Ramen_Chick

Im being sued by capital one in NY

Recommended Posts

hello all,

Yesterday my mom received a summons for me that was taped to the door. its a summons for small claims court in NYC from capital one stating that i owe them "1,051$ from 2/22/10 at the rate of 9.00% per annum and the cost and disbursements of this action" mind you, i am a 24 year-old full time student, part time worker who pays rent and other bills, i cannot afford this nor can i afford a lawyer. Plus, i don't even know how the amount became so high because my limit was 250$ and why i have to pay 9% per annum. I definitely am going to court to fight this but first i am going to answer the complaint with a letter stating that i did make the payments but it was not the amount that the wanted and started to bill me for late fees also that they never suspended the payment protection plan in which i told then to do because it felt like it was not needed, but i wanted to know if i ask the attorneys of the plaintiff for proof of the original excessive charges, the original contract and other documention which i know they will not have, am i able to get the case dismissed?

Thank you for the much needed advice

Share this post


Link to post
Share on other sites

9% per annum is pursuant to NYS law. Don't format your answer as a letter stating that you did make payments. You set yourself up to lose on the pleadings.

File your answer either admitting denying the allegations against you. Then list some affirmative defenses. Are you sure you are being sued in Small Claims? You are most likely being sued in the Civil Court of the County you live in. I'm not familiar with the rules of nyc small claims, but I know the rules of the Civil Courts very well.

Share this post


Link to post
Share on other sites

If you're saying that you asked them to cancel a payment protection plan, and as a result of their failing to do so, your card had a balance, whereas otherwise it wouldn't, then you have a case to dispute the charges. But you have to spell it out clearly - this is how much I owed; this is how much extra they charged me after I wrote and told them to cancel the plan; here is the resulting overcharge and late fees resulting from the unpaid overcharges; etc. Show the court how none of these charges, including the late fees, are legitimate because they resulted from charges that shouldn't have been applied to your account. Take the position that you were right to not pay the full amount due because they were asking you to pay on something that was not a legitimate charge.

Share this post


Link to post
Share on other sites

I believe that its civil court. I was also told the same thing about denying the claim from a friend because theses collection agencies never have proper proof of their claim.

When you talk about having a defense, what would that consists of?

Share this post


Link to post
Share on other sites

Civil Courts make it very easy to answer the summons. You can take your summons down to the clerk of the Court you are being sued in and they will give you an "Answer" form. This will have a bunch of affirmative defenses listed for you and you can just check off which ones apply to your case.

Share this post


Link to post
Share on other sites

Thank you for all your great advice!! I really appreciate it,:-)

But I have one more question...should I attached a letter stating that they called me harrassing me for months, telling me that they are "going to empty my bank account and my dumb a$$ wouldnt be able to get that degree, it would just be a waste of time" even after a called to ask them for a signed agreement and statements? I'm just asking because i feel like my side of the story will not get told.

Share this post


Link to post
Share on other sites
Thank you for all your great advice!! I really appreciate it,:-)

But I have one more question...should I attached a letter stating that they called me harrassing me for months, telling me that they are "going to empty my bank account and my dumb a$$ wouldnt be able to get that degree, it would just be a waste of time" even after a called to ask them for a signed agreement and statements? I'm just asking because i feel like my side of the story will not get told.

That would be a claim for violations of the FDCPA. You might want to contact a consumer lawyer at naca.net. Also, look into the arbitration strategy.

Share this post


Link to post
Share on other sites

What JDB is suing you? Make sure you deny their allegations and use the site here to aid you in sending them off discovery and anwsering discovery if they send it to you.

Share this post


Link to post
Share on other sites

Yeah I saw the title of the thread, but from my research I have found that a large number of suits with Capital One listed as the plaintiff are not actually being filed by Capital One and are actually being pursued by JDB's who are suing under Capital One.

Share this post


Link to post
Share on other sites

thank you for the link, it was very helpful.

the collection agency is called Rubin & Rothman. LLC. i've done my reseach and see that they are the lowest of the lows and completely wipe people out and freeze your accounts...i really can't afford this to happen to me, so anymore advice would be well appreciated.

Share this post


Link to post
Share on other sites
but from my research I have found that a large number of suits with Capital One listed as the plaintiff are not actually being filed by Capital One and are actually being pursued by JDB's who are suing under Capital One.

Please provide your evidence of this from your research, because it really is a myth.

Share this post


Link to post
Share on other sites

I could search out some posts where it has been claimed that Capital One, like almost all of the CC companies do not go to the trouble and expense of suing people and sell off junk debt to JDB's but that probably won't be enough to convince you. I also had a guy I talked to in my local courthouse that told me that Capital One isn't the one filing these suits.

With that said you may be right, I have no first hand knowledge to say for sure.

Ramen you need to demand that they provide a bill of sale, a signed contract, and the terms and conditions of that contract. You need to deman that they provide a proper accounting of the alleged account showing how they arrived at the figure they are suing you for. If they submit an affidavit of debt and that is not written and signed by someone from the OC, not the JDB, then you can easily move to strike that affidavit because the idiot from the JDB had no knowledge of the account until after it left the OC.

Take the time and effort, which is required, to search on this site and online for templates and other aids and you will be able to construct a good defense. And rule number one ito a good defense against a JDB is to just show up.

Share this post


Link to post
Share on other sites
Thank you for all your great advice!! I really appreciate it,:-)

But I have one more question...should I attached a letter stating that they called me harrassing me for months, telling me that they are "going to empty my bank account and my dumb a$$ wouldnt be able to get that degree, it would just be a waste of time" even after a called to ask them for a signed agreement and statements? I'm just asking because i feel like my side of the story will not get told.

do you have any of this on tape? do you remember the date and time that this happened?

do you have a tape recorder? dont call them anymore unless you have a recorder (i personally wouldn't call them or talk to them on the phone, but that's up to you)

once you do that i'd prepare for discovery phase.

if you get scheduled for pretrial conference, they (judge, court clerk) may ask you if you are "ready for trial." tell them you are not and want some time to conduct discovery. how much time you ask for is up to you (3 months, 6 months, 9 months, etc) if you say that you are ready they will set a trial date.

i personally like to go through the discovery phase, if you wanna skip that and go straight to trial hoping that they dont have documents or a witness that's up to you. that's some strategy to consider.

good luck keep the updates coming

Edited by jackson212

Share this post


Link to post
Share on other sites

just wanted to let you guys know that i wrote up my answer to the summons and my request and documentation and submitted it in...the clerk said " honey, you did a good job, make sure you show up and everything should be fine" but with that i consulted a classmate/friend who works at the New York Bar Association as a secretary, i told her about my situation and she told me to call in, talk to the Representative, give my information about the case. after i did that a supervisor (dont want to give his name) came on the phone and listened to my story, he was really pissed about it because he said hears about this all the time and has a strong dislike for this "so-called firm" i faxed him my summons and answer...this happened last week and he has called me 3 times since then to get more info. i have also sent a letter to rubin & rothman, LLc letting them know that i am in constant contact with the NY Bar Assc. and told them about all the info i have sent to them.... my court date is very soon and i will keep everyone posted....wish me luck!!!!

Share this post


Link to post
Share on other sites

They are not a "so-called firm" they are a real one, Rubin and Rothman are one of the biggest firms on Long Island and represent practically everyone.

Share this post


Link to post
Share on other sites

USC...are they good? as in do they have their act together? i ask because i have not seen them in action, but then again you know i deal with kangaroo court here in nyc, so it could be they are in other courts and not my court. just curious

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.