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Being Sued in Small Claims for Credit Card Debt - Doesn't Make Sense?


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1. Who is the named plaintiff in the suit? Capital One Bank c/o Law Offices of Howard Lee Schiff, P.C.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Law Offices of Howard Lee Schiff, P.C.

3. How much are you being sued for? $2200

4. Who is the original creditor? (if not the Plaintiff)Capital One Bank (USA) N.A.

5. How do you know you are being sued? Summons

6. How were you served? (Mail, In person, Notice on door) In Person - See info below

7. Was the service legal as required by your state? Yes- Deputy Sherriff

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? Maine (Oxford County)

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2009

11. What is the SOL on the debt? To find out: 6 Years.

More Info:

Thank you for taking time to help, its greatly appreciated. This debt is my wifes debt that we had thought was taken care of years ago (we both settled credit cards in/or around 2008/2009). She had some student loan issues that she had put on a forebearance (spelling?) so any 800#'s or mail with no return address she didn't pay attention to. Well in December an first attempt to collect was made by the Law Offices of Howard Lee Schiff - so at this point I know we cannot request a validation of debt.

Here is where I'm getting confused:

This summons has no questions for answer. It doesnt't even say Summon's on it, nor does it have a court date - it only says "You will be notified of the hearing date and tiem of this case by the clerk of the court. The notice of hearing will be sent to you by regular mail at the address given above.."

In the portion to describe the claim, including relevant dates it says:

" Defendant owes plaintiff $2200 for charges on credit account xxxx pursuant to attached affadavit and billing statements" ..... "The plaintiff requests a judgement against the defendant in the amount of $2200 plus costs"

There is an affadavit attached which I've researched and found is basically junk - I guess I need to file a Sworn Denial, but I can't find a sample form to use to have my wife sign and bring to a notary. Also, I found a letter from the Federal Trade Commision dated March 10th, 1993 that references Section 809(B) of the FDCBA stating that a mere computer printout isn't a valid verification of debt - which is what is attached to the back, not even a photocopy of a bill, just a printout.

Since this is small claims and there is no questions on the "summons" to answer, what steps do I take from here? She was served these papers on Monday of this week so I want to act quickly. I'm in the mindset that this Law Firm is a junk buyer (also found a TON of info regarding complaints about this Law Firm) that is just expecting us to pay.

I appreciate any help you can provide

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In small claims court, what usually happens is that one side presents its case and then the other side presents its case and then the judge decides. The rules of evidence are very relaxed. You can call the clerk and find out what the process is but I am betting it is somewhat akin to what I said above. That is why there is no place to do an answer.

Ask the clerk if an answer is even required in your case. If it is, then I am betting you write up your own answer. The people on this board can help you with that.

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Thank you for your reply, it actually helps clear things up for me.

Am I best to find as much info to "shoot down" the validity of the affadavit as possible, along with any info regarding the computer printout?

From what I've read on some forums (including this one) is that merely showing up to these cases, if you have any idea of what you are talking about and request the info from the Lawyer, they tend to back down and/or ask for a continuance.

On the bottom of this form it does state that if the plaintiff does not show the case will be dismissed. Not really banking on that so I'd like to show up as well prepared as possible.

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This debt is my wifes debt that we had thought was taken care of years ago (we both settled credit cards in/or around 2008/2009).
Doe this mean that you arranged with someone to pay less than the full amount of the debt? Was it the original creditor, or some collection agency? Did you get the agreement in writing?
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Doe this mean that you arranged with someone to pay less than the full amount of the debt? Was it the original creditor, or some collection agency? Did you get the agreement in writing?

Sorry for the confusion. I settled my own credit cards and I believe 2 of her's. This one did not get settled because she either didn't tell me about it (forgot?) or it was currently in good standing.

Communication was lacking in regards to finances up until that point since we both had a lot of credit card debt and student loan debt.

Also, at that time we weren't Married and this summon's has my wifes Maiden name on it not her current name which she changed in 2009 after we got married.

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Sorry I have another question - I'm being sued by the law office and not Capital One, correct? So in court I need to argue that we have no contract with the Law Office stating we borrowed their money nor agreed to a repayment plan with interest and/or penalties.

Am I on the right track here?

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Odds are, the lawyers are representing Capital One. Even in small claims court, corporations must be represented by attorneys. I would not go down that route unless the organization being represented is a JDB, then I would attack that as far as to what gives them the right to collect on this account rather than Capital One.

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State of Maine Judicial Branch: Small Claims Court

You are being sued by Capitol 1. Schiff is a collections law firm that represents credit card companies in New England, their HQ is in Hartford CT. The good part is that they are sloppy and incompetent. The above link will get you up to speed. Cap 1 has a "3 years or yours" SOL, but Schiff is probably too stupid to know that. If the last payment was made more than three years before suit was filed, you may be able to get this dismissed. Small claims is rather informal.

Edited by legaleagle
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Odds are, the lawyers are representing Capital One. Even in small claims court, corporations must be represented by attorneys. I would not go down that route unless the organization being represented is a JDB, then I would attack that as far as to what gives them the right to collect on this account rather than Capital One.

Ok, how do I find out if they are a JDB? Per her credit report it was charged off in 2010. I know this doesn't mean sold off but still, 2 years later we are hearing about it from a law firm?

Is it at least worthwhile to request a VD? I just found a consumers guide to small claims in Maine that I printed out for my wife and I to read.

If this is Capital One, then what course of action should I take? I guess, what questions should I be asking or documents should I be asking for them to produce?

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State of Maine Judicial Branch: Small Claims Court

You are being sued by Capitol 1. Schiff is a collections law firm that represents credit card companies in New England, their HQ is in Hartford CT. The good part is that they are sloppy and incompetent. The above link will get you up to speed. Cap 1 has a "3 years or yours" SOL, but Schiff is peobably too stupid to know that. If the last payment was made more than three years before suit was filed, you may be able to get this dismissed. Small claims is rather informal.

Thank you for that info, is there a source online that I can print this out from? I pulled my wifes credit report and the Date of last payment shows 5/2009.

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State of Maine Judicial Branch: Small Claims Court

You are being sued by Capitol 1. Schiff is a collections law firm that represents credit card companies in New England, their HQ is in Hartford CT. The good part is that they are sloppy and incompetent. The above link will get you up to speed. Cap 1 has a "3 years or yours" SOL, but Schiff is probably too stupid to know that. If the last payment was made more than three years before suit was filed, you may be able to get this dismissed. Small claims is rather informal.

So legal. The 3 years or yours how does that come into play? Whichever state has a longer sol?

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Thanks again for the insight.

From what I've been reading, the agreement from 2008 basically says that you go by the contract/agreement which is VA State Law and not by your local state laws. Also I guess it states that arbitration must be pursued and stay out of the courts.

As you can imagine I'm very confused about how to go forward with this.

- I'm trying to find a way to dispute the affadavit, but it seems its from an employee of Capital One (doesn't say employee, Say's "Authorized Agent of Plantiff Capital One").

It doesn't go on to say how long they have been employeed, etc but that they have personal knowledge of the matter. Nothing about their job duties either.

- Second, the only thing attached is a small printout showing a balance, minimum payment due, and 2 fee's of overdraft and late payment. No agreement, no contract, no information as to how the amount we are being sued for was calculated, etc.

With that being said, what should I focus on for my wifes defense? Do I bother reaching out to the lawyer prior to the hearing or "hold my cards" so they are unprepared? I've literally been reading for 3 days straight but can't really find a bunch of info about small claims cases. Anything I find generally pops up saying they are dismissed before the trial during the pre-trial meeting when the attorney tries to get you to agree to a settlement.

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With that being said, what should I focus on for my wifes defense? Do I bother reaching out to the lawyer prior to the hearing or "hold my cards" so they are unprepared? I've literally been reading for 3 days straight but can't really find a bunch of info about small claims cases.

You probably won't find anything, I have never seen small claims cases on line, just superior court cases. SC is rather informal, they will present their evidence and you can present yours. In most cases, if the debt is provably yours and it is the original creditor, you'll lose 95% of the time. I think arbitration might make this go away, it will cost them more than they can get. Either that or make a deal.

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With that being said, what should I focus on for my wifes defense? Do I bother reaching out to the lawyer prior to the hearing or "hold my cards" so they are unprepared? I've literally been reading for 3 days straight but can't really find a bunch of info about small claims cases.

You probably won't find anything, I have never seen small claims cases on line, just superior court cases. SC is rather informal, they will present their evidence and you can present yours. In most cases, if the debt is provably yours and it is the original creditor, you'll lose 95% of the time. I think arbitration might make this go away, it will cost them more than they can get. Either that or make a deal.

Ok, so at the pretrial meeting if they only have the affadavit and the small printout that they provided in the summons, should I say forget a deal and move to the small claims trial? Then try and argue that there is no signed agreement nor any copies of bills showing charges?

On the other hand, if they have copies of actual bill's from capital one is that generally enough to prove its her account and we should just accept a settlement?

I'll look into the arbitration and see if its on the agreement which I am willing to bet it is since it was 2008.

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Sorry one more thing, how about an agreement between the lawyer and Capital One saying they are contracted to represent them?

(My mind is fried and I know this is an uphill battle) I'm just annoyed at the fact I have to deal with this now when I myself fixed all of my own credit back in 2008 and most of hers. Now its like I'm taking 2 steps forward and 3 steps back because of this...

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Sorry to keep responding to myself but the more I read sometimes the more questions I have come up.

Here is where I am:

Sworn Denial- If my wife files a sworn denial it removes the affadavit from the plantiff's evidence. I googled the name on it and the woman is an accountant for Cap 1. The person who stamped it was possibly just a Cap 1 employee prior (I viewed the thread that contained multiple copies of Cap 1 affadavits where this name came up as the affiant/agent making the "personal" knowledge statements).

Bill- Its just a printout from 1/2010 showing a current balance that is $7xx over the credit limit. Its not a bill, nothing showing how the amount arrived, no copies of the agreement, etc.

I found case law (1) from Maine where a defendant had a case ruled in his favor because there was no signed agreement presented - North Star Capital Aquisition vs Victor 984A. 2d 1278 2009 that made reference to Maine Rule of Evidence 803(6).

On one hand I know small claims is basically the judge saying - You owe this money so pay it. So do I bother trying to defend on the grounds that there is nothing proving how much, that she took the card out, etc? Do I show up and hope that the attorney has nothing and was hoping I wouldn't show then instead of going to the courtroom just asks for a dismissal?

Or on the other hand, do I file for arbitration? I've been reading more and more about it and her card was opened in 2008 so the clause would be there. I need a copy of the agreement please! Seeing as they really have us backed into a corner, do I just pull out this "card" now and hope it goes away or offers a really small settlement?

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The first thing you need to understand is that you cannot represent your wife in court. This is unauthorized practice of law and carries a heavy penalty. She has to go to court when required and make the arguments. All CC agreements are online at the FTC as of 2009. If not, someone here has one. I suggest she start studying.

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Yes I understand she has to represent herself. I'm basically studying as much as I can and help lay everything out for her to say/do while in court. She doesn't have access to the internet so I'm researching for her.

It is my hope that I can get everything in order, then "train" her prior to the court date in our house- basically role play - so that when we arrive in court, she is good to go.

With that being understood, can anyone shed any light on my previous post's questions?

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Echoing LegalEagle, tread very carefully if you want to try to represent your wife, as in you probably shouldn't do it.

In my wifes case, I got served while getting the mail 3 days before we were going on vacation.

I didn't even tell her about the suit until the judge very politely declined to enter a motion to dismiss over the plaintiffs objections that I was not the defendant, and me the dummy, signed the motion in my name.

i love my wife dearly, but she couldn't find her way out of a paper bag with openings on both ends. That's why I fought it for her.

fortunately, the judge didn't make an issue of it. He just asked my wife to appear, and state her position in open court. motion entered, case dismissed.

After doing some additional research, many husbands or wives acting on the others behalf have been fined $500 or more for unlawful practice of law.

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I received your pm and sent the 2008 agreement to your pm box.

It does contain the arbitration provision with JAMS which is what the consumer would prefer.

I don't know your court rules, but I will say this - odds are that with a debt that was defaulted on a couple of years ago, Capital One will probably have everything they need to prove the case.

If it were a JDB, you could attack their affidavit as it not being from the OC, etc., but you're dealing with the OC, so their employee's affidavit won't be hearsay.

I think you need to get your mind set on trying to negotiate the best settlement. Arbitration can put you into a better situation with that.

What was the amount of the debt when it went into default? Maybe you could use that figure to try and find a balance when reaching for a settlement figure. They will often agree to get rid of interest that has been tacked on.

If it were me, I'd elect arbitration "now" by sending an election letter to the attorney and to Capital One's address that is on the agreement.

If you need a sample letter, let me know.

Then I would write up a motion to compel arbitration and file it with your court. I have a sample of that as well.

You could try this a couple of different ways. In the agreement it states that you can elect arbitration to resolve the dispute. This doesn't mean that you have to initiate, you only elected. This puts them into a position of having to initiate and pay "all" the fees in arbitration.

On the other hand, the elect vs initiate is an argument that is sometimes won and sometimes lost. I do though have some case law to back up the argument that the consumer can elect and then the creditor must initiate.

Or you could just go ahead and initiate and send in $50 to get your foot in the door and ask JAMS to apply it to your $250 fee. This would show the Judge and the creditor that you are serious.

In any event, you could set things up so that Capital One might rather take a smaller amount from you as a settlement and let this go, rather than paying the fees to arbitrate.

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  • 2 weeks later...

So I've been doing more and more and more reading about Arbitration, and researching whatever I can trying to come up with something and I think I just did.

In the section where people posted affadavits from past suits, I saw a person who was signing these/the authorized agent was the same name as the person who is the Notary on my wifes Affadavit.

Well a little more searching and I found some case law where this person had affadavits, etc. but also found a "professional social media" website that lists their occupations and where they live.

Funniest part is both the parties involved on my wifes Affadavit are employed (currently) by Cap1 and on their "bio's" each have each other as a contact!

I nearly fell out of my chair, so I took screen shots of this and saved them on my computer to print out.

Does this help my wife in any way when we go before a judge or the meeting with the lawyer pre small claim hearing? I could've sworn I've seen somewhere that this is breaking a law.

Edited by bikeluver43
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It is sort of a form of robo-signing. These people crank out hundreds of these at a time, most of them are form Affidavits. All they do is change the name and the amount. They almost NEVER have any personal knowledge of the account, even though they swear that they do. The notary is sitting at the next desk stamping away all day, with no clue as to whether or not the information being notarized is true. I'm still waiting to hear that one of these legal spe******ts ever went against their employee. One thing to look for is when the affiant started working for the OC. If it was after your account was initiated, how could they have knowledge of what happened prior to their start date?

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