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Supposed Cap 1 lawsuit


dimuush
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Hi - I too, am being sued (allegedly) by Cap1. It started in August - when I got a letter and a summons to appear - the process server left the info at the door - never actually gave it to me. So -I went to court on the date, and asked for proof of the debt from the JDB's attorney that they hired to represent them in Miami. There were 100's of people there at court - and all of them just agreed to payments to this horrible law firm in Jacksonville that buys junk debt: Rubin & Debski. People just acquiesced to these locally hired attorneys and agreed to whatever payment they were told to pay. I said prove that it's my debt. So then I was given another court date for Dec 22. Go figure - Happy Holidays, right? Now, I've just gotten their latest copy of the documents they filed in court with what I've researched on this forum to be their standard affidavit - some person claiming to be an "authorized agent of Plaintiff Capital One Bank (USA), N.A. ("Capital One") for the purposes of this affidavit" It goes on to state:

" I am duly autorized to make this affidavit, and because of the scope of my job responsibilities, I am familiar with the manner and method by which Capial One maintains its normal business books and records, including computer records of defaulted accounts"

"These books and records are made in the course of regularly conducted business activity at or near the time the events they purport to descrive occured (1) by a person with knowledge of the acts and events, or (2) by a computer or other similar digital means, which contemporaneously records an event as it occurs. The contents of this affidavit are believed to be tru and correct based upon my personal knowledge of the processes by which Capital One maintains its business books ad records"

I had previously seen 6-7 links to just this type of affidavit with identical wording except for the wording for the title of the person giving the "statement". They were referred to in other affidavits as legal counsel associate or something to that affect. This new wording in my document says "authorized agent for the plaintiff". Also, they attached old statements from October 31, 2009 thru the summer of 2011. There is no signature or any signed agreement by me. Just old statements (for an address from which I moved and did not receive forwarded mail from Cap1) showing that the account was over-due and not paid. It has my name on the statement - but that's all it is: an old credit card statement with my name on it. Nothing with my signature, period.

What I'm wondering is -

1- Is Cap1 truly the Plaintiff? I've read so much to the fact that these JDB attorneys are full of it and will do anything b/c they think we're all stupid and won't figure it out b/c we're too scared of the court factor. And while I'm worried and really scared and don't know what to do next? I'm really mad. I looked at my credit report and the debt from Cap 1 is charged off. And all over the papers that have been filed in the court it says " THIS COMMUNICATION IS FROM A DEBT COLLECTOR" Right on the front page of the legal court document. So how do I figure out if they are commiting fraud? Because it's fraudulent to say that Cap1 is the Plaintiff if the account is charged off - is this correct?

2- Are the old credit card statements meaningless? Or do they hold merrit? Don't they have to show that it's my signature somewhere? It just seems really awful this JDB thinking that I owe them anything - and I've read that Rubin and Debski are HORRIBLE. EVIL mean people, too. So - if they don't have my signature on anything - what does it prove? And I never entered into any contract with them - so why do they think I owe them a penny??

3 - What do I say when I actually go to court? Do I have to file something? Or do I just go in as an "educated person" and nicely and politely explain what I have researched? That in fact, they (ANYONE KNOW THIS FOR SURE?) can't say Cap1 is the palintiff b/c the account is charged off and Cap1 no longer owns the account?

I don't know what to do - I haven't worked in over 2 years b/c I shattered a leg - and I'm a poor student trying to get a new career b/c of the break - how do I appeal to the intelligence of the judge correctly - file the right paperwork and get these jerks to go away?

Any help anyone can offer would be SOOOO appreciated!

Thanks way in advance to everyone who reads this! :mrgreen:

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Hi - I too, am being sued (allegedly) by Cap1. It started in August - when I got a letter and a summons to appear - the process server left the info at the door - never actually gave it to me. So -I went to court on the date, and asked for proof of the debt from the JDB's attorney that they hired to represent them in Miami. There were 100's of people there at court - and all of them just agreed to payments to this horrible law firm in Jacksonville that buys junk debt: Rubin & Debski. People just acquiesced to these locally hired attorneys and agreed to whatever payment they were told to pay. I said prove that it's my debt. So then I was given another court date for Dec 22. Go figure - Happy Holidays, right? Now, I've just gotten their latest copy of the documents they filed in court with what I've researched on this forum to be their standard affidavit - some person claiming to be an "authorized agent of Plaintiff Capital One Bank (USA), N.A. ("Capital One") for the purposes of this affidavit" It goes on to state:

" I am duly autorized to make this affidavit, and because of the scope of my job responsibilities, I am familiar with the manner and method by which Capial One maintains its normal business books and records, including computer records of defaulted accounts"

"These books and records are made in the course of regularly conducted business activity at or near the time the events they purport to descrive occured (1) by a person with knowledge of the acts and events, or (2) by a computer or other similar digital means, which contemporaneously records an event as it occurs. The contents of this affidavit are believed to be tru and correct based upon my personal knowledge of the processes by which Capital One maintains its business books ad records"

I had previously seen 6-7 links to just this type of affidavit with identical wording except for the wording for the title of the person giving the "statement". They were referred to in other affidavits as legal counsel associate or something to that affect. This new wording in my document says "authorized agent for the plaintiff". Also, they attached old statements from October 31, 2009 thru the summer of 2011. There is no signature or any signed agreement by me. Just old statements (for an address from which I moved and did not receive forwarded mail from Cap1) showing that the account was over-due and not paid. It has my name on the statement - but that's all it is: an old credit card statement with my name on it. Nothing with my signature, period.

What I'm wondering is -

1- Is Cap1 truly the Plaintiff? I've read so much to the fact that these JDB attorneys are full of it and will do anything b/c they think we're all stupid and won't figure it out b/c we're too scared of the court factor. And while I'm worried and really scared and don't know what to do next? I'm really mad. I looked at my credit report and the debt from Cap 1 is charged off. And all over the papers that have been filed in the court it says " THIS COMMUNICATION IS FROM A DEBT COLLECTOR" Right on the front page of the legal court document. So how do I figure out if they are commiting fraud? Because it's fraudulent to say that Cap1 is the Plaintiff if the account is charged off - is this correct?

2- Are the old credit card statements meaningless? Or do they hold merrit? Don't they have to show that it's my signature somewhere? It just seems really awful this JDB thinking that I owe them anything - and I've read that Rubin and Debski are HORRIBLE. EVIL mean people, too. So - if they don't have my signature on anything - what does it prove? And I never entered into any contract with them - so why do they think I owe them a penny??

3 - What do I say when I actually go to court? Do I have to file something? Or do I just go in as an "educated person" and nicely and politely explain what I have researched? That in fact, they (ANYONE KNOW THIS FOR SURE?) can't say Cap1 is the palintiff b/c the account is charged off and Cap1 no longer owns the account?

I don't know what to do - I haven't worked in over 2 years b/c I shattered a leg - and I'm a poor student trying to get a new career b/c of the break - how do I appeal to the intelligence of the judge correctly - file the right paperwork and get these jerks to go away?

Any help anyone can offer would be SOOOO appreciated!

Thanks way in advance to everyone who reads this! :mrgreen:

You should start your own thread, and it should be similar to this one. However, do NOT post exact amounts, dates or any other specific information that can be used to definitively identify you.

1) Do not make any accusations over this until you have affirmative evidence that Crap1 is not the plaintiff. I have heard that there are cases where JDBs file using the name of the OC, however, Crap1 probably is the plaintiff. A shot-in-the-dark accusation like this would only hurt you, because you would be accusing people of some serious wrongdoing. Check your credit reports. Don't rely on just one because CRAs suck. If Crap1 does not own the debt, you will see "transferred/sold" somewhere on the tradeline. Also, attorneys are debt collectors and placing "this communication is from a debt collector" is to prevent FDCPA lawsuits against them, even if they are representing Crap1.

2) They don't need your signature on anything. It's a very common misconception. Oh, it would help them tremendously, but in reality, they only need to show that you received the agreement and card, used the card, and failed to pay under the terms of the agreement. No signatures required. Offer, acceptance and consideration.

3) You do NOT "just show up as an educated person." You educate yourself about the judicial process and court procedure, and you follow it. Yes, you do have to file a response. Failure to file a response will result in you losing the case with little effort on the part of the Plaintiff.

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Post the complaint here, word for word except for exact amounts and your name. I myself would not do anything that corrects the mistakes of opposing counsel, that is not your responsibility. I would do some research and determine who owns the debt. "Charged off" means they took a tax writeoff on the debt because they think they won't get paid. It's an accounting tactic, has nothing to do with ownership. If they SOLD it, different story. Even if I found out the JDB owns it and sued under the OC's name, I would not say a word until I got them into court. Then they would have a major problem which would prob lead to a dismissal with prejudice and sanctions. (money for you) That would be a gift from heaven, and is unlikely to happen.

That said, assume the plaintiff is who they claim to be for now and concentrate on a defense and the answer. If they send discovery post it here. Nasty lawyers, huh? I'm so shocked I gotta lie down and take a Tylenol. You post your stuff here, and we'll show these creeps what nasty is all about.

As for your relationship with the court (don't ever call him judge) it will depend on how you condcut yourself. Learn the procedure, read the state rules of procedure. You may want to go to court a few times and just observe what lawyers do and the way they dress, etc. If you can appear before a judge and you appear to know what you are doing, you'll get more respect. People who show up in blue jeans, say "I have no idea what I am doing" do very poorly. Judges will give you a little slack as a pro se, but the key word is little. You are expected to know the rules when you appear in court representing yourself.

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Hi - me again - when you say to post the complaint - I already went to court once for this and said that I wanted proof that it was my debt in response to the original summons. I had read that you should never just pay them outright - which I saw so many doing. I will post word for word the latest document they sent - I am happy to do so. It is what they just filed in court in Miami Dade County a few days ago, though, it looks like they did the research - if that's what they actually did, back in September - and waited forever to file it. How unfair.... I do know that Rubin & Debski don't have counsel that is actually theirs here in Miami - they have hire-a-lawyer people who show up and (I guess?) are on an as needed basis for this kind of thing. They didn't seem extremely interested in being there, either. Also - I'm hoping that for my next court date - they will be ready to be -fingers crossed - kinder, b/c it's 3 days before Christmas.

I didn't go to court in jeans or a tee shirt - I went dressed nicely. And I promise not to call the judge "Judge" - I will always refer to him as "your honor" - that is correct, isn't it? I referred to him as "your honor" before... hope I didn't offend. Though - he seemed bored to be there, too. Really annoyed at the whole thing. So - I will be neat - but appropriate, in hopes that the judge will maybe throw a little kindness my way. Thank you so much for the advice on that.

Here is what the newest documents they filed in court say:

At the very top of the document:

In the County court in the Eleventh Judicial Circuit in and for Dade County, Florida

Capital One Bank (USA), N.A., Plaintiff

vs,

me! Defendant

Notice of Filing

Comes Now, Plaintiff, CAPITAL ONE BANK, (USA), N.A., by and through its undersigned attorneys, and gives notice of filing Plaintiff's Affidavit of Account as attached hereto.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been furnished by US Mail on just a few days ago, 2011 to (ME) and then my address follows

(It's signed by And Attorney for the Plaintiff and it has her name and info listed. And right under it all? It says: )

This communication is from a debt collector

Next page:

CAPITAL ONE BANK (USA), N.A., Plaintiff

V.

Me!

AFFIDAVIT

The undersigned, being duly sworn makes the following oath:

1. I, name of Cap1 person, am over 18 years old and competent to make this affidavit. I am an authorized agent of Plaintiff CAPITAL ONE BANK, (USA), N.A. ("Capital One") for the purposes of this affidavit. I am duly authorized to make this affidavit and because of the scope of my job responsibilities, I am familiar with the manner and method by which Capital One maintains its normal business books and records, including computer records of defaulted accounts.

2. These books and records are made in the course of regularly conducted business activity at or near the time the events they purport to describe occurred (1) by a person with knowledge of the acts and events, or (2) by a computer or other similar digital means, which contemporaneously records an event as it occurs. The contents of this affidavit are believed to be true and correct based upon my personal knowledge of the processes by which Capital One maintains it's business books and records.

3. The books and record of Capital One Show that Defendant(s) opened and account with Capital One for the purpose of obtaining an extension of credit and did thereafter use or authorize the use of the account for the acquisition of goods, services, or cash advances in accordance with the Customer Agreement governing use of that account. Further, Defendant(s) has/have breached the Agreement by failing to make periodic payments as required thereby.

4. The books and records of Capital One show that the account was charged off on 08/2010 with a current interest rate of 19.65%. The records further show that the Defendant(s) is/are currently indebted to Capital One on account number --------- for the just and true sum of $++++.++, plus interest accruing from 08/2010 for an interest balance of $+++.++in accordance with the Customer Agreement, and that all just and lawful offsets, payments, and credits have been allowed. The Customer Agreement entered into between the parties also authorizes Capital One to recover from the Defendant(s) reasonable attorneys' fees and costs to the extent permitted by law.

5. I declare under the penalty of perjury that the foregoing is true and correct and if called as a witness I would competently testify, under oath, thereto.

Given under my hand on :

Dated 00/00/2011 Cap1 person (with her scribble here)

County of Chesterfield, to wit:

Commonwealth of Virginia

SUBSCRIBED and sworn to before me the undersigned Notary Public in and for the jurisdiction aforesaid, by Cap1 person, who is personally known to me, and acknowledged before me his/her signature to the foregoing affidavit

GIVEN under my hand and seal this ++ day of , 2011

And then it has a stamp of the notary public with the name: Barbara Ann Horan - her number etc is posted.

At the bottom it has a lot of numbers - I'm guessing the reference to the case numbers.

Also, they were kind enough to enclose the whole darn Crap1 agreement.... again. They already sent it the first time when they served - didn't serve me - directly. When the process guy left it at my door. Anyway - there's also an enclosure of a huge arbitration agreement. Plus, they went thru records I guess, and found my old billing info and were so kind as to send me 12 different "bills" complete with a $39 late fees for every single one. I remember a long time ago calling them when I had been initially injured and telling them I was out of work (that was over 2 years ago) and trying to negotiate away a late fee - and make payment arrangements. They were non-negotiable. They didn't even want to help. I would have sent 20/month - but they wanted no less than $150 to even talk to me. I couldn't do it. I tried my best - but the rest is history. Now I want to get rid of these awful JDBs and put this behind me.

I am grateful for any, and all help - I have been trying to do a lot of research. But since I am, as it was well put - not an officer of the court - I really don't want to step on toes or be disrespectful. I also don't want to make it worse for myself! If there's a way I can find out if the debt belongs to Cap1, I will do it - please let me know. I thought about calling them - but so far, have hesitated to do so for fear of the can of worms I'll open. I had sent letters to other creditors trying to request debt validation - and have gotten one thing removed from my credit so far. I am trying to make it better - but this is a big hurdle. I am willing and very determined! It seems odd that they don't have bigger fish to fry than my lousy $3g -so crazy!

Thank you also, Ms. Administrator, for moving this to it's own thread - sorry for posting incorrectly - I'm a newbie! Thought I had it right... sorry!

And thank you legaleagle!!! I am feeling a little better - yes, please - help me show them how it goes!

And again - guidance is GREATLY!!! appreciated - thank you to all!

Edited by dimuush
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You are correct, your honor is appropriate. Wear a suit and don't bring anything you don't need. From what you posted, it looks like you are dealing with the original creditor, not a junk debt buyer. I don't know much about arbitration, but you can research it here. For this amount it may be the way to go. If you want to fight an OC, it will be difficult. They have all the records, and there is always the cardholder agreement. Best you can hope for is to trip them up in discovey. Look at the agreement....find the choice of law provision. Let us know what state they are in, and whether or not the ageement supposedy binds you to the laws of that state.

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Hi - again - thanks -

Is it possible that I can call CAP1 and see if they still own the account? Or who it's been turned over to? Or should I leave that can of worms unopened..?

Also - If it's an OC - then why does the court document say that it's communication from a debt collector? Are these lawyers - which I have researched and are in fact, JDBs - on staff for CAP1? I have looked up these Rubin & Debski people and they buy junk debt... that's their schtick. And they are horrible mean people - I originally tried to call them... and they wouldn't even talk to me. No lawyer was free to talk to me. I got one of their collection people - it's like a regular collection agency with nasty operators - and I pestered this woman who was evil to get info - and when I asked her about her title and what it required to be a legal assistant - she told me she didn't have to tell me anything. I figured that I wanted to know what her expertise was in the legal system if I was going to be chatting with her about my legal issues - needless to say, she hung up on me. Dont think that's ever happened with debt collectors... they don't usually hang up on the customer. Ha. I guess I bugged her. I made 5 different attempts to get information and they are like a steel vault. I got nothing. I gave up. I went to court. I said prove it - and have another date for December. The only thing they proved was they have old copies of my statements - which I NEVER got even with my address forwarded. And can't anyone make that up? There's nothing that proves it's real. People will do anything, no?

As far as the agreement - I'm not sure I understand what I'm looking for... and do I just ask to go to arbitration? And cost them a lot of money? How do I get out of paying for their nonsense? I don't think that's really fair.. it's in their interest .. and I'm thoroughly annoyed! lol.

So - here's something I'm confused about - 1)how do I find out if it's 100% for sure the original creditor and 2) if it is - why can't I just call them and get this whole thing solved? and 3) even if I pay the debt collector - how do I know that the charged off account won't come back to bite me?

Should I just get a lawyer? And can you recommend one in Miami that won't cost me a fortune... I'm a really broke student!! I can't afford anything - haven't worked in 2 years d/t a broken leg.. so this is all really devastating for me.. and I am trying to handle it well. I will do that if anyone thinks it's the best idea to deal with this... I don't want to end up paying huge sums I don't have. I read that if it's been charged off over a year - chances are it doesn't belong to the OC... is that true?

Also - choice of law? Not sure what that is ... but I found this in the agreement:

Governing Law. WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be construed in accordance with and governed by the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect.

Is that what I'm looking for? And how does that pertain to Florida..

You said in discovery - was I supposed to do a discovery even though I've already been to court once? I never did that... do I have to do it?

Help..! and thanks again.

Edited by dimuush
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Hi - again - thanks -

Is it possible that I can call CAP1 and see if they still own the account? Or who it's been turned over to? Or should I leave that can of worms unopened..?

I wouldn't worry about for the time being. The reason is that you have posted nothing out of the ordinary. Crap1 probably is the real plaintiff. If they aren't, you will find out during discovery if you go the judicial route, and then you'll get to raise all sorts of hell. But again, accusing them of not listing the real plaintiff is accusing them of some serious wrongdoing. Don't do it without real evidence.

Also - If it's an OC - then why does the court document say that it's communication from a debt collector? Are these lawyers - which I have researched and are in fact, JDBs - on staff for CAP1? I have looked up these Rubin & Debski people and they buy junk debt... that's their schtick. And they are horrible mean people - I originally tried to call them... and they wouldn't even talk to me. No lawyer was free to talk to me. I got one of their collection people - it's like a regular collection agency with nasty operators - and I pestered this woman who was evil to get info - and when I asked her about her title and what it required to be a legal assistant - she told me she didn't have to tell me anything. I figured that I wanted to know what her expertise was in the legal system if I was going to be chatting with her about my legal issues - needless to say, she hung up on me. Dont think that's ever happened with debt collectors... they don't usually hang up on the customer. Ha. I guess I bugged her. I made 5 different attempts to get information and they are like a steel vault. I got nothing. I gave up. I went to court. I said prove it - and have another date for December. The only thing they proved was they have old copies of my statements - which I NEVER got even with my address forwarded. And can't anyone make that up? There's nothing that proves it's real. People will do anything, no?

The lawyers are a third party collecting for Crap1. That makes them debt collectors under the FDCPA. They have to put "this communication is from a debt collector..." in pretty much everything that they send you, including court documents or else risk getting sued in Federal court. This is as true for an attorney representing an OC as it is for a JDB sending you a dunning letter.

Just because they're rude or unprofessional does not mean that they are not representing Crap1. 75% of a collection lawyer's job when dealing with a pro se litigant is to intimidate the hell out of them. Again, do NOT accuse them of listing the wrong plaintiff unless you have hard evidence of such. Reading on the internet that they buy junk debt is nowhere near hard evidence.

As far as the agreement - I'm not sure I understand what I'm looking for... and do I just ask to go to arbitration? And cost them a lot of money? How do I get out of paying for their nonsense? I don't think that's really fair.. it's in their interest .. and I'm thoroughly annoyed! lol.

Linda would be the best one to tell you that.

So - here's something I'm confused about - 1)how do I find out if it's 100% for sure the original creditor and 2) if it is - why can't I just call them and get this whole thing solved? and 3) even if I pay the debt collector - how do I know that the charged off account won't come back to bite me?

1) You can check your credit reports and maybe even call Crap1. A much better idea, however, is not to worry about it at the moment. You should be worrying about the rules of civil procedure and your defense right now.

2) Because they've already spent money filing a lawsuit and having you served. I don't know what they are out of in FL, but here, that'd probably already be around $200.

3) You get everything in writing and keep meticulous records.

Should I just get a lawyer? And can you recommend one in Miami that won't cost me a fortune... I'm a really broke student!! I can't afford anything - haven't worked in 2 years d/t a broken leg.. so this is all really devastating for me.. and I am trying to handle it well. I will do that if anyone thinks it's the best idea to deal with this... I don't want to end up paying huge sums I don't have. I read that if it's been charged off over a year - chances are it doesn't belong to the OC... is that true?

If you can afford a lawyer, then yes, you should get one. I know nothing about Miami attorneys, so I can't help there.

Also, what you read about being charged off is not true. Charged off is nothing more than an accounting term. It goes from one column on their balance sheet into another, and then is written off so that they can lower their tax liabilities. It has zero to do with ownership, beyond the fact that they will probably wait until after the tax write off to sell the debt. OCs are changing their MO and pushing debts through the court system like they're JDBs now. The alleged debt in my case had been charged off for more than two years (according to their answer to a discovery request) when they filed suit against me. Believe me, Citibank was the true plaintiff in that one.

Also - choice of law? Not sure what that is ... but I found this in the agreement:

Governing Law. WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be construed in accordance with and governed by the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect.

It is exactly what it says it is. They want to have Virginia law applied in your case according to the contract. However, the attorneys may not push for that and the judge may not allow it.

Is that what I'm looking for? And how does that pertain to Florida..

That depends on how Florida courts deal with choice of law clauses.

You said in discovery - was I supposed to do a discovery even though I've already been to court once? I never did that... do I have to do it?

Help..! and thanks again.

Discovery is a process where both sides get to ask the other side to disclose what evidence they have. There are rules that the process follows and it is a huge hammer to use against your opponent. You'll need to look up FL's rules of civil procedure to see how discovery is initiated there. It does vary from state to state.

You have Requests for Admissions (e.g. Admit or Deny, Capital One uses robosigned affidavits when it files lawsuits against consumers for credit card debts.)

You also have Interrogatories, which are basically just questions (e.g. Please identify the documents that the affiant reviewed when producing the affidavit filed with the complaint against the defendant.)

You also have document requests (e.g. Please provide all documentation related to the alleged last payment on XX/XX/XXXX, including but not limited to, canceled checks, money orders, and any other document with information identifying the person who made the alleged payment.)

Now, those were just quick examples off the top of my head, and if you go through the process, you should spend a lot of time making sure that the requests are helpful, relevant, etc...

Edited by usagi555
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This is funny. Right above the reply box is an ad to apply for a Cap 1 credit card. Talk about irony. What a place to advertise, huh? You'll only find the best credit risks here.

Anyway, re this:

Governing Law. WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be construed in accordance with and governed by the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect.

Just curious, I never heard of a national bank operating out of VA. Their statute exempts credit cards from usury, so they can charge whatever they want. No contract / agreement required. No help there.

Revolving Credit accounts are exempted from the usury limits according to Section 6.1-330.64 of Virginia Code

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So - in light of all this madness - I'm just curious - since I already went to court once - and never did this 'discovery' process that I have been reading about.... do I need to do this? I have no idea where to start.. a link would be helpful. And what if I don't have discovery back by the time I have to go to court?

If anyone has a recommendation for a lawyer in Miami - please please please send the info my way... I think I'm lost and don't know where to begin. I also am short on time - and how could I postpone the court date for a good reason? And now, after reading some of the replies - I'm really starting to worry. I'm afraid that this will not go well since I don't really know where to begin and am worried I may have not done this correctly from the start. Panic may be setting in... lol.

Any place to start with this date looming 4 wx away would be greatly appreciated!

Also - as far as the law in VA - does it mean basically - they can do whatever the heck they want with no regard to law? Sort of lawlessness? And if that's the case - why wouldn't every CCC operate out of there. Esp if it's in their favors...? How to get around it ???

Thanks all!

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Guest usctrojanalum

As to whether or not Cap1 is suing you, check your credit reports. If your credit report is not updated to say "transferred/ sold to another lender" Capital One still owns it.

Are the statements meaningless? Yes and No. Yes in the fact that they need a competent witness from Cap1 to show that the statements are yours, and no in that it shows that there obvious was some type of relationship between you and Capital One.

As far as them not having a signature, why would they? I have opened up probably 10 credit cards in the past 7 years and have never signed anything before.

Arbitration - I do believe arbitration has its place. If the balance is smaller where arbitration is cost prohibitive I am a supporter. If the balance is larger and it would not be a threat, I'm actually against it.

Lastly, how much is Cap1 suing you for? I'm assuming that you did have a Cap1 card that you stopped paying and this is not some totally random out of the blue thing that has caught you off guard. The balance is probably hugely inflated with penalty interest late fees and other finance charges. I would probably look back at what the balance was right before you stopped paying it and offer them probably like 50% of that balance see if they go away.

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Anyway, re this:

Governing Law. WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be construed in accordance with and governed by the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect.

Also, the SOL for CC debt in Va is 4 years. When is the last time you made a payment on this alleged card?

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Hi - again, thanks for replies -

Workingpoor: question... and answer: yes, the balance is ridiculously inflated. The interest and crap they want is almost $700... the original was something a little less than $2,500. I tried diligently to make arrangements with the Crap1 people and they were horrible. They charged me a $39 fee every time and wouldn't budge on the amount to bring the account current. How they ever expect anyone to catch up - I don't know. You mentioned calling and offering them 1/2.. who am I calling to offer half? The JDB's? And even if I offer them that - I think I've asked this before, but it doesn't change the charge off - right? What does that do for my credit rating? Nothing? or do they have to report that it's been "paid"...? And if I do call to make an offer - will that make the court date go away...?

You also said that the SOL in VA is 4 years, well, it hasn't been that long, but, does that mean that the charge off will be legally off my report in 4 years? The SOL in Fl is 4 years, as well - I believe. It's all very confusing. Thanks for helping me sort thru it.

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SOL in a CC case has nothing to do with how long it can remain on your credit report. If a debt is outside of the SOL, that means that they cannot take you to court, or if they do, you can raise SOL as an affirmative defense. The bad mark on your credit report can remain up to 7-ish years.

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  • 4 weeks later...

Hi all - I've been trying to figure out what to do - and finding a lawyer is harder than I thought! In the mean time - I have been thinking hard about what usctrojanalum said and think that perhaps offering a settlement might be the easier way to go. They did come up with old Cap1 papers - and I know there's ways to fight it - but I am a full time student and I am swamped and don't know really where to begin - the court date is looming and I haven't filed a single paper. So - in light of that, I have a few questions that I'm hoping someone can answer ...

1 - if I offer a settlement - and go back to what the balance was before I stopped paying - I had originally called them waaaaayy back to see if they would help me make feasible payments by stopping the $49 late fee every time I was late and couldn't pay the minimum. That's where it started. They kept adding a fee to the minimum payment and I couldn't make it anymore. I tried to talk to them - and they wouldn't budge on deleting the late fees. So, there are hundreds of dollars in late fees. ... am I offering a settlement based on the balance before the late fee? Or the last statement before they charged it off?

2 - Crap1 has charged it off. I understand that's an insurance thing - but - who am I offering the debt be settled with? The debt collecting lawyers who are suing me? Or Crap1? And can't Crap1 come back to me in the future to get the money again b/c they only charged it off...? The debt collectors are not people I entered into contract with - so can't Crap1 technically try to get the money from me again?

3 - if I offer a settlement - realize I am a student (due to job loss), and haven't worked in over 2 years and can't afford more than about $25 a month - what if they say no? Then what?

4 - again, if a settlement is reached - what does that do to my credit? And how do I protect myself from further problems with these jackasses? What do I need in writing from either Cap1 or the JDB's...?

5 - Does a settlement negate my court date?

Thanks to all who read and offer their tireless help... I am grateful.

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I wouldn't offer a settlement. Especially now. They will know you are desperate and probably won't take much of anything off the bill. Plus to have any bargaining power you need to have the amount you offered to pay it off then and there. Do you have the amount you are willing to offer without offering payments?

I have heard that Cap One doesn't give you much of a discount. I just won against cap one. They dismissed the case. And they had about 2 dozen statements and a signed application. But all that was heresay without an employee witness. I don't know how to help you in your state. In CA we have BOPs which I used and we have ccp98s which Cap One uses alot here which I was able to beat but I don't have a clue how to help in your state. I hope someone comes along to help you.

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chiquita55 - Can you tell me what your abbreviation for BOP is? and the ccps98? I'm not sure what they mean - can you tell me how you beat them?

And yes - there is no signed statement - but they have some 'supposed' Crap1 witness that signed on the latest set of court documents proving that she is certifiable as a witness - it's notarized etc, but are you saying they need to be present? Or does the document just have to be seen by a Crap1 person and notarized? I'm super desperate at this point.

Also - did you go represent yourself? PLEASE tell me how you did it... b/c I have a court date looming this week and I don't know what to do.

And if anyone knows a lawyer in Miami that will take this - please let me know!

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chiquita55 - also - they sent me statements - but nothing signed. And the court documents all say they are from a debt collector... did you have that? And how do I prove it's hearsay if someone from Crap1 gave a sworn and notarized statement????

How did you present it in front of the judge? I'm a little spooked right now! ha.

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A ccp98 is a legal form available on our websites. The Plaintiff got this woman in VA to declare just what your person declared. That they have personal knowledge and that those are your bills and that you agreed to their agreement. In CA that person needs to be within 150 miles of the court and be able to be served a subpoena. The person on mine stated they lived in VA but would be at the (address of plaintiff attorney but they don't say it is the plaintiff attorney) 20 days before the trial. I called their bluff and subpoenaed that witness and asked for a myriad of documents. I used a subpoena deuces tecum to do it. I had the sheriff serve the subpoena but of course, they were there so I wrote up a MIL to keep all those records out and the declaration of the witness.

I don't think your state has those laws or rules tho about the witness so I don't see how this helps you but you know what I would do? I would subpoena that witness and documents to try and prove they do not have personal knowledge of your case and that they are heresay. I bet others will disagree with me. I would try to find out about their witness and if she really works for them or if she is bogus. I would subpoena all her employment records, her photo ID, All the records of the company pertaining to your account and if that person shows up I would question them in depth to see if they really have knowledge. run this by everyone. maybe someone else has a better idea. I would try to get those statements tossed out as heresay without any authentication.

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chiquita55 - did your court document also say: this is under the section that the person in VA got notarized and it's 'her' last numbered statement:

" I declare under the penalty of perjury that the foregoing is true and correct and if called as a witness I would competently testify, under oath, thereto."

My last one says that - and then it's from County of Chesterfield Va, commonwealth of Va...... etc... and then the notary public is from there as well...

Am I out of luck?

And did you serve the subpoena before or when you got to court. In other words - did you ask the judge to subpoena them? How would I find out that they are near me? And could I just subpoena them? I don't find anything about not being allowed the subpoena you used, here in Fl. Do I ask a judge for the right to subpoena someone? Or can I go to the courthouse on Monday and just do it...? Also - I never requested discovery - I am totally lost here - I have been 24/7 in school and hospitals...and haven't had a chance to deal with this until today and court is at the end of the week. I'm sorry to be so crazed! I have tried to find a lawyer - and no luck. They are the worst at returning calls! I have had limited time - and now I'm scrambling.

The court dox says that I owe over 3g, if I called and offered 1200 cash - you think that would negate the whole thing? I don't know what to do - I feel backed into a corner.... this is awful.

Thanks for your responses and help... also, could you show me or send me the link to that form you spoke of?

Thanks so much!

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You can subpoena her for your court trial. You can subpoena anyone that you want to show up. But your rules are different than ours. The reason my subpoena and MIL worked for me is that by law she had to appear or they couldn't use that declaration with their evidence attached. They weren't about to fly her here and pay all that $$ to do so plus they knew I had nothing to give them. I am disabled, don't work, my only income is social security disability and I have no assets so they would have been spending good money after bad to fly this witness to CA.

The same may apply in your case tho. You can call their bluff and subpoena the woman in VA. She will have to fly out and you could question her on the stand and if she doesn't fly out then they have no one to authenticate their documents. However, the do have that declaration and I don't know if it should still stand if that woman doesn't show up. I hope someone else can answer that question. The worst that can happen to you is that they get a judgement. It doesn't sound like you have alot of assets so I wouldn't worry to much. When is your trial?? Next week? I would take a chance and subpoena that woman. She has to show up. If she doesn't, I would ask the judge to not accept her declaration as you want to question her and you can't since she didn't show up. good luck! Try not to worry. It doesn't help anything.

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