Being sued by Capital One Auto Finance I think...

[mom25]

1. Who is suing you? That depends on if you read the complaint of the summons. The complaint states Capital One Auto Finance Inc as assignees of **** (Car dealer). The Summons states Capital One Auto Finance inc as assignee of (Car dealer) c/o TDM/NCO Financial Systems.

2. For how much? $4,000.00 (approx)

3. Who is the original creditor? Capital One Auto Finance or so I thought.

4. How do you know you are being sued? Received summons and complaint

5. How were you served? Were you served? I was served by the sheriff personally at my door.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? Nothing in writing to them, although I believe I received something from the attorney's office but can't find it. They did call repeatedly and would tell me they were from x law office and that I needed to give them my social security number over the phone for them to talk to me. No thank you.

7. Where do you live? Indiana

8. When is the last time you paid on this account? I believe they received the insurance check in October 2009

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). I have to answer by January 24th.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No, I didn't know I could.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No, didn't know about that.

12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Yes, I must answer, no interrogatories yet.

Complaint charges are:

1. That the plaintiff is the assignee of the payee of the instrument, a copy of which is attached hereto and marked Exhibit "A", to the extent of an amount equal to or in excess of $4000.00.

2. That defendants are indebted to plaintiff upon said written instrument executed by the defendants, a copy of which is attached hereto, made a part hereof and marked exhibit "A".

3. That thereafter plaintiff performed all the conditions thereof on its part to be performed.

4. That defendants have failed and refused to pay pursuant to the terms of said instrument and are in default thereon.

5. That there is due and owing plaintiff $ 4000.00 plus further interest and other charges as provided by the agreement, reasonable attorney fees, in the amount of $ .00 and costs with relief, plus statutory post judgment interest.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? THe only exhibit is exhibit A which is a photocopy of the original contract and a third page that is an assignment from the dealership to Capital one. There are no signatures on the assignment, just basically a notice.

14. What is the SOL on the debt? 10 years so we are within the SOL

So far my answer is as follows:

ANSWER

COMES NOW the defendants, xxx and xxx, for themselves alone and in answering the allegations of the complaint on file herein, affirms, denies, and alleges as follows:

1. DENY Defendants are without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation contained in paragraph 1 of the Complaint concerning the status of the Plaintiff being an assignee of (Dealer). Defendants are unable to determine how the dollar amount named was achieved. Defendants demand strict proof thereof.

2. DENY The Defendants are at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendants demand strict proof thereof.

3. DENY The Defendants are at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendants demand strict proof thereof.

4. DENY The Defendants deny refusal to pay. Defendants have requested an itemized statement so that the amount can be verified and determined and therefore are at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendants demand strict proof thereof.

5. DENY The Defendants are without sufficient knowledge to determine what if any amount is due and owing and to which Plaintiff. Defendants deny the reasonable attorney fees and are without sufficient knowledge and therefore deny generally and specifically on that basis, and leaves the Plaintiff to provide proof.

AFFIRMITAVE DEFENSES

1. Lack of standing. Capital One Auto Finance lacks the standing to bring suit as they no longer own the debt. NCO Financial lacks standing to bring suit as they have not sent a letter of dunning to the defendants.

2. Bowman, Heintz, Boscia and Vician, P.C. Have not proven that they were retained by Capital One Auto Finance Inc as its representative in this matter.

3. Plaintiffs have not proven that Capital One Auto Finance Inc is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of Capital One Auto Finance Inc with all of the original creditor’s rights and privileges intact.

4. Plaintiffs have provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

5. Defendants allege that Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

Items of note:

I did not type the exact dollar amount on purpose.

The attorney's fees were actually left blank on their fill in the blank complaint.

calls to Capital One indicate that they no longer own the debt.

Calls to who they say owns the debt indicates that they no longer own the debt.

Calls to another agency who sent me a dunning letter indicate that Capital One does own the debt.

Law office involved has been cited by the Indiana supreme court more than one time for violation of FDCPA. The have also been all the way to the US Supreme court and I believe I read a case with Illinois as well. (Sorry I read a lot of case law!!). They were cited at one point for collecting debt they did not own. They have been restricted in one county in Indiana to filing no more than 500 suits in a two week period!!!!

So, I know I need to work on Interrogatories, Admissions, etc. I do not know what if any counter claim I may or may not have.

Short history of the debt. We had purchased a car that was totaled in August 2009. The insurance paid but we did not have gap insurance. The suit is for the gap. We have yet to receive an itemized statement from any collections or capital one regarding how they achieved the dollar amount stated. We don't even know from them how much the insurance actually paid only what they insurance company told us. We did not ask in writing, only verbally in their many calls.

Edited January 9, 2011 by mom25
Be more clear

[mom25]

I guess I need to know if I should continue to be hung up on if CO owns the debt or not. Does it even matter at this point?

[RebelLady]

Yes, you need to stay hung up on exactly who owns this debt!

Your Discovery should concentrate a great deal on whether on not CO, NCO or who actually has standing to sue.

RL

[mom25]

Thank you for your reply!!! I really appreciate all the help I have found here reading all the advice and experiences.

Ok, looking at my credit report, it states this debt is a charge off. Does that indicate anything about ownership?

Also, does my answer sound ok?

[RebelLady]

Not really...'charge off' is simply an accounting term the OCs use.

Does it say 'sold/transferred to another lender' or anything like that?

If not...CrapOne still owns it and is using a collection agency who, in turn, is using a law firm (?...yeah right) to collect.

RL

[mom25]

I guess I think my main confusion comes from the fact that Crap One indicated to me on the phone that they do not handle it, they say they sold it to Tsys (??). However I do realize the people on the phone aren't all that intelligent... I have received collection letters from North Star location services, I did find one from NCO financial, and then a letter from the law office that has filed the lawsuit. I cannot find the letter from the law office. I am trying to get my paper work in order. When I called Tsys they told me they don't buy debt, they assign it and they assigned it to the law office. Nobody indicates that North Star ever officially had it and they tell me on the phone that they don't have it but "can get it back if you want to work this out with us". I probably won't know except through discovery who owns it. I am so mad that I can't find the letters from the law office. Still looking though...

It is just interesting to me that on the summons it lists Crap one, NCO, and the dealership. The complaint only lists Crap one and the dealership. This vehicle was totaled and I have yet to receive an itemized statement of what the insurance company sent them in regards to the balance. My CR states that it was 11XXX still due. The insurance indicated they were sending 10XXX so I am not so sure how my balance is 4XXX. I am just learning all this stuff and never knew about DV letters and all that. I am working through all my stuff now so that we can get things figured out and decide if we need to file bankruptcy or if we can settle all the true debt that we owe.

I have a paralegal degree, but I never worked in the field of debt or collections so this stuff is foreign to me. I also never worked in Indiana so I am having to become familiar with Indiana procedures.

Thanks for reading my "book" lol

[RebelLady]

I think I would try to find any communications the insurance company sent me as well. Ummm...11K - 10K does NOT = 4K lol.

If I can't find any correspondence from the insurance company, I'd be on the phone first thing in the morning with them.

I'd be finding out how much they paid CrapOn and when they paid it and if they could possibly send me a copy of any correspondence they had with CrapOn.

RL

[mom25]

Well, I do know what the insurance paid, but I have nothing from Crap one regarding how that was applied and how much they received vs. how much the insurance company said it sent. Once they were paid from the insurance company all they did was send me a balance due notice.