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Hosto Buchan / Cap One suit ( Arkansas )


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First off let me say how valuable this site has been to me.  I've lurked for quite a while now, reading a lot, but never signed up until recently.  My girlfriend lives in Missouri and is going through a battle with LVNV and I came here originally for help with her problem. 

 

 

Now it's time for me to shout out for some help and guidance.   Words cannot express how glad I am that you folks exist. 

 

 

 

 

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.)

 

 

Hosto, Buchan,& Prater, PLLC  Little Rock, AR

 

 

 

3. How much are you being sued for?

 

 

2,200 accordiing to complaint.  2,300 according to first settlement letter, and 1,950 according to second settlement letter.   ( these were totals they said I owed in each, with 80 and 70 percent, respectively, offered as settlement amounts.  The amount they say I owe is different in almost every document they have sent me. )

 

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

 

 

 

Cap One is the OC.

 

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

 

 

Certified letter.

 

 

 

 

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

 

 

Mail

 

 

 

 

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

 

 

Yes.

 

 

 

 

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

 

 

It is entirely possible they sent me letters beforehand.  I probably just threw them out unopened.  I do that a lot.  Clearly I do it to my own detriment.  I'm working on not doing that anymore. 

 

 

 

 

9. What state and county do you live in?

 

 

Benton County, Arkansas

 

 

 

 

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

 

 

According to their documents, which are quite convincing, it was 12/09/2009.  This is based on copies of statements they sent me.

 

 

 

 

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

 

 

5 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).

 

 

Here's a timeline:

 

 

March 15. 2012  --            Suit filed by Hosto

 

 

April 14, 2012  --               Filed my response, general denial, at the same time I filed my response to interrogatories and admissions that they sent me.  I sent my own discovery requests the same day.                   

 

 

May 01, 2012  --               Received offer to settle for 1,600.

 

 

-----Six months later------

 

 

November 15, 2012 --      Received a stack of statements with an affadavit signed by Tarnetta Mayfield.  ( final statement says amount owed is the 1600 ) by certified mail

 

 

December 06, 2012 --      Received notice of court date stating February 28, 2013

 

 

December 07, 2012 --      Received notice of new court date January 24, 2013  ( called the clerk.  Turns out that this one was sent out in error, date is actually 02/28/2013 )

 

 

January 13, 2012 --          Filed motion to strike affadavit.

 

 

January 22, 2012 --          Filed motion to dismiss

 

 

January 22 , 2013  ---       Received another set of statements, no affadavit this time, almost exactly the same as the first stack, only differences are:

 

                                                             1.  New lawyer

 

                                                             2.  no affadavit swearing to "truth"

 

                                                             3.  one page flyer inserted with "notice of change to agreement "  generic and nonspecific.

 

 

 

January 27, 2013 --         Yes... 10 months later, I get the answers to interrogatories from Hosto.  Objections and arguments.  Basically a ton of "we represent the OC, this is not required" stuff.

 

 

 

February 05, 2013 --       Received response to motion to dismiss from Hosto

 

 

February 10, 2013 --       Received response to motion strike from Hosto

 

 

February 15, 2013 --       Recieved settlement offer from Hosto  ( yet another different amount stated owed, with 1,300 offer.

 

 

February 28, 2013 --       COURT DAY IS HERE!!!  show up to court, and clerk tells me the plaintiff won’t be there,  "she called in sick" and I've continued to May 23rd.

 

                                       

 

 

 

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

 

 

No I have not.

 

 

 

 

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 did not.

 

 

 

 

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

 

 

1.  Affadavit ( Tarnetta Mayfield )

 

2.  Statements ranging from 2006 - 2009.

 

3.  Second set of statements, all exactly the same, without affadavit, sent regular mail, and inserted a flyer in mid 2009 showing " changes to account terms" in big letters.

 

 

 

Posting next to ask some questions.

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Now for some questions:  ( just off the top of my head... feel to criticize at will, I know I've botched this )

 

  1.  Since this is the OC, am I just dead in the water here?
  2. Does the fact that they took 10 months to respond to my production request mean anything at all?
  3. I wasted a lot of time in the beginning thinking this was a JDB situation, and may have hurt myself there.  I treated this like it was that type of situation, so did I do harm there?
  4. Will I get any benefit from the courts if I were to point out the following:
  5.  Card limit is 400 dollars
  6. Amount charged is around 310 dollars, charged at one time at beginning of card, in January 2006.
  7. Total amount of money paid back on account totals 2400.00.   ( yes there were months where I paid nothing, but also months where I made 600 and 700 dollar payments. )
  8. They are suing for unpaid late fees and overlimit fees. 
  9.  Should I start completely over with a new line of defense?  It’s difficult to believe that I can be hit up for a card I paid back in excess of 6 times.  Yet here it is.  Heck it’s even reflected in the statements they provided, so that fact in not in dispute.  This is the only reason I am fighting it.  Otherwise I’d have paid what offered on settlement.  ( I am aware that the law may not see it that way, but I’m holding out hope )
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There is an arbitration section in the agreement they provided. 

 

"If you or we elect arbitration or a claim, niether you nor we will have the right to pursue that claim in court or before a judge or jury or to participate in any class action...and so on and so on"

 

and the ever important " This Arbitration agreement shall survive".

 

Should I start this up?

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There is one issue you can raise which would decrease the amount. The agreement sets out the conditions under which they can initiate collections or a law suit. Usually they have the option of doing this when the account goes into default and remains in default for a certain amount of time. I can't imagine it would be more than 6 months, if that. So, why did they wait so long to sue you? Because they are using these accounts as their own personal investment fund, is why. They are guaranteed 9-10 percent interest, so they sit on these as long as they can, then they try to blame the consumer and collect all this interest. I would argue that they should have sued right away.

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