Sign in to follow this  
SuedByCapOneHelp

Sued by Cap One. Need Help!

Recommended Posts

Hi everybody Ive been looking over post in similar situations like mine but not sure what i should. Im being sued by Cap One by a firm named Pollack & Rosen PA for almost 690 dollars. I have been served with summons/notice to appear for pretrail conference/mediation. I got the summon on may 5 and have to appear to court by may 23. Please help me, of my options, if you can.

1. Who is the named plaintiff in the suit?

Capital one bank (usa) na

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Pollack and Rosen PA

3. How much are you being sued for?

686.01

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

Capital One

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

Served summons for pretrial conference small claims

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?

None

9. What state and county do you live in?

Polk County Florida

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

Look on credit report and says 30 days past due May 2009 but i have to credit cards with them and dont know which one it is and the second one 30 days past May 2008

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

Statute of Limitations on Debts

From what i have researched its 4 years but could be wrong.

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).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

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.

No

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?

Not quite sure

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract?

3 pages of Summons

3 Pages of Statement of Claim and My Counts

1 Page of a Copy of a bill from cap one from 2009

Share this post


Link to post
Share on other sites

Check transunion credit report, it gives you the exact date of last payment. Google free annual credit report, and you should be able to pull it yourself.

In Florida the 3 years SOL of the choice of law in the contract of Crap1 applies and it's Virginia.

Also if they didn't include a contract you could dismiss it as per rule 1130 of Fla Rules of Civ Pro. They need to at a minimun file with a statement and the contract.

When you pull your credit or if you already got it, check what they claim in the complain and match it with one of the two cards on the cc, the number "should" match.

I'll get you some case laws in a sec.

Share this post


Link to post
Share on other sites

If you can get it into private arbitration they may just drop it as it will cost them a lot more than what they are suing you for.

Linda7 is the arbitration guru around here and she can give you an idea if arb has a good chance of working.

Share this post


Link to post
Share on other sites

As for the response in Florida small claims, you either got 20 days after served, or until the pre-trial conference, that is really a sort of meet and confer, and if you don't do a continuance or a settlement, you then get a hearing.

So you got until the court date to answer, and it dosen't have to be in written, you can do it orally that date, if needed. Since the conference happens before you go with the judge you could as I said, agree to a continuance or settle, or they can dismiss the case (probably they won't but is a posibility).

Can you type the whole complain here?

Share this post


Link to post
Share on other sites
If you can get it into private arbitration they may just drop it as it will cost them a lot more than what they are suing you for.

Linda7 is the arbitration guru around here and she can give you an idea if arb has a good chance of working.

For that money 700 bucks, he can probably just settle for 50% and it will be cheaper than the arbitration.

Try to get that default date is crucial in this case, if it was april 2009, is past SOL, as per Virginia SOL, and you can claim time barred as affirmative defense, or just file a motion to dismiss.

Share this post


Link to post
Share on other sites

Kutuzov: Thank you very much for replying. I can write anything youd like but what do you mean by the complain? Do you mean the came with the summons? Like the paper that states count 1 count 2 etc?

I have a old credit report and i will get this years credit report in a min. Have to go to annualcreditreport .com and will get transunion. When you said cc do you mean Credit Cards?

Yeah the only thing that came with the summons papers( and im going to the assume what comes with the summons is what they filed?) Is the summons papers, and the counts, and just an old copy of a bill they sent me.

Public Enemy: Yes i thought about arbitration but not sure it was a good idea for me. Ive many posts from Linda7 and can see shes helped many people. Hope maybe she'll give me some advice. Ive seen them right MTC does that stand for Multistate Tax Commision haha i tried to google it.

Share this post


Link to post
Share on other sites

cc credit card, but I think I should have wrote cr cresit report

MTC motion to compel, basically you do that instead of an answer and compel them into arbitration, but for the amount they are suing and the cost of arbitration even filing might not be worth it, and Florida takes Viirginia SOL no problem there, so if your last payment was march 2009, default on april 2009, you are in the clear.

Let me check a complain to see how they look like for sure, give me 5min. I do remember it got 1-2 pages of summon, those papers are added by the court, then the actual complain is there, then at the end, should be exhibit A, B, etc.

Share this post


Link to post
Share on other sites
idk if it makes a difference but the date they sued me was april 30 but got it the 5th of may. And i will read those ASAP. Thx very much again.

Not sure if the SOL here in Florida is based on the day they serve you or the date they file. Anyway if your last payment was march 2009, chances are it won't matter, they filed outside of SOL.

The court normally needs to try to serve you within 5 days of them filing, so it was done in a timely manner.

Share this post


Link to post
Share on other sites

There's 3 pages the first 3 that are the county summons papers, those don't matter.

Then at least in my papers, start the complain itself. On the top it says in the county in and for court of such county etc

Then Plantiff, case number and defendant. all that we don't need.

then it will say somthing like comes now the Plantiff Crap1, by and through its undersigned attorneys and sues the defendant xx herein alleges:

what comes after that is the actual complain, you could type it here, put Jhon smith instead of your name and round the number to 700 bucks.

Share this post


Link to post
Share on other sites

Yeah they served me haha thats a whole nother story. And Trans Union is having problems right now so ill get to that later but the only thing is that i dont have the credit cards bc i cut them up but i may have the old bills they sent me.

And when you said complains did you mean COunt 1 breach of contract and Count 2 Unjust enrichment. If thats it ill type the whole paper down if needed.

Share this post


Link to post
Share on other sites

count 1 count 2 etc.

If they put count 1 breach of contract and didn't attach the contract as an exhibit, you can get it dismiss for that on it's own.

Share this post


Link to post
Share on other sites

Yeah only thing i got was the worthless summons the complains which i will type below and an old old bill that was mailed to me with all of my account numbers blackened off which i guess its due to privacy reasons idk

Plaintiff, CAPITAL ONE BANK (USA, N A, sues Defendant, JOHN SMITH, and alleges:

1. That this is an action for damages that is within this Court's jurisdictional limitations.

2. Plaintiff is National Banking Association authorized to do business in Florida.

3. Defendant, JOHN SMITH, is an individual, is sui juris, and is a resident of POLK County, Florida.

4. The defendant entered into a credit agreement with CAPITAL ONE BANK (USA), N.A. for an extension of credit.

5. The credit account number with CAPITAL ONE BANK (USA), N.A. is determined confidential pursuant to Florida judicial administration Rule 2.420.

6. That all conditions precedent to the bringing of this action have been met or waived.

7. Defendant caused various charges to be made through the use of said card.

Share this post


Link to post
Share on other sites

Count I (breach of contract)

Plaintiff realleges all of the allegations set forth in paragraphs 1-7 above.

The Defendant breached the agreement referred to in paragraph 4 by failing to pay the sums of money due in accordance with the terms and conditions of that contract.

9.The defenant owes Plaintiff the principal sum of $700 plus interest, and costs as a result of the Defendants's failure to abide by the terms and conditions of the credit agreement entered into between the orginal creditor and Defendant

10. Demand for payment has been made.

11. Plaintiff performed under the credit agreement by financing the purchase of goods and services by the Defendant.

12. Defendant performed by making payments toward the purchase of goods and services by the Defendant on the aforementioned credit card.

WHEREFORE, Plaintiff demands judgment for damages of $700 against Defendant, JOHN SMITH, plus interest, costs and disbursements in the institution of this suit, and any other relief which this Court deems just and proper.

Share this post


Link to post
Share on other sites

Count II (Unjust Enrichment)

Plaintiff realleges all of the allegation set forth in paragraphs 1-3 and 5-7 above.

13. The Defendant received a financial benefit, which was in fact appreciated by the Defendant.

14. The Defendant accepted the Financial benefit.

15. By virtue of the circumstances surrounding the use of the credit card, the Defendant knowingly requested the funds in issue and/or knowingly and voluntarily accepted the benefits bestowed.

16. It would be inequitable for this Court to allow the Defendant to retain the benefits or to be unjustly enriched at the expense of the Plaintiff or allow the Defendant to retain the value of the funds in issue without repaying the Plaintiff the value of same

17. The Plaintiff has no adequate remedy at law if the relief sought is not afforded

WHEREFORE, Plaintiff demands judgement for damages of $700 against the Defendant, JOHN SMITH, plus interest, costs and disbursements in the institution of this suit, and any other relief which this Court deems just and proper.

THE END.

Well it has the legal people address and fax.

Share this post


Link to post
Share on other sites

What I would do. Hit them right off the bat with a Motion to Dismiss (MTD), on rule 1130 for not attaching a contract. You can do it before the pretrial conference maybe 5 days, so the Other Party (OP), got it before the pre trial conference. At the pre trial you can do the conference thing and see what they say (basically they will want money), you just object and go with the judge and explain that because they failed to comply with the rules of civil procedure they need to either ammend the complain or dismiss. The judge will probably give them 10 days. If they do file the contract, then you get the governing law of Virginia and file a motion to dismiss based on that.

RULE 1.130. ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS

(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as ex-hibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

(B) Part for All Purposes. Any exhibit attached to a pleading shall be considered a part thereof for all pur-poses. Statements in a pleading may be adopted by reference in a different part of the same pleading, in another pleading, or in any motion.

They probably didn't attach the contract on purpose to avoid the Virginia law thingy.

Edited by kutuzov

Share this post


Link to post
Share on other sites
Well i still dont know which credit card from crap1 im being charged with but they both have a last payment was 03/05/2009 and 03/09/2009

It won't matter if you add 30 days to any of the two is in or around april 20 2009 for a default date, so clearly out of Statute of limitations as per Virginia SOL. They filed about 10 days late ... too bad :twisted::twisted::twisted:

Share this post


Link to post
Share on other sites

I forgot, when you file the motion, if you go pro se here in Florida, you don't need to send a copy to the OP. The court will send them one for you. If you wanna save some change you can just go and file it with the court, they got to mail it to the plantiff.

Share this post


Link to post
Share on other sites

Thanks so much! Youre a life saver! haha so do i need any proof or something else like credit report or anything? Do i write them 5 days prior to pretrial? What and who do i send what to? Sorry for all the questions

Share this post


Link to post
Share on other sites

At this point you won't need any docs. Just to learn how to write a motion to dismiss, based on rule 1130. Prepare it and file it with the court 5-6 business days before the pre trial conference. It will take the court 1-2 days to mail it the OP 1-3 days to get it and 1-2 days to get someones attention in the office.

Share this post


Link to post
Share on other sites

LOL yeah thats true. Well all of what you said sounds like my only choice. I have just one more question that i just noticed on my credit report which i need it to change somehow.

When i went into the agreement with with crap1 i lived in florida but soon after i lived in New York for less than a year so i dont think ive become a resident in the state of new york but i live in florida as of now and lived in florida ever since they defaulted the credit cards. I wanted to know if you knew that me living in new york would have any affect on the case?

Share this post


Link to post
Share on other sites

Not sure, but if the OP dosen't bring that up, it won't matter.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this