Being sued by Cooling & Winter - Magistrate Court of Fulton County, Georgia

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1. Who is the named plaintiff in the suit? Capital One Bank (USA), N.A.

2. What is the name of the law firm? Cooling & Winter, LLC

3. How much are you being sued for? $1335.07 plus court costs

4. Who is the original creditor? Capital One Bank

5. How do you know you are being sued? My friend was at my house while I was at work. 

6. How were you served? In person.

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? I received some mail every now and then but I never answered it. 

9. What state and county do you live in? Atlanta, GA - Fulton County. 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) It does not say on the paper and I’m not sure. 

11. When did you open the account (looking to establish what card agreement may be applicable) I am not entirely sure but I think 2015 or 2016. 

12. What is the SOL on the debt? 4-6 years I think.  

13. What is the status of your case? Suit has been served.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

15. Did you request debt validation before the suit was filed? No.

16. How long do you have to respond to the suit? 30 days 

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They submitted past due statements from Capital One and a search record for military service. 

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Within 30 days from the date you were served you must file an answer.  I dont recall if Fulton Co has a simple answer form on their website, but you can check the Magistrate Court's page and see.  If they do, it's just essentially checking a box that says "deny" as to their allegations.  If not, just type up a page with the case info at the top (similar to the complaint they served you)  And type that Defendant denies all allegations as set forth in the complaint.  And then in a second paragraph titled "affirmative defense", state that your defense is "Lack of Subject Matter Jurisdiction due to a private arbitration clause in the governing contract"

When you submit your answer, the court will set a hearing date for about 30 days later.  At this hearing you will bring with you a Motion to Compel Arbitration (3 copies) and when the attorney calls on you to meet with you and attempt to settle, you tell them you plan on asking for arbitration per the card agreement.  The attorney will not like this, but tell them you will not settle at this time and then you will probably go in front of the judge and you had a copy of your motion to the judge and state again that you ask for private arbitration per the card agreement.

Details all about this arbitration method is in the link in my signature below.

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30 minutes ago, nobk4me said:

The plaintiff here is Capital One, which has removed the arbitration clause.


Even if it was an option this is the one law firm in Atlanta that is now well versed at fighting a MTC after having lost a half dozen thanks to this site.  Getting one approved is not a cake walk with them anymore.

4 hours ago, travelnomad said:

How much are you being sued for? $1335.07 plus court costs

Cap1 does not have arbitration and they are not going to back down. This is one time where settling is the better option.

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7 minutes ago, travelnomad said:

If it was removed, when did this happen ?  My card was opened either 2015 or 2016.

About 10 years ago.  Long before you opened the account so there is no survival clause.

8 minutes ago, travelnomad said:

What are my options

Judgment, settle, or bankruptcy.

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8 hours ago, travelnomad said:

@fisthardcheese I appreciate your reply. What are my options as others have stated that there is no arbitration clause with Capital One. If it was removed, when did this happen ? My card was opened either 2015 or 2016.

Sorry, yes they did.  I read your post as Credit One, but Capital One does not have an arbitration option.

Another option is to file a counter claim against Capital One, but the FDCPA will not apply, so you will have to check on TCPA or FCRA.  Credit reports might be the best shot at finding some inconsistency or inaccuracy that would allow a counter claim.  Most cases where a counter claim is filed will end in a mutual dismissal in Magistrate Courts.

If you want to settle, the consent judgement they want you to sign usually will not be filed unless you miss a payment.  So long as you make on time payments and pay off the debt, they will agree to not file the consent judgement.  This is the usual agreement.  If you are unclear on that, you are welcome to ask them to email you the details of a consent judgement deal so that you can get a more clear idea of what it entails.

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If you have a claim to use against them, just type up your counter claim using the same format as the complaint they served you.  Use the court caption heading with the case number and the Plaintiff's and Defendant's names, etc, then lay out the claims you have.  At the bottom, you state your prayer for relief (dollar amount sought).  After filing it with the court, you would send a copy of this to the attorney just as you do with your answer.

In my Magistrate experience, when I filed a counter claim against LVNV, at the hearing date when I was asked to meet in the hall with the attorney for the obligatory "settlement talk", he first attempted to get me to admit I owe them money, and when I said I disagree, he asked what I could settle for, so I just told him I would agree to a mutual dismissal with prejudice. Lo and behold, he actually had a mutual dismissal with prejudice already typed up with our case number and everything that he pulled out of his briefcase.  We signed it and he filed it with the judge.

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2 hours ago, travelnomad said:

@fisthardcheese am I required to ask for prayer for relief ? How do I determine which amount ? Why doesn’t FDCPA apply ?

Yes, in Magistrate court you must ask for an amount of money or they won't even bother with it.  The amount is determined by the violations you may have.  Capital One is suing you which is an Original Creditor.  The FDCPA only applies to 3rd party debt collectors.

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5 hours ago, travelnomad said:


How is the language written for a counterclaim ? 


This will work just fine for Magistrate Court. 

Be sure to start collecting your evidence of phone calls and be prepared to show them that you asked them to stop calling - or to not call your cell phone - if they bring it up.  Ideally, you will just meet with the attorney before the hearing and agree to mutually dismiss all claims in the case.  If they press you on it, you would show them some of the evidence you have to convince them that a mutual dismissal is in their best interest before showing the judge everything you have.

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Yes they will attempt to settle.  My guess is that because you asked for the max amount allowed by Magistrate Court, they are going to press you to show proof that your TCPA calls can add up to $15000.  Bring all the proof you can of the phone calls (phone bills, screen shots of your call log, etc).  If you can show that they called you at least 10 times, then you can justify the $15,000 (the more calls the better).

The mediator generally will meet initially with both parties together, then they will send you outside to twiddle your thumbs while the attorneys present their side to the mediator, then the attorney will leave the room and you go back in and present your side to the mediator.  Aside from your counter claim proof you can also argue (if you have any) why their alleged debt might be wrong).  The mediator will tell you what kind of proof they showed him regarding their claims and ask you how you might want to resolve it.  You can tell the mediator that you are willing to agree to a mutual dismissal with prejudice and he will then re-meet with the attorneys and see if they also agree to your deal.  The mediator will work out the settlement for you, so it could be a bit easier than doing it yourself prior to the trial date.


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20 hours ago, travelnomad said:

@fisthardcheeseWhat if I’m having trouble accessing the call history with the information and do not have documentation to provide during mediation ?

I would do everything I can to get SOMETHING.  Even if it is just an affidavit of your accounting of the date you received calls to your cell phone from them as best you can remember.   Cap1 surely called and harassed you like crazy when the account first went into default.  You don't have any phone bills from that month or two or three that can show incoming calls from them?

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What kind of affidavit ? Apologies this will be the first time I’ve had to deal with the courts. Sprint has changed their system and they can only go back so far and can’t seem to find a capital one number on my account. I guess at least not the customer service number so I don’t know. I’m assuming it would be a different number. Would I bring the affidavit with me to mediation or submit  (efile) it to the court. I appreciate your help. @fisthardcheese

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50 minutes ago, travelnomad said:

What kind of affidavit ? Apologies this will be the first time I’ve had to deal with the courts. Sprint has changed their system and they can only go back so far and can’t seem to find a capital one number on my account. I guess at least not the customer service number so I don’t know. I’m assuming it would be a different number. Would I bring the affidavit with me to mediation or submit  (efile) it to the court. I appreciate your help. @fisthardcheese

Just google any affidavit for the format.  It is just a statement sworn to under oath, basically.  You get it signed by a notary and bring it with you to the mediation (I'd bring 3 copies in case the other parties want a copy).  Also, you can call sprint, or perhaps visit a store and get copies of your past bill.

If this were me, it would be important enough to be to go get 6 months worth of phone bills (at least) starting from the date of default on the account.  I would then google all incoming numbers that are unfamiliar to me until I found the ones that came from Cap1 and highlight them.

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On 6/21/2019 at 7:53 PM, travelnomad said:

@fisthardcheese got it. The account defaulted in 2017 and charged off in 2018. Not sure I’ll be able to get records to go back that far as sprint claims they don’t keep records more than a certain amount of time but I will search. 

Sprint is not going to work any harder than they have to for you.  They will say "we don't have them", meaning, I can't access them right in front of me in just a couple clicks on my computer.  Just keep working at it. Talk to managers if you need to.  Tell them you were hoping they could just help you without having to go through the hassle of getting a court subpoena for the records. 

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The document they e-filed is Plaintiff’s trial affidavit which they have a litigation support rep on behalf of capital one attesting to the business records etc. 




I have access to the records but Im having trouble pinpointing and most of the calls may have came in as unavailable or leading zeros. So, I will probably have to go the affidavit route. Can you help with wording based on my answer previous uploaded ? Also, they have submitted a trial affidavit for a capital one employee attesting it’s my account etc and provided the same statements showing past due and the general customer agreement. Also, another question, during mediation do I ever admit anything or do I just say nothing and push my point for counterclaim ? @fisthardcheese


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