Is Capital One really the Plaintiff?

[Ceejayjorg]

Hello! We just received summons and complaint 2 days ago listing Capital One as Plaintiff. However, they are represented by Gurstel Law.

 I’m pretty sure Gurstel is a JDB, since they sent us a collections letter in January. So I’m confused as to who we’re really working with. Also, the amount listed on the collection invoice is different from the amount in the complaint. 

Cap One has charged off the amount on credit report. In comments it says PRL. 

Many thanks for any suggestions and help. 

[BV80]

1 hour ago, Ceejayjorg said:

Hello! We just received summons and complaint 2 days ago listing Capital One as Plaintiff. However, they are represented by Gurstel Law.

 I’m pretty sure Gurstel is a JDB, since they sent us a collections letter in January. So I’m confused as to who we’re really working with. Also, the amount listed on the collection invoice is different from the amount in the complaint. 

Cap One has charged off the amount on credit report. In comments it says PRL. 

Many thanks for any suggestions and help. 

I understand that this is confusing, but just because Gurstel sent a collection letter doesn't mean it owns the debt.  A law firm that acts on behalf of its client can send a collection letter in an attempt to avoid a lawsuit for a debt.

I would advise that you refer to your credit report.  Is Capital One reporting?  If it is, does its entry show that the account has been sold or transferred?

 

 

 

[Harry Seaward]

I have never heard of Capital One selling their credit cards debts.  If you're being sued, and it states Cap1 is the plaintiff, you can bet they are the plaintiff.

And Gurstel doesn't buy debts.  They are a debt collector law firm.  They send pre-litigation collection letters on behalf of their clients, and then represent those clients in their lawsuits.

Because this is Capital One, the best chance you have to avoid a judgment is to try to settle now.

[Ceejayjorg]

Thank you both for your responses.  I was originally feeling like we could piece together a pretty good defense, but not so much now!  Cap One must be difficult?  I've read a few things and seen it go both ways.

[Goody_Ouchless]

1 hour ago, Ceejayjorg said:

I've read a few things and seen it go both ways.

The "two ways" are (1) how things used to be, 10 or 15 years ago and (2) the current reality.

Gurstel is an experienced "creditor's rights" law firm, meaning they pay the rent by suing people on behalf of companies like Cap One. They have practiced in AZ for years and aren't some rubes that are going to make mistakes. As Harry said, you have been sued by an Original Creditor, not a debt buyer, so none of the old-school defenses (standing, hearsay) are even applicable.

There should be an arbitration clause in your credit agreement that you could use to drag this out and maybe get a lucky dismissal - especially if the debt is low enough. I believe there is another new thread from NY for a Cap One debt - perhaps the threads could be combined if you both chose to pursue arbitration.

Unfortunately this is one of those cases where Cap One holds all the cards. Harry's advice is sound - you're best bet is to explore settlement options. One "positive" is that Original Creditors have been know to offer better settlement terms than debt buyers. It seems counter intuitive, but it may be as simple as "goodwill" being a good business decision - after all, no debt buyer is worried about losing your future business. 

(I'll leave it to others to cover arbitration strategy. In the past it has been argued that the threat of arbitration can result in better settlement terms, but we have also seen companies like American Express dig in their heels when challenged.)

 

 

[Ceejayjorg]

13 minutes ago, Goody_Ouchless said:

There should be an arbitration clause in your credit agreement that you could use to drag this out and maybe get a lucky dismissal - especially if the debt is low enough. I believe there is another new thread from NY for a Cap One debt - perhaps the threads could be combined if you both chose to pursue arbitration.

 

 

 

I just checked the most recent Cap One agreement and they have removed the arbitration clause.  Being that we have another account they could potentially sue us for (last year really sucked), perhaps it's time to reassess now that we have a better understanding.  

I feel so fortunate to have found this forum!  You all are goldmines of information.  I hope to be able to pay it forward soon.  

[BackFromTheDebt]

Yeah, CapOne removed their arbitration clauses around 2010.  (I had some cases with Cap1 under the old agreement, which was one of the nicest ones at the time.)

 

Your only chances of arbitration are slim and none.

Slim, if you had the card before they removed arbitration, and you can successfully argue suvivability.  This occasionally works.  You'd better believe they are prepared for this one.  

None, if you opened the account after they removed arbitration.  

[Goody_Ouchless]

6 minutes ago, Ceejayjorg said:

I feel so fortunate to have found this forum!  You all are goldmines of information.  I hope to be able to pay it forward soon.  

It really is a great group. (The other, soon-to-be-defunct site, was often vehemently against "settlement" as an option. They would start people on the road to arbitration with Original Creditors, and then sit back and enjoy the train wreck.)

Is the other account with Cap One? If so, maybe they would be willing to work with you on a bulk settlement. 

It stinks to think about paying, when you see others walking away for nothing, but with Cap One, Discover and Amex there really isn't another option.

 

[BackFromTheDebt]

1 hour ago, Goody_Ouchless said:

It really is a great group. (The other, soon-to-be-defunct site, was often vehemently against "settlement" as an option. They would start people on the road to arbitration with Original Creditors, and then sit back and enjoy the train wreck.)

Is the other account with Cap One? If so, maybe they would be willing to work with you on a bulk settlement. 

It stinks to think about paying, when you see others walking away for nothing, but with Cap One, Discover and Amex there really isn't another option.

 

Hm.  Looking at that other site, it appears the main people who post on this site and the main people who post on the other site are mostly the same people.  

That may have been true in the past, but probably not so much now.  But then, the other site seems not long for this world, so a moot point.  

[Goody_Ouchless]

8 minutes ago, BackFromTheDebt said:

Hm.  Looking at that other site, it appears the main people who post on this site and the main people who post on the other site are mostly the same people.  

That may have been true in the past, but probably not so much now.  But then, the other site seems not long for this world, so a moot point

With folks getting banned, and others going into hiding when their shtick crashed and burned, yea, it's like two helpful people from here that still try to assist over there.

Their last hurrah still has an active thread here - someone talked into arbitration with an OC and then publicly vilified once they drove him off a cliff.

[BackFromTheDebt]

15 hours ago, Goody_Ouchless said:

With folks getting banned, and others going into hiding when their shtick crashed and burned, yea, it's like two helpful people from here that still try to assist over there.

Their last hurrah still has an active thread here - someone talked into arbitration with an OC and then publicly vilified once they drove him off a cliff.

I missed that one.  The only threads I saw over there about arbitration with OCs dealt with using arb as a strategy to try to get a better settlement, which makes a lot more sense than going into arb with an OC these days trying to get a win, unless one has some serious violations.  Perhaps that site is somewhat saner than it used to be.  

 

Of course there are always exceptions.  I went into arb on 5 accounts with 4 different OCs.  In all four there were tons of violations.  I think the total settlements for all those cases added up to a few of thousand dollars, which I used for a new washer and drier and a family vacation.  But  was on my toes from the beginning, letting them rack up violations, and saving everything, sometimes over a period of years.  This is a far cry from people who were asleep at the wheel until they got a summons and complaint.  

[small-town-girl]

@BackFromTheDebt What types of violations did you find common?  I never answer the phone, so I would never be able to get them on that.  

[BackFromTheDebt]

11 minutes ago, small-town-girl said:

@BackFromTheDebt What types of violations did you find common?  I never answer the phone, so I would never be able to get them on that.  

Well, that can be problematic.  A lot of the worst violations involve phone calls.  

Most of the absolute WORST violations were with Cap 1.  I got confused about Cap 1 in this or another thread, but, I took them to arbitration and they dropped it, back in the days when Cap 1 had an arb agreement, so I never signed an NDA with them.  I can tell the truth.

 

Cap 1 used the absolute scummiest CAs and attorneys imaginable.  The debt collectors would do things like call me at work, even after I sent a letter telling them not to.  Or, they would lie or commit other violations on the phone.  Such as neglecting the "mini-Miranda".  The attorneys flat out lied in court filings.  

Back in those days, I only used my land line number.  On my land line, I had devices to block up to 20 numbers, to get the caller IDs of calls blocked or otherwise, and another device to record phone calls.  Be careful recording calls.  I am in a 1-party state, but I couldn't use the calls in court unless I had some agreement that the call could be recorded.  

Some people have advised saying things like:  "Oh, this call may be recorded, right?"  

 

I did have one woman from a CA argue later in the call that it meant SHE could record me but I couldn't record HER.  Well, either the parties agree the call can be recorded, or they don't.  If you record them saying "This call may be recorded for blah blah blah", then you have permission to record.  

If you live in a 2-party state, be extra careful.

 

Other violations, from a number of different collection agencies and law firms:

Sometimes they send initial collection letters that overshadow your right to wait 30 days and DV.  One CA kept sending me a new one every week during the 30 days.  I think this was for Cap 1.  That is why I saved EVERYTHING.

 

Sometimes (but not for Cap 1), I would get letters from a law firm that doesn't have any lawyers who are members of my state's bar.  Oops!

 

If you are already in the court stage, then it is probably way too late to rack up violations, unless you get an attorney who lies in court papers.  BUT, if you saved all your collection letters, look through them carefully to see if there were any cases of overshadowing.  

[small-town-girl]

I do save every single letter I get, so I will start looking at those carefully.  And one more stupid question,...what is overshadowing? 

Edited March 2, 2018 by small-town-girl
typo

[BV80]

22 minutes ago, BackFromTheDebt said:

Sometimes they send initial collection letters that overshadow your right to wait 30 days and DV.  One CA kept sending me a new one every week during the 30 days.  I think this was for Cap 1.  That is why I saved EVERYTHING.

Just a note:  Debt collectors are allowed to continue collection efforts during the 30-day validation period as long as the communications don't overshadow the right to request validation.  For instance, they could send a letter requesting payment.  However, they could not demand that payment be made within a time limit that would fall within the first 30 days.

 

24 minutes ago, BackFromTheDebt said:

Sometimes (but not for Cap 1), I would get letters from a law firm that doesn't have any lawyers who are members of my state's bar.  Oops!

Were they just collection letters?  If so, unless one's state requires that out-of-state attorneys be licensed as debt collectors, attorneys can send letters across state lines.

[small-town-girl]

@Brotherskeeper Does each time a debtor collector/attorney send a new letter start a new 30 day validation window, or do you only have from the time they send the very first letter out?

[BV80]

8 minutes ago, small-town-girl said:

@Brotherskeeper Does each time a debtor collector/attorney send a new letter start a new 30 day validation window, or do you only have from the time they send the very first letter out?

The 30-day validation period only applies to the initial communication which is usually the 1st letter that contains the 30-day notice.  There can only be one initial communication.

1692g(a) and (b):

(a) Notice of debt; contents  Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

(b) Disputed debts

If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a)...

[small-town-girl]

@Brotherskeeper Thank you for the info!

[Brotherskeeper]

1 hour ago, small-town-girl said:

@Brotherskeeper Thank you for the info!

@SMALL-TOWN- GIRL Thanks should go to the indispensable @BV80, who is CIC's FDCPA guru. 

[Goody_Ouchless]

1 hour ago, small-town-girl said:

I do save every single letter I get, so I will start looking at those carefully.

Save everything, but don't let dollar signs from potential violations distract you from your arbitration study - especially your jurisdiction's rules and statutes. 

The glory days of violations is in the past - "professional victims" jobbed the system to the point where debt buyers got serious about compliance and courts started to rule against frivolous claims.

[small-town-girl]

Oh gosh!  LOL I tagged the wrong person.  Thank you for heads up @Brotherskeeper and @BV80 thank you for that info, very helpful!

[BackFromTheDebt]

Overshadowing can be a bit tricky.  It is when they send something that makes it look like you need to contact them NOW, and in the fine print it tells you that you have the 30 days.  

One of the Cap 1 debt collectors sent me all sorts of stuff with "FIRST NOTICE!", "SECOND NOTICE", ... during the 30 days.  It was pretty much trying to force me to contact them NOW, when in fact I had the 30 days.

 

[small-town-girl]

@Goody_Ouchless Yes, I don't even care about the dollar signs.  I just desperately don't want to file bankruptcy, but realize it may come down to that.  I had to default on 16 credit cards total.  Just can't keep up with the payments.  Had a reduction in child support two years ago by a substantial amount and can't rob Peter to pay Paul anymore.  I have tried a debt management program and lasted on that for about 6 months, but that only dropped my payments down by $100.00.  I am sure there is no way that I will be able to prevail against fighting the OC's and debt buyers with this many, but I will give it my best shot until I just can't anymore, or it gets to a point of wage and bank account garnishments.    

[small-town-girl]

@BackFromTheDebt Gotcha!  That makes perfect since and I will be watching for that.

[BV80]

15 minutes ago, BackFromTheDebt said:

Overshadowing can be a bit tricky.  It is when they send something that makes it look like you need to contact them NOW, and in the fine print it tells you that you have the 30 days.  

One of the Cap 1 debt collectors sent me all sorts of stuff with "FIRST NOTICE!", "SECOND NOTICE", ... during the 30 days.  It was pretty much trying to force me to contact them NOW, when in fact I had the 30 days.

 

I don't know where you're located, but in Zemeckis v. Global Credit (2012), the 7th Circuit Court of Appeals affirmed the ruling of the lower court in favor of the debt collector.  It ruled that an initial communication containing such phrases as "take action now" and "call today" did not violate the FDCPA.  Here's a few excerpts:

The letter's insistent language and repeated threats of legal action against her, she claimed, created a false sense of urgency that overshadowed statutorily mandated language informing her that she had thirty days to contest the validity of the debt. In particular, the letter "urge[d] [her] to take action now," as well as to "[c]all [Global Credit's] office today...." It also stressed Capital One Bank's right to pursue legal action against her, warning that "[her] account now meets ... [the] guidelines for legal action" and that "Capital One Bank (USA), N.A. may be forced to take legal action." Juxtaposed against the validation notice, which Global Credit placed on the back of the debt collection letter, the letter's language and structure obscured her legal rights and thwarted the notice required by the FDCPA.

The dunning letter that Global Credit sent to Zemeckis, at worst, contains puffery. Its suggestions to "take action now" and call "today" did not impose a deadline that contradicted her right to a thirty-day validation period. The requests that she call "now" or "today" were not tantamount to a request for payment, nor would an unsophisticated consumer understand them as such.

Global Credit's repeated threat of legal action similarly fails to convert the letter's puffery into a contradictory payment deadline. The letter warns only that Capital One Bank had the right to pursue legal action.