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Summons Hammerman & Hultgren and Capital One


Rmuze
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Came home to a Summons from Hammerman & Hultgren, PC with Capital one Bank listed as the Plaintiff VS Rmuze and John Doe Rmuze as defendants.

1/08 entered into contract with plaintiff for credit card services

"breached" Contract by failing to pay 10/09

So called debt of $1300 plus interest

My husband called this lawyers office and they said "her debt is your debt as per AZ Law. We don't care your disabled (SS & VA) you have to pay"

Not knowing my husband had called them, I then called and offered to pay them a month and they told me to beat it. If I couldn't pay them a settlement amount or $180 a month then they will see me in court.

I want to fight it but I don't know exactly what to say on this Answer to the summons.

What exactly should it say?

Is a DV letter appropriate after receiving a summons?

Can I request a dismissal of the summons?

Capital One says they have "assigned my debt" what does that really mean?

Edited by Rmuze
too much info
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EDIT YOUR POST!!!

I don't care what your last name is and I don't care about the exact amount that they allege you owe. These things can be used in court against you if you post something even remotely incriminating. If what is posted as your last name is not, ignore that. However, pay attention to the rest!

We don't need to know the exact dates. January of '08 is good enough for us. October of '09 is good enough for us.

We don't need to know the exact amounts either. $1300 is plenty good for us. Or $1200. We don't care, so long as it is close.

Remove things that they could use to identify you.

And prepare for Linda to come into this thread and tell you about the joys of arbitration.

Edited by usagi555
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Came home to a Summons from Hammerman & Hultgren, PC with Capital one Bank listed as the Plaintiff VS Rmuze and John Doe Rmuze as defendants.

1/19/08 entered into contract with plaintiff for credit card services

"breached" Contract by failing to pay 10/23/09

So called debt of $1256 plus interest $600

to include Exhibit 1 about the increase of interest to 23.1% from some

Sandra Davis in Virginia

With a copy of a statement from 05/2011

My husband called this lawyers office and they said "her debt is your debt as per AZ Law. We don't care your disabled (SS & VA) you have to pay"

Not knowing my husband had called them, I then called and offered to pay them $125 a month and they told me to beat it. If I couldn't pay them a settlement amount or $178 a month then they will see me in court.

I want to fight it but I don't know exactly what to say on this Answer to the summons.

What exactly should it say?

Is a DV letter appropriate after receiving a summons?

Can I request a dismissal of the summons?

Capital One says they have "assigned my debt" what does that really mean?

It's too late to send a DV. No, you cannot request a dismissal of the summons. You must answer the Complaint, or they will get a default judgment against you.

Read your court's Rules of Civil Procedure for information on how to answer the Complaint.

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Don't let these guys bully you. Unless the account is in both your names, they cannot hold you liable. STOP making offers to make payments to them. Don't agree to make payments to them, if you pay it keeps resetting the Statute of Limitations. If you are an authorized signer on the card, it is almost impossible to hold you liable. I have tried this issue before and unless you can prove the authorized signer signed their application and they can prove that the authorized signer ran up the charges, it is impossible to hold the authorized signer to the debt. Because of course they can't produce evidence of who made the charges. You do need to file an answer in the case denying whatever they are claiming. Some AZ attorneys may need to chime in because I don't know AZ law on exemptions for SS and VA, but here they couldn't touch it with garnishment so you are judgment proof. The only thing they could get is a judgment with a lien against your house if you own one. Never do arbitration unless you are forced to. The filing fees alone are more than what you owe if they force you to AAA. State evidence rules don't apply so who knows what they get in.

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Against Capital One or any original creditor, if the agreement that governs the account has the arbitration clause and the amount of the debt is small, like this one - it's not cost effective for Capital One to pursue the debt.

If you face an original creditor in court, they will more than likely have everything they need to prove the debt.

I have seen Capital One time and again, walk away when faced with arbitration. And the same with Midland and some other familiar names, too . . . :)++

Edited by Linda7
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Never do arbitration unless you are forced to. The filing fees alone are more than what you owe if they force you to AAA. State evidence rules don't apply so who knows what they get in.

Where are you getting this? This is not so!

First of all, you don't let Capital One tell you who to use as your forum. The consumer can initiate and you don't even pay anything to initiate the claim. Or you can try and make Capital One initiate. It's up to the consumer to make their choice and move first.

If you had a choice between AAA and JAMS, the consumer wants JAMS for the very reason that it costs the creditor so much money and the consumer cost is capped at $250, but as I said, you don't even pay that when you initiate the claim. If you want to be the one to initiate, you fill out your form, don't send in "any" money and then wait for the creditor to pay their part, which is expensive. They usually won't even pay the initial filing fee and they walk away. If the debt is larger, they sometimes pay the initial filing fee, but as they get their bills for additional fees (thousands), they quickly want to close up shop. Then the consumer can negotiate a dismissal "with" prejudice, deletion of the tradeline, no 1099, no selling of the debt, etc.

In the last couple of months here on the forum, I have seen at least two different Capital One cases where they walked away from debts of a little over $10,000 because the consumer chose to arbitrate. And that doesn't even count the smaller debts on the forum where they have walked away from those as well. :)++

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You need to file an answer to the summons. The answer needs to be a legal denial of the the claims. One of your affirmative defenses needs to be arbitration.

Once you file the answer in court ( search for "how to answer summons") your next step will be to sent a notice of election of arbitration to the plaintiff's attorney.

After you send the notice of election, file a Motion to Compel Arbitration in the court.

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I checked on your state and you do need to answer first and as lheart says - send the election letter to the attorney and file your MTC arbitration with the court.

If you go to debtorboards, Quader has a great answer that was used in Arizona and a MTC and I think I also saw a Judge's order too. BRB with the links. :)++

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Where are you getting this? This is not so!

First of all, you don't let Capital One tell you who to use as your forum. The consumer can initiate and you don't even pay anything to initiate the claim. Or you can try and make Capital One initiate. It's up to the consumer to make their choice and move first.

If you had a choice between AAA and JAMS, the consumer wants JAMS for the very reason that it costs the creditor so much money and the consumer cost is capped at $250, but as I said, you don't even pay that when you initiate the claim. If you want to be the one to initiate, you fill out your form, don't send in "any" money and then wait for the creditor to pay their part, which is expensive. They usually won't even pay the initial filing fee and they walk away. If the debt is larger, they sometimes pay the initial filing fee, but as they get their bills for additional fees (thousands), they quickly want to close up shop. Then the consumer can negotiate a dismissal "with" prejudice, deletion of the tradeline, no 1099, no selling of the debt, etc.

In the last couple of months here on the forum, I have seen at least two different Capital One cases where they walked away from debts of a little over $10,000 because the consumer chose to arbitrate. And that doesn't even count the smaller debts on the forum where they have walked away from those as well. :)++

So far this is true for me, case stayed waiting to see the lawyers next move re: arb. Go Linda!

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The sample answer and motion to compel are both within this thread - http://www.debtorboards.com/index.php/topic,14053.msg106109.html#msg106109 Generic cap 1 answer.pdf

**Note that you now need to add an additional case - AT&T v Concepcion on any motions to compel. It was a Supreme Court case that came about a few months ago and really ices the cake.

When you get to that point, if you'll let me know - I'll show you how to add it. :)++

Also, here is the Judge's order that was used in Arizona - order granting motion to compel arbitration MTC

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This is probably predictable, too, but I advise against arbitration.

I know next to nothing about the arbitration process, but I do believe a defendant should be aware of all of his options so that he can decide what works best for him. Arbitration is one of those options.

There are some on this site that don't recommend arbitration, while other do recommend it. I think it's good that both opinions are expressed. I also believe it's beneficial to all of us that there are members who can explain all the available options.

Edited by BV80
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I feel it some explainations are in order.

First the complaint being from an original creditor and having a known arbitration clause most are advocating arbitration.

The others are mentioning that the complaint must be answered. I agree that an answer has to be made if only to tell the court that the Plaintiff's are in the wrong venue. But the results of arbitration have to be confirmed by the court. The same court maintains jurisdiction due to the FDCPA requirement that it be in the OP's court having jurisdiction.

Without an answer the court could conceivably when the arbitration comes back for defendant, move to vacate the arbitration because of jurisdiction. It is also possible if the arbitration goes bad for defendant that they may lose standing when Plaintiff goes to confirm arbitration award, kinda a pseudo- default.

I am not aware and maybe Arizona members may know of a special appearence or something similar to preserve standing. also an answer or such preserves defendants rights for appeal.

So what now? Answer with the affirmative defense of arbitration and the caselaw and a blurb about future amendment of defenses and counter claims.

Then if they don't get the arb they want they can't come through the back door and confirm arb award.

Though I have to say any discovery at all puts them out some scratch. What they have done is a default fishing expedition. They won't get it. but they will get something out of it. an admission that there is an agreement in effect.

File a fee waiver this may help with arbitration fees getting put on Plaintif. also check for the Delaware law provision and the SoL for Delaware, which I think is 3 years.

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Unless a consumer lives in California, you can just about kiss any fee waiver goodbye.

But, I will say again - the consumer can initiate arbitration, but don't send in their fees up front. The consumer should wait for the creditor to pay the creditor's portion. You also need to read the agreement that governs the alleged debt. Often times it will say that the creditor will advance the consumer's fees, reimburse the consumer, etc. But, even "if" the consumer had to later pay their portion of the fees for JAMS - it is capped for the consumer at $250. And that is only if the arbitration proceeds further. If the creditor doesn't pay their part to advance the arbitration, the consumer never has to even pay their $250.

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