fraud against the creditor, that such a counterclaim will necessarily fail. After all, the purpose of a trial is to determine who is right. A creditor bears the burden of proving the debt. If the creditor comes to trial without the necessary documents to prove his debt, he does not violate the Fair Debt Collection Practices Act. He merely loses a trial. But....if the creditor has a history of pursuing debtors without having the necessary docs to back up his claim, well then, he may be engaging in a pattern of fraud. Its a subtle but important distinction. Again, I have laid out the 2 major lines of cases in this instance in my May 4, 2008 post."

"If the debtor's counterclaim fails and the court believes that the counterclaim was baseless, the debtor may get hit with sanctions. How angry would the debtor be at having a judgment entered against him for both the balance due on the complaint plus sanctions??!!!"

"Bottom Line: Please be very careful when reviewing advice from non lawyers. The CreditInfocenter Blog seem to be very well intentioned. However, they should not give advice and further still, ought not to hold themselves out as giving advice to attorneys. You can almost always find a Consumer Rights Lawyer that will spend some time with you for free. Get the right advice from the right people."

MAY 4, 2008

Attorneys for Debt Buyers beware...they are on to us!

"I love defending people against debt buyers because the Plaintiffs case is as strong as a house of cards in a hurricane. Debt buyers buy judgments, credit card charge offs and other sordid garbage debt for pennies on the dollar. Hell, there are even debt buyers that buy debt that has already been through a collection agency or two. Usually, when a debt buyer purchases his paper, he gets little more than the judgments or a spreadsheet showing the balances due. What does this mean for the consumer that is sued? Everything. The debtor buyer has no proof that the consumer owes anything other than some shmoe's word for it that the debt was owed in the first instance. Recently, someone got wise to the idea that an attorney who sues on this crap and does not have the goods to show that the debt is actually owed, may be violating the Fair Debt Collection Practices Act. I can't wait to share this case with you."

"In Isom v Javitch Block and Rathbone ("Javitch"), the defendant is a law firm that had sued Ms. Isom in state court for a debt that was purchased by some company called Direct Merchants. Javitch attached an affidavit to its complaint that had been prepared by Direct Merchants. When Ms. Isom demanded discovery in the state court case, Javitch simply dismissed the case. Why? Because it did not have any proof to show that its client was entitled to any money from Ms. Isom. Now, its Ms. Isom's turn.

She sued Javitch in federal court and asked for class action status. She alleged that because Javitch had sued her without having any documentation to show that she owed the debt that Javitch had violated the Fair Debt Collection Practices Act. Ms. Isom alleged in her complaint that Javitch attached a false affidavit signed by Direct Merchants that said that Direct Merchants had personal knowledge of the balance due by Ms. Isom. The court held that because Ms. Isom alleged fraud her complaint against Javitch, that she has enough of a case to go to trial. The court denied Javitch's Motion to Dismiss Ms. Isom's claim."

"In analyzing Ms. Isom's case, the court noted two lines of cases that dealt with the issue of whether a debt collector violates the FDCPA by suing a debtor without having substantial supporting documentation for its case. In Delawder v Platinum Financial, the U.S. District Court denied the Defendant's Motion to Dismiss. In Delawder, the Plaintiff alleged that the debt collector had committed fraud because the affidavit in support of its case misrepresented the amount of the debt or the debt collector's legal claim upon the debt."

"The second line of cases involved Harvey v Great Seneca Financial in which the Plaintiff alleged that the filing of a suit to collect a consumer debt without the means of proving that debt was a violation of the FDCPA. The court in Harvey dismissed the action stating that Plaintiffs do not need to prove their cases at the time that the lawsuit is filed. However, in Harvey, the Plaintiff did not allege that the affidavit attached was false."

"In Ms. Isom's case, she alleged that the affidavit that was attached to the complaint against her in state court was false. She alleged that there was no way that the Plaintiff had "personal knowledge" of her debt to the original creditor. The court found that Ms. Isom's case should proceed to trial on the issue of whether the Defendant's affidavit was false and if so, whether it violated sections 1692e and 1692f of the FDCPA; the Act's prohibitions against false or misleading representations and against unfair collection practices, respectively."

"Javitch pled to the court that it should not be held responsible for an affidavit that its client had signed in support of the complaint. Judge Barrett would have no part of that argument. Javitch's attempt to side step the FDCPA bullet was foiled when Judge Barrett correctly pointed out that it was Javitch that signed the complaint and attached the affidavit in support of its complaint. Javitch, as a third party collector, has to take responsibility for its own actions."

ATTORNEYS FOR DEBT BUYERS BEWARE. "Remember that you are responsible to verify that the debt and every part of the debt that you are collecting is legitimate. The days of suing debtors without having proper documentation and hoping for a default judgment is like playing Russian Roulette. You are bound to piss off some debtor who reads my blog and knows his rights. Now, you have to doubly (if there is such a word), that the affidavit that you are attaching to your complaint is accurate. The FDCPA makes you a guarantor of sorts that the affidavit is bona fide."

Edited September 29, 2010 by FL4answer58

[admin]

That's it, they don't have legal authority to collect the debt. You have no rights if you don't use them. You are doing a good job, Keep it up.

This is totally not true. They have every right to collect.

[Anne Tyler]

My account with Cap 1 is 7 months past due. I have settled two other accounts in the last few months but Cap 1, just will not come down to something I can handle. I am looking for guidance for my next step. Rec'd a call the the account is going to the legal dept and i have a couple days to figure out how to handle. Do I agree to make a payment and keep this out of the legal system or do I wait it out and see what happens? I am a newbie to all this and have no idea what my next step is. Does Cap One ever settle for reasonable amounts? How likely am I to actually get sued? Any advice would be appreciated.

Who is contacting you? Capital One or another firm? Midland Funding often represents Capital One and you won't get far with them I'm afraid. Of course of the do by all means fight it. I'm currently having issues with Midland for Citibank.

[Anne Tyler]

ATTORNEYS FOR DEBT BUYERS BEWARE. "Remember that you are responsible to verify that the debt and every part of the debt that you are collecting is legitimate. The days of suing debtors without having proper documentation and hoping for a default judgment is like playing Russian Roulette. You are bound to piss off some debtor who reads my blog and knows his rights. Now, you have to doubly (if there is such a word), that the affidavit that you are attaching to your complaint is accurate. The FDCPA makes you a guarantor of sorts that the affidavit is bona fide."

I only wish what you have said above was true but I have just been in court for months trying to get a case against me dismissed where there is absolutely NO PROOF PRESENT and the judge just kept continuing it even though the rules in Missouri say that in such cases it is the judges duty to dismiss it. I have filed motions for dismissal which go ignored. And now the judge and the attorneys involved have falsified the date of scheduled court appearance and filed a default judgment against me when I obviously intended to and have fought this and was winning until they took matters into their own hands and decided one way or the other to "get me".

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