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Dismissed W/Out Prejudice But Cap One Won't Go Away


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So I went through this whole thing with Blatt, Hasenmiller, Liebsker & Moore about two supposed debts to Capital One and Chase. Very long story short my case was dismissed without prejudice in March. (Yay!) I knew they could refile, I knew I might hear from the same or a different law firm in the future.

I didn't know I'd hear from Capital One again.

I got a billing statement from them in the mail just this past week, just like nothing had happened (except the amount due had gone up exponentially because of interest) and a cute little message about how I should give them a call because they want to help. I'm sure they do... :roll:

Now, I knew this wouldn't really be over until either they or I decisively won in court or until the statute of limitations ran out (which I think should be in like 2014) but I guess I didn't think I'd ever be really dealing with Capital One again. I think I was actually sued by the original creditor/Capital One, but then again in the early stages of the suit (Late 2011) when I tried calling Cap One they wouldn't even talk to me and directed me to BHLM because they were handling everything.

I guess I just want to make sure the SOL clock is still ticking. I thought if I ever heard from anyone connected to this again it would be a new Junk Debt Buyer. Hasn't Cap One washed their hands of this? Is there anything I should be doing?

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I'm curious: on what grounds was their suit dismissed?

Ummm the lawyer didn't really tell me. Every time I had shown up in court for a status call we went through this whole rigamarole about setting up a payment option which I told her each time was impossible because 1) she had yet to prove I owed the debt and 2) even if she could have proven it I didn't have the money for a payment plan anyways.

So when I came to court the last time, she called my name, and tried one more time to try and get me to do a payment plan. I refused and said I'm ready for trial. She immediately said they were going to dismiss. The paperwork got stamped and that was that. Never even saw the judge. I waited until the lawyer left and then asked the clerk if this was legit and if I could just leave and she said yes. I later checked the online docket and it too said both cases had been dismissed.

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The problem is, you will probably hear from them for the rest of your life, even if you got a judgement for the defendant and/or the SOL runs out (only WI and MO stops a collector when the SOL runs out). You could send a cute letter saying you will pay them when the sun sets in the east but that will probably not stop them either. The FDCPA deal with only 3rd party collectors, not OCs like Cap 1 and I do not think IL has a state law to deal with them.

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I beg to differ

Nielsen v. Dickerson, et al.

In the Nielsen decision, the court affirmed a decision of the lower court granting summary judgment to the plaintiffs in a class action suit brought against an attorney who sent collection letters and the financial institution on whose behalf he sent them. The plaintiffs successfully argued that the attorney's collection letter falsely suggested that an attorney had become actively involved in the financial institution's debt collection efforts, when in fact the attorney had done little more than lend his name and firm letterhead to the collection effort. The lower court and the 7th Circuit Court of Appeals agreed with the plaintiffs contention that the defendants violated the Fair Debt Collection Practices Act.

The District Court ruled

that Dickerson and Household each qualified as a "debt collector" that could be held liable under the FDCPA for misleading communications with debtors;

although Household would not normally constitute a debt collector under the Act, it qualified as one under what is known as the "false name" exception to this rule. A creditor or an affiliate of a creditor who uses someone else's name so as to suggest to the debtor that a third party is involved in the debt collection process, when in fact that party is not involved, can be treated as a "debt collector" for FDCPA purposes;

Dickerson played no genuine role as an attorney in Household's debt collection efforts;

Dickerson's letter to Nielsen and the other class members was in reality from Household and Household was simply using Dickerson's name to suggest that he and his firm were involved in the attempt to collect the debts;

Household should be treated as a debt collector and held liable to the extent the letter was false or misleading;

in order for the letter not to mislead the recipient as to the nature of the attorney's involvement with the debt, the attorney must have direct and personal involvement in the mailing of the letter -- e.g., by reviewing the file to determine whether the letter should be sent, or by approving the mailing based on recommendations by others;

the firm's "review" was no more than a deceptive "veneer of compliance" with FDCPA.

http://www.bankersonline.com/lending/fdcpacase.pdf to review the case

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Ok, so I might hear from them forever BUT nothing stops the SOL clock right. I mean eventually after 5 total years this will drop off my credit report, and I can tell them to go jump in the lake, correct? I'm also assuming I shouldn't have any contact with them either for fear of restarting the clock.

I'm happy to just ignore the mail and the phone calls if that's what I should do.

Also, what do you think the odds are of them trying to bring this back to court at a later date?

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Ok, so I might hear from them forever BUT nothing stops the SOL clock right. I mean eventually after 5 total years this will drop off my credit report, and I can tell them to go jump in the lake, correct? I'm also assuming I shouldn't have any contact with them either for fear of restarting the clock.

I'm happy to just ignore the mail and the phone calls if that's what I should do.

Also, what do you think the odds are of them trying to bring this back to court at a later date?

The SOL may have been tolled during the lawsuit. That's going to depend on your state. As for SOL and credit reporting, there are two SOLs. One SOL for whether or not they can prevail in court against you, and another for how long the tradeline can stay on your credit report, and they are two different times. Credit reporting is 7-7 1/2 years from the date of first delinquency. (Or is it date of last payment? Either way, there's a month difference.)

As for the mail and phone calls, I wouldn't just ignore. I would DV each new CA, and either stay off the phone all together, or record every single phone call if it is legal to do so in your state without the CA's consent. That looks a little shaky in IL. After DVing, I would C&D them.

Also, they rarely refile a lawsuit once they've dropped it once. Rarely doesn't mean never, so be on the lookout.

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Ok, so I might hear from them forever BUT nothing stops the SOL clock right. I mean eventually after 5 total years this will drop off my credit report, and I can tell them to go jump in the lake, correct? I'm also assuming I shouldn't have any contact with them either for fear of restarting the clock.

I'm happy to just ignore the mail and the phone calls if that's what I should do.

Also, what do you think the odds are of them trying to bring this back to court at a later date?

It's around 7.5 years from the date of default before it falls off your report. Assuming you are correct about the statute of limitations, then after five years they can't legally sue you again without it being a violation.

However, I would expect up to twenty years from now you will get the occasional letter (or what I like to call blessing and potential money maker) asking you to pay the debt.

There is no law that says they can't attempt to collect if it's past the statute of limitations. The statute of limitations, except for two states, does not wipe the debt out, it just means they can't legally sue to collect and after around 7.5 years can't put it on your credit report.

In other words they will have zero leverage and can only ask you to pay. That is whey you can send a cease communications letter and pray they ignore your request.

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