marquez

Capital One in KY: Settle or File Answer?

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Sued by Cap One and just realized the summons was served on 03/02, so I am actually going to be 2 days late if I do answer. I'm thinking I should settle, however. Representing law firm is a debt collector, but I called and asked them to confirm whether Capital One still owned the debt and they said yes. They are representing them, is all. The amount they allege is 1,879. The amount they'll settle is 1,695. I could not remotely come up with that amount, but they will take 50/month and send the agreement to the judge. My income is INSANELY low, so I don't know how a summary judgment would work w/ garnishment, or how long it would take to go into effect. I'm guessing I'll have to bite the bullet on this one and pay the 50 bucks, knowing that Capital One won't remove it from my credit report and it likely won't do any good. My thought is that it would at least be less than a garnishment. Anyone have any suggestions?

The supporting docs were a statement and the card agreement. I saw a lengthy answer from another board member that i have considered filing, which essentially says there isn't enough evidence, signature on contracts, record of amounts, etc. I don't know if that's a good way to go, but i'm already late filing, anyway. I just want to be sure I take the best approach. I am trying to avoid bk, and all of the other debts I've got are being handled by jdb firms (except one other Cap One account). Discover already dropped their suit because of the MTC arbitration, so I am hoping that will work with the other creditors. My debts are generally under 2K (2014 was a horrible year and I just couldn't afford minimum pmts anymore, and credit rating was so low anyway bc I was maxed out).

Anyway, I feel like I keep coming here and bugging the crap out of you guys, but it seems like all kinds of new stuff keeps coming up that throws a wrench into my plans, so if anyone could take just a moment to let me know whether I should just start making payments, that would be really helpful.

Thanks again for all your help :)

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This may be the exception and it was Illinois but a friend had a case with Cap One and answered. They offered to settle at 1/3 of the amount when he showed up for his appearance and continued to offer to settle each court date. He took it to trial with an attorney and lost because they had a witness. His attorney mentioned they show for trial about half the time.

So, I think you'd get a better settlement offer if you wait until the day you have to show to make one. Check your state law on what they've provided. The affidavit probably has holes in it (you can post if you want with personal info redacted) that wouldn't meet summary judgment standards.

Also, look into your state judgment exemptions to see if you make under a certain amount they can't garnish your wages and you may have election for personal property (bank account, etc.).

Are they still charging interest or did that halt on the statements? KY has a law on that that's been posted as far as what they could collect with a judgment I'd have to find.

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1 hour ago, marquez said:

The supporting docs were a statement and the card agreement. I saw a lengthy answer from another board member that i have considered filing, which essentially says there isn't enough evidence, signature on contracts, record of amounts, etc.

That works with a junk debt buyer.  You are being sued by the original creditor and an aggressive one at that.  Also, the courts KNOW there is no signed contract in a credit card agreement.  They will not be looking for one.  

1 hour ago, marquez said:

Discover already dropped their suit because of the MTC arbitration, so I am hoping that will work with the other creditors.

Cap1 removed arbitration from their card agreements 6 years ago.  Won't work with them.

 

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@Clydesmom 

I saw when I read over the Cap One agreement that arbitration was not an option, which is why I am not sure how to proceed. It seems, especially since it's the OC, that I should settle. So, today, I called the attorney/debt collector who is representing them and they agreed to monthly payments. However, I realize as well that this will not stop a judgment from being entered. I gather that unlike other creditors, a lawsuit from Capital One is difficult to challenge successfully. Do you think a small monthly payment was the right decision? The amount they're suing for is 1879.00 and I offered 50/month (which is actually more than I can afford). They said they'll send our agreement to the judge and there will be a judgment entered, but that this should suffice as long as I keep my payments up. I can't think of any other recourse, but if you have any suggestions, please let me know.

I appreciate your insights and knowledge very much. I am currently working on an answer to Midland Funding, so hopefully that will be easier. I had success using arbitration with Discover, so I hope that Cap One is the only creditor who will be this difficult.

Again, thank you for your help. I'm trying to clean up a lot of financial messes and it's daunting, but this forum has been a lifesaver.

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If it's more than you can afford it's going to be trouble for you. Your agreement is going to state one missed payment and they get a default judgment. Make sure you go to court though so they don't just forget any agreement and get a default judgment off the bat because you didn't answer or appear.

Have you looked to see if you're collection proof (state exemptions) even if they get a judgment? If you're willing to go to court and fight, you may end up with a better offer if you decide to settle later on.

You may want to consult with a consumer attorney to see what they'd cost to defend this, including showing up for the trial if it ever gets that far. If you're willing to do the paperwork but want an attorney later on, mention that as well.

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Did you check agreements for all the years you had the account open, seeing if arb was in one with a survivability clause?

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@CCRP626 I didn't get the account until 2012, so it was a couple of years after they stopped doing arbitration, unfortunately. And in Ky, garnishment would far exceed the 50/month I am agreeing to. It's kind of a bummer all around. Let me ask you--since I already missed the 20 day deadline for answering, there's really nothing I can do, anyway, right? And even if I did file an answer, seeing as it's the OC and there's no arb clause, I don't think I'd really have much to work with in terms of an answer. I also am still confused about the judgment. They're going to submit the agreement to the judge, so it's still going to show as a judgment, but what you're saying is that it would be different from a default judgment? And that if I don't meet the conditions of the agreement, they will seek a summary judgment and that would be a situation where my wages would be garnished?

I had a judgment years ago, when I was really young and clueless about what all of it meant, but there was never any pursuit of a garnishment or anything. It's odd. There was a judgment, but no further action. It eventually just dropped off.

Thanks for your input, by the way. I am challenging every other lawsuit, but right now, this one seems exceptionally difficult, so my inclination is to just let it go. There is a 2nd Cap One account that I suspect will be forthcoming, and I think I will answer that summons, when it happens, just to know I tried. If I had noticed this one didn't have the arbitration clause earlier, I probably would have answered, but alas, I waited until the very last day to start an answer :/

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@marquez if $50 is something you can't handle figure what your budget would allow and get back with them. Do a search for stipulated agreement. You wouldn't have a judgment if you met the agreement but one variation from that agreement and they easily get that default judgment.

The reason I'm saying at least go in front of the judge on your appearance date is so it's clear you have an agreement and the Plaintiff doesn't pull a fast one and try to get a default judgment for whatever reason- attorney showing up for the Plaintiff that day didn't have any information about an agreement, you didn't show and had been served so default judgment. You find out later and are told they'll see what they can do about getting this fixed.

For your old judgment you'd have to see how far back it was. I think Kentucky allows 15 years, so sometimes they aren't in a hurry to collect. Not sure if they're renewable in Kentucky either.

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@CommoSGT thanks for checking. I'm thinking @marquez requests an extension of time to answer due to still consulting with an attorney. Not sure of Kentucky's civil procedure on that but any stipulated agreement authored by the Plaintiff's attorney should be reviewed by your own with sufficient time for review/negotiations.

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@CCRP626 

Thanks for the input. I contacted the attorney @CommoSGT suggested here in Ky and he is going to file an appeal on a  denial of my MTC with Portfolio Recovery, and said he hopes we can get it to federal court. Really cool guy, and I'm thrilled I found him. He is hoping to get as many good decisions on record so we can have helpful precedents, so I hope this case will be useful for him/me/others. The Cap One situation, however,  didn't seem to interest him.

So, from what I've read regarding the procedure here in KY, I need to contact the Plaintiff's attorney to ask for an extension. It seems that getting an extension granted by the court would be a formality, and that as long as the plaintiff agrees, it should be fine. After having called their attorney and having made an agreement with them by phone for 50/month (I never admitted I owed the debt), should I now contact them and let them know I want to file an Answer? Should I try to take this to trial?? I feel like I have no leg to stand on. I assume the reason for taking it to trial is that they'd hopefully just dismiss it? The amount they say I owe is roughly 1900 dollars. What would you do if you were in my shoes?

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45 minutes ago, marquez said:

The Cap One situation, however,  didn't seem to interest him.

@marquez Maybe taking it to court didn't interest him but if you think you want to settle call him back and mention the Plaintiff will be sending a stipulation agreement you'd appreciate him reviewing? If you decide you want to fight this in court you may need to check around with other attorneys. If you pull up cases on your county courthouse site with Cap One as Plaintiff, focus in on ones dismissed or without judgment in Plaintiff's favor. Make a list of the defendant's attorneys and give them a call.

45 minutes ago, marquez said:

After having called their attorney and having made an agreement with them by phone for 50/month (I never admitted I owed the debt), should I now contact them and let them know I want to file an Answer?

I don't think it would hurt to tell them you'll be taking the agreement to an attorney for review and hope to have an answer before your court date. You don't have to settle before your appearance date.

Kentucky Rules of Evidence- http://www.lrc.ky.gov/statutes/statute.aspx?id=20370

Rule 408 Compromise and offers to compromise

Evidence of: (1) Furnishing or offering or promising to furnish; or (2) Accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation

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On 3/23/2016 at 4:01 PM, marquez said:

I am trying to avoid bk, and all of the other debts I've got are being handled by jdb firms (except one other Cap One account). Discover already dropped their suit because of the MTC arbitration, so I am hoping that will work with the other creditors. My debts are generally under 2K (2014 was a horrible year and I just couldn't afford minimum pmts anymore, and credit rating was so low anyway bc I was maxed out).

I can understand wanting to avoid bankruptcy but if you have multiple unpaid debts and your credit rating is a bust anyway, bankruptcy may be the better option. Your credit score will go up faster, in a couple years you can start thinking about buying a house without being told you have to pay off a judgment or a bunch of doubtful debts on your credit report, and generally, you'll just be able to breathe easier knowing the stuff is behind you.

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@nascar I have been going back and forth about it for over a year. I had been fairly set on filing, but I owe less than 20K & my highest debt is 5K, with most of the others under 2K. People have told me it really doesn't make a lot of sense to file in my case. I have managed to keep some things from hitting my report, and a Discover lawsuit was dismissed with prejudice, so I have been biding my time, trying to figure out what to do. I feel very stuck. I would love to file bk, as it seems so much simpler than dealing with all of these. I just get mixed advice, and I'm not prone to making decisions quickly. I'm very unsure about how to proceed & I've just been answering these as they come in. I have about 15 creditors, total. All for very low amounts. Several are actually under 1K. So, it has seemed that I might do well with using arbitration in a number of them (excluding capital one, obviously). Currently, 3 cases are pending after I filed a motion to compel arbitration. Waiting to see what the creditors/judges do. A Portfolio Recovery case was denied by the judge, and I found an attorney who filed an appeal, which he thinks we'll win, in addition to FDCPA violations for which we're going to sue. I'm trying to get the best advice I can. I'm not averse to working to keep the damage to a minimum, but I don't want to spin my wheels, either. I know I am a prime bk candidate, but my score isn't as even low anymore as it was when I was paying all these cards on time (which is insane). I'm sure it's going to get worse, though. I've noticed things hit with little rhyme or reason, depending on the creditor and the reporting agency. Please let me know if you have any insight or advice to share. I'm all ears.

@CCRP626 I don't know if KY holds a hearing for certain motions. When Discover dismissed, it was approved with no hearing. And when the judge denied the MTC arbitration in the Portfolio case, I just got a notice in the mail. There was no date set. So, should I just call them and ask them to send the agreement? I'm confused about what this agreement even does. I guess it's still a judgment, but it's keeping me from a default judgment, correct? In other words, I'm just mitigating the potential damage from a summary judgment by offering a payment arrangement?

I will say that I dealt with this debt collector years ago and they seem more legit than others. Maybe I should just get it in writing and make payments?

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@marquez I think it would be a good idea to have them send you the agreement so you have time to review it. Hopefully you'll see any detail in there that will clarify things, such as if you miss any payments. Just make sure it's all in writing. If you see something in there you don't feel comfortable with or you don't agree with, cross it out and initial next to that and send it back unsigned or call/e-mail them back stating you are fine with the agreement except paragraph 16 or whatever and please send a revised agreement.

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