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Just found out I'm going to court TOMORROW!


obsoleet
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I'm pretty freaked out... About a month ago I received a letter in the mail from some law firm glazed through it noticing it said something along the lines that they wanted to defend me in court. I thought it was just some spam/scam and threw it out. Then a couple weeks later, I received another letter from another defense attorney and although I was curious I was in a rush and just filed the letter in my junk mail pile to look at later. This morning I decided to do some cleaning and found the pile and the letter... as I read it I noticed it kind of looked official citing case numbers and such. So I went to Maryland's court website where you can type in your last name and look for court dates, warrants, etc... low and behold I see my name there and when I clicked it for more details I FOUND OUT CAP ONE IS SUING ME AND MY COURT DATE IS TOMORROW AT 8:30AM!!!

It also mentioned in the records that I was served, received multiple notices... NONE OF WHICH EVER HAPPENED!!! Had I not been decided to go through that junk mail pile I would never have seen this and would have been a NO SHOW! How could this be legal???

It shows that I have a $750 bill Cap One is Suing me for and I think I had that card in 2008/2009 but don't remember having it after (charged off in 2010?)... I never had above a $300 limit so how did it get so high? What are my options? I've never been to court before so what do I do? What do I say? Any help would be much appreciated!!

I'm so lost, confused, and I was having a great holiday until this :(

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From The District Court of Maryland site:

Claim the notification was not served legally

A summons or complaint must be legally served. Defendants may claim they were not properly served with the Complaint and Summons in one of two ways: (1) by filing a pre-trial request that the case be dismissed for improper service; or (2) by making the argument at the trial. In either case, the trial is postponed, and the plaintiff may have to re-serve a new summons.

Go to court and tell the judge you were not properly served. You can ask that the case be dismissed but in all likelihood it will only buy you time. At least then you can develop a defense. DO NOT in any way admit you have or had a card with the plaintiff.

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I honestly do not know what to tell you.

Do you by any chance have a copy of the cardmember agreement?

If not, look on here and online and just see what it says about

arbitration.

Also, do you know what time your courthouse opens for

inspection of records? It may be the prothonotarys office you want.

If they are there at 8AM be there and see if you can see what it is that they claim to have served you.

They need to have posted this with the court.

Read and see what exactly it says and arm yourself with the

fact that you were never served and ask the court for an

extension IF you were supposedly served and it was a summons requiring an answer that was supposed to be filed in a specific time span.

If, it was not a summons requiring an answer, but just a court appearance then you will go and deny everything that they say other then to confirm your name , address, and the stuff that should be confirmed.

DO Not admit you have an account.

If you feel trapped like they word things that make it awkward to deny you had an account say you do not recongnize any account with this amount they are claiming.

Because, in fact, you dont.

Then get back on here after court tomorrow and let us know what you find out.

If you need to do an answer and the court grants you an extension, because you were not served properly then you wiull need to do that and you will need to decide if you want to go the private arb. route.

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I agree. BE SURE TO SHOW UP AT THAT HEARING. Tell the judge you were never served but you received a piece of mail you thought was junk mail and went on line yesterday to find you had a court case that day. I would also go online to your court system and find the 'Answer document and fill it out quickly denying the debt. File it before court, get it stamped and make a copy for the judge. Make a general denial if you can. I don't know anything about MD law etc but at leat its a start. Be sure to show up so you don't get an automatic judgement againt you.

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#1 SHOW UP!! Like Chiquita said, SHOW UP!!!

#2 Get a copy of the papers that the court has about your suit. Might cost you per page, but at least you can see if they say that they served you when they didn't. And make sure to at least look up your states rules of what it does take to be considered "served" in a lawsuit. That way, when you do show up in the AM, you can at least fight it on that issue!

#3 Welcome to CIC!!:)++:)++:)++

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Show up!!

Very good advice from MamaCaldo and chiquita! Search the forums here for "answer critiqu" to get an idea as to what constitutes a "general denial".

Some courts have a form online specifically for that.

Google maryland civil general denial. You'll find some decent info to use in the short term.

A risky but possible alternative:

*find out what constitutes "service of process" in MD. If you can prove you were not properly served, you have a fighting chance to go to court at a later date to vacate the judgment. I recommend NOT doing this if you can avoid it. Which, at this point, you can avoid this by filing a general denial.

Its easier to file a general denial now that attempt to vacate the default judgement later.

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Looks like all you have to do is arguing lack of proper service. According to what you posted, the worse is at least a delay.

Appears to me, raising the issue of service makes your prima facie case for the dispute and throws the burden on them to prove proper service. That's a good thing, however, it will probably mean just getting served properly. At least it appears your not going to get a default against you.

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Thanks so much for everyone's advice!!

I went into court and tried to get paperwork and file an intent to defend before the case but there wasn't time! The made us wait outside the courthouse until 8:15am and once I made it through security it was 8:25am (my case was scheduled to be heard in the courtroom at 8:30am).

So I went to the courtroom and apparently the judge didn't show.... they stated that everyone should turn in the intent to defend forms if they haven't already and court date would be rescheduled. I talked to the clerk and stated that I never was served and didn't have any documentation and she handed me a generic intent to defend form and also made copies of everything submitted by the plaintiff that was in my file.

For my Intent to defend, I wrote: "I do not recognize an account with this amount and I would like to review documentation and my rights in this case. I was also not served via Sheriff, Private Process, Certified Mail, or Constable." (Is this ok?)

They supplied:

1) an Interest worksheet

2) affidavit

3) copy of credit one bills (Nov. 2008 - Nov. 2009) where no charges were made but each month had charges of Past Due fee ($39), Payment Protection ($3.24), and Overlimit fee ($19). There were also payments shown posted on 11/08, 12/08, 1/09, 03/09, and 05/09.

4) copy of credit one bills from June 12, 2010 - June 11, 2011 where only fiance charges are shown as being charged (no late fees, overdrafts, etc)

Aside from waiting for the next court date to be sent.... what is my next step??

Thanks again for your help!

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With an amount this small . . . you know what I'm going to say!

Now is the time to send the attorney a letter electing private contractual arbitration. Let me know if you need to see a sample.

Then prepare a MTC arbitration using the 2008 Capital One agreement. I have that also if you need it.

Will you get to file an answer with affirmative defenses at this point or will the generic intend to defend suffice?

Your case will probably get tossed for improper service (unless they can prove otherwise), but that only means that the attorney will sue you again and you will be served. So, to turn their boat over - if you get the letter electing arbitration to them now, if they do sue you - you will have them on a violation for breach of contract.

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It looks like you paid each month for payment protection. Why didn't they use this 'policy' to pay your bill. If you allegedly stopped paying, what was the reason? I think Seadragon knows something about these credit card protection policies that might help protect you. I hope he comes along with information about this.

I also might go along with Linda and see if you can go to arbitration using JAMS. Is there an arbitration policy in your agreement with this company? It is very expense to go thru JAMS and they may not want to bother if they have to pay for arbitration. If you are low income they may have to pay.

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With an amount this small . . . you know what I'm going to say!

Now is the time to send the attorney a letter electing private contractual arbitration. Let me know if you need to see a sample.

Yes Please! :)

Then prepare a MTC arbitration using the 2008 Capital One agreement. I have that also if you need it.

Yes Please! How do I do this? Where do I mail/send (Courts? Lawyers? Cap One?) Does it require notarization? Certified mail I assume? :D

Will you get to file an answer with affirmative defenses at this point or will the generic intend to defend suffice?

not sure... how do I find out?

I appreciate everyone's advice and help! So Arbitration is the way to go? If I do and they give up... does that just stop them from pursuing legal action or does that also clear up the credit issue?

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In some agreements there are arbitration provisions with the choice of JAMS as an arbitration forum. Ideally, this is what you want as the cost for the creditor in JAMS will often get them to walk away or get you better settlement options.

Capital One's agreement of 2008 which is the one I will be quoting, has such a provision. It also would cover your alleged account as you talked about payments, etc., during this time period.

Here is the first thing I would do. I would send a letter like this below -

Put your article number from your CRRR at the bottom where it says Certified Return Receipt # - before you seal the envelope - then send it to the attorney and also to Capital One.

Your Name

Your Address

Their Name

Their Address

Re: Case #_____________________________

December _____, 2011

Dear _________________________,

This letter is in regard to a claim filed by your firm and served to me on _____________________, 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 #_________________________

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I would also call your court and tell the clerk that you were not served, but found out about the case and then explain how you went there and the Judge wasn't there, they gave you an intend to defend form to fill out, etc., and then ask her if you still need to file an answer with your affirmative defenses.

Also, tell her that you are going to file a MTC arbitration and ask her if you need to schedule a hearing for your motion. In some courts you do and in some you don't.

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ask her if you still need to file an answer with your affirmative defenses.

Also, tell her that you are going to file a MTC arbitration and ask her if you need to schedule a hearing for your motion.

I called the court and spoke to someone who pulled my file, explained the situation to them and asked them both questions... it appeared that they didn't even know what they were talking about... kept saying "ummm like... i guess you can...", "MTC Arbitration... is that a civil suit? ummm i guess you can file a motion... umm"

Gah... is there someone higher up that I should be asking for who would know this? :(

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Here's a MTC arbitration based on the 2008 Capital One agreement -

This will be the motion that you file with your court. Make sure to go to a notary first and sign at the bottom where the verification by affidavit is in front of the notary. Then they can put their seal on it. Then you can go to your clerk of your court and file. Be sure to get a copy of what you file with the court and keep one copy for yourself and send another copy of everything to the attorney and to Capital One. Also, put in the dates and fill in the blanks, etc.

Mark your exhibits as I have them noted.

Exhibit A = will be a copy of the election letter that you send to the attorney.

Exhibit B = will be a copy of the agreement. Make sure to look on the agreement and find the paragraphs that I have noted from the agreement and highlight them "on the agreement" - not on your motion. You want the Judge to be able to find on the agreement easily what we have pointed out in the motion.

Be sure to check to see if you will need to schedule a hearing for your motion or not.

And check your court's rules for how you type up your motion. Do you need special pleading paper, text size, double spaced, etc., anything that needs to be done appropriately for your court.

Put at the top, your court header information just like it is on the summons/complaint. Have the court name, plaintiff v. defendant, case number, etc.

I'll also show you a Judge's order in the next post.

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND

DISMISS

OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING

ARBITRATION

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(B) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

© 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.

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____ , ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day ________________, 2011

(Your name typed), Defendant, pro se

VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of her knowledge and belief.

_______________________________________

XXXXXXXXXX, Defendant Pro Se

Witness my hand and official seal this the _________ day of __________, _________.

(SEAL)

____________________________________

Notary Public

My Commission expires:

____ / ____ / ________.

I CERTIFY that I mailed a copy of this MOTION to:

XXXXXXXXXXXXXXXXX., Plaintiff's attorney

Their address

City, State and zip code

By: Your name typed, Defendant

Date: __________________, 2011

Edited by Linda7
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Here is a Judge's order -

Here is the Judge's order. You would put in your court header information, plaintiff v defendant, case number, etc. This will be a separate paper that will be left with your MTC that you file, but it is for the Judge to sign if he grants your motion. You can also include it with the copy of the MTC that you will be sending to the attorney. Always be sure to send everything to the attorney, CRRR so that you will have proof that you sent it to them.

ORDER GRANTING DEFENDANT’S

MOTION TO COMPEL PRIVATE / CONTRACTUAL ARBITRATION

WHEREFORE, in consideration of Defendant’s Motion to Compel Arbitration, it is hereby ORDERED and ADJUCATED that Defendant’s motion shall be granted.

It is further ordered:

___That this matter is Dismissed without prejudice

___To Stay proceedings pending Private/Contractual arbitration

SO ORDERED this _______ day of _______________, 2011

______________________________________________

JUDGE

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I am not from your state, so I don't know your court's rules and any advice I offer is extended friend to friend.

I will try and see if I can find anyone else from your state and see how their court system works.

If it were me, after doing the above - I would go ahead and initiate with JAMS. This will let the creditor know you mean business and they can't go to court and say that you aren't serious about arbitrating. It also will keep them from going to AAA which if they have to arbitrate, that would be their choice as it is cheaper and the consumer might have to reimburse them for their fees. In JAMS, the consumer does not have to reimburse them for their fees and it will cost the creditor a lot to try and pursue the debt. That's where the strategy pays off for the consumer.

Let me know if you want to go this route and I'll help with the initiation of JAMS. It only takes a few minutes and then you have sealed the deal on which forum will be the choice of arbitration.

Also, to keep your identity private - pm me as we need to talk about violations against Capital One and any attorneys representing Capital One. :)++

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I agree. BE SURE TO SHOW UP AT THAT HEARING. Tell the judge you were never served but you received a piece of mail you thought was junk mail and went on line yesterday to find you had a court case that day. I would also go online to your court system and find the 'Answer document and fill it out quickly denying the debt. File it before court, get it stamped and make a copy for the judge. Make a general denial if you can. I don't know anything about MD law etc but at leat its a start. Be sure to show up so you don't get an automatic judgement againt you.

I would not mention any letters that you recieved from the other attorneys. I would fill out the answer as chiquita55 has stated. But without the complaint you have no way to know what they are alleging. Go for it and be sure to mention that you would like to see the process server in court for questioning. As you have not recieived anything by anybody.

If you cannot get the answer in time and as a last ditch effort make an oral motion to quash service of subpoena. base the motion on the fact you were not actually served. And the court has no jurisdiction and request to subpoena or schedule an OSC(order to show cause)hearing to question the process server.

These will help. also make sure you have the answer there. and if you can give the attorney a Bill of Particulars(I almost wrote BOP which could mislead a new forum member into actually hitting the other side, we must be careful in our acronyms:)) or the equivalent in maryland sometimes call motion for more definite statement.

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It looks like you paid each month for payment protection. Why didn't they use this 'policy' to pay your bill. If you allegedly stopped paying, what was the reason? I think Seadragon knows something about these credit card protection policies that might help protect you. I hope he comes along with information about this.

I also might go along with Linda and see if you can go to arbitration using JAMS. Is there an arbitration policy in your agreement with this company? It is very expense to go thru JAMS and they may not want to bother if they have to pay for arbitration. If you are low income they may have to pay.

It looks like you paid each month for payment protection. Why didn't they use this 'policy' to pay your bill. If you allegedly stopped paying, what was the reason? I think Seadragon knows something about these credit card protection policies that might help protect you. I hope he comes along with information about this.

I also might go along with Linda and see if you can go to arbitration using JAMS. Is there an arbitration policy in your agreement with this company? It is very expense to go thru JAMS and they may not want to bother if they have to pay for arbitration. If you are low income they may have to pay.

They charged for it and never made a claim. I know many of you can tell what i'm gonna say so i'll say it.

"use the affirmative defense of accord and satisfaction in addition to other one"

There I said it and it actually looks appropriate. also look into counterclaims

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  • 5 months later...

UPDATE:

Thank you all very much for your help... I went to the court date and it was continued at a later date in March.

I went to the March date and requested contractual arbritration with the information provided by you all in this thread (THANKS SO MUCH!) and the Capital One attorneys requested a continuance since they needed to review whether the 2008 agreement still held...

Last week I went to the court date (the continued one from march) and a new attorney (representing the same firm) was there. Prior to the case he asked what I would like to do and I told him I would still purse arbitration but had a secondary offer... I would be willing to pay the disputed amount in full provided they removed the account from all the credit reporting agencies. He said that sounded fair but could not speak for capital one and thus would need to talk to them. He requested another continuance to confir with capital one.

Yesterday, a paralegal from the law firm called me and wanted to record the call... I said ok as long as he would allow me to record our conversation as well for my records. He declined and said it was against partner policy... I informed him that without allowing me to record the call the conversation could not continue and he said "ok then.. goodbye".

What should I do next? I am willing to do a PIF for pay for delete but they won't even talk to me on the phone if i'm recording the conversation... Should I just say screw it and pursue JAMS?

I tried calling capital one but they said they couldn't deal with me since it was referred to the attorneys office and that I had to go through them..

Any help is much appreciated.

Edited by obsoleet
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