chiquita55 Posted April 13, 2011 Report Share Posted April 13, 2011 Ok in my case so far I have filed an answer, gone to a case management hearing and sent off a BOP to the Atty for the creditor.I didn't get much back from them but I did get back a copy of a signed application to the card. Like something that would come in the mail to you or in a magazine or something.I also got back 2 statements from july aug 2006 and a copy of a blank white paper that had some bank information by capital One on it and on it they show they added a penalty for over $1,000. Between aug 2006 where it shows payments to the acct and Dec 2007 there are not statements sent. I am told to send a letter off to them saying that they are deficient in their response and give them 10 more days to send the answers to my BOP. I will do that today.I got a credit report on myself to see what was up. This account was charged off by Cap One but shows no sales to anyone. The date I last paid was march 2006. They sued Dec 30, 2010 so they made the sol by 3 months. I got the summons mid January.My question: Should I take this case to arbitration since I don't have an sol defense and I don't see any defense? I appears to me they should be able to get other statements for court or for their msj that I think they will send soon if needed. they have a copy of the application. There is no $$ for them to get from me. They will never get anything from me. Should I apply for arbitration? If I do, I have no idea what to do there. Can they still file a summary judgment in arbitration too? Should I just give up on the whole deal? It is alot of work for someone that doesnt feel all that well to deal with. On the other hand I kind of like giving them alot of work to do but they aren't really doing much work. haha they didn't even show up to court for the CM hearing. Link to comment Share on other sites More sharing options...
rikkivs Posted April 13, 2011 Report Share Posted April 13, 2011 if it went to trial. You're in a better position than you think and it might be too late to try to elect arbitration. Debtorboards is the place to go to learn about that strategy though. Given what you've said though, you ought to keep pushing them because so far they wouldn't be able to win a motion for summary judgment at all. Link to comment Share on other sites More sharing options...
chiquita55 Posted April 13, 2011 Author Report Share Posted April 13, 2011 yes, I have been to debtor boards and they are much more pro artibtration than over here. They always thought I should file for arbitration and do it quickly before the law group files msj on me and I have to answer it. But I was waiting to find out if I might have an sol defense or maybe they didn't have the goods to win an msj. But I think they will so wondering if the cost of arbitration might turn them away or maybe I could fight easier there. I don't know what to do. Someone over there told me that the way Cap One works is they wait til about 3 months before trial or so and file an MSJ on you and win their cases that way so they never have to go to trial. Some think they can win an msj by having 2 statements and a signed agreement. Link to comment Share on other sites More sharing options...
calawyer Posted April 13, 2011 Report Share Posted April 13, 2011 Sorry but I simply can't offer any advice without knowing a lot more. Most important would be the identity of the arbitration forum.I also have a natural bias against mandatory binding arbitration and have fought against it for years. At one pont, I believed it to be the single biggest problem facing consumers. Collection mills and others with large numbers of consumer cases were abusing the system by hand-picking arbitration forums such as NAF who nearly always rendered decisions in their favor. Thanks to a number of consumer attorneys and groups such as Public Justice, many of these abuses have been addressed. But I still have concerns about arbitrating a dispute with a forum that was hand-picked by the creditor and to whom the creditor gives repeat business.As I understand it, the strategy is to get the Court to compel arbitration and then hope the plaintiff finds it too expensive to litigate there. If that works for some small dollar claims, terrific. But if you end up arbitrating the matter, you may find that typical discovery rules and evidentiary rules do not apply, and there is not right to appeal. Not so great in my opinion.To be sure, many Judges are jaded after seeing thousands of cases where the debtor doesn’t show up or offers a weak or non-existent defense. I think most Judges, however, try to be fair and do not pre-judge a matter until they have heard all the evidence. Whatever you decide to do, good luck and don't second-guess your decison once you have made it. Many of these cases are tough to win in the first place. Link to comment Share on other sites More sharing options...
chiquita55 Posted April 13, 2011 Author Report Share Posted April 13, 2011 They claim I can use JAMS as the arbitrator over there. They say it is in the Cap One agreement and that I should do just as you stated and ask the judge to compel them to arbitrations. They claim that it goes against the Cap One formula to win so they don't know what to do there etc. I have no idea. I have never been sued before in my life.I have a good idea about the court trial by reading here. Its easier. The court is nearby my home and easy to get to altho I remember the judge saying you might have to go somewhere else to court. I don't know if that means not to him but a different court room or to a different court site altogther.I know nothing about arbitration so I am loathe to use it and it is a long way for me to go. All in all I don't like arbitration but want to go to the place I have the best chance. Or maybe there is no chance and just give up and not cause myself so much worry. Link to comment Share on other sites More sharing options...
admin Posted April 13, 2011 Report Share Posted April 13, 2011 Like Calawyer says, it's tough to give advice without more info.Why do you think you have no defenses? Link to comment Share on other sites More sharing options...
chiquita55 Posted April 13, 2011 Author Report Share Posted April 13, 2011 What info do you need? I will tell you all I know? Link to comment Share on other sites More sharing options...
Linda7 Posted April 13, 2011 Report Share Posted April 13, 2011 (edited) If you want a quick end to it, stay in court. They'll file a MSJ. With them being the original creditor, odds are they have everything they need to win. Be prepared for a judgment and make sure that you understand that "any" bank account with your name could be garnished. If you only get social security disability - don't let those funds get co-mingled with anybody else's money. Also, "only" have social security deposits showing in that account. That will be your proof that the account cannot be garnished as it is only social security funds and they are exempt from this kind of judgment. Get all of your banking/money straightened out now. When you go to court, it would help if you get some kind of paper filled out possibly by your doctor to show that you are indeed 100% permanently disabled. You might also check with your court as there is probably some kind of asset form you can fill out and get notarized to show there is really nothing for them to pursue. Other than that - they may still move for their judgment which will hang over you and if you ever inherit any money or property . . . the judgment will be there to get their hands on their portion - unless you file BK and get the judgment and any other impending debts removed. However, if you file for "private" arbitration, you do stand a chance of it not being cost effective for them to pursue the debt. JAMS is the best forum to cost the creditor the most with the consumer's cost being capped at $250 and in California, you can request a waiver.On Capital One agreements, you should see something like this - "any arbitration hearing that you attend in person will take place at a location in the federal judicial district that includes your last known billing address or at some place upon which you and we agree." Here again, with your health issues, I would think you could certainly show reason to get the in person meeting in your locale.How much is the debt?Unless it is something really big . . . they might possibly decide that it is not worth them pursuing this any further. And if they do proceed, it will cost them thousands to do so and in the end, with nothing to gather even if they win . . . . what would you have lost? They could only get a judgment - the same as you are looking at in court. It's just a chance, that they will look at the cost and possibly go away. In court, they are looking for fast, easy, cheap wins - arbitration does not hold that for them! Edited April 14, 2011 by Linda7 Link to comment Share on other sites More sharing options...
chiquita55 Posted April 13, 2011 Author Report Share Posted April 13, 2011 (edited) The amount of the suit is about $4,000. Is it true they could even meet in your home? It is sounding better all the time. I have been to the other forum to read about arbitration but I don't really see anywhere that gives a blow by blow description of what happens or what you do there. I don't even know if the judge in this case will allow arbitration. How long does arbitration drag out the case? Altho I am in no hurry, I also have no big reason to delay the outcome either. I don't really want to file Bankruptcy for this one debt. How do you even file with this JAMS??? How do I find the place where Cap One has this arbitration clause? I signed up for this card in 2001 and they claim I defaulted 2007 but it was actually 2006.also at what time would you file this 'asset form'. I don't know what that is but is it something you can file now? Edited April 13, 2011 by chiquita55 Link to comment Share on other sites More sharing options...
skippy1960 Posted April 14, 2011 Report Share Posted April 14, 2011 I got a credit report on myself to see what was up. This account was charged off by Cap One but shows no sales to anyone. The date I last paid was march 2006. They sued Dec 30, 2010 so they made the sol by 3 months. I got the summons mid January.I signed up for this card in 2001 and they claim I defaulted 2007 but it was actually 2006.These are quotes from two posts in this thread by you. If your credit report says your last payment was March of 2006, then the SOL ran out on March of 2010. They needed to file suit prior to the end of March of 2010. You say they filed suit in December 2010, correct or you were served in December and the suit was file March 2010 or prior.Your posts and information bounce around, I realize you may have just gotten your credit report and you now have proof of the date of last payment/activity.If this is all accurate and you know you did make any payment to anyone affiliated with Cap One or any collection agency after March of 2006, then you can claim SOL defense. I assume you put this as one of your affirmative defense? Link to comment Share on other sites More sharing options...
chiquita55 Posted April 14, 2011 Author Report Share Posted April 14, 2011 OMG Skippy, you are right. I am sorry the date last paid was 4/2007. So the SOL is still in effect. They sued end of December 2010. I got the summons in mid January or so. So anyway I do NOT have a SOL defense. I was hoping I did. But not according to the credit report. The statements they sent me were from the summer of 2006. 2 statements. But I am quite sure they could get all the rest. I am not sure why they picked out those 2 to send. Still waiting for some advice. If I can answer any other questions let me know. I just don't know how I would over come their msj that I know they will write. Link to comment Share on other sites More sharing options...
lheart Posted April 14, 2011 Report Share Posted April 14, 2011 If you would like more information on the arbitration strategy, I going to second what others have said, cruise on over to Debtorboards and read the stickies in the arbitration section of the forum. To answer one question, I think meeting in your house is not a likely option.For additional help on this board, there is a set of standard questions here to answer to get better responses. http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=242744 Link to comment Share on other sites More sharing options...
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