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Sued by Capital One in Small Claims - TX


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

2. What is the name of the law firm handling the suit? The end of the petition says:  Moss Law Firm, P.C., f/k/a Allen L. Adkins & Associates, P.C.

3. How much are you being sued for?  $1,210.28

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

5. How do you know you are being sued? served

6. How were you served? In person at home this evening

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

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?  Texas - Bexar County

10. When is the last time you paid on this account? April 2012 according to my credit report 

11. What is the SOL on the debt? 4 years

12. What is the status of your case? Suit served? Motions filed? Nothing is listed online thus far.

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? 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? The petition states "cause of action" as 1)Breach of Contract 2) Account State 3) Common Law Debt.  After the petition is a form - Small Claims/Debt Claim Case Citation - that basically says I have been sued, I can hire an attorney, I have 14 days to file an answer with the court and if I don't a default judgement will be taken.  Then it lists the plaintiff's attorney and address, the plaintiff address and the court address.  There is no other paperwork included.

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? Nothing

 

I want to respond to this properly; I've been looking on this forum and online a little bit and is it true that I can file a denial so that the plaintiff has to come up with the paperwork?  I'm guessing this is direct from Capital One and not a JBD even thought the attorney handling it is in TX (far from my city though) and CO is in VA.  I haven't received one of these ever so I want to get the wording right.  Also, should I ask for arbitration, how does that work?  Will it be on my credit report?  Right now, only Capital One is listed as a debtor and the debt was charged off Oct 2012; there are no collection agencies or judgments shown.  I am not in a position financially right now to pay the amount or even half - the only way I could settle is if they are willing to take 10% or less.  Our family business was struggling (my husband and I both work there) and sometimes we'd only be living off one or half of one paycheck a week (to make sure employees got paid first) so necessities were put on credit and I tried to keep up with it, but it just got overwhelming.  We're a little better now and I've been settling with debtors as I save money and when we get a tax refund over the last couple years (I managed to keep up with the min payment up until last year).  Is there certain legal jargon that needs to be used or can I just type up an answer with a letterhead and mail it in?  

 

Also, I have the issue with the documents being in my former married name.  I acquired the card before my 1st marriage, got married, changed the name to my married name on the credit card, got divorced (kept my married name), got married to 2nd husband, told them to change my name, but it never went through and I never bothered to followup because at the time, I wasn't even using the card.  How do I respond to the documents since my legal name is different than what is listed on the petition?      

 

Thanks for all your info!

 

 

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My case was heard in civil court, not small claims, so I'm unsure of the differences.

But, they should be bound by the same requirements in order to win. In all of my research, I have not found one instance where Cap1 has had a witness appear. Also, find out how to get it moved to big court...maybe by filing a counter claim over the small claims limit.

I wish I could help more but until I learn the small claims rules for Texas, I'm also lost.

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Small Claims courts in Texas have been abolished.  They have been consolidated into JP courts. 

New rules for JP courts-

http://www.supreme.courts.state.tx.us/rules/trcp/trcp_part_5.pdf

Now I'm really confused! Rule 500.3 (a) is defining small claims cases...@texasrocker HELP! Even more interesting, the next definition is specifically for debt collections under $10,000. Might that be what the OP has?

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You are not the only one confused.  These changes have garbled the minds of seasoned attorneys throughout the entire state.  

 

It would be best defined as while there are no longer small claims courts, small claims cases are now heard in JP courts.

However, that is the least of the complications.  The judge must approve discovery before it is sent which to me is ridiculous.  Fortunately one can still demand a trial by jury and repeatedly object to anything the plaintiff brings up.

 

To answer your question, I would think this case falls under Rule 500.3(b) Debt Claim Cases which are further addressed in Rule 508.

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