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I recieved 2 summons  and a formal complaint a week ago.  I really have no idea how I am going to answer this, or even the format to use.  I am denying this debt.  I am also confused--I pulled my credit report and the credit card company doesn't even own these 2 accounts anymore--they charged them off.But in the summons and complaint it states the plaintiff is the credit card company.

Times got very rough and I had to stop playing them and now of all times to give me this summons I am unemployed. I wish I had the money to pay these people but I don't and I'm nervous and scared of this.  I don't know what to do, I don't even know how to answer these papers.   

 

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You did a good job of explaining your situation, but it will help others help you if you put it in this format. Many of the more experienced posters here scan through these and answering these questions will get you more eyes on your case. Just leave out personal information and exact numbers.

 

 

RACECAR's Questions

 

1. Who is the named plaintiff in the suit? 

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

3. How much are you being sued for? 

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

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

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

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

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? 

9. What state and county do you live in? 

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

11. What is the SOL on the debt? 

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?) 

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. 

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? 


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 
 
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1. Who is the named plaintiff in the suit? Capital One

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

3. How much are you being sued for? 2 summons one for 4500 the other for 1600

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?) I was served

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

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

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 did not correspond, But when I had a job, capital one would call my work all the time.

9. What state and county do you live in? NY

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

11. What is the SOL on the debt? 6 years.
12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). I have no idea

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Should I? I'd like to.

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, I don't know what that is.

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, but time is ticking.


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. a formal complaint and the summons.

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What years did you open these alleged accounts and do you have the original card member agreements?

 

The reason I ask this is that they may contain a survivability clause for arbitration. 

 

Linda7 and some others here are very experienced in arbitration which may be a good option for you if you qualify. 

 

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/?hl=arbitration

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Guest usctrojanalum

I meant more along the lines of do you owe Capital One the money and do you have any legitimate defenses? Course of action different depending on your answer to those questions.

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Denial is not a defense, it is a denial. A defense is the argument that supports the denial. You can deny all you want, but the court wants to know WHY you say this is not your debt. ID theft, mistake, whatever. Lack of memory, inability to pay, etc, are not defenses. Original creditors can be hard to deal with. They usually have better records.

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I stopped paying them when I was out of work for over 2 months in/out of the hospital, I missed the payments, and all of sudden I owed them so much I couldn't pay, and I could catch up, and even a $100 a month didn't stop the calls coming.  I had health problems, and everything got behind..  But I don't think they care about my reasons, they just want money, and I wish I could pay them, but I can't. Close to all those charges were for medical bills, gas,

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"But I don't think they care about my reasons, they just want money"

 

Yep, just remember that if you give a good reason or a bad reason, they just want their money.   Better to not use a good excuse unless it's a legal defense, because at the end of the day this is simple contract law and they just want their money.   

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Guest usctrojanalum

I stopped paying them when I was out of work for over 2 months in/out of the hospital, I missed the payments, and all of sudden I owed them so much I couldn't pay, and I could catch up, and even a $100 a month didn't stop the calls coming.  I had health problems, and everything got behind..  But I don't think they care about my reasons, they just want money, and I wish I could pay them, but I can't. Close to all those charges were for medical bills, gas,

 

If you are going to file the 13 any time soon, within the next 60-90 days... don't even worry about this then.  You are going to come up with a plan and pay them back at a percentage anyway.  If you are not filing the BK that soon, I would look into arbitration and enforcing it.

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I would call capitol one and ask them if they have assigned the debt.  I found out that a card I was being sued on listing them as the Plaintiff, they had sold the debt to a CA/Attorney, who then assigned it to another attorney for collection.  They are getting sneakey.

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You need to answer, because BK is not something you just do because you want to. It requires permission from the court. Sometimes they say no, which would mean you if you failed to answer the law suits you would get 2 judgments against you. I would file a motion to consolidate these into one case, there is no reason to have 2 suits from the same creditor in the same court. 2010 is going to be close for arbitration, some of these banks removed it. Check the cardholder agreement or look here, there is an archive of agreements somewhere here.

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Depending on the years this alleged account was active, you might be able to find an applicable card member agreement here.

Read the agreement carefully paying attention to the arbitration clause, the choice of law clause and look for a survivability clause.

 

The threat to file BK is not a viable affirmative defense.

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I recieved a letter from debt agency today in mail with copy of summons and complaint asking me to call their office to avoi an entry of a judgment and make satisfactory affrangements to pay this account.

 

From the same debt agency that is suing you or another one?

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