Violation against Cap 1?

[gusto]

I am finishing the discovery phase of an on-going case with Cap One, i.e. we've both made requests and responded to each others discovery requests.

Cap One so far has submitted original signed agreement from 2001 along with statements from Nov 08 to Sept 09 as well as Customer Agreement and Arbitration Agreement.

I have check through all of Cap One's documents and noticed what appears to be a small discrepancy.

The Plaintiff provided only an unsigned 2001 Customer Agreement as their sole evidence as Exhibit “1” on August 27, 2010 with the Plaintiff’s first Discovery Requests, but included a 2006 Customer Agreement with their Response to Defendant’s Request for Production of Documents filed on March 9, 2011.

Is this simply a minor discrepancy that could be seen as too nit picky from the judges point of view? I looked at both agreements and there are some differences.

I am planning to file a Motion to Compel Arbitration as I feel as though I am getting backed into a corner and am wondering if this is a possible FDCPA claim 1692e(2a)(10)- 2: The false representation of—

(A) the character, amount, or legal status of any debt; 10: Any false representation or deceptive means to collect a debt or obtain information about a consumer.

Do FDCPA rules govern OCs?

????

[BV80]

OCs are not bound by the FDCPA.

The credit card agreement supplied by the Plaintiff should be the agreement that was in effect the year your account went into default. If your account went into default in 2006, the 2006 agreement applies.

[ConsumerAttorney]

OCs are not bound by the FDCPA.

The credit card agreement supplied by the Plaintiff should be the agreement that was in effect the year your account went into default. If your account went into default in 2006, the 2006 agreement applies.

Does it? I would argue that the agreement that should govern is the one in place at the time the account was opened. That is what the OP "agreed to" and should be the basis for any breach of contract. None of those agreements have the name of the debtor, account numbers or any real indication that they were sent to the debtor at all. I think they can be attacked.

[gusto]

"OCs are not bound by the FDCPA."

This is what I thought just at a quick glance at FDCPA. I was wondering because I read that "The FDCPA itself contains numerous exceptions to the definition of a "debt collector," particularly after the October 13, 2006, passage of the Financial Services Regulatory Relief Act of 2006. Attorneys, originally explicitly excepted from the definition of a debt collector, have been included (to the extent that they otherwise meet the definition) since 1986."

I defaulted in 2008 so it sounds like the 2006 agreement applies. So there are no other laws that govern contract discrepancies during litigation or is this just a dead end?

[ConsumerAttorney]

"OCs are not bound by the FDCPA."

This is what I thought just at a quick glance at FDCPA. I was wondering because I read that "The FDCPA itself contains numerous exceptions to the definition of a "debt collector," particularly after the October 13, 2006, passage of the Financial Services Regulatory Relief Act of 2006. Attorneys, originally explicitly excepted from the definition of a debt collector, have been included (to the extent that they otherwise meet the definition) since 1986."

I defaulted in 2008 so it sounds like the 2006 agreement applies. So there are no other laws that govern contract discrepancies during litigation or is this just a dead end?

If you defaulted in 2008 it is probably a dead issue. In Missouri, a court loses jurisdiction one year after a judgment becomes final. I bet your state has a similar rule.

[gusto]

ConsumerAttorney.... You do make a good point.

Are there any laws or case law that address the issue of which agreement is valid?

Is the fact that no precise determination can be made as to which agreement is being sued upon and that the Plaintiff is making contractual discrepancies?

Or is the substance of the two contracts what is the most important factor?

[BV80]

Does it? I would argue that the agreement that should govern is the one in place at the time the account was opened. That is what the OP "agreed to" and should be the basis for any breach of contract. None of those agreements have the name of the debtor, account numbers or any real indication that they were sent to the debtor at all. I think they can be attacked.

Credit card agreements are amended from time to time. Most agreements state that use of the card indicates the customers acceptance of the terms and conditions. Every time the consumer uses the card, he/she is agreeing to the current agreement.

Sure, you can attack the agreement based on no name, signature, proof it was sent. It depends on whether or not the judge agrees with you.

If you defaulted in 2008 it is probably a dead issue. In Missouri, a court loses jurisdiction one year after a judgment becomes final. I bet your state has a similar rule.

What are you talking about? There's been no judgment.

[Linda7]

However, remember this - (this is in relation to Capital One) as long as you were a cardmember during 2002, (and you were because they clearly show that you opened the account in 2001 and defaulted in 2006) then the OC is bound by the terms of the 2002 agreement's arbitration provision as it clearly states that it will survive any changes in the agreement.

So, if there is something better for you in the 2002 agreement, use the 2002 agreement!

BTW, have you looked over a 2002 agreement to compare with the 2006 to see if there is a difference or anything that would make you want to use the 2002? If you haven't let me know and I'll give you a 2002 to look over.

[ConsumerAttorney]

Credit card agreements are amended from time to time. Most agreements state that use of the card indicates the customers acceptance of the terms and conditions. Every time the consumer uses the card, he/she is agreeing to the current agreement.

Sure, you can attack the agreement based on no name, signature, proof it was sent. It depends on whether or not the judge agrees with you.

What are you talking about? There's been no judgment.

The post I quoted said they defaulted in 2008. I mistook that to mean the case went into default then. But in rereading it I now see the poster meant that the "loan" went into default then. Sorry.

You sound like a collection attorney when you say that people are bound by the subsequent card agreements. In my practice I do NOT concede your point. However, you have articulated their argument correctly.

[BV80]

You sound like a collection attorney when you say that people are bound by the subsequent card agreements. In my practice I do NOT concede your point. However, you have articulated their argument correctly

I don't agree with collection attorneys. I pointed out that it depends upon whether or not the judge agrees with you.

Defeating an OC is more difficult than a JDB. When an OC can present statements that shows the consumer made charges, unless the consumer disputed those charges, it's difficult to say that one used the card but didn't accept the terms and conditions of the agreement.

[Linda7]

Here's the Capital One 2002 if you'd like to check it out.

http://www.4shared.com/file/i-ttztHV/2002_Capital_One.html

[antiquedave]

One of the issues to me is if the rules of evidence, state law, legal precedence or civil rules give you an opportunity to get the statements struck or if they can be diminished somehow so that they carry less weight.

same with the agreement or the affidavit and application if it is there. On the face it can look daunting but what of the source of the documents? these are all reprints of electronic files the original statement was put in the mail. What are the safegaurds, how were the documents procured, from who, did they have authority, what policies are in place to maintain the integrity of the information system and has it ever been breached?

What about proof of mailing proof of reciept proof of acceptance? What of the correct agreement issues to the class of accounts that your alleged account is supposed to be part of?

Credit cards are issued by class, each class has its own agreement so unless they identify the class of the card and it is linked to the correct agreement with all addendums with proof of mailing of reciept and acceptance how do you know?

So the statements show a payment, where did that payment come from? is there a cancelled check or an account that the payment is linked to?

[ConsumerAttorney]

Even an original issuer has the obligation to prove up it's damages. If they can't provide statements starting with a zero balance and ending with the charge off then it can't prove it's damages. Also, the statement and "contract" documents are all hearsay unless sponsored in by a qualified custodian of records. Especially in rural counties where few cases are actually tried the original creditor will not have it's custodian of records appear. If that is the case the records should not be let into evidence by the judge and the case will fail.

[BV80]

Even an original issuer has the obligation to prove up it's damages. If they can't provide statements starting with a zero balance and ending with the charge off then it can't prove it's damages. Also, the statement and "contract" documents are all hearsay unless sponsored in by a qualified custodian of records. Especially in rural counties where few cases are actually tried the original creditor will not have it's custodian of records appear. If that is the case the records should not be let into evidence by the judge and the case will fail.

I agree with everything you wrote. But an OC can usually provide statements, a cardmember agreeement, and an affidavit from an employee who claims to have personal knowledge. Below is the taken from the Rules of Evidence.

RULE 803

HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL

6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness;

An OC's records fit the above. Unless the Defendant can show there's a reason to doubt the records or the testimony of the witness, how many judges are going to disallow the evidence?

If the account belonged to the Defendant, and the Defendant made the charges, what does he/she say to the judge if asked "Was the account yours? Did you make the charges? Did you receive statements? Did you ever dispute the charges on the statements?" They have to tell the truth, unless they're willing to lie.

Believe me, I don't like collection attorneys. But when we're dealing with an OC who has records, and the account is valid, not the result of ID theft or mistaken identity, and it's still within the SOL, we don't have much of a defense.

But then there's always arbitration. If it's a smaller debt, some OCs might be much more willing to deal favorably with the Defendant rather than pay the costs of arbitration.

I don't want to give false hope to those who come here for advice. If a person is being sued by an OC who can provide documentation and knows the account and the charges are valid, unless they're judgment proof, I believe it's in their best interest to settle (or request arbitration) instead of risk a judgment and the possible consequences of that judgment.

Edited March 26, 2011 by BV80

[ConsumerAttorney]

I don't want to give false hope to those who come here for advice. If a person is being sued by an OC who can provide documentation and knows the account and the charges are valid, unless they're judgment proof, I believe it's in their best interest to settle (or request arbitration) instead of risk a judgment and the possible consequences of that judgment.

I don't want to either. However, it is at least worth talking to an attorney who specializes in consumer law to determine if the first party case can be defended. Many can. In particular, many first party cases are brought under a Suit on Account theory. I joke that theory really means Suit on Account of they don't have a contract. In Missouri courts have held that a plaintiff under that theory must prove that each transaction was commercially reasonable. An almost impossible standard. My point is that these cases should be evaluated by a seasoned attorney before defendants blindly agree to settlements which in Missouri are often at or near or above (due to accruing interest and attorney fees) the full amount requested in the prayer for relief.

[BV80]

don't want to either. However, it is at least worth talking to an attorney who specializes in consumer law to determine if the first party case can be defended.

I have suggested many times that people contact a consumer attorney, because many attorneys will give free consultations, and even if they can't afford to hire an attorney, they can at least get some advice about their options and how to proceed.