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I received a Summons today from Capital One. I'm supposed to appear on Dec 27 2011. The Amount they say I owe is 1912.37. this is for a Pretrial conference. Can anyone tell me what I'm supposed to do here? I'm not even going to be in town, I'll be away until jan 5th. :( I'm a single mom and have no resources and am scared. What happens if i can't show up? I only got 13 days notice :(

Thanks :confused:

1. Who is the named plaintiff in the suit?

Capital one bank (usa) na

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) It's not listed but i looked up the summons on the county website it's Pollack and Rosen PA

3. How much are you being sued for?

1912.37

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

Served summons for pretrial conference small claims

6. How were you served? (Mail, In person, Notice on door)

In Person

7. Was the service legal as required by your state?

Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

Port charlotte florida

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Not sure credit report says it was opened 6/2007

11. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

NO

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Dec 27 2011

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

copy of a bill from 2009

Edited by Jesttic
more info

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Thank you very much Linda, I have no printer is it ok to write this out and mail it? I'm not even sure I can come up with the money to send it ccrr. After 20 years of running construction companies I can't even find work mopping floors right now. I wonder if legal aid here will help me.

Jes

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Small claims in Florida is pretty simple. You show up for the pretrial, the judge will eventually get to your case - ask if both parties are present. He/She will ask you if you admit or deny the allegations in the complaint (normally, unless specifically required, you don't need to file an answer - you just show up) If you do he'll enter judgment against you, if you don't, you'll go to another room to try to work out a deal. If no deal, you proceed on toward trial.

If you do not appear, a default will be entered against you. Being out of town is not an excuse. You need to address this BEFORE the hearing by calling the judge's assistant and asking if you can submit a request for continuance. Like I said, small claims in Florida is pretty relaxed. A simple letter stating that you have previous commitments out of state would like a short continuance should be all you need to do. No guarantees, of course. You might also point out that you are aware of no reason why plaintiff would be prejudiced by the continuance. Try that and post and update when you get a response.

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Thanks Nascar! I've been reading so much on these forums and I thank the Lord for the good people here who are looking out for us "little Guys"! Cap one are thieves, They raised my credit limit then lowered it so they could charge me over limit fees then they added some lame insurance plan for 14 dollars a month when I got the balance below the limit which again put it over the limit. after many many calls I gave up. What a crappy company :( I'm going to call the judge's assistant and see if i can get this moved to after the 5th of Jan and look for someone with a printer to print the two election letters. I will keep updating this as I go along.

Jes

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I spoke to the Judge's assistant I can submit a request in writing at the courthouse monday. She also informed me that I can only ask for one continuance, since they only do pretrials once a month, the kicker is the next date is on my birthday haha I'm already feeling more at ease with this thanks you Nascar and Linda7.

Jes

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I spoke to the Judge's assistant I can submit a request in writing at the courthouse monday.

Great. Now let's figure out how you're going to win this thing. :)%

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10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Not sure credit report says it was opened 6/2007

This is very important information. We need the date of your last provable payment. Cap 1 elects to use either their SOL of 3 yrs, or yours where you live if it is longer. FLA is 5 years.

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10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Not sure credit report says it was opened 6/2007

This is very important information. We need the date of your last provable payment. Cap 1 elects to use either their SOL of 3 yrs, or yours where you live if it is longer. FLA is 5 years.

How do I find this info out?

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Well about that I paid online all the time and the account I used was a different bank then I currently have. So I'm guessing I'm out of luck :(

Jes

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Perhaps this could help:

"Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum will apply where there exists a contractual choice of laws provision." Gaisser v. Portfolio Recovery Assocs., LLC, 571 F. Supp. 2d 1273, 1276 (S.D. Fla. 2008) (holding that statute of limitations was governed by contractual choice-of-law provision only because Florida law deemed statutes of limitations to be substantive).

"Florida enforces choice-of-law provisions unless the law of the chosen forum contravenes strong public policy." Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 311 (Fla.2000)

"The Florida Supreme Court [has] determined that a `contractual provision shortening the period of time for filing a suit [is] not contrary to a strong public policy.'" Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1341 (11th Cir. 2005) (quoting Burroughs Corp. v. Suntogs of Miami, Inc., 472 So. 2d 1166, 1169 (Fla. 1985))

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So I go to the courthouse today and the judges assistant tells me she doesn't know if I will get a continuance due to the Fact that there's only 6 business days to the pre trial hearing. I had to write the judge a letter and pray that he approves it on the 27th at the pre trial. This is ridiculous really i JUST got the summons 2 business days ago. I guess there's a chance he will deny it and make a default judgement? I filed the letter with the clerk and sent it off the cap one's lawyer. I supposed I just have to pray.

Jes

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Hello everyone,

So here's an update. The Judge granted a continuance the new date is Tuesday Jan 24 (my birthday of all days :( ). I sent the election letter certified return receipt but have not heard a word from cap one or the lawyers. I know I have to show up Monday but what do I say or do once there? I have my return receipt and a cop of the letters I sent. I'm a little worried not sure what's next. Any help would be very appreciated. Also I looked at the docket and I'm still on there.

Thanks,

Jes

Edited by Jesttic

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I have to go to court on this tomorrow... there has to be someone kind soul who can help me out here, please! I have no clue what I'm walking into now. :(

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Nascar gave good advice. Nothing will probably be resolved at this hearing. I suggest you state that you believe their complaint is invalid because it is beyond the statute of limitations. Florida's statute of limitations is 4 years for credit card disputes. There is some case law on this, but I'm having a hard time locating at present. Perhaps one of the others can post it, and you can reference it to the Judge, asking that the case be dismissed. However, I would rely on the 3 years posted in their credit card agreement and reference that instead.

More than likely, you'll be directed to a mediation conference, attended by you, the Plaintiff's attorney and a mediator. If you wish to settle, try to strike a deal, if not, let them know they are past the statute of limitations and you plan to fight it. Remain calm, go in confident, know you hold more cards than you can imagine and will learn here if the dispute extends beyond tomorrow. Also know the Plaintiff's lawyer will almost certainly lie to you and try to trick you.

Say as little as possible, and if you don't wish to settle, convey this through as few words as possible at the initial conference.

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Jessttic,

On your credit report, what does Cap1 state as the date of first delinquency? Also, there might be a history on your credit report that shows "30 days late", "60 days late", etc.

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You need to go back to the bank you had and ask for records establishing the date of the last payment. It may cost a few bucks, but without this you cannot invoke the SOL.

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The last time I paid was nov 18 2008. I elected to set a trial date which will happen march 7th. Now here's the thing they filed this is dec 2011... the cardholder agreement is 3 years for sol and florida is 4 years. where do I go from here? the lawyers sent me all the copies of my bills from the day the account was opened. friends are saying i'm going to have to settle.

Jes

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The last time I paid was nov 18 2008. I elected to set a trial date which will happen march 7th. Now here's the thing they filed this is dec 2011... the cardholder agreement is 3 years for sol and florida is 4 years. where do I go from here? the lawyers sent me all the copies of my bills from the day the account was opened. friends are saying i'm going to have to settle.

Jes

I strongly suggest you review the case of Steven J. Pincus v. The Law Offices of Erskine & Fleisher, et al., Case No. 08-CV-81357, Southern District of Florida. It should "make your day."

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Jestic,

Here's some "choice of law" case law to add to the case law provided by Nascar. If you didn't use the SOL as a defense, I just don't know if you can claim it now or not.

"Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum will apply where there exists a contractual choice of laws provision." Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008

"In Florida, a choice of law provision of a contract is presumptively valid unless the party seeking to avoid it shows that application of the chosen law 'contravenes [a] strong public policy' of Florida." Mazzoni Farms, Inc. v. E.I. Du-Pont De Nemours and Co., 761 So.2d 306, 311 (Fla.2000)

The above states that choice provision is valid unless it's contrary to "strong public policy of Florida". The case law below (especially from the FL Supreme Court) takes care of that.

"In Burroughs, the Florida Supreme Court determined that a "contractual provision shortening the period of time for filing a suit was not contrary to a strong public policy." Maxcess, Inc. v. Lucent Technologies, Inc., 433 F. 3d 1337 - Court of Appeals, 11th Circuit 2005

"We therefore conclude that the contractual provision shortening the period of time for filing a suit was not contrary to a strong public policy." Burroughs Corp. v. Suntogs of Miami, Inc., 472 So. 2d 1166 - Fla: Supreme Court 1985

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Cap One's agreement now specifies "either or" for SOL, whichever is longer, your state or theirs. Interesting argument. Check the agreement to see what it says, I don't know when they started this.

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Cap One's agreement now specifies "either or" for SOL, whichever is longer, your state or theirs. Interesting argument. Check the agreement to see what it says, I don't know when they started this.

I wonder if some nice attorney is going to file a class action suit and challenge that provision.

1. Most consumers don't know the meaning of a statute of limitations regarding debt. Even if they read the entire cardmember agreement, they may not understand the implications of that provision.

2. What good is a state's SOL if Cap1 can outright claim that Cap1 gets to pick and choose?

3. If a state has a choice of law or conflict of law provision regarding the statute of limitations, can Cap1's provision override it?

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Cap One's agreement now specifies "either or" for SOL, whichever is longer, your state or theirs. Interesting argument. Check the agreement to see what it says, I don't know when they started this.

I believe the end result of that may be that the statute of the forum state will apply.

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