Crap one Summons to Appear

[CapOneFL]

I can't thank you all enough for having this forum available. I have been reading various post the past few days and would like to say I am greatful, especially to

Trueq , MGO5 and to Linda7 for the information you have provided.

On 11/3 I stopped by my girlfriends house to check on her dog(not feeling well)

While I was there a process server knocked on door, asked if my gf was home, I responded with NO. He then asked if I was her husband, again I replied with NO. I then explained I just stopped by to check on dog.

He then handed me a summons to appear for pretrail conference in her name.

He further added that he thought it was frivolous to go to court over such a small amount.

State is Florida

OC is Capital one

Pretrial conference is set for Dec 8 10:45 am

Filed by POLLACK & ROSEN, P.A

Attached to summons was the first page of agreement dated 6/11/05

no arbitration verbiage

And a copy of statement for Aug 2009

Please let me know what other info is needed so you may help me to help her.

Thank you,

[Linda7]

I take it that she has not answered the summons yet?

In Florida, if you don't jump on arbitration immediately - you end up losing the opportunity.

You need to elect arbitration "now".

When does she have to answer the summons or is everything done at the pre-trial on December 8th?

[Linda7]

Below is an election letter using the 2008 Capital One agreement. Send it CRRR and get your article number from your receipt and put at the bottom where I have Certified Return Receipt # before you seal the envelope. Send it to the attorney and to Capital One.

Your Name

Your Address

Their Name

Their Address

Re: __________________(Case or claim number)

November _________, 2011

NOTICE OF ARBITRATION ELECTION

Pursuant to Capital One cardholder agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

As per the agreement, "If you or we elect arbitration of a claim, neither you nor we will have the right to pursue that claim in court . . . "

The agreement further states, "You or we may elect arbitration under this arbitration provision with respect to any claim, even if the claim is part of a lawsuit brought in court. You or we may make a motion or request in court to compel private arbitration of any claim brought as part of any lawsuit."

As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration.

___________________________(Your Name Typed)

Certified Return Receipt #_________________________

[Linda7]

Here is the 2008 Capital One agreement - CAP1-1_merged 2008.zip - 4shared.com - online file sharing and storage - download

[Linda7]

Also, I would post at debtorboards - Debtorboards - Sue Your Creditor and Win! - Index

and get their feedback on Florida and electing arbitration. There is more extensive talk about arbitration over there.

I'm pretty sure for the state of Florida that you need to elect "now" and file a MTC arbitration before you file an answer. Ask at debtorboards though to make sure and hopefully some of the Florida members can advise you.

[CapOneFL]

Hello Linda7, Thanks for the quick reply.

There is nothing to answer in the summons, only notice to appear for Dec 8 pretrial conference. Where I'm certain they will be waiting to pounce and steamroll her into accepting their terms.

Thank you for the election letter, I have copied and added her information, will get to post office today.

Also thanks for the link, I downloaded capOne agreement from you two days ago

Question:

Girlfriend handed me some old statements last night, Jan 09-Jul 09, along with a collection letter from GLOBAL Credit & Collection Corp with a settlement offer of 70%.

My assumption is that CapOne charged off account, sold to Global, who sold account to current attorney???

Do I still need to send Notice of Arbitration Election to CapOne?

Will check out Debtorboards tonight, and ask about filing the MTC Arbitration before pretrial conference on Dec 8.

Edited November 16, 2011 by CapOneFL

[lheart]

Global was just a collector, Cap1 still owns the account.

File the MTC before the Dec 8 hearing date. DO NOT WAIT. Send the letter and file the MTC.

Get a complete copy of the 2005 agreement and include that in your MTC. Point out the fact that the plaintiff withheld the complete contract in an attempt to hide the arbitration agreement from both the defendant and the court.

[CapOneFL]

I contacted Cap1 yesterday 11/15 in an attempt to get a copy of the original agreement for 2005. After being transfered to 4 different departments I was finaly told I would have to contact the attorney for any information.

I have searched online the past few days hunting for a copy, but no luck so far.

Do I contact the attorney and request they send a copy of the original agreement?

Do I attach the first page of the agreement which was provided as part of the summons, then make refference that the entire agreement was not provided?

[Linda7]

What was the year of the default?

As long as she defaulted in or after 2008 - the 2008 could apply.

I am assuming the above from the fact that you said they had part of a 2005 agreement and also were showing a statement from 2009.

If she defaulted "before" 2008 - yes, you need the 2005 agreement.

Post back and let us know the default year . . . I also have the arbitration provision from the 2005 agreement.

At this point, I would "not" send the attorney/Capital One anything but the election letter. They know the agreement. You will be including the agreement when you file the MTC with the court.

And I would do as lheart says and hurry to get the MTC filed "before" the pre-trial.

Let me know if you need a MTC for the agreement.

Edited November 16, 2011 by Linda7

[CapOneFL]

My GF has been laid off 3 times in the past seven years. The second time she was laid off she was working with a credit counseling company who was helping her to pay off cap 1.

Jan 20, 2009 laid off from current employer

Jan 28, 2009 canceled agreement with credit counseling company

Jan 30, 2009 last payment made to Cap1 from counseling company

Jan 10, 2011 Received settlement offer from Global Credit & Collection corp

Last payment made Jan 30, 2009

Not sure of charge off date, credit report shows 150 days past due date account charged off.

I have attached the only page of the aggrement, which was attached to the summons.

Linda7 I would be greatful if you could provide me with a MTC template.

Question:

I currently do not have the 05 agreement, but if I were to come across it, is it wise to attach it to the MTC?

Seems like it would just be providing amunition.

Would it be better to submit MTC for Arbitration without it and make reference that the plaintiff(s) intentionaly withheld from the defendant and the courts?

[Linda7]

Then the account was still open during 2008 and that is the agreement I would use. They can't argue with the last payment being in 2009.

At this point, I would not say anything. However, I would consider that a violation as it hits me as being deceptive.

If you elected arbitration, then they know that you have discovered your rights to arbitrate.

I received your pm - will answer in a minute.

[CapOneFL]

Just a follow up:

Sent notice of arbitration election to attorney on Nov 21.

Received green card in mail yesterday.

Will file MTC with court tomorrow morning. Once motion is filed, do I still need to attend pre-trial hearing on Dec 8.

[lheart]

Just a follow up:

Sent notice of arbitration election to attorney on Nov 21.

Received green card in mail yesterday.

Will file MTC with court tomorrow morning. Once motion is filed, do I still need to attend pre-trial hearing on Dec 8.

YES! Never miss a scheduled court date.

The courts are not accustomed to defendants fighting back in these cases. If you file the MTC, they may not even look at it until Pre-Trial, so make sure you (your girlfriend) are there to ensure your motion is granted.

[CapOneFL]

Filed motion yesterday morning.

On the way to courthouse my GF started to cry, I asked what was wrong and she said she did not have $300 to file the motion. I told her I would pay the filing fee.

I was suprised when I handed the documents to the clerk and there was no filing fee, she even made I copy for me at no cost so I could provide them to the attorney.

I asked my GF where she came up with $300 filing fee, she said the attorney's in her office charge this much to file a motion for their clients......

Motion filed, Certified copy of motion sent to attorney, will attend pre-trial on the 8th.

Thanks again everyone.

[lheart]

Lesson One:

Knowledge is power.

[CapOneFL]

Filed MTC on 11/30

I used the case number on the summons to appear 51-2011-sc-2266-ws

Just checked county website to see status on pre-trial set for 12/8

When I searched by name the case# is different 51-2011-sc-2233-ws

My MTC is filed under somebody else.

Basicaly case number on my summons does not match case number on record.

How do I correct this?

[lheart]

Take another copy of the motion down to the clerk at the court house. Show them your summons and have them confirm the correct case number. And file the motion again.

[inthesticks]

If those are the actual case numbers you might want to remove them.

[CapOneFL]

I did not post the actual case number:) just similiar.

Spoke with Clerk this morning, explained the error with wrong case number on summons to appear. She stated the original summons had case# crossed out and corrected, was not sure why we had wrong case printed on ours, but she would re-record our MTC with the corrected case #.

Pre-trial still scheduled for tomorrow morning, am starting to get butterflies.

Any suggestions for court.

[CapOneFL]

Just got back from court.

We were screwed by the clerk of court. Due to a clerical error by the court, our summons to appear had wrong case # stamped on the document. Which caused our Election of Arbitration letter to have wrong case# and also our MTC filed with court to have wrong case #.

So basicaly Plaintiff claimed we had wrong case# on our documents they never received them and asked to re-chedule in February.

Prior to speaking with the judge we had to sit with a mediator and plaintiff. When I tried to speak on my girlfriends behalf, I was verbally smacked and told that I was not allowed to speak.

So I spoke to my GF and instructed her on how to respond to their questions. I was also informed by the judge that I was not allowed to speak..... ( HOW DO I FIX THIS) How can I speak on her behalf????

[CapOneFL]

My wheels started spinning after I made my last post.

Would a general power of attorney allow me to speak on her behalf?

[nobk4me]

Not sure if a POA would help. Most likely, appearing on behalf of another person would be considered unauthorized practice of law.

[deadbeat00]

My wheels started spinning after I made my last post.

Would a general power of attorney allow me to speak on her behalf?

Usually Judge will not allow you to do that.

I was in the same situation once because my wife was not capable to orally present her case.

So, I have prepared set of questions for here to read.

Then, I instructed here to stand up and call me as a witness.

Then she was asking me questions and I was responding.

Judge must allow that!

Caveat: You can't get to far of the topic contain in the question so make lot of questions to cover what you need to present in the court.

When you finish she will say I rest my case your honor.

The opposing side may ask you questions too so you will be able to present her case to judge on her behalf that way.

I believe that if she will not testify the other side can't call her to testify. Not sure.