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Capital One vs. BC (Full Documents) - 2018 Credit Card Lawsuit


573dave
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So I'm new to this. My girlfriend just got served by Capital One. I've been researching this site, and similar sites, and local court websites, and I'm overwhelmed. I'm wondering if someone experienced can help me.

Most of the information I am finding are defenses for third party collectors, or expired timelines, but I don't think any of that will work here. The affidavit is from a kinda third party (Capital One Services, LLC), claiming to be an affiliate of Capital One, but the suit itself is from Capital One Bank so I'm not sure that matters at all. They did not include any contract, customer agreement, or detailed purchases, but I don't even know what step one is. Do I file an "answer" to the "suit" stating I deny the claims in paragraphs 2-5 of the suit? Or paragraphs 3-4 of the affidavit? Do I file an answer at all since they served me with a court date? Do I file a motion for discovery? I'm very lost. When I say I, I mean on her behalf as she is terrified and wants to just let it default (which I know is the worst thing she can do). I also need to try to keep her out of the courthouse as she has pretty serious social anxiety and may just walk out when they call her name anyway, and again we lose. This is a small debt ($1,027) that I believe with minimal resistance they will walk away from, but she is unemployed so we don't have many options as far as settling.

Any assistance would be very helpful. Laws are applicable to the State of Missouri. Service date was 7/24/18. Court date is 8/20/18.

I have attached the "suit" here and on dropbox as a backup. Her name has been hidden for her privacy (even though it's public record).

https://www.dropbox.com/s/g9ay0tue46o9rfy/REDACTED%20SUIT.pdf?dl=0

REDACTED SUIT.pdf

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7 minutes ago, 573dave said:

This is a small debt ($1,027) that I believe with minimal resistance they will walk away from

Nope. They will take it all the way to trial and whatever means necessary after that to collect their judgment. 

7 minutes ago, 573dave said:

but she is unemployed so we don't have many options as far as settling.

Has she explained her unemployment status to them? They may be willing to enter a stipulated judgment agreement where they allow her 6 months to get back on her feet and start making payments.

Otherwise, her options are limited and the outcome is near certain judgment against her. 

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Wow they will spend well over $1,000 at trial just to collect $1,000? Capital One is clearly insane...

And no, her social anxiety limits her ability to negotiate lol. But I'm not even sure six months would help as she's currently a stay at home mom with extreme difficulty finding employment. Not trying to make excuses, just stating the facts as I see them.

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Most of these companies also request court costs if they win so they can demand that from you too in addition to the debt. It is whatever the judge awards so don't think they are spending the $1000 to get $1000.

Honestly, if you can come up with it. I would offer $800 - $900 and see if they take that and walk away. It has to be substantial however as Cap One is aggressive in debt collection and they are an original creditor so they have all the records they need to succeed.

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1 minute ago, WhoCares1000 said:

Honestly, if you can come up with it. I would offer $800 - $900 and see if they take that and walk away. It has to be substantial however as Cap One is aggressive in debt collection and they are an original creditor so they have all the records they need to succeed.

If I had $800-900 to give her it could have been paid before this. I was hoping with all the wins I read about this would have a better response, but it is what it is. I guess we should let it default then as there's nothing to garnish, we have little to nothing to offer, and they won't give much time to get it together.

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Given the constraints that you mention, the possibilities for any sort of defense or settlement seem very limited.

It is interesting that the first page of the complaint (in an OC case) has a debt collector disclosure;

"This is an attempt to collect a debt by a debt collector and any information obtained will be used for that purpose."

I suppose that Blitt and Gaines, P.C. concedes that they are a debt collector.

Because Capital One Services, LLC ("COSLLC"), an agent and affiliate of Plaintiff Capital One Bank (USA), N.A. ("Capital One") is probably not a debt collector.

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46 minutes ago, 573dave said:

If I had $800-900 to give her it could have been paid before this. I was hoping with all the wins I read about this would have a better response, but it is what it is. I guess we should let it default then as there's nothing to garnish, we have little to nothing to offer, and they won't give much time to get it together.

The other wins you read about are mostly by using arbitration, or they are in California.  Unfortunately you have neither available to you.  Cap1 happens to be one of about 3 banks that no longer use arbitration in their card agreements, and that removes any potential leverage for you in a situation like this. Outside of an outright judgement the only thing you really have left is to counter sue them if you can find consumer law violations (FCRA and TCPA would be the places to look for an OC bank) or to settle on their terms.

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4 minutes ago, Pericles said:

It is interesting that the first page of the complaint (in an OC case) has a debt collector disclosure;

"This is an attempt to collect a debt by a debt collector and any information obtained will be used for that purpose."

I found this interesting as well, but since the Plaintiff in the party is Capital One Bank itself I dismissed it as unable to help me.

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3 minutes ago, fisthardcheese said:

Outside of an outright judgement the only thing you really have left is to counter sue them if you can find consumer law violations (FCRA and TCPA would be the places to look for an OC bank) or to settle on their terms. 

I have been looking at this option. I've been reading about this Flyingifr method of FCRA and FDCPA claims (over on debtorboards.com), including the fact that Capital One Bank and Capital One Services are two separate entities (affiliates or not). I'm gonna start a post over there as well once I get account approval.

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4 minutes ago, 573dave said:

I have been looking at this option. I've been reading about this Flyingifr method of FCRA and FDCPA claims (over on debtorboards.com), including the fact that Capital One Bank and Capital One Services are two separate entities (affiliates or not). I'm gonna start a post over there as well once I get account approval.

Just so you are aware, a counter suit route will require your girlfriend to show up and speak to the attorney and possibly the judge as well.  You would not be able to speak for her in court.

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1 minute ago, fisthardcheese said:

Just so you are aware, a counter suit route will require your girlfriend to show up and speak to the attorney and possibly the judge as well.  You would not be able to speak for her in court. 

Yeah this part is a struggle. We will see what happens... If a counter suit is filed under FCRA violations, does their suit get put on hold until that plays out?

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8 minutes ago, 573dave said:
 

Yeah this part is a struggle. We will see what happens... If a counter suit is filed under FCRA violations, does their suit get put on hold until that plays out?

No they happen at the same time.  Generally, the idea of a counter suit is that once you file it, you negotiate a settlement with the attorney to both drop your cases and walk away.  But the attorney will want to see your proof and decide if that is the best strategy for their side as well.  Generally it would involve showing up to the initial court date and meeting with the attorney before seeing the judge. The attorney will absolutely use intimidation tactics, especially on someone who appears to have high anxiety, to get them to admit to the debt and agree to pay it.  They will also want to see proof on your counter claims and will intimidate you into dropping your claims by saying you have no case and saying they will ask the court to add extra costs to the judgement for frivolous filing, etc, etc.  But if you can show them the mistakes their client made and if you can stand firm against their intimidation, then often times in that situation you can negotiate a mutual dismissal.  But even for people without serious anxiety problems, that entire process can shake people up often.  Just be aware of it all.

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2 hours ago, 573dave said:

Wow they will spend well over $1,000 at trial just to collect $1,000? Capital One is clearly insane..

No.  They typically keep a law firm on a flat fee retainer to handle a specified number of cases each year.  Since over 90% are default judgments it is money well spent.  Out of pocket the only money Cap1 will spend is the actual filing fee with the court.  All of which is awarded to them in the judgment that you end up paying.  

2 hours ago, 573dave said:

This is a small debt ($1,027) that I believe with minimal resistance they will walk away from

Not at all.  Cap1 is one of the top 3 aggressive creditors and will not just walk away.

1 hour ago, 573dave said:

I have been looking at this option. I've been reading about this Flyingifr method of FCRA and FDCPA claims (over on debtorboards.com), including the fact that Capital One Bank and Capital One Services are two separate entities (affiliates or not). I'm gonna start a post over there as well once I get account approval.

Most of which is now outdated advice.  It applied pre, during and immediately post recession and is also based on being sued by a junk debt buyer NOT the original creditor.  The first major problem you have is that as an OC Cap1 is not subject to the FDCPA.  Even if you did have an FDCPA violation by the law firm these days what we are seeing OCs due is to simply fire that law firm and change to another.  That erases and counter claim and you would have to pursue it separately from their suit.  

On the FCRA Cap1 is extremely fastidious at ensuring accuracy of reporting if not outright deleting their trade line until the suit is over.  You have the burden of proof and you cannot use credit reports as evidence they are hear say.

I do not know of Cap1 even using the phone for robo-calls for collection.  They pretty much seem to go through the mail then right to court.  To prevail on a TCPA claim you would have to have proof that the calls were excessive and harassing.  

ALL of these defenses require your girlfriend to actively participate in the legal process.  You are not a lawyer and have no standing to be involved.

If you cannot settle now then at least ensure that you do NOT have any joint bank accounts that Cap1 could levy and tie up your money while you attempt to sort it out in the courts after they do it.  Get her name off the bank accounts.

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4 hours ago, 573dave said:

If I had $800-900 to give her it could have been paid before this. I was hoping with all the wins I read about this would have a better response, but it is what it is. I guess we should let it default then as there's nothing to garnish, we have little to nothing to offer, and they won't give much time to get it together.

What you saw were cases involving Junk Debt Buyers, in California, and/or involved arbitration. Your case is in Missouri with an original creditor who has removed the arbitration clause. Original creditors (especially Cap 1) has all the paperwork they need to prove their case. You do not even have a pair against their possible royal flush and even those with experience in getting cases dismissed would know to fold here.

I am also doubting that you will have a valid counter claim. The FDCPA is not available against original creditors (and your state does not have a state FDCPA which is applicable to original creditors), I am sure Cap 1 is well aware of the FCRA trick and will make sure the report is accurate or even remove the tradeline until the conclusion of the case, and I doubt they use robocallers which is the TCPA. Even if you do have a valid counter claim, your gf would have to deal with it which is intimidating for most people without anxiety.

Also, as @Clydesmom has said, most of the attorneys who work for Cap 1 probably do so for a flat fee because most cases end in default anyways so the attorneys office makes enough money to deal with the few people who fight. Cap 1 is also a very aggressive creditor. They would sue the CEO's grandmother for a $500 when she is in a nursing home. They do not care how small it is.

You can fight the case or make a counter claim if you want. However, if I were you, I would make sure that my gf's name was not on any asset or account. Since she has no job, even if they win, they will not be able to collect anything. Judgements in Missouri are good for 10 years and can be renewed so they will not negotiate too much but there is still room. What I would do is save up $800 - $1000 over the course of a year (in other words, let the judgement sit and ferment), then offer that as a settlement to the judgement. Either they will bite or they will not. If they won't, the funds are in your name, not hers so they cannot levy them. Continue to sit and wait and see what happens. If you do settle, get it in writing and do not send them a check from your account, use a bank check or money order.

Of course, if your gf does get a job, that will be moot point because they will garnish 25% of her disposable earnings and they will not settle at that point because they will get the full amount.

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2 hours ago, Clydesmom said:

No.  They typically keep a law firm on a flat fee retainer to handle a specified number of cases each year.  Since over 90% are default judgments it is money well spent.  Out of pocket the only money Cap1 will spend is the actual filing fee with the court.  All of which is awarded to them in the judgment that you end up paying.  

Not at all.  Cap1 is one of the top 3 aggressive creditors and will not just walk away.

Most of which is now outdated advice.  It applied pre, during and immediately post recession and is also based on being sued by a junk debt buyer NOT the original creditor.  The first major problem you have is that as an OC Cap1 is not subject to the FDCPA.  Even if you did have an FDCPA violation by the law firm these days what we are seeing OCs due is to simply fire that law firm and change to another.  That erases and counter claim and you would have to pursue it separately from their suit.  

On the FCRA Cap1 is extremely fastidious at ensuring accuracy of reporting if not outright deleting their trade line until the suit is over.  You have the burden of proof and you cannot use credit reports as evidence they are hear say. 

I do not know of Cap1 even using the phone for robo-calls for collection.  They pretty much seem to go through the mail then right to court.  To prevail on a TCPA claim you would have to have proof that the calls were excessive and harassing.  

ALL of these defenses require your girlfriend to actively participate in the legal process.  You are not a lawyer and have no standing to be involved.

If you cannot settle now then at least ensure that you do NOT have any joint bank accounts that Cap1 could levy and tie up your money while you attempt to sort it out in the courts after they do it.  Get her name off the bank accounts.

Well that's sad and disappointing. We have no joint assets. Thank you very much for your help on this.

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12 minutes ago, WhoCares1000 said:

What I would do is save up $800 - $1000 over the course of a year (in other words, let the judgement sit and ferment), then offer that as a settlement to the judgement. Either they will bite or they will not. If they won't, the funds are in your name, not hers so they cannot levy them. Continue to sit and wait and see what happens. If you do settle, get it in writing and do not send them a check from your account, use a bank check or money order.

Of course, if your gf does get a job, that will be moot point because they will garnish 25% of her disposable earnings and they will not settle at that point because they will get the full amount.

Also disappointing. Thank you very much for your help. Hopefully one day I'll be able to fight one of these cases and win with everyone's help here :).

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5 hours ago, 573dave said:

her social anxiety

Has she been officially diagnosed and on disability? It may be worth trying to deal directly with Cap1, which she can give them permission to negotiate with you. 

Otherwise, it's not the end of the world if they get a judgment, especially if she remains unemployed and has no assets. She'll just have to live on a 'cash' basis for a few years until the judgment expires.

Also, be very wary of advice you get from the 'other site'. There's a lot of big talkers over there but very few are willing to back up their claims. 

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2 minutes ago, Harry Seaward said:

Also, be very wary of advice you get from the 'other site'. There's a lot of big talkers over there but very few are willing to back up their claims. 

I've decided not to post there since the information is pretty irrelevant since this isn't a debt collector.

2 minutes ago, Harry Seaward said:

Has she been officially diagnosed and on disability?

Unfortunately no. Just a reality. I think we are just gonna let it default. She's thrilled not to have to go to court lol.

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1 hour ago, 573dave said:

I think we are just gonna let it default. 

Yeah, probably you best best under the circumstances. Check your state laws and rules regarding "judgment renewal", but in most states, judgments eventually expire after allowing a judgment creditors set number of renewals. It's usually about 10 years. 

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From what I saw, judgements can be renewed in Missouri.

I have to ask, is this the only debt your GF has or are their other debts. If there are other debts, what is the total debt. I am trying to see if saving up for a BK is a viable option. Right now, if this is the only debt, that would be stupid because again, $1000 will clear this up, especially if you GF cannot get a job and they have to sit on the debt because there is nothing to collect.

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8 hours ago, WhoCares1000 said:

I am trying to see if saving up for a BK is a viable option.

She has this card and one other for about $500 that isn't going after her. I don't think it's worth bankruptcy. But yes, Missouri will sadly allow them to try to collect forever once they have a judgment. She also has some other debt of about $6,000, but that isn't eligible for Chapter 7 bankruptcy.

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Yeah, BK is not a good option in this case.

Actually, I would try and clear up the $500 debt first and let the judgement sit for a little bit becoming stale. That may give you more negotiating power as they realize there is nothing to grab. They might refuse but then you wait.

In the meantime, make sure your GF fills out every financial disclosure request that she gets. They are going to be aggressive in that in hopes that she trips up and they can have her arrested as bail money is attachable.

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4 hours ago, Debtguy393939 said:

I almost guarantee they would happily take $50 a month.

I'm sure they'll take it too, but not in lieu of a judgment in their favor.  Everyone claims they are judgment proof. Cap1 can get a judgment, let it sit for 5 years, double in value and then get aggressive with their collection efforts.  If the person really is judgment proof, it's a zero sum game. I'm sure more often than not the gamble pays off and Cap1 gets a little something extra for their patience. 

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