Jump to content

Being Sued by Capital One in Texas and need help please...


Recommended Posts

I was served this afternoon and wanted some of your opinions before I responded... Here are the details:

1. Who is the named plaintiff in the suit? CAPITAL ONE BANK (USA), N.A.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) RAUSCH, STURM, ISRAEL, ENERSON & HORNICK, LLC

3. How much are you being sued for? APPROX $2,000

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?) SERVED THIS AFTERNOON

6. How were you served? (Mail, In person, Notice on door) IN PERSON

7. Was the service legal as required by your state? YES

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? I RESPONDED TO A DEBT COLLECTION LETTER FROM RAUSCH & STURM WITH A DEBT VALIDATION LETTER I SENT CERTIFIED MAIL WITH RETURN RECEIPT. THEY NEVER RESPONDED. THIS WAS SENT IN FEBRUARY.

9. What state and county do you live in? TEXAS -

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) NOVEMBER OF 2008

11. What is the SOL on the debt? To find out: 4YRS IN TEXAS - 3 YRS IN VIRGINIA

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). FILED/ OPEN -- STATUS CONFERENCE SET

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) DISPUTED WITH THE ORIGINAL CREDITOR - -COLLECTION DOES NOT SHOW ON CREDIT REPORT

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. SENT DEBT VALIDATION IN FEBRUARY ... WHEN I WAS SERVED TODAY THE PAPERS STATE THE LAWSUIT WAS FILED IN JANUARY

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 20 DAYS

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. THERE ARE NO ATTACHED DOCUMENTS. ONLY THE COMPLAINT

Thank you in advance for any suggestions and help!

Link to comment
Share on other sites

Going up against an original creditor is hard to beat in court as they usually have all the evidence they need.

However, for a debt this small - you can use the strategy of electing arbitration via JAMS and usually get them to walk away or at least get a wonderful settlement option.

It doesn't cost them much to pursue the debt in court. But, if you elect arbitration, it costs them thousands to pursue the collection. It's just not cost effective for them to continue to try and collect.

If it were me, the first thing I would do is elect arbitration by sending a notice of election of arbitration via JAMS to both the attorney and to the address of Capital One that is listed in the arbitration provision of the agreement.

Then you will need to file your answer/affirmative defenses at which time you can use the defense of lack of jurisdiction because you elected to arbitrate the dispute.

You would also file a motion to compel arbitration with the court and ask for a stay pending the outcome of arbitration.

The cost for arbitration in JAMS for the consumer is capped at $250. But, you can initiate and not send in the money at first or maybe just $50 to get your foot in the door. Others don't send in any money and ask the creditor to pay. They won't, but it says in the agreement you can ask.

Some people like to elect arbitration, but want the creditor to be the one to initiate. Some judges understand the difference in elect vs initiation and will agree, especially if you back it up with case law, where other judges say that if you want to arbitrate, then you have to initiate. So, it's just up to the consumer to decide what they want to do.

If when one elects arbitration through a letter, if you don't specify JAMS, the creditor can take the election letter and initiate in AAA, which is not what you want. So, always be careful and if your agreement says you can use JAMS, then specify JAMS.

Another good thing with your case is that this is Capital One. In their agreement it says that even if they initiate and choose an arbitrator firm and you want them to change, you can ask them to and they will. Other creditor agreements might not have that, so always be careful and read your agreements.

Now with all that said, here is the agreement that would cover your account - CAP1-1_merged 2008.zip - 4shared.com - online file sharing and storage - download

Let me know if it downloads okay for you.

Also, after you read through the arbitration provision, if you're interested - post back and we can help you with the rest. :)++

Link to comment
Share on other sites

Thank you so much for the information. Based on your reply, it sounds like the first thing I would want to do is elect arbitration by sending a letter to the attorney and Cap One. Do you have any idea where I could find a sample notice of election of arbitration letter? Also, Is there a sample letter for the answer/ affirmative defense letter? Thank you again for your help.

Link to comment
Share on other sites

Thank you so much for the information. Based on your reply, it sounds like the first thing I would want to do is elect arbitration by sending a letter to the attorney and Cap One. Do you have any idea where I could find a sample notice of election of arbitration letter? Also, Is there a sample letter for the answer/ affirmative defense letter? Thank you again for your help.

Check your pms in a minute. :)++

Link to comment
Share on other sites

Can I wait to file the MTC arbitration to see if the other attorney even shows up to the conference? If the attorney doesn't show, it is dismissed with prejudice from what I have read...right?? If the attorney shows up, can't I then file the MTC Arbitration during the status conference?? Or would this be too late? I am just curious as to the various strategic angles that can be approached.

Link to comment
Share on other sites

That is not what I meant by the previous message. I will be more specific. I apologize. I understand that I have to respond to the process letter or there will be a default judgement. It seems I have two options:

Option 1: Invoke arbitration by sending letters to the attorney and Cap 1. Then respond to the process letter stating that I have invoked arbitration. Obviously then I would contact JAMS and start the process and follow their instructions.

Option 2: Respond the the process letter. Show up to the status hearing (cap 1 attorney may not show). The process letter states that if they do not show it will be dismissed. If they do show, I am under the assumption that I can Motion for arbitration at this time. Is this correct?

I have read others on this board approaching their situations in one of these two ways. Based on the information I provided in the beginning of this thread, I want as much input as possible to make an educated decision as far as how to proceed.

I have to honestly say, that based on the info I have at this point I am leading towards invoking arbitration now.

Thoughts?? Anyone?

Link to comment
Share on other sites

If you want arbitration, you need to send a letter electing arbitration to both the attorney and to Capital One's address that they show in the arbitration provision.

In Texas I believe they file their answer "and" file a motion to compel arbitration at the same time.

If you want to elect and initiate, I'd send something like this. *The quotes are from a 2008 Capital One agreement. Make sure to send it CRRR.

Your Name/Address

Their Name/Address

_________________, 2012

Claim or Case #_____________________

NOTICE OF ARBITRATION ELECTION

Pursuant to Capital One cardholder agreement, I ELECT arbitration via JAMS 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 or before a judge or jury."

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."

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 #_________________________

  • Like 1
Link to comment
Share on other sites

Below is a SAMPLE of an answer/affirmative defenses to a credit card case. *Note that your answer will be different in some ways as well as some of your affirmative defenses. I'm putting this in below so that you will understand how to write to include the part about your election of arbitration.

You would first take this to a notary and sign in front of the notary at the bottom where the affidavit is. The notary will then put their stamp on it and you can then file it with your court and send a copy of it to the plaintiff's attorney. Make sure to send it CRRR.

Put in your court header and mimic it like they have it on the summons/complaint with the court name, plaintiff vs. defendant, civil action file number, etc. Check any names or dates, fill in addresses, etc.

Also, check your court's rules about anything special like double spacing, font size (usually 12 is what they say) - any special pleading paper, etc. You can probably tell a lot just by looking at the Plaintiff's complaint as to how they did theirs.

Make sure to scroll all the way down to make sure you get the whole thing with the affidavit and certificate of service.

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT

Comes now the Defendant, pro se, and submits the following answer to Plaintiff's complaint.

1) Defendant ADMITS he is a resident of this county, but has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides litigation rights in court.

2) Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's paragraphs (2-5) and must respectfully DENY Plaintiff's remaining allegations. Defendant holds the Plaintiff to provide the strictest proof thereof.

AFFIRMATIVE DEFENSES

1) Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff's attorney of his election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. This court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration agreement.

2) Plaintiff failed to state a claim upon which relief can be granted. Plaintiff has brought suit against Defendant as "suit on account", but has not provided the contract or any other valid and sufficient proof of agreement on behalf of the Defendant with the Plaintiff, whether expressed or implied.

3) Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to Capital One Bank agreement.

Respectfully submitted this day, March ____, 2012

Your Name Typed, Defendant

Your Address

VERIFICATION BY AFFIDAVIT

Personally appeared before me the undersigned who on oath states that the facts set forth in this ANSWER/AFFIRMATIVE DEFENSES are true and correct to the best of his knowledge and belief.

_______________________________________

Your Name Typed Here and sign above, 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 ANSWER/AFFIRMATIVE DEFENSES to:

Attorney's Name Plaintiff's attorney

Attorney's Address

By: Your Name Typed, Defendant Date: March _____, 2012

  • Like 1
Link to comment
Share on other sites

And then you'll need your MTC to file along with your answer/affirmative defenses. SAMPLE will be in the next post.

*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.

  • Like 1
Link to comment
Share on other sites

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 ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, 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 ________________, 2011

(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: __________________, 2011

*To support that the agreement you are using is the correct governing agreement and to make it a "fact" before the court, you can attach a sworn affidavit like this sample below: (Sign on the line in front of a notary.)

COURT NAME

Capital One,

Plaintiff

Case No. or Claim No. XXXXXXXXXXXXX

vs.

XXXXXXXXXXXX,

Defendant

SWORN AFFIDAVIT

The attached agreement (see Exhibit B) is a true, unaltered copy of the agreement that governs the alleged account.

Pursuant to 28 U.S.C. § 1746(2), I, XXXXXXXXXXXXXXXXXXXX, hereby declare under penalty of perjury, that the foregoing is true and correct, to the best of my knowledge, information and belief.

_______________________________________(Your signature)

XXXXXXXXXXXXXXXXXXXXXXXXXX (Your name typed)

Your address

City, State Zip Code

I, _________________________________, the undersigned Notary, hereby certify that XXXXXXXXXXXXXXXXXXXXXXXXXXX personally known to me to be the affiant in the foregoing affidavit, personally appeared before me this day and having been by me duly sworn, deposes and says that the facts set forth in the above affidavit are true and correct.

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 SWORN AFFIDAVIT to:

XXXXXXXXX, Plaintiff's attorney

Their address

City, State and zip code

By: XXXXXXXXXX, Defendant

Date: __________________, 2012

Edited by Linda7
  • Like 1
Link to comment
Share on other sites

And here is a SAMPLE Judge's Order to go along with your MTC arbitration. You would put in your court header information, plaintiff vs defendant, case number, etc.

ORDER GRANTING DEFENDANT’S

MOTION TO COMPEL PRIVATE / CONTRACTUAL ARBITRATION

WHEREFORE, in consideration of Defendant’s Motion to Compel Arbitration, it is hereby ORDERED and ADJUDGED that Defendant’s motion shall be GRANTED.

It is further ordered:

___That this matter is Dismissed without prejudice

___To Stay proceedings pending Private/Contractual arbitration

SO ORDERED this _______ day of _______________, 2012

______________________________________________

JUDGE

********************************************************

Some people go ahead and fill out their JAMS demand form and send it with their election of arbitration letter. Others fill it out later and then file a copy with the court or take it with you to show the Judge that you're serious about initiating arbitration.

The JAMS form is here -

http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf

Here is the information to put on the JAMS form.

You are the claimant and creditor is the respondant. Put in the names, addresses, etc. Their representative attorney, address, etc.

Be sure and add "all" respondents at the very beginning. This would be anybody else that you might have a claim/violation against in regard to your case. Individual attorney and/or law firm representing the creditor. And make sure to fill out a new JAMS demand for each respondent. Also, if you are going to name the law firm or attorney as a respondent - on the blank where you put the name, be sure to add the creditor behind them to show the tie in.

For instance, if you were going to have Capital One as the Respondent, but had violations on their attorney and/or law firm, you would fill out JAMS demand forms for each one.

One JAMS Demand will say this - RESPONDENT: Capital One

The next JAMS Demand will say this - RESPONDENT: David L. Brach/Capital One attorney

And the third JAMS Demand will say this - RESPONDENT: Smithhouse & Bracken, PC/Capital One attorneys

Nature of Dispute - Consumer Arbitration, Consumer law violations and other torts

Will be detailed in formal complaint which will be filed in accordance with JAMS Rules

All respondents will be named in the formal complaint *Do this, just in case you need to add anybody else. Sometimes they let you add respondents later, other times they won't.

Under arbitration agreement - cite the location of the arbitration provision - look at your agreement and then describe where the provision is - page numbers and mention to them that you have highlighted the arbitration provision.

For Claim and relief - Statutory and actual damages and other relief will be detailed in formal complaint.

Request for Hearing - Put this - As specified in the Cardmember agreement.

DO NOT CHECK THE BOX FOR EXPEDITED PROCEDURES.

Just leave it blank.

Sign it, etc. and last page is not for you - unless you are in California.

When you get everything filled out, then send everybody listed a copy of their JAMS demand. The creditor of course gets their copy, but also send a copy of the creditor's JAMS demand to the attorney as they represent the creditor. Keep the original of each so that you will have it to send to JAMS plus another copy.

Keep checking the USPS site to see when they receive their letters. Make a print out of the USPS delivery information as your proof of service - if you don't have time to wait for your green cards.

When you have proof they have received their JAMS demand packets or you get your green cards back, you're ready to send in everything to JAMS.

You'll need to send in the original of each JAMS demand, plus one copy of each JAMS demand, two copies of the complete agreement (and I highlight the arbitration provision), proofs of service where you sent the JAMS demands to all the respondents and the attorney and a cover letter.

The cost for arbitration in JAMS for the consumer is capped at $250. Some people go ahead and send in the whole $250, while others might send in $50 and ask JAMS to apply it toward their $250. This buys time while negotiations can begin. Sometimes you can reach a settlement before you have to send in the whole $250. Read your agreements! In some agreements, it says the creditor "will" advance or pay your fees. In that case, you don't send in any money, but tell JAMS and quote from the agreement where it says the other side will pay and also be sure to mention in your election of arbitration letter to the creditor and/or attorney that pursuant to the cardmember agreement, I am requesting the advance of my fees to initiate arbitration.

I will add a sample of a cover letter in the next post.

Edited by Linda7
Link to comment
Share on other sites

Here is a SAMPLE cover letter that would go "only" to JAMS.

March 26, 2012

JAMS Resolution Center

Address

Your Name

Your Address

RE: Demand for Arbitration

New Consumer Case Filing

Dear Sir/Madam:

Enclosed please find an original of the Demand for Arbitration (plus one copy), along with proofs of service and two (2) copies of the entire contract naming JAMS as an appropriate forum.

This matter involves a Consumer Arbitration.

The parties in this matter are: YOUR NAME (hereinafter Claimant), and XXXXXXXX, XXXXXXXXX and XXXXXXXXX as respondents.

Claimant is requesting full rules of evidence, and an in person hearing, to be held in my home town or within the federal judicial district.

Claimant also requests JAMS, bill fees to respondent per the terms of the agreement. **Only "if" it says that in the agreement!

A copy of the court order compelling arbitration, is also enclosed. **If you have already had your motion to compel granted and have a court order to arbitrate. If you are filing before the decision on your motion to compel arbitration, then you won't have a court order and would leave this sentence out.

If you should have any questions, please call me at XXX-XXX-XXXX.

Sincerely,

Your Name Typed

Link to comment
Share on other sites

That is not what I meant by the previous message. I will be more specific. I apologize. I understand that I have to respond to the process letter or there will be a default judgement. It seems I have two options:

Option 1: Invoke arbitration by sending letters to the attorney and Cap 1. Then respond to the process letter stating that I have invoked arbitration. Obviously then I would contact JAMS and start the process and follow their instructions.

Option 2: Respond the the process letter. Show up to the status hearing (cap 1 attorney may not show). The process letter states that if they do not show it will be dismissed. If they do show, I am under the assumption that I can Motion for arbitration at this time. Is this correct?

I have read others on this board approaching their situations in one of these two ways. Based on the information I provided in the beginning of this thread, I want as much input as possible to make an educated decision as far as how to proceed.

I have to honestly say, that based on the info I have at this point I am leading towards invoking arbitration now.

Thoughts?? Anyone?

This thread should be made a sticky with all that information, it truly is beneficial to anyone looking to go the Arb route.

I just wanted to respond to this post of yours since I was in the same boat weighing my options. First thing I wanted to say is - Don't bet on the attorney not showing, if its a far drive for them (such as it was in my case) the send a local rent-a-lawyer. The lawyer who showed for my case represented Capital One, Midland, and a few others with just a simple spreadsheet of names that she would cross off when she got the judgement.

Second is, I almost wish I had went to a court case ahead of time to see how it all worked. Mine was small claims, and this woman obviously goes there often to represent debt collectors and OC's. If I had gone to a hearing ahead of time and just watched, I would've known I could've won the case by showing up, disputing the debt, then demanding the witness to testify to the fake affadavit they submitted with the summons along with questioning a bunch of other stuff. This lawyer had nothing, NOTHING, and would've easily backed down or I could've won the case (I had case law and other info)if I had seen everything ahead of time.

Of course this isn't always the case, but I wanted to toss it out there. I'm currently going the JAMS route and am hoping to get a decent settlement out of it with the help of info provided on these forums (linda7 in particular).

Link to comment
Share on other sites

So here is where I am at:

Sent Notice of Arbitration Election letter, answer/affirmative response, and then MTC Arbitration to the appropriate parties. I also initiated the JAM process by mailing the Demand for Arbitration to JAMS to the appropriate parties as well.

In the meanwhile, I received a letter from the Capital One legal department stating that they agree to litigate the claim in arbitration. However, due to the balance on the account, they believe that it would be in the best interest of both parties to settle this case without proceeding with arbitration. They are interested in settling this matter and look forward to hearing from me to discuss possible settlement.

To Linda or anyone else with experience in this matter, Can you give me an idea of how I should proceed?

I would like to write them a letter proposing to settle for:

10% of the balance

Capital One dismissing the case with predujice

and finally capital one removing this account and any reference to it from all three of my credit reports.

Any thoughts? Thank you in advance for your help!

Link to comment
Share on other sites

My girlfriend just got a credit card lawsuit brought by Capital one in Texas. I am just going to give you a brief list of things she had to do. I researched on the internet for about 2 weeks and I was able to get the necessary information I needed. These are the steps we took:

1) make sure you answer the summons. It is very important. Also, make sure you answer NO to all the questions because from what I can understand the law firm are yet to verify the debt.

2) Send them a Validation letter. With this letter they should send you all the evidence they have against you if they have any. They probably will send you a letter stating that they are not required to do so and so, but don't worry.

At this point, the court will set a date for you guys to go to court.

3) We went to court knowing that 99% of the time the law firm do not always have you "promissory note". That is your signed agreement. And according to a Texas law, they can not collect on the suit without the promissory note. Most times they bring with them an affidavit, but I found out that they can not use affidavits to collect on a credit card debt in Texas, they need to have the promissory note.

This was the only defense we had and the judge dismissed the case in its entirety. Even if they had a promissory note, they still have to prove that you owe the amount said. We answered in the summons that we did not know how the company came about the said amount so they have to PROVE how they came to the amount by providing all the statements which in most cases the law firm does not have. At this point you are letting them know that even if you are responsible for the account they have to show you how they calculated the amount they say you owe.

Anyways, she and I used the promissory note defense and i got mine dismissed without prejudice which I am still mad about but she got hers dismissed entirely. But remember that I am not a lawyer, I am just giving you advice based on what happened in my own case. Good luck.

Link to comment
Share on other sites

Anyone with a sample settlement letter template? Advice on proposing a settlement offer considering the circumstances with cap one??

Sorry, I missed your post.

If they are wanting to settle, remember "you" are in the driver's seat.

Did you send in any money when you initiated and if so, how much did you send in?

Link to comment
Share on other sites

When I went to court to file my answer and I was told by the Plaintiffs rented attorney that I could leave. since then they have sent two settlement letters that I have not answered. Could I now apply for arbitration, I am sure they hired this attorney because they had more than 100 miles to drive. Do I chance another rented attorney to show up. I have read so much information I am getting confused. any guidance would be appreciated to keep me on one track.

They have sent me copies of past statements.

To many choices

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.