Capital One Attorney fighting my request for Arbitration

[azneb]

I filed a motion requesting arbitration as stated I can in the cc agreement.   OC attorney responded to the motion saying my cc agreement was old and the new cc agreement they sent out had the arbitration clause taken out.  They also sited the new revised agreement was sent out due to a class action lawsuit filed in 2005.

 

I have no idea what to do from here?   Any help would be greatly appreciated.

[nobk4me]

Was the older agreement in effect when you defaulted on the account?  Or was the newer agreement?  Is there a survivability clause in the older agreement?

[lheart]

Did they include an agreement with the filing?

[azneb]

They included one page of the agreement.  Says nothing about arbitration.

 

No it would be the supposed new agreement.

[shellieh98]

find a copy of the agreement for the year you opened the account. If it has arb in it, look for a survivability clause in it.

[lheart]

Or find the rest of the agreement that they included with the filing.  In most jurisdictions, when they file the claim, they are required to include the contract that they are suing on.

 

They tried this in my case until I called them on the fact that they certified the contract by including it.

[Wins the Battle]

Shellie is right. Most credit card contracts that included arb clauses had both severability (each piece of the contract stands on its own) for the contract as a whole and survivability (changes in the contract don't affect the particular piece) for the arb section.

 

If you can find your original contract, that's the one you would probably have the best luck asserting as the correct one.

[azneb]

I am looking for 2003 agreement.   Anyone know where to find it?   Also the big question is which agreement is in effect once someone defaults?   I have read that the agreement that's in place at time of default is the proper agreement.    Is that true?

[ArtVandelay]

I am looking for 2003 agreement.   Anyone know where to find it?   Also the big question is which agreement is in effect once someone defaults?   I have read that the agreement that's in place at time of default is the property agreement.    Is that true?

 

Most of the older CO agreements have a survivability clause for arbitration. This means you can the newer agreements do not change your rights. You will need to find out from someone familiar with AZ law on how to go about making your argument.

 

This site has a 2002 and 2005 agreements which are probably similar to 2003. You can use these as a reference for now, but you will probably want to find the 2003 if that is the year you opened the account.

 

http://www.cardmemberagreements.org/capital-one/

[azneb]

I have been looking online for 2003 and it seems to be nonexistent.    When I filed the motion I included 2008 agreement they of course object to this.   They said in Jan 2010 I was forwarded a revised agreement, which did not include the arbitration clause.    I have no clue if this is true or not.

 

I have no idea what to file now?   Seriously who reads each billing statement

[ArtVandelay]

Do you know the exact date that the account was opened?

[azneb]

The yr was 2003.    I just reviewed all paperwork OC attorney sent me.   The federal lawsuit basically takes all arbitration clauses out of agreements as of 2010.   My question is if card was used after that date does that mean the new agreement is in place or would the original agreement from 2003 be in place?   If it is the new agreement I'm not sure I have a leg to stand on.

 

Any suggestions on how to proceed would be greatly appreciated.

[Wins the Battle]

Banks don't necessarily update their contracts yearly. If you can't find a 2003, see if the 2002 will work for you. 

[azneb]

If I do find would that agreement be the one the OC has to go by even if cc was used after the new agreement came out?

[lheart]

Did you make a payment or use the card after 2010?  If not, 2010 does not apply.  

 

Again, they tried this with me. I defaulted before 2010 and never paid or used the card to accept the new agreement.

 

The agreement that is in effect is the latest agreement the last time you used or paid on the card. Period.  Capital One will argue whatever fits them best, it does not mean its true.

 

When was the last time you used the card or paid?

[ArtVandelay]

I know nothing about arbitration but many on here do. First I suggest you slow down and take a deep breath. When you are sued it can be a very stressful. The other attorneys expect you to panic and they will take advantage of you every time they get a chance. Just because they say or do something does not mean it is true. Many times they don't care about what is legal or right because they expect to beat you through legal procedure. Most of their opposition doesn't even bother to show up, so you are already one step ahead by being concerned. 

 

That being said you will need to get help from people who understand how your local/state system works. You will also need to get assistance from people who have experience with arbitration. @Linda7 is one of the most knowledgeable and helpful in this area. Others here also have experience and can be very helpful. In order to do this they will need to have more details involving your case. This will include the last date of payment, a scan of what you have already submitted to the court, what the plaintiff has filed against you and what kind of time frame you have to answer. Start out by answering the questions below. Work on this right now and continue searching for a 2003 agreement. 

 

Answer these questions in this format. It will help others here help you. Round off all numbers and do not include any personal info.

 

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? 

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 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. 

[ArtVandelay]

It would also be a good idea to read this. This will give you a better understanding of the subject when others are here and available to help. 

 

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

[Wins the Battle]

Again, SURVIVABILITY is what can save you in the event that arbitration was removed, or changed (JAMS taken out and replaced by AAA, for example).

 

Here is the definition of survivability from an online legal dictionary: used to describe a contract clause that remains in effect (=is still valid) after the end of the agreement. These clauses include limitations of liability, non-disclosure/confidentiality, non-solicitation, non-competition, indemnities and insurance provisions.

A survival clause is necessary if there are any clauses that one of the parties wishes to have remain in effect after the termination of the agreement.

 

It is common for the arbitration clause of credit card contracts to contain a survivability sub-clause.

 

There is one other legal principle that will work in your favor, should you want to choose arbitration: when a contract is written, it is assumed to favor whoever wrote it. So, if the other party to the contract (in this case, you) attempts to enforce the contract strictly, then the writer of the contract (the OC) cannot try to wriggle out of the terms that they put in, in the first place.

[azneb]

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.) HAMMERMAN & HULTGREN

3. How much are you being sued for? 1800

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

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

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

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? MINIMAL

9. What state and county do you live in? AZ MARICOPA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)2012

11. What is the SOL on the debt? 6 YRS I THINNK

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). WE ARE AS FAR AS ME FILING A MTC ARBIRTATION AND THEM OPPOSING IT

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

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. NOT SURE BUT DOUBTING IT

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? FAILURE TO PAY

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. STATEMENT THEIR MOTION OPPOSING ARBIRTATION THEY ATTACHED THE 2010 CC AGREMENT AND A COPY OF THE CIVIL SUIT

THAT WAS IN FEDERAL COURT.

[azneb]

How do I respond to them opposing? What type of motion do I file if that is what I need to do.

[lheart]

How do I respond to them opposing? What type of motion do I file if that is what I need to do.

 

When did you make the last purchase / payment?

[azneb]

Last payment oct 2012 last purchase I would guess be in 2012 sometime

[lheart]

If your account was opened before 2010, I would use the 2008 agreement and make the survivability argument.  It was the last one before they made the change in 2010 (there is no 2009 dated agreement).

[azneb]

I included the 2008 agreement in my mtc. below is their responds

Here, Defendant's account with Cap1 was subject to the order and the terms of the updated customer agreement were revised as reflected in Exhibit 2. In fact, Exhibit B of Defendant's mtc demonstrates it is an out-dated and non=controlling portion of the

customer agreement because its copyright date is 2008 whereas the controlling customer agreement is dated 2010.

When do I argue survivability?

Thanks for your help.

[lheart]

You respond to their assertion. 

 

While Plaintiff asserts that the 2010 agreement is controlling, there is a survivability clause in the 2008 agreement that was placed their by the plaintiff. "This Arbitration Provision shall survive: (i) suspension, termination, revocation, closure or changes of this Agreement, you Account and your relationship with us;…" (see Exhibit

 

The plaintiff drafted and provided this agreement. The language is plain and they cannot now argue that their language does not apply to them.