Served papers for capital one small claims court

[indiana gal]

I was just served papers from a law firm representing Capital One credit card debt. A telephone hearing is scheduled for November.  What is my best approach to this.  I had PRA drop a case against me in arbitration last year but from what I am reading Capital One (original creditor) is a whole different situation.

1. Who is the named plaintiff in the suit? Capital One Bank

2. What is the name of the law firm handling the suit? Stenger & Stenger, PC (out of Grand Rapids, MI)

3. How much are you being sued for? $1906.54

4. Who is the original creditor? Capital One

5. How do you know you are being sued? Papers left at my door a few days ago and mailed by law firm also

6. How were you served? Left at door

7. Was the service legal as required by your state? yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? none

9. What state and county do you live in?  Indiana, Allen county

10. When is the last time you paid on this account? 2017

11. When did you open the account? 2015

12. What is the SOL on the debt? To find out: for Indiana, chart says 10 years written, 6 years open-ended

13. What is the status of your case? Was just served papers for small claims.  Papers state that a hearing by phone has been scheduled for November.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency? possibly, not sure

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

16. How long do you have to respond to the suit? a month and a half.

In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. "Defendant opened an account with Capital One Bank, account number ***. Defendant has failed to pay as agreed and a balance of $1906.54 is owed on said account."     

Did you receive an interrogatory (questionnaire) regarding the lawsuit? no

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  Exhibit A - affidavit of Non-Military Service.  Exhibit B - A statement from Nov 2017 showing past due amount and interest accrual.

18.  How did you find out about this site? internet search

[Clydesmom]

1 hour ago, indiana gal said:

I had PRA drop a case against me in arbitration last year but from what I am reading Capital One (original creditor) is a whole different situation.

They are entirely different.  Based on the date of 2015 of opening the account you either have to settle, file BK or litigate.  Cap1 removed arbitration from their card agreements back in 2010 so you don't even have the option of a survivability clause.  

[indiana gal]

So, it wouldn't do any good to let it go to court then correct?  I don't want to file BK, so I might as well settle when I call them for initial hearing with lawyers?

[Clydesmom]

3 hours ago, indiana gal said:

So, it wouldn't do any good to let it go to court then correct? 

Cap1 is one of the top 3 aggressive creditors when it comes to litigation.  They will have all the evidence they need to prove their case and will not need a live witness or affidavits to do so.  

3 hours ago, indiana gal said:

I don't want to file BK, so I might as well settle when I call them for initial hearing with lawyers?

You can settle any time up until the gavel falls issuing a verdict.  Settlement talks prior to trial are not admissible.  Given a choice between a judgment with post judgment interest and a potential garnishment or bank levy I would settle to close out the entire issue.

[Amerikaner83]

I agree with @Clydesmom - CapOne is one of the best record-keeping OCs, and they bring receipts, as well as have a long memory.   

Settlement is much preferred compared to a Judgement +associated fees/interest and all that entails (garnishment, etc)

[princessica99]

Capital One Bank, (USA) N.A. 

I have zero legal background, however, from what I can find online, Capital One Bank, (USA) N.A. or the supposed Capital One Agreement is governed by Virginia law (research this). Some consider credit card debts based on an unwritten agreement. Did they provide an agreement? A generic agreement or your specific agreement (needs to be specific I imagine, stating your interest fees, credit limit, etc.)? A charge off statement doesn't show much of anything (last payment made? agreement date? dates of charges made on card? receipts of payments made?) Chances are the affidavit was signed by someone NOT employed by Capital One Bank, (USA) N.A but likely Capital One Services, LLC, ("COSLLC"), an agent and affiliate...BUT NOT AN EMPLOYEE OF THE PLAINTIFF therefore, the affiant is not a party to the case. Again, I have zero legal background. This might be worth researching. 

Virginia law- 3 year SOL unwritten contract (Indiana case law) (Virginia law) Va. Code § 8.01-246(4)

Capital One Bank states: “Applicable Law; Severability; Assignment. No matter where you live, this agreement and your account are governed by Federal Law and by Virginia law.”

Make sure you respond, even if it's late. DO SHOW UP for your Zoom meeting (assuming it's a Zoom meeting). I recommend you file a Motion to Dismiss WITH prejudice due to whatever reason you find (what is missing, etc.). I filed a request for Discovery, then Capital One Bank (USA) N.A (seems redundant but I'm making a point) filed a Motion for Enlargement of Time. The Court granted 30 days. Capital One Bank (USA) N.A did not comply. I then filed a Motion to Dismiss based on the Plaintiff not complying. I also filed a Motion to Strike in regards to the affidavit submitted in support of the Plaintiff's complaint (I have a list of questions in case my Motion to Strike is denied).

2 weeks AFTER my Motion to Dismiss, Plaintiff filed a Motion for Default Judgement (claiming I failed to "otherwise appear"). The judge scheduled their Motion to be heard at the same time my Motion is to be heard. Less than 2 weeks later (11ish days), I filed an Opposition to Plaintiff's Motion for Default Judgement because I did, in fact, "otherwise appear" when I filed my Request for Discovery (and Plaintiff responded to the Court in regards to Request). I found this in my searches: 

Ind. Rule 4. Responsive pleadings

(A)  Preservation of Defenses. All defenses shall be deemed at issue without responsive pleadings, but this provision shall not alter the burden of proof.

(B)  Entry of Appearance. For the purpose of administrative convenience, the court may request that the defendant enter an appearance prior to trial. Such appearance may be made in person, by telephone or by mail but the fact that no appearance is entered by the defendant shall not be grounds for default judgment.

 

Again, I have zero legal background. This just describes my attempt. Definitely DO show up, though. Go research Indiana's public court records and type in one of the lawyers' names mentioned in the Complaint. Refine it to the month of June (I assume this is when you were served, and when Capital One Bank (USA), N.A filed). Look at the amount of default judgements just because people failed to show up. I think I found 2 or 3 that responded back. I found zero that challenged Capital One (maybe for good reason, maybe not...who wants to pay thousands of dollars in legal fees for a $2k or less debt?...most just don't show up). 

[BV80]

59 minutes ago, princessica99 said:

Capital One Bank, (USA) N.A. 

I have zero legal background, however, from what I can find online, Capital One Bank, (USA) N.A. or the supposed Capital One Agreement is governed by Virginia law (research this). Some consider credit card debts based on an unwritten agreement. Did they provide an agreement? A generic agreement or your specific agreement (needs to be specific I imagine, stating your interest fees, credit limit, etc.)? A charge off statement doesn't show much of anything (last payment made? agreement date? dates of charges made on card? receipts of payments made?) Chances are the affidavit was signed by someone NOT employed by Capital One Bank, (USA) N.A but likely Capital One Services, LLC, ("COSLLC"), an agent and affiliate...BUT NOT AN EMPLOYEE OF THE PLAINTIFF therefore, the affiant is not a party to the case. Again, I have zero legal background. This might be worth researching. 

Virginia law- 3 year SOL unwritten contract (Indiana case law) (Virginia law) Va. Code § 8.01-246(4)

Capital One Bank states: “Applicable Law; Severability; Assignment. No matter where you live, this agreement and your account are governed by Federal Law and by Virginia law.”

Make sure you respond, even if it's late. DO SHOW UP for your Zoom meeting (assuming it's a Zoom meeting). I recommend you file a Motion to Dismiss WITH prejudice due to whatever reason you find (what is missing, etc.). I filed a request for Discovery, then Capital One Bank (USA) N.A (seems redundant but I'm making a point) filed a Motion for Enlargement of Time. The Court granted 30 days. Capital One Bank (USA) N.A did not comply. I then filed a Motion to Dismiss based on the Plaintiff not complying. I also filed a Motion to Strike in regards to the affidavit submitted in support of the Plaintiff's complaint (I have a list of questions in case my Motion to Strike is denied).

2 weeks AFTER my Motion to Dismiss, Plaintiff filed a Motion for Default Judgement (claiming I failed to "otherwise appear"). The judge scheduled their Motion to be heard at the same time my Motion is to be heard. Less than 2 weeks later (11ish days), I filed an Opposition to Plaintiff's Motion for Default Judgement because I did, in fact, "otherwise appear" when I filed my Request for Discovery (and Plaintiff responded to the Court in regards to Request). I found this in my searches: 

Ind. Rule 4. Responsive pleadings

(A)  Preservation of Defenses. All defenses shall be deemed at issue without responsive pleadings, but this provision shall not alter the burden of proof.

(B)  Entry of Appearance. For the purpose of administrative convenience, the court may request that the defendant enter an appearance prior to trial. Such appearance may be made in person, by telephone or by mail but the fact that no appearance is entered by the defendant shall not be grounds for default judgment.

 

Again, I have zero legal background. This just describes my attempt. Definitely DO show up, though. Go research Indiana's public court records and type in one of the lawyers' names mentioned in the Complaint. Refine it to the month of June (I assume this is when you were served, and when Capital One Bank (USA), N.A filed). Look at the amount of default judgements just because people failed to show up. I think I found 2 or 3 that responded back. I found zero that challenged Capital One (maybe for good reason, maybe not...who wants to pay thousands of dollars in legal fees for a $2k or less debt?...most just don't show up). 

Unfortunately, Indiana does not have a “borrowing statute” that allows for the use of another state’s statute of limitations.  In Smither v. Asset Acceptance, the Indiana Court of Appeals ruled the Indiana SOL applied to a credit card account.

“It is well-settled, however, that contractual choice of law provisions govern only the substantive law of any claims arising out of the contract; the law of the forum state where the suit is filed still governs procedure.  A statute of limitation is a procedural constraint on when suit may be filed.  Additionally, the prevailing authority indicates that, unless the parties expressly agree to apply the statute of limitations of another state, general choice of law provisions in contracts incorporate only substantive law and do not displace the procedural law of the forum state." Smither v. Asset Acceptance, LLC, 919 N.E.2d 1153, 1157-58 (Ind. Ct. App. 2010).

Since Indiana views the SOL as procedural law, then the forum state where the lawsuit was filed, which was Indiana, governs the SOL. 

[librarianfromcalifornia]

I know this is a little old but in a similar situation and wondering if you were able to settle or what happened? Thank you for your time and sharing your story. 

 

[Bulldoger]

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