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Please help...CapOne in Small Claims


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I was sued by CapOne back in January and my court date is Wednesday. Its Small Claims, so I didn't have to answer. They submitted the obligatory affidavit of debt and generic customer agreement. The affidavit was questionable so I made a MTS. I also made a MTD based on the fact that they hadn't submitted any statements, the affidavit wasn't notarized, wasnt done by a full-time employee, etc.

Today the law firm responded to the MTS and said that they represented the OC, that the affidavit followed trial rules and they attached two statements.

Right now, I don't know what my options are.

I think that I have a FDCPA gripe because I didn't have any conversation with them or receive correspondence before the summons. Also, since the summons was the first I had heard from them, I sent a DV letter and they never responded...with a mini-Miranda or anything.

What do I do in court on Wednesday?

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Once suit has been filed, no response is required from a DV.

From my understanding it is perfectly legal for the first contact to be a summons/warrant in debt/whatever it is called in your state/venue. At this point, they don't have to give you anything, except in accordance with the rules of civil procedure of the court they filed in.

Get your stuff together and be prepared to take it to court is all I can say.

GL

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I am going to court, but now I'm not real sure what to do when I get there. Do I have any defenses left since they introduced the statements? I know this law firm has a long history of faulty practices, and after doing some research, I know they filed about 20 cases on the same day they did mine. They reek of JDB, but continue to say they are OC.

The affidavit is still hearsay...the statements were filed yesterday, I believe that in my court anything submitted must be done so in such a way that all parties receive it with at least seven days remaining before trial.

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These are rather informal, the judge or mediator will ask questions. Just point out the faulty affidavit and lack of an account history. The FDCPA does not apply to original creditors, forget that one. Tell the judge you'd like to conduct discovery and see what he says.

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In discovery you would ask them for documentation supporting their case. OC or JDB, the defense is the same. Some OCs don't have any records worth a damn either. It can get very involved, you have to know your stuff to take on an OC. Two statements proves nothing other than they printed out two statements with an unsubstantiated starting balance. I could do that, too. Do you owe me?

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Sorry to bump my own post, but as my court date approaches on Wednesday, I am getting more nervous about what to do. On that day I have both a hearing on my motion to dismiss, then the hearing itself. I believe my states Small Claims court proceedings are pretty informal, but I still dont want a judgement against me.

So I am basically arguing against the faulty affidavit (not notarized, doesn't state the title of affiant, or their affiliation with Capital One, not a full time employee) and the overall lack of evidence (only two copied statements, with an address that I never even lived at when I had the card, as a matter of fact Capital One should never have even had that address at all, but it IS the address they sent the Summons to....coincidence?). Did they create the documents themselves?

Anyway, although it's only Small Claims I am worried about making a fool of myself in court. Also, I'm not sure what I would do if they offer me a settlement before we go in the courtroom.

Any advice is appreciated. Thanks, group!

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If I had been served a complaint from Capital One, I would have sent them and their attorney a letter electing arbitration if your debt was covered during a time period where JAMS was an option.

Then I would file a motion to compel arbitration with the court "and" go ahead and initiate with JAMS.

This could have things set up nice for court so that when you get there and the attorney sees where this is headed - it can open up a nice settlement option. :)++

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Still looking for some help/reassurance. Anyone who has a little time today, please take a look at my post and hit me with any advice you have. Court date is Wednesday.

If you need some more background, just click on my name to see all of my threads. The first one from Jan. 11 tells the whole story.

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What does it mean in my credit report that "A new account at Capital One Bank has been opened in your name"?

I am currently being sued for this account and haven't touched it. It is listed as "Charged Off" but now, since I've been sued, it's been updated twice. Are they just updating the charge off? I've had no contact with them.

In addition, the lawyer sent me two photocopied statements that had an address on them that never would have been used with that account. Could it be the law office created the documents?

I am confused and going to court Wednesday.

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Dates are good to use the 2008 agreement!

As I said, I would have elected arbitration already and I don't know if it is too late for you or not. But, I would sure give it a try.

You can even fax your election to the attorney today and then send it as a follow up by letter, CRRR. You would at least have the green slip to show the Judge and you would have your copy of the fax to show him too.

I would also get a MTC arbitration ready to file with the court. Maybe you could turn it in tomorrow or you could call the clerk "now" and tell her you have one and can you turn it on the day or court?

Also, I would also initiate with JAMS to get your paperwork going.

You asked about the cost - it would only cost you $250 for your consumer fees in JAMS.

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Here is a sample election letter:

Your Name

Your Address

Their Name

Their Address

Re: Case #_____________________________

March 19, 2012,

NOTICE OF ARBITRATION ELECTION

Pursuant to Capital One cardholder agreement, I ELECT arbitration 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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Here is a sample MTC arbitration:

*Please NOTE to any other members reading this - this sample of a motion to compel arbitration contains information from a Capital One 2008 agreement. If your original creditor is someone else, or even if it is Capital One, but you are using a different year agreement, the words citing the parts of the agreement will need to be changed to reflect the agreement you are using. Also, the way it is written, it can be used for any state.

Also note, this is my personal choice of a motion to compel and has been critiqued accordingly. I like it as I feel it touches base with all aspects needed.

Also, at the bottom of this motion to compel, I have included the certificate of service and a verification by affidavit. All of this, the motion to compel, the certificate of service and the verification by affidavit can all be within the same document. It will be more than one page, but can be included as one document, if you'd like. If you don't want to do it that way, you can do each one on a separate piece of paper.

Check with your court's rules and make sure that you know your filing requirements, the text size, spacing, etc.

Make sure to put your court's header at the top. Just try and duplicate how your complaint looks with the court's name, plaintiff v defendant and the claim/case number.

When you're ready to file, take it and sign it in front of a notary, so that your affidavit will be notarized. Then get two copies, file the original with the court, send one copy to the plaintiff's attorney and keep one copy for your files.

Also, when you file it, ask the clerk if you need to request a hearing for your motion. In some courts, there will be no decision on your motion, unless you have scheduled a hearing for it. Other courts will tell you that if it is needed, they will let you know. Just be sure and ask when you file, so that you have your bases covered.

As you can see, this motion to compel mentions 2 attached exhibits.

Exhibit A, is a copy of the election letter that is sent to the plaintiff's attorney.

Exhibit B, is a copy of the agreement. You need to highlight the portions in the agreement that have been cited in the motion to compel. In this instance, it would be the things listed in paragraph 4, a-e.

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 ___________, 2012, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2012, 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 ________________, 2012

(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 (his/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

By: Your name typed, Defendant

Date: __________________, 2012

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I know that you don't know much about my case, but I feel like I have a decent arguement against. I have a hearing on my motion to dismiss before the actual hearing. I also made a motion to strike the affidavit. The affadavit is not notarized and the statements don't seem official at all.

If the in fact is the OC as they claim, do I have any chance of getting this thrown out. Or maybe having THEM dismiss.

The arbitration worries me because I know so little about it and my case is so soon. I am obviously a newbie and don't even know the CRRR and JAMS acronyms.

I am appreciating your help though, very much.

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**Also in this OP's instance, I would change the wording to reflect that on such and such a date that you faxed a notice of election to Capital One and their attorney and also followed up with a letter sent certified on such and such a date.

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I know that you don't know much about my case, but I feel like I have a decent arguement against. I have a hearing on my motion to dismiss before the actual hearing. I also made a motion to strike the affidavit. The affadavit is not notarized and the statements don't seem official at all.

If the in fact is the OC as they claim, do I have any chance of getting this thrown out. Or maybe having THEM dismiss.

The arbitration worries me because I know so little about it and my case is so soon. I am obviously a newbie and don't even know the CRRR and JAMS acronyms.

I am appreciating your help though, very much.

CRRR means, certified, return receipt requested and JAMS is the forum of choice that you would prefer for arbitration.

I can't really say what will happen with your MTD or your argument. It's hard going up against an Original Creditor. The original creditor usually can quickly lay hands on all the paperwork needed as well as first hand witnesses.

Arbitration is a consumer right that is within your agreement with Capital One. It costs the creditor a lot (thousands) to pursue the debt in arbitration, yet the consumer's costs are topped at $250. Often when faced with arbitration, the creditor will cut their loss and walk away or it at least sets the stage for the consumer to get a better settlement negotiation as the creditor will more than likely on a debt this small be willing to take a small amount offered by the consumer.

Also, you might could even get around paying the $250 as in your agreement it states that you can elect arbitration to resolve the dispute. It doesn't say you "have" to initiate. That is an argument that some people have used and won their arbitration right to elect "only" and not initiate. Then the creditor is faced with paying "all" of the arbitration fees.

I also have some case law to support the difference in election and initiation if you're interested.

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