Just received Summons, Machol & Johannes for Capital One

[BummedByDebt]

I got a summons that I have to answer by April 11th! Was signed for me by someone and seems to be delieved properly from everything I read but seems like its such late notice! I just got it a few days ago and I called and the clerk said I have a court date set and gave me the info. Here are the details:

Plantiff(s):

CAPITAL ONE BANK (USA), N.A.

Defendant(s):

BLAH BLAH BLAH

Attorneys for Plantiff

BLAH, #BLAH: Blah Machol, Jr. # BLAH

MACHOL & JOHANNES, LLC

717 17th Street, Suite 2300

Denver, CO 80202-3317

Phone numbers. ..

COMPLAINT UNDER SIMPLIFIED CIVIL PROCEDURE

The Plantiff, by its attorneys, for its complaint against the Defendant states as follows:

1. Venue is proper as the Defendant resides within this County at blah blah blah St., Blah CO, blah and/or entered into a Contract within this County.

2. The amounts the Plantiff claims from the Defendant are $Something, which represent the liquidated balance of the Defendant's credit card account owned by the Plaintiff, plus interest of $something, Court costs, along with continuing interest at the rate of something% per annum.

3. The Plaintiff's claim arises from the Defendant's failure to pay the liquidated balance due on the credit card account number blahblahblah, as required by the cardholder agreement. The Plaintiff claims the right to recover from the Defendant under one or more of the folowing legal theories: Express Contract, Implied Contract, Quantum Meruit, Liquidated Debt arising out of a Contract, Account Stated, Unjust Enrichment, Agree Interest or Statutory Interest, and or Agreement to pay reasonable attorney's fees. Plaintiff's attorney's, barring a change in circumstances or new developments arising in this case, anticipate presenting the Court to request for an award of reasonable attorney's fees in the amount of $blah.

4. The Defendant is not a minor, an incompetent, or in the military service of the United States, but is engaged in civilian pursuits.

5. The Plaintiff does not demand trial by jury.

Dated: Feb blah 2012

Signed by Attorney for plaintiff and attorneys address given.

Attached is a generic Capital One Facsimile Report saying what I supposedly owe, even though it is pretty hard to even read or understand.

Generic Customer Agreement dated 2005 and with Virginia law abiding. No signature or original.

Arbitation Agreement.

Court Answer Form.

And last page is a contact info sheet from Machol & Johannes.

How should I go about answering this? While I have gotten some good advice so far from reading things today I still am not exactly sure what I should do or say.

Should I ask for evidence of indebtedness or is that shown with the generic report from CrapOne?

Should I ask for proof that the attorney is an authorized representative of Capital One?

Is account being assigned to attorney proof of ownership? How do I find out who OWNS the debt?

I don't remember receiving periodic statements every month as required by law and put forth in the customer agreement, should I ask for proof of that?

Late payment fees were assesed up to 6 times I believe because I wasn't getting statements so I didn't know money was owed on the card. I didn't find out till they called me about it and I happened to answer. I tried to get them to waive the fees but they refused to do so (probably late 2010?).

What should I do about this, any advice or help or step by step answer prep!?

Thanks for any advice!

[BV80]

When was the last time you paid on the account? What is the SOL in your state?

[BummedByDebt]

I believe the last time I paid was 2010 and in Colorado its 6 years so that won't help. Virginia is also 3 years so its too early to claim that I believe anyways but thanks.

[BV80]

I believe the last time I paid was 2010 and in Colorado its 6 years so that won't help. Virginia is also 3 years so its too early to claim that I believe anyways but thanks.

To find out if Cap1 still owns the account, check your credit report. If Cap1 has sold it, their entry will state "sold" or "transferred". If those words aren't there, Cap1 is still the owner. The law firm is merely representing them.

In answering the Complaint, you must admit or deny the allegations or claim that you have insufficient information to admit or deny.

Read your court's Rules of Civil Procedure regarding pleading, answers, and defenses.

[BummedByDebt]

It shows as a "Charge-off" on my credit report, that means Cap1 still owns it?

[BV80]

It shows as a "Charge-off" on my credit report, that means Cap1 still owns it?

Yep. "Charge off" is merely an accounting term.

[BummedByDebt]

Bump. Anyone else have any advice or opinions!?

[BV80]

You didn't state the amount of the debt, but if it's a fairly low amount, you might want to look into arbitration. Does the agreement mention JAMS? Read posts by Linda7. She's very knowledgeable on the subject.

Regarding your answers, here's some suggestions:

1. Admitted that venue is proper. Defendant has insufficient information to admit or deny the remainder of this allegation and, therefore, must deny.

2. Defendant has insufficient information to admit or deny this allegation and, therefore, must deny.

3. Defendant has insufficient information to admit or deny this allegation and, therefore, must deny.

4. Admit this one if it's true.

[Coltfan1972]

Answer the suit, if allowed which it probably is, with a general denial.

File your answer with the court and send your answer to the other side. Then start discovery per your court rules of procedure. That means demanding from them the evidence they will be required to show in court for them to win.

Then hope they don't provide you with that evidence. It's Cap One on an account that is not old. They will probably have the evidence. You can also look into arbitration. That is a way to make it expensive enough for them that they might just drop the case, but of course no guarantee.

[BummedByDebt]

The amount is under 1k so arbitration is probably a good idea then? Do I have to start that process BEFORE I answer this or only before the case actually goes to trial? I will read the posts by Linda and thanks!

[Coltfan1972]

Under 1K? Yeah, that should be no problem getting the to go away. However, make sure you go through the steps properly, if you do decide on arb. I've never used it, but I know you have to comply with the way the agreement reads.

[BummedByDebt]

So since it is under 1k asking for arbitration would be a good route? Do have to do that BEFORE I give my summons answer, after, or as/in the answer itself?

Thanks for all the info and answers from everyone, learning a LOT as this site is extremely helpful!

[1stStep]

If it is under $1k, go for arbitration... it'll cost them 5 times that to get a hearing...

[NeverServed]

Definately answer I didn't know about a judgement they got on me. Debt was 300 and change now they got it over 2k which is insane but I'm trying to fight it

[legaleagle]

Read the cardholder agreement, jump through all the hoops, and write the letter they usually require. Attach it to your answer to the complaint. Under venue, you might add that venue is not proper since you have elected ARB, therefore the court would have no juriusdiction.

[BummedByDebt]

Hey everyone, thanks for the help so far!

This is what I have so far for my answer:

The Defendant answers to the allegations put forth the complain as follows:

1. DENIED – The venue is NOT proper as the Defendant is currently in the process of initiating arbitration through JAMS which would mean this court no longer has proper jurisdiction (via Arbitration Agreement second paragraph).

2. DENIED – Because the venue is not proper, pending initiation of arbitration. Further, the Defendant has insufficient information to admit or deny this allegation and therefore must deny.

3. DENIED – Once again because venue isn’t proper. Also again the Defendant has insufficient information to admit or deny this allegation and again must deny.

4. Admitted – The Defendant is not a minor, incompetent, or in the service.

5. The defendant does not demand trial by jury at this time, pending the initiation of arbitration.

Any ideas or criticisms of the above are welcome!

My questions NOW are does anyone know where I can find the info on whether or not answering in Colorado will waive my right to elect/demand arbitration?

How will I go about letting the court know that I have filed for arbitration under the arbitration agreement (should I just bring copy of the JAMS form I filled out from their website even though the copy won't have reached the plaintiffs attornys yet?).

Do I need to get proof of sending the Demand for Arbitration BEFORE I go to court if answering/appearing first waives my right to arbitration in Colorado? What would be sufficient evidence to show that?

Any help or info is welcomed and thank you again everyone!!

[BummedByDebt]

The Arbitration agreement states that:

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

Does that mean that if I file for arbitration before I answer then the case legally cannot proceed? Would that mean I should file a motion in court to dismiss based on that?

Also, the agreement states under Election and Initiation of Arbitration:

You or we may make a motion or request in court to compel arbitration brought as part of any lawsuit.

Should I make a motion to compel arbitration instead with my answer then?

Learning a lot and thanks for the help.

[BummedByDebt]

Bump.

Happy Easter to everyone, just wanted to say that and bump it up to the top of the list. Thanks.

[BummedByDebt]

Bump.

Any last minute revisions or ideas would be appreciated. I am going to send my answer and start filing for arbitration through JAMS on Tuesday since I have to appear Wednesday afternoon. See above posts if you can help. Thanks.

[legaleagle]

In other states they call it a motion to compel arbitration in lieu of an answer. If arb is available, there will be no case and nothing to answer.

[Linda7]

What was the year the alleged account was opened?

[BummedByDebt]

Good question Linda, I don't know the answer to that question and they didn't provide it that I could see in the evidence they included in their summons. I believe it was quite awhile ago, maybe 5 years or more.

I went to court and filed the answer, the opposing Attorney for the OC was there and asked me if I wanted to talk about it, I declined. He went through about 30 cases and got summary judgements in all but a few, moved to continue a few at a later date, myself and one other answered, made deals with a few, and asked for dismissal of a few. They told me I would be getting the instructions for my future date in the mail so I am on the lookout for it. Hopefully I will get a dismissal.

Thanks for the help everyone I really have learned a lot. Hopefully I won't need to use it anymore in the future though but one never knows. . .

[ScooterBoy]

Did you file your answer before going to court? Did you start the arbitration with JAMS before submitting your answer?

I have the exact same letter and summons from them and would like to prepare.

Thanks

[BummedByDebt]

I filed my answer on the day I had to show up for court. The day before court I sent a letter, via certified mail, to the OCs attorney stating that I was electing arbitration and that I therefore expected dismissal of the case. I also said in the letter that I expect they would initiate arbitration if they wished to puruse the matter further. Depends on the wording of you agreement from what I can tell but this keeps the ball in their court and makes them pay if they want to keep going.

I will let you know how things turn out. Read up as there is a lot of knowledge and help to be had in here!

[ScooterBoy]

Would you be willing to post what you wrote in the letter to them?

Thanks