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PA - Cap One


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Yesterday I received a civil action hearing notice from my district magistrate's office. A civil complaint has been filed against me by Capital One for an amount just under $2000.

They are asking for a judgment against me for said amount plus costs due to a breach of contract, money due on an open book account.

According to what I've found, this account was charged off. Date opened was 2007, date closed 2009. Last payment Nov., 2008.

Nothing more came attached with my hearing notice, no copy of the contract, no statements, nothing, but in small print it does say that the plaintiff intends to introduce business records into evidence at trial and that said records are available to viewing in advance of trial which I plan on doing.

The hearing date has been set for next month.

I have a copy of the 2008 Capital One member contract.

My questions are this:

Per the 2008 contract, would the SOL fall under Virginia law which is 3 years?

Should I send a letter to the attorney's office and Cap One electing arb? If I do that, do I send something to the magistrate's office in writing as well?

My notice states that if I intend to enter a defense to the complaint that I should notify the office immediately by telephone. What do I do in this case? A MTC? A preliminary complaint?

I think my case is pretty good only because of the dates that this account was opened closed and went into default, but I'm still worried they could get me in the end.

I even thought of calling the attorney's office and offering a 50% settlement. I can afford that, but not the full amount. I don't work, but I am married and have a mortgage and joint bank account.

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I am also new, but this board helped me with my action, so here goes the first things I learnt.

Answer the complaint. Check the rules of your court and file your answer and any other motions you choose. Settling is a choice only you can make, but check around the site for sample info on how to draft your answer.

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I am also new, but this board helped me with my action, so here goes the first things I learnt.

Answer the complaint. Check the rules of your court and file your answer and any other motions you choose. Settling is a choice only you can make, but check around the site for sample info on how to draft your answer.

Thank you for taking the time to reply, crap1novice.

Please forgive my ignorance, but what do I draft an answer to? So far all I have is a hearing notice that states if I intend to enter a defense to this complaint I should notify the magistrate office by telephone.

I'm not quite sure yet what my defense might be. Should I try and push the Va SOL law since it states in the 2008 contract that if federal law does not apply, then Va law will govern the agreement and my account?

Should I be submitting a motion to stay, or perhaps a motion to compel?

It would be nice to just settle on an amount I can actually afford and not have to do any of this, but I'm afraid if I call the attorney and they reject a fair settlement that not only will the legal matters continue, but I will also reset the SOL.

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Ok, so I just got off the phone with the magistrate's office. I mentioned to the woman who answered the phone that according to my hearing notice that the

plaintiff intends to enter business records as evidence.

My notice states that these said records can be viewed before trial. Since I have received NO proof of said debt so far, no account statements, no contracts, etc. I asked the lady when I could come in to see these "business records", she told me I have to contact the lawyer's office for that. What?? Isn't it kind of weird calling this lawyer's office and asking them to see what evidence they are going to submit?

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Here's some information that might be of some help -

Under the Agreement, both Boise and Sonoco explicitly agreed that Delaware law would govern the interpretation and performance of the Agreement. It is well settled Pennsylvania law that "if the parties have designated that the law of a particular state should apply to their agreement, then Pennsylvania courts typically will apply that choice of law provision." University Mechanical & Engineering Contractors Inc. v. Ins. Co. of North America, 2002 WL 857105 (Pa. Com. Pl. Ct. 2002)(citing General Accident Insurance Co. v. Allen, 547 Pa. 693, 701, 692 A. 2d 1089 (1997).

Although Pennsylvania generally respects the parties choice of law, "Pennsylvania's conflict of laws rules direct that a Pennsylvania court apply Pennsylvania's procedural laws when it is serving as the forum state regardless of which state's substantive law applies." Branca v. Conley, 2001 WL 1807403 (Pa. Com. Pl. Ct. 2001)(citing Larrison v. Larrison, 750 A. 2d 895, 898 (Pa. Super. Ct. 2000)). Therefore, the Court will look to Delaware substantive law in interpreting and enforcing the Agreement and Pennsylvania procedural law will apply to the conduct of the action. :)++

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Quick question - when did they file the complaint (not when you received it)?

Hi, Linda7. They filed their complaint on 3/9/12. I received the complaint through certified mail yesterday.

Forgive me, but what does your first post mean? I'm VERY green when it comes to such laws..(because of this I do have a telephone consult with an attorney scheduled for tomorrow morning).

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Hi, Linda7. They filed their complaint on 3/9/12. I received the complaint through certified mail yesterday.

Forgive me, but what does your first post mean? I'm VERY green when it comes to such laws..(because of this I do have a telephone consult with an attorney scheduled for tomorrow morning).

My first post is giving you case law backing up Pennsylvania using the shorter SOL of another state. In the case I quoted from above, it was Pennsylvania and Delaware.

In your instance, it would be Pennsylvania and Virginia. Virginia has the shorter SOL.

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PA SOL is 4 years which is FEB 2012 according to the date of last payment. Counter sue for a out of SOL debt.

Are you in SE PA? There are a few good consumer attorneys down here that will gladly take your case.

Hi birddog1962. I just realized I made a mistake with that date of last payment. The last payment made was actually Nov., 2008. I have edited my first post to reflect that.

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My first post is giving you case law backing up Pennsylvania using the shorter SOL of another state. In the case I quoted from above, it was Pennsylvania and Delaware.

In your instance, it would be Pennsylvania and Virginia. Virginia has the shorter SOL.

Ahh, ok. I understand now. Very good to know, thank you Linda7.

I've been reading non-stop all day and my brain is getting tired and I'm not thinking straight. I think I need to just try and get some sleep so I can be ready for that phone call first thing tomorrow morning. Luckily I've already written down a whole list of questions to ask the attorney tomorrow so I don't forget anything.

I will report back what I find out tomorrow. Thank you all for your help.

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PA SOL is 4 years which is FEB 2012 according to the date of last payment. Counter sue for a out of SOL debt.

Are you in SE PA? There are a few good consumer attorneys down here that will gladly take your case.

This won't work. PA SOL would be November 2012 as the last payment was November 2008.

However, using the choice of law from the agreement and choosing Virginia would make the debt beyond SOL for collecting. But, you have to support this with case law.

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Well, my free telephone consult never happened this morning. I waited and waited, no one even called to say it wasn't going to happen. They advertise these free consults in the yellow pages, you schedule, then they never call...nice.

I'm not sure what my next move should be. This hearing taking place at the magistrate's office next month is just that, a hearing. According to the complaint if I intend on defending myself I just call and let them know so they know to expect me on the day of the hearing. If I have a complaint, then I go in at least 5 days before the hearing and fill out a complaint form.

As Linda7 clearly showed above, Pa law will go by the shorter SOL of Virginia. So would that be my complaint against Cap One and should I go to the magistrate to fill out the form? Or do I just keep that bit of info to myself till the hearing?

There was nothing attached to my complaint and if I'm understanding Pa RCP 1019(i) correctly then I should have received a copy of the member contract being that the complaint states a breach of contract.

Because I did not receive a copy of the contract from the lawyer, how do I explain that they themselves are breaching contract? Can I use the copy I printed out thanks to this forum?

This will be just a simple hearing and a NJ attorney (Nudelman, Klemm and Golub P.C.) is representing Cap One, being that he will very likely be there by himself and not have an actual Cap One witness there with him, will everything he says and submits be hearsay?

Thank you for any help provided to me. I feel like I'm spinning my wheels here.

Should I call the attorney's office and request a copy of the "business records" he's going to be submitting for evidence? The girl at the magistrate's office says I should. It just seems weird to me to have to talk to him on the phone before our hearing.

I've also just come across something else that may or may not be questionable, in the complaint it states, "Money due and owing on an open book account".....On my CR it shows Cap One as having closed this account on 7-5-2009. Is there some discrepancy here?

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Read this thread - http://www.creditinfocenter.com/forums/arbitration/300667-next-step-after-electing-arbitration.html

And this post from Andy -

MDJ court is very informal. Most "judges" have about 6 weeks of schooling. They need to be constantly schooled on the law. Oftentimes the will interject themselves into the proceedings and ask defendants questions that they should not.

That's the bad news. The good news is that they are often unsure of themselves. So if the lawyer attempts to appear via telephone, you can object in the following fashion; "Your honor, I was not aware that I could appear via telephone today. In fact, I do not believe Pennsylvania civil law provides for such an appearance. Can plaintiff's counsel please cite the appropriate section of the Pa Rules of Civil Procedure that provides for such an appearance?"

Demand to see a copy of the contract, the Pa Rules of Civil Procedure require that contracts forming the basis of the relief sought must attached to the pleading seeking such relief. If the lawyer is there by phone or doesn't have a copy of the contract ask the "judge" for a dismissal.

Do not get worried about answers, papers or any of the such. These hearings are scheduled on 10 minute time frames. Very informal. If judgment is found against you, you can appeal to the court of common pleas for about $85.00. The appeal is simple, you take a copy of the judgment to the courthouse and file the paperwork. If you cannot afford the appeal fee, you can file papers asking that it be waived.

The other side then has an obligation to start all over again with a formal complaint, that is where you can worry about answers and what not.

A final note, don't worry about the MDJ hearing, they are mostly a joke. Don't let the judge or the other lawyer upset you. They can't put in jail and they can't take your money or garnish your wages right then and there. You have the right and opportunity to appeal within thirty days of the hearing.

Good luck.

If all else fails, I'd elect private contractual arbitration by sending a letter to the attorney. Then you could file a motion to compel arbitration with the next court. :)++

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Thank you so much, Linda7. I truly appreciate all your help.

I have bookmarked the thread you've been kind enough to link for me and will be referring to it often.

I have just found something VERY interesting in regards to Pa.R.C.P. 1028 and 1019 It is the entire copy of a court ruling in the case of Cap One vs Patricia Clevenstine, Jan. 2009. In this particular case the defendent submitted a preliminary objection to the fact that the plaintiff had not attached relevant writing to establish its claim against the defendent.....Guess who the lawyer representing Cap One was in this case??? The very same lawyer that has brought a complaint against me!!!

I got absolutely NOTHING attached to my complaint, no contract, no account statements, no dates of said account opening, closing, default...nothing!

I was told by a rather snippy lady at the magistrate's office that I have to contact the lawyer to get copies of the business records he plans on submitting as evidence....Just by the tone of her voice I can already tell I'm going to be treated as guilty until proven innocent....I'm sorry, but I am NOT the one who initiated this complaint, a complaint that states I breached contract and yet I am the one who has to chase after the plaintiff for a copy of this contract?? This is absurd!

I'm still unsure if I should actually send off a letter to the attorney requesting these said business records as well as make a point of requesting the contract (the one in affect at time of account opening), as well as mention that if the contract allows private contractual arb that I elect it, or if I should not do that? I'm afraid if I don't at least try to get the contract from him that I will be questioned as to how I knew which contract pertained to my particular situation..since I plan on denying any knowledge of supposed CC account.

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If you do go the arbitration route or need your state's code for it or want to use it within your MTC if you later file one:

Pa.R.C.P. 1028 (a)(6) – Existence of Agreement for Alternative Dispute Resolution. 42

Pa.C.S.A. § 7303, which governs such matters, states:

A written agreement to subject any existing controversy to arbitration or a

provision in a written agreement to submit to arbitration any controversy

thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract.

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Linda7, you're an angel and going above and beyond with your help. I truly appreciate it.

Some links I have come across in my own research and others are new to me, ALL have been a God send.

I've decided that tomorrow I'm going to contact the magistrate's office and find out how I go about either filing a complaint or filing my preliminary objections. The paperwork I received said nothing about preliminary objections, only that a form needs to be filled out if I plan on submitting a complaint, but I'm not taking any chances and if I can file preliminary objections, then file them I shall do.

And against the advice of the girl at the magistrate's office, there is no way in h*ll I'm going to call the attorney's office to try and get copies of the business records he plans on submitting as evidence. And if anyone questions it I'm going to say that little ole' me was too afraid of being intimidated over the phone by a clever attorney's legal mumbo jumbo therefore possibly causing myself confusion and to falsely say something that ends up damaging to myself.

I am tempted though to send off a quick CMRRR'd letter which simply states that if said contract that I've allegedly breached contains an arb clause that I elect private contractual arb. Would that be a good idea?

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If I were you, I'd also make a post at debtorboards - in the arbitration forum. Some of the links I gave you were for debtorboards and one of our own CIC members is from Pennsylvania and is also over there. The link is here - Debtorboards - Sue Your Creditor and Win! - Index

Maybe you could entitle your thread in the arbitration forum, something to the effect of "Need some Pennsylvania advice". I'm sure that the Pennsylvania member will be better at letting you know which way would be best.

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  • 2 weeks later...

I took your advice, Linda7, and started a thread over a debtorboards, but now I'm not able to access the site. It seems to be down.

I'm going to be initiating JAMS, but I'm still worried about a few things. The only "nature of dispute" I feel I have on them is breach of contract for not following Va SOL. This would be a FDCPA violation if I'm understanding correctly, but FDCPA violations cannot be brought against Cap1 since they are the OC and still own my debt. Correct? Sooo, if that is so, am I just bringing this violation against the lawyer? Yet my understanding is that Cap1, the lawyer, and his law firm will be listed seperately as respondents?

In the contract it states, "We will not elect or initiate arbitration of any claim brought in a small claims court (or the equivalent), so long as the claim remains in that court...". What does this mean for me since so far all that is set up is a meeting at my local magistrate's office? Does this mean I have to be the one to initiate JAMS? Or does it mean I can't even do JAMS period?

I'm starting to really stress out over this whole situation because the deeper into it I get, and the more I read, the more confused I'm becoming.

From my understanding the lawyer's disregard of Pa R.C.P.'s 1019 (a), (f), (i) really doesn't matter as far as JAMS is concerned?

I'm getting lost in the details.

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