Settling with a Synchrony card turned Capital One

[womanonfire]

I think I'm fixing to get sued again and this time by Cap One. Its in an attorney's office now that is known to sue and they want practically the full amount to settle, which I don't have right now. 

So I've mentioned this before but it defaulted around the same time it went from Synchrony to Capital One. I don't recall ever getting a new card from them or new terms but what do you all think about major changes in terms and the new agreement holding up in Court? Especially since I never used made another purchase. Filing a MTC arb would buy me some time and I'm wondering if I should mention it to them the next time I call for a new offer. 

Any thoughts? 

[BV80]

1 minute ago, womanonfire said:

I think I'm fixing to get sued again and this time by Cap One. Its in an attorney's office now that is known to sue and they want practically the full amount to settle, which I don't have right now. 

So I've mentioned this before but it defaulted around the same time it went from Synchrony to Capital One. I don't recall ever getting a new card from them or new terms but what do you all think about major changes in terms and the new agreement holding up in Court? Especially since I never used made another purchase. Filing a MTC arb would buy me some time and I'm wondering if I should mention it to them the next time I call for a new offer. 

Any thoughts? 

When was the account opened?

[womanonfire]

8 minutes ago, BV80 said:

When was the account opened?

On my CR is showing the Synchrony closed and the Cap One open with the same open date of 2014. I made my last pymt. Sept. 1st but the payment for Sept. would not have been due til later in the month if the dates didn't change. It's a little confusing how they have reported it on my reports. It looks like I paid for the month of Oct. but I did not. It makes me think that they probably marked it current and gave everyone a free month of no fees as they made the change over. 

Updated to add that it looks like erroneous information was reported but it my favor. 

 

[BV80]

2 minutes ago, womanonfire said:

On my CR is showing the Synchrony closed and the Cap One open with the same open date of 2014. I made my last pymt. Sept. 1st but the payment for Sept. would not have been due til later in the month if the dates didn't change. It's a little confusing how they have reported it on my reports. It looks like I paid for the month of Oct. but I did not. It makes me think that they probably marked it current and gave everyone a free month of no fees as they made the change over. 

This is a toughie.  Usually the agreement that applies is the one that was in effect when an account went into default.  Am I correct that the account did not go into default until after it was transferred to Cap. One?

 

[womanonfire]

25 minutes ago, BV80 said:

This is a toughie.  Usually the agreement that applies is the one that was in effect when an account went into default.  Am I correct that the account did not go into default until after it was transferred to Cap. One?

 

I think so but wouldn't they have to prove that it did if I challenged it and then prove that they sent it? And the terms are drastic and obviously, not consumer friendly. In the end, I think it's going to hinge on the new due date because I think I read that card holders would get new due dates. 

I don't think I ever even logged into my account which maybe how they actually sent the agreements. I think there is enough in question to file the MTC and argue these things. 

[Clydesmom]

1 hour ago, womanonfire said:

I think so but wouldn't they have to prove that it did if I challenged it and then prove that they sent it?

They merely need to produce a copy of the agreement in effect at the time of default.  No court is going to require proof of mailing and receipt.

1 hour ago, womanonfire said:

I think there is enough in question to file the MTC and argue these things. 

Unless they sued you in Magistrate Court.  If the suit is filed there then there is no filing of motions in advance.  Not allowed.  You have nothing to lose by trying the MTC.  The worst that happens is they deny it and you go right to trial so you need to be prepared for that possibility.  You bring 3 copies of the motion to MC on the day its scheduled for.  One for the Plaintiff, One for the court, and one for you.

1 hour ago, womanonfire said:

I think I'm fixing to get sued again and this time by Cap One. Its in an attorney's office now that is known to sue and they want practically the full amount to settle

Unfortunately Cap1 is one of the top 3 most aggressive OCs and is known to do this.  The OC usually gives their counsel the authority to settle a case for anything up to a specified amount and the attorney cannot settle for an amount less than the minimum that was stated.  The floor for Cap1 might be 90% because they move quickly to sue after default and know they will easily prevail.

[BackFromTheDebt]

There are some arbitration agreements with survivability clauses.  That means the agreement survives no matter what.  The old Cap 1 arbitration agreement had they clause, which is why people with long standing accounts were able to get arbitration. 
 

Check the old pre-Cap 1 arbitration agreement to see what is says about survivability.  

[BV80]

1 hour ago, BackFromTheDebt said:

There are some arbitration agreements with survivability clauses.  That means the agreement survives no matter what.  The old Cap 1 arbitration agreement had they clause, which is why people with long standing accounts were able to get arbitration. 
 

Check the old pre-Cap 1 arbitration agreement to see what is says about survivability.  

The account wasn’t transferred to Cap1 until 2014, and Cap1 removed the arbitration provision in 2009 or 2010.  It might be a stretch, but the OP could try to use the Synchrony agreement from 2014 if it has a survivability clause.  It might be worth a try.

[womanonfire]

14 hours ago, Clydesmom said:

They merely need to produce a copy of the agreement in effect at the time of default.  No court is going to require proof of mailing and receipt.

Unless they sued you in Magistrate Court.  If the suit is filed there then there is no filing of motions in advance.  Not allowed.  You have nothing to lose by trying the MTC.  The worst that happens is they deny it and you go right to trial so you need to be prepared for that possibility.  You bring 3 copies of the motion to MC on the day its scheduled for.  One for the Plaintiff, One for the court, and one for you.

Unfortunately Cap1 is one of the top 3 most aggressive OCs and is known to do this.  The OC usually gives their counsel the authority to settle a case for anything up to a specified amount and the attorney cannot settle for an amount less than the minimum that was stated.  The floor for Cap1 might be 90% because they move quickly to sue after default and know they will easily prevail.

I think they need to prove that agreement was in effect because the accounts were transferred and simply attaching an agreement is not absolute proof so of course I will challenge it. I've been offered a settlement of 70%. 

I've been a plaintiff in federal court since 2017 and up against one of the largest law firms in the state, actually one of the largest in the US so magistrate and even state court should be a cakewalk in comparison. 

[womanonfire]

11 hours ago, BV80 said:

The account wasn’t transferred to Cap1 until 2014, and Cap1 removed the arbitration provision in 2009 or 2010.  It might be a stretch, but the OP could try to use the Synchrony agreement from 2014 if it has a survivability clause.  It might be worth a try.

The account was transferred to Cap One in 10/2019 it was all Synchrony before then. I'll look for that survivability clause, thanks! 

[womanonfire]

This is interesting that I found: https://www.americanbar.org/groups/business_law/publications/blt/2016/05/07_moringiello/ 

"Cases involving the credit card and telecommunications industries provide helpful insight as to how courts evaluate modifications of standard form paper terms. For example, in one case where a bank attempted to modify credit card terms by adding an arbitration procedure where one was not already part of the contract terms, the court found that the offeree did not receive proper notice of the modification because the proposed change was printed on an insert with the monthly bill and nothing otherwise called the change to anyone’s attention. Badie v. Bank of America, 67 Cal. App. 4th 779 (Cal. Ct. App. 1998)."

Also from the CFPB: A credit card must notify you 45 days in advance if the changes in term are significant but only provides a general idea of what "significant" may mean. Losing the important consumer right to arbitrate is something to argue or at least I think it is. https://www.consumerfinance.gov/ask-cfpb/can-my-credit-card-company-change-the-terms-of-my-account-en-70/

Lastly, this article indicates that cards would have been sent out later than the October 11 transfer date. So a what point and time would I have been notified in the change of terms? https://www.cnbc.com/2019/09/18/capital-one-launches-two-new-cobranded-walmart-credit-cards.html