phoenix02

Responding to lawsuit after settlement agreement?

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My wife is being sued by Capital One in CA by Nelson and Kennard. They filed on the 12th of last month, we were served on the 28th, so I have to file a response pretty quickly. 

I have been speaking with the lawfirm on a settlement for the past week. Lawsuit is for $3578 or so, plus they have tacked on $317 for fees for the filing, I suppose. I was able to borrow some money from my father to pay this and the best I could get was $2700 lump sum by the end of the month. 

The problem is that I requested this in writing and was told it would probably take longer than the end of the month, but I was still expected to pay before then or the settlement would be revoked. I am not comfortable paying a debt settlement with nothing in writing. They said there are the call recordings, I noted "yes, which you have and I do not." 

 

Anyway, kinda stuck here on how to respond. Last thing I want is to let them get a default judgment while I'm trying to get the settlement in writing, so I have to respond. General denial? How should we respond? My wife and I have medical issues that made us get behind on everything last year, and my wife is not up to it emotionally or tactically to stand before a judge and argue, so I am trying to settle this so she doesn't have to. I have 2 other Capital One CCs in my name that they are threatening to sue, so I'll be back to ask about those. This one for my wife is what I need to get past now.

 

Ideas? Thanks!

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Btw, the courthouse is about 50 miles away so it's a hardship for us to even get there- my only vehicle gets 10MPG. I have to go down on monday for a doctor's appointment at a new specialist for my wife we just got approval for, so I was hoping to stop by the court and file while we are down there rather than having to drop another $35 on gas to go down again just to file the response. 

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Oh, one other thing- on the first phone call to them, I had it on speakerphone, the rep asked if my wife was there, she said yes, did not say I was authorized to discuss the matter, did not say I was authorized to act as agent for her, etc. Every other call was with me alone. I am not a party to the lawsuit or a cosigner on the original CC. I found that odd, but did it for two reasons- my wife wouldn't know what to say to them, and second if they thought they could use the recordings of the calls in the court case should it proceed as an acknowledgment of the debt, my wife, the defendant, did no such thing. I don't know if that matters for anything, but an interesting note. 

Also, I spoke to a Supervisor, which is how I even got the $2700 settlement in the first place. He said that if I agreed to the settlement it would be reported as "paid in full" while the next rep I spoke with today said they could not do anything about that, reporting was Capital One's job and they could not make promise. I requested the call recording with the Supervisor be reviewed for false promises, but doubt anything will come of it.

In general, I am wary of giving them any info to make a payment without something in writing. Even then I was thinking about opening another bank account to put the money into for them to withdraw then closing the account so they don't have our primary account information. Why do they not want to give me something in writing? What could make a settlement agreement,  basically a form letter, take longer than a day or two to draft and email? It just sounds fishy to me. 

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Sorry for another post, but a little more info- account opened 1/15, last payment 2/18, charged off 7/18. 

The reason I want to settle is because I don't want to risk a judgement for balance and court costs. We don't have wages to garnish right now but the equity in our home is higher than the homestead exemption. The plan is to sell the house and move to another state as soon as we can, but my wife needs a special surgery that a handful of docs can do, so we want to get it done here before we move. My concern is them getting a judgement, placing a lien on the home and being able to force a sale for the equity above the exemption to get their money. Likely? I doubt it, but the fact that it is possible worries me. I am not as concerned about the two cards in my name- the house is not in my name in any way and my wife is not a signer on my cards, so if they were able to get a judgement on me it would just be blood out of a turnip. 

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Just want to get a few bits of information straight.  Lawsuit was served on who? If it was you that is sub-service (which is fine) and you have longer to respond to the lawsuit, if it was your wife then that is personal service and shorter time period to respond.  Think it is 45 days and 30 days respectively, either way I know I will get some pushback from others here, but I don't think you should file an answer here because it will cost you at least $225 to do so, unless you can get a fee waiver from the court. 

My thinking is this, if your wife was served on 4/28/19, means she needs to respond by 5/28/19 or so.  Will you have the full amount to pay the settlement prior to that? I also suggest getting a cashier's check that way they can process the dismissal quicker (personal checks typically take a lot longer to clear and cashiers checks are solid), and they don't have any of your account information. You have the cashier check receipt, you mail it to them certified so it gets you tracking information, and since you haven't received the settlement agreement in writing yet, can write a short note.  This check for $xyz is to settle Capital One account ending in 1234 for "wife name".  Pursuant to my phone call with Agent John Smith on 5/12/19 at 4PM where agent john smith and I agreed to resolve the lawsuit and account for $xyz.  I still have not received a copy of our settlement agreement so please send to me at the address on file as soon as possible for my records.  Please also send me a copy of the dismissal of the lawsuit at your earliest convenience.

I know you really want it in writing, but if the law firm really tried to not honor it, you could reach out to Capital One and it would be very easy to resolve.  I don't forsee that as an issue with a law firm and original creditor.  Again you can do what you would like, understandable each way, but the filing an answer seems very inconvenient for you and a waste of good money. 

 

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It was servied in person to my wife directly. A fee waiver would not be a problem with our current financial situation. My concern is in mailing a check, they don't process it before the end of the month and then they file for a default judgement against her, then process the $2700 settlement, "forget" the settlement agreement and then come after us for the remainder of the default judgment. 

I was able to borrow the money so I have the $2700 now and can pay asap- I am just gunshy to trust them to uphold their settlement agreement if I just send the check without the agreement in writing. Should I in good faith send payment without the agreement in writing? I worry that I have no proof whatsoever to back up the settlement agreement. Would they consent to being recorded if I call back monday maybe? Then I have a recording of a verbal agreement. Or am I overthinking/ worrying too much about it?

Thanks!

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Very good concerns to have, definitely are going about this the proper way.  I like your thinking and the way you want to do it I think provides you a lot more peace of mind.  I assume you have an iphone or something similar, shoot even Microsoft Word I believe has the capability to record.  You would just let me know that you are recording the call, if they ask why can simply say because I don't have a copy of the settlement agreement in writing, I would like to at least have a recorded conversation of our agreement.

Then when they say yes, I would repeat the terms of the deal or actually have them repeat them.  The balance on the account is $3500, we are agreeing to accept $2700 to settle the account in full and dismiss the case with prejudice upon clearance of funds. I would also ask them to confirm that they won't be requesting a default judgment in light of this agreement/payment. It is too early for them to even request a default judgment, if they did the court would either automatically reject it or you would have some violations to go after them for.

As for providing banking information, as long as you don't bounce a check and then change your mind about paying I would not worry about it.  The firm isn't going to do anything with your bank info besides that payment, if you changed your mind then they would know where you bank which opens you up for a potential bank levy but again you are resolving the account.  Give them the payment info for check by phone, then I imagine they can give you a confirmation number for it, then you are done.  

With all that said, you have to do what is comfortable for you.  I personally have done both ways. If it was a debt buyer, I would be more cautious even though the big ones are reputable.  Because it is a law firm and an original creditor account I would record the call and make the payment.  Congrats on getting one behind ya!

 

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