Best way to fight Capital One collection ... ?

[justlooking]

Searching the forum, looking for how I could use arbitration or another strategy on a debt collection case, I am finding that a capital one suit is different than most others - they don't have arbitration in their agreements for one. 

Is there a suggested strategy for this creditor? 

Original creditor, charged off, no notice of suit. SOL not expired. Summons was served to a house sitter and was left in the doorway when the sitter did not sign it. This is also Minnesota who has something called "hip pocket service" or something, where the suit doesn't have to be filed in court for a year and is still valid. 

Would appreciate advice or tips on what works best in this situation. I would like to use arbitration but as I understand it, I can't force them to use it if it's not in the contract. Arbitration seems like a more fair way to do things like this in this state.

Thanks.

[Clydesmom]

37 minutes ago, justlooking said:

Original creditor, charged off, no notice of suit. SOL not expired.

They are not required to give you any notice before suing you.

44 minutes ago, justlooking said:

This is also Minnesota who has something called "hip pocket service" or something, where the suit doesn't have to be filed in court for a year and is still valid. 

I believe it is called "pocket docket" and @WhoCares1000is our resident Minnesota expert.  Hopefully he weighs in with his knowledge.

45 minutes ago, justlooking said:

I would like to use arbitration but as I understand it, I can't force them to use it if it's not in the contract.

Arbitration is not an option for you.  Cap1 removed it from the contract over a decade ago.  You either have to settle or litigate.  

[WhoCares1000]

The process is called Pocket Docket where a court case is started when the defendant is served rather than when the case is filed in court. It is called that because the plaintiff is putting their copy of the summons and complaint in their pocket, so to speak, rather than filing with the court. Once a case has been started, the plaintiff has one year to file the case in court or the case is dismissed with prejudice (although realize that the dismissal with prejudice thing has never been tested in court and many legal scholars don't believe it would survive a court test so don't depend on that).

The service seems interesting through but if the babysitter was 14 years of age or older, it is probably considered proper personal service as all the rules require is that the summons and complaint be left with a suitable person at your place of abode, no signature is necessary.

The biggest issue is who is suing you. Capital One is an original creditor who has the evidence needed to win their case and whose aggressiveness in collecting is rivaled by local banks and credit unions. They also removed the arbitration clauses from their agreements over a decade ago. If you opened you account over 10 years ago, you might have a way to force the case into arbitration IF the original agreement had an arbitration clause AND a severability clause. If you opened your account in the past decade through, don't bother looking at the original contract because arbitration will not be there. Even if you could use arbitration, Capital One is one of the few creditors who will follow you into arbitration and go to the very end, regardless of cost.

What happens now is that you have 21 days to answer the suit. If you don't, the attorneys for Capital One then has to wait another 21 days before they can take any action. After that, the attorney can do what is called a sneak peek garnishment/levy to see if you have any assets before filing the case as the court fees are very expensive in Minnesota (and paid for by both parties). The best way to stop the sneak peek garnishment is to file a reasonable answer and try to show in your answer that there is a trialable issue that needs a judge so I suggest at least filing an answer with the attorney (by mail sent out by a friend is acceptable).

Once the answer is filed, you will be expected to take part in discovery. Here, because you are being sued by an original creditor who is very good at record keeping, they will have the evidence ready to show you and will expect you to participate in the discovery process. Minnesota also allows for computerized business records so they will also be able to easily authenticate the records. This will be your best time to settle but realize, you are going to pay close to the amount of the original debt to settle and close to the amount they offer. They have the goods against you and can win the case. If you don't try to participate, they will simply file the case in the court and force you to participate or file a motion for summary judgement and then start the garnishment/levy process.

So in short, you are going to pay something and it will probably be close to the original debt. At least file an answer so that you can do some negotiation. Sorry that I don't have better news for you.

[justlooking]

Thanks for this information. I waited to reply, doing some research, but am at the point of, stuck. 

What is considered a "triable issue"? I don't recognize the balance but would have to think from a list. Is there a section of the site that goes over these issues?

Also, for the Answer, is there a good example or possibly article/advice on how to answer an original creditor lawsuit? Most information I found assumes a debt collector is filing suit. 

I am also strongly considering bankruptcy. I hate it but it may be something that may help my entire situation. I'm overwhelmed, recovering from debt, but can't pay them all. Now this lawsuit is filed and I can't cope if they all ask full price; can't pay that. 

But I have to complete the answer this week. I don't see a lot of things to say in it considering they have the records. I do know the interest rate was high. I do know they added interest after (maybe during) closing my account. But I didn't and couldn't pay. How to answer a lawsuit when you get into a bad situation and just cannot pay?

I feel hopeless. 

[BackFromTheDebt]

A triable issue is some dispute in the facts or interpretation of the case. 

If this were a case of identity theft, for example.  Or if Cap 1 clearly showed the wrong amount.  Or if this were past SOL.  

I have to be blunt here.  If you don't have the money to settle with Cap 1, and if you have other debts, you have two choices:

1. You will have your wages garnished until everything is paid off.  There is a limit to how much of your wages they can garnish, but the limit is high, and they take turns garnishing your wages in most states.  

2. You can file BK.  This is not an easy thing, but it may be better than option #1.  

 

BK is interesting.  For some people it is terrible, for others it is a godsend.  

I would VERY strongly suggest consulting a BK lawyer ASAP.  You need to know what your options are, and if they are better or worse than having your wages garnished for a long time.  

In the meantime, file an answer denying everything to possibly buy a little bit of time.  

[justlooking]

Thank you. I will contact someone tomorrow. 

In terms of time, would I still be allowed a discovery phase? I assume so but I'm trying to figure out the time I have. Do you know a general guideline of what kind of time you can expect before they move it to court and / or seek a motion for summary judgment (or whatever the final call is)? Is it about 90 days? 

[BackFromTheDebt]

4 hours ago, justlooking said:

Thank you. I will contact someone tomorrow. 

In terms of time, would I still be allowed a discovery phase? I assume so but I'm trying to figure out the time I have. Do you know a general guideline of what kind of time you can expect before they move it to court and / or seek a motion for summary judgment (or whatever the final call is)? Is it about 90 days? 

Every case is different.  I have no idea how long it will take. COVID made guessing timelines ever more difficult 

[WhoCares1000]

A trialable issue is one which will need a judge's decision. You can simply file an answer denying the debt in its entirety (since they probably did not attach any proof to the summons and complain) and that would be enough to for the case into the discovery stage. In that stage however, the plaintiff will realize that you are bluffing and will file in court, pay the fees, and do a motion for summary judgement. How much time will that buy you? I don't know. I do now it is better than not answering and then they suddenly take assets or garnish wages before filing in court (which they can do 40 days after service of the summons and complain if you do not answer). Filing an answer therefore will buy you some time. Note that discovery is also done before filing in court so that might take about a month or two. Try to find the timelines and do everything at the last possible minute. That will buy you the most time.

If you cannot afford to settle, then it will be either garnishment/levy or bankruptcy. Talking to an attorney will help you through it. At least filing an answer and partaking in discovery will slow them down. If you don't do bankruptcy and instead allow them to get a judgement, a financial deposition will follow and make sure you answer that. Not answering that will cause you to be in contempt of court and an arrest warrant issues for you.