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Cap 1 charged off acct - then deducted payment from debit card. Legal?


calsuit9
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Hello,

My question is this legal protocol?

OC (Cap1) charged off my credit card acct,

Sent it to a third party law firm (who then sent me a demand letter for $3K)

Then 2 weeks after the law firm demand letter, Cap 1 deducted money from my debit card they had on file and processed a payment.

Now I just recieved a summons of lawsuit against me and have 30 days to respond (15 left).

Plaintiff at top of summons listed as Cap 1 but halfway down page the third party law firm's name and address is listed as Plaintiff's attorney.

So, can OC arbitrarily deduct and process a pmt after they have charged off an acct?

When i called Cap1 about the payment, 4 different dept supervisors denied it was Cap 1 who deducted the money. I told them my debitd card co has confirmed it was Cap 1. They denied for two days until i faxed them confirmation of the withdrawl from my bank. They then admitted they had "inadvertenly processed an old payment agreement that was setup prior to the charge off". They subsequently mailed me a reimbursemnt check a month later.

In light of this is there a certain strategy i shound use when i respond?

Thank you

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Welcome to the site if you spend sometime and effort you will avoid being one of the 95% who accept their default judgement. No guarantee of victory but there are ways to gain leverage, and possibly win.

Given that the first and most important thing is avoid the default judgment which requires you filing an answer to the complaint. California allows for filing via forms. The link below will have what you need-

California Courts - Browse All Forms

The first form you will complete is PLD-010, it is located under pleading.

You will also need to file Proof of Service of your answer, so get POS-030, located under Proof of Service.

Best to go with simple denial of all parts of the complaint, except of coarse your residence or name, those types of things. At minimum I would include a couple affirmative defenses, don't go to crazy with these.

All of this can be found on the board.

Getting an answer filed is what buys you time to buils a strategy for what you really may want to do to defend this suit. Justice moves slowly in California for those that file answer.....

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is it wise to disclose that info? I've read here that CA'a also frequent this site, they are located here in so cal tho.

Thx for referrencing the forms, thats where i'll start. I will deny the allegations which are basically that i entered into an card agreement and breeched the contract when i failed to pay. How would you suggest i incorporate into my answer the fact that cap1 charged off the acct and then processed a payment? Is that even a defense??? Cap1 reps told me (initially) that they did not process a payment because they were strictly prohibited from doing so after a charge off.....but they did.

Thank you!

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For me I would get really focused on defending the case filed against you.

Based on your post Cap 1 made a mistake and corrected that error, returned the funds. I understand that it was a pain in the butt to defend your rights, as stated they realized their mistake and you are whole.

Unless you have some other damages, from the unauthorized payment, that is water under the bridge.

Yes it is good to be careful with how much information you share. Once you have 10 posts you will be able to send PM's (private messages). The reason I was asking is because while the CA's generally follow the same approach, they each do have strenghts and opportunities many of us have discovered and can share with you.

1step is correct in his post, a really strong strategy for Cap 1 has been using the binding arbitration clause in their cardmember agreement against them. You need to learn about the different choices you have.

The issue that I want to impress upon you is that 15 days to file answer seems like a long time. Because we all show up as Pro Se defendants, generally, that means everything we try to do in the legal system takes much longer to accomplish than we anticipate. So starting now is better than thinking you will pop open that form the 14th night and be at the clerks office in the morning.

So my point for you is get your answer filed, then spend sometime learning about all your options. Trust me filing an answer in California will not waive your rights to the arbitration strategy that 1step has mentioned.

Be prepared to file answer in California there will be a cost of around $230 bucks, unless you qualify for a fee waiver.

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I am bothered by Crap One taking that payment. How much longer after your last "willful" payment did they do this? Given the way online payments are made, I can't see this was a mistake. Did you call your bank to ask then how the transaction transpired?

Could they be attempting to reset the SOL?

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RE: - I am bothered by Crap One taking that payment. How much longer after your last "willful" payment did they do this? Given the way online payments are made, I can't see this was a mistake. Did you call your bank to ask then how the transaction transpired? Could they be attempting to reset the SOL? -

My last willful payment was earlier this year...then after missing two pmts the acct was charged off. The "inadvertent payment" was processed a month after the charge off. After owning up, Cap1 said the reason they tooks funds from my bank acct was because a previous pmt arrangement - that was required to be cancelled at charge off - was mistakenly processed. They even sent me an email recently as if the acct was still active and still being serviced by them. Later, i received a letter in the mail saying the email was sent in error. Cap1 sounds very unorganized.

My personal feeling is they might have somehow hurt their case but what do i know ... so if this is not a viable defense for me i don't want to focus on it.

BTW, my answer is required within 30 calender days, does that mean filed with the court by then or filed with the court and recieved by CA by then?

Thanks for your reply's

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I am bothered by Crap One taking that payment. How much longer after your last "willful" payment did they do this? Given the way online payments are made, I can't see this was a mistake. Did you call your bank to ask then how the transaction transpired?

Could they be attempting to reset the SOL?

While this could be feasible, I would say it would be a real long shot for Cap 1 to prove that the OP, intended to make a payment. Although it would be wise to keep a copy of that check that was mailed to the OP....

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RE: - I am bothered by Crap One taking that payment. How much longer after your last "willful" payment did they do this? Given the way online payments are made, I can't see this was a mistake. Did you call your bank to ask then how the transaction transpired? Could they be attempting to reset the SOL? -

My last willful payment was earlier this year...then after missing two pmts the acct was charged off. The "inadvertent payment" was processed a month after the charge off. After owning up, Cap1 said the reason they tooks funds from my bank acct was because a previous pmt arrangement - that was required to be cancelled at charge off - was mistakenly processed. They even sent me an email recently as if the acct was still active and still being serviced by them. Later, i received a letter in the mail saying the email was sent in error. Cap1 sounds very unorganized.

My personal feeling is they might have somehow hurt their case but what do i know ... so if this is not a viable defense for me i don't want to focus on it.

BTW, my answer is required within 30 calender days, does that mean filed with the court by then or filed with the court and recieved by CA by then?

Thanks for your reply's

Save all the information you have from the mysterious payment. At present the judge won't look to kindly if your defense is I stop making my payments they charge off and then took from my bank account $50 bucks. As you can see you will have to admit that you owe them the $3K to tell your story....

Your answer is due 30 days from the date you accepted/recieved the summons. But don't wait till the last day, these matters are stressful enough, dealing in the unknown without forcing a drop dead deadline. Make a goal to file the answer 5 days prior to when it is due. Then you have a cushion.

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Save all the information you have from the mysterious payment. At present the judge won't look to kindly if your defense is I stop making my payments they charge off and then took from my bank account $50 bucks. As you can see you will have to admit that you owe them the $3K to tell your story....

I agree skippy, doesn't seem like a smart approach when you put it that way. Also, i'll take your advice and file next wednesday to be safe.

So i would be best served to file an answer and as opposed to a denial? And then what is the next step, wait for a response from the law firm?

Is there a certain section and chapter of the CCP rules i shouuld be focusing on?

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If you got your money back, forget that part. It has nothing to do with your troubles. Answer the lawsuit. Skippy told you how.

I just won a lawsuit against Cap 1. Does their attorney start with a P? If so they will go all the way. First of all you have to deny everything. then start reading this board to find out as much as you can to defend yourself. After you answer the pleading, there will be a hearing in 2 or 3 months where the judge will give you a trial date. Between then and the trial you need to do discovery to see what they have on you if anything and how valid it is.

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I agree the payment mixup is immaterial and gives you no defense, but keep all records just in case. It is still weird and I would close that checking acct.

How very odd that they charged off an account after missing just 2 payments.

I was recently in court with these devils on a MTC and the attorney kept harping on the date of my last payment - said it several times. Didn't much matter. MTC granted.

Stay on top of your case. As chiquita55 said, they will be ready to pursue their case. The attorney starting with a "P" will be too - if that's who it is. Though I found the "P" attorney did a lousy job with their filings. In fact, they were dreadful. You can take 'em.

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Wow, C1 just isn't very good at being a bank, are they? "Accidentally" pursuing debts discharged in BK, "mistakenly" processing payments from invalid payment agreements. Why, it could lead one to think they just aren't the kind of place one should do business with.

</snark>

If this were an older debt I would strongly suspect this was a not so sneaky attempt to reset the SOL.

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I agree the payment mixup is immaterial and gives you no defense, but keep all records just in case. It is still weird and I would close that checking acct.

How very odd that they charged off an account after missing just 2 payments.

Sorry to the op, for going a bit off topic--but just wanted to share about Crap1 and what a sheisty business they run.

I've had an account w/them for well over 10 years. I was late w/one payment a few months ago, and they immediately placed the account in "collections." It wasn't months or even weeks late...I'm talking a matter of days.

:confused::evil:

I was angry, and a bit surprised...but I took it in stride. After reading of their nasty treatment to others here, seeing how they treated my relative, etc., etc....I considered it a long overdue wake up call (for me) to get rid of their account, as soon as possible. Yes, they took me out of collections, after I paid my bill. But the damage was already done. 2012 is the year I say buh-bye to Crap1.

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Wow, C1 just isn't very good at being a bank, are they? "Accidentally" pursuing debts discharged in BK, "mistakenly" processing payments from invalid payment agreements. Why, it could lead one to think they just aren't the kind of place one should do business with.

</snark>

:ROFLMAO2:

Worst. Company. Ever.

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Sorry to the op, for going a bit off topic--but just wanted to share about Crap1 and what a sheisty business they run.

I've had an account w/them for well over 10 years. I was late w/one payment a few months ago, and they immediately placed the account in "collections." It wasn't months or even weeks late...I'm talking a matter of days.

:confused::evil:

I was angry, and a bit surprised...but I took it in stride. After reading of their nasty treatment to others here, seeing how they treated my relative, etc., etc....I considered it a long overdue wake up call (for me) to get rid of their account, as soon as possible. Yes, they took me out of collections, after I paid my bill. But the damage was already done. 2012 is the year I say buh-bye to Crap1.

Did u get a ding on your credit for this?

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I agree the payment mixup is immaterial and gives you no defense, but keep all records just in case.

HOWEVER it does give offensive leverage. It may very well be a violation of the Electronic Fund Transfer Act which carries a penalty up to $1000. This can be strong leverage for them to settle out in small cases.

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I am going to sent you a PM, please read, you won't be able to respond back via PM because you don't have enough posts yet. You need 10.

Thank you Skippy, very informative!

To Skippy or anyone - Is it proper protocol to file my AFFIRMATIVE DEFENSES at the time I file my ANSWER? How about my ARBITRATION request, same time as well or at a later time?

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HOWEVER it does give offensive leverage. It may very well be a violation of the Electronic Fund Transfer Act which carries a penalty up to $1000. This can be strong leverage for them to settle out in small cases.

Thanks, i'll remember that just in case. I can't get out of my mind how every rep made a point of telling me that Cap1 didn't take the money from my acct because they're prohibited by law from processing a pmt after the acct had been charged off. Anyway, i've kept all documentation including detailed notes & names of reps i had conversations with if this does become relevant at some point. Right now i just need to focus on filing my PLD-C-010 timely.

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I'm preparing to file my Answer to the Cap1 summons. In my PLD-C-10 I'm denying several paragraphs and want to include a few Affirmative Defenses. I also want to request the arbitration process that is afforded me in the Cap1 cardholder agreement. (I have downloaded a 2008/2009 agreement that includes the arb clause)

Is it ok to have the Arbitration request included in my ANSWER? Would i do this by including a MTC Arbitration, along with a copy of the Cap1 agreement/arb clause?

Lastly, are there Affirmative Defenses that are better suited for an OC, as apposed to a JDB? Failure to mitigate damages? Does Lack of Standing defense apply if the plaintiff is the OC?

Thank you all very much in advance for providing insight and help

Edited by calsuit9
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Yes, I would put the request for arbitration right in your answer and attach a copy of the agreement showing that it is in your contract. Be sure to send a letter to the opponents asking for arbitration as that is required. If you have to pay the fees you should also file for arbitrations with JAMS also. Cap One will deny the arbitration if you don't follow the protocol in the agreement by sending cap one a letter requesting it and applying for it with one of the forums and paying your fees.

Also you can include your defenses in your answer also if you want. I did. I don't know how all that meshes with asking for arbitration tho. You might just want to make a general denial of everything and ask for arbitration.

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