i was recently served a citation stating that i was being sued by capital one, national association, for a debt that i owed several years ago. the original debt was 5000 and now its 9300 plus 2200 for attn fees. i am suppose to submit a written response to the county court at law of my city and dont know what exactly to write. i cant afford an attorney. i just need to know what to submit to the courts. i live in texas. any advice will be appreciated.
Please explain first what you mean by "several years ago", and when did you make your last payment. Texas' SOL is 4 years. If you became delinquent 5 years ago, and made your last payment 5 years ago, use that as your defense.
capital one suit the last payment i made was october 2004, which makes it just under 4 years so that would not apply.
What day in October 2004 did you make the last payment? If you have to appear in court BEFORE that day this year you might get burned. If AFTER then you have the SOL defense. Hope that you kept the cancelled check reflecting that payment.
You need to look at your credit card agreement. Does it have a "choice of law" provision that says this agreement will be governed by the laws of the state of Virginia? If so, the SOL is three years, but you will have to bring that point up in your answer.
still confused????? i dont even think that i have the contract anymore. also as far as the date in october i believe it was the 15th, i still need to respond to the courts or they will find me in default. once going to court, cant i request a payment option due to me not having a lump sum to give them? i still help in what i need to write in response to the petition. anyone have advice for this. thanks.
Thisis from an online manual for Virginia and indicates that the cc debt SOL in VA may be 2 years rather than 3: A Civil Operations Manual
I don't know whether texas is a state that honors the contract's choice-of-law provision, however even if TX does not do so, there is an argument to be made that a choice-of-law provision in a contract that is to be construed in a non choice-of-law state's courts creates an ambiguity that should be resolved against the drafter of the contract ... hence the debtor should be able to take advantage of Virginia's SOL regardless--at worst 3 years, arguably 2 years (a Florida court recently ruled that it was 3 years in a Capital One CC case, but I don't believe the 2 year catch-all was needed by the defendant, so perhaps the defendant never argued for it).
File bankruptcy. That makes the suite stop immediately. It's frowned upon, but you don't actually have to carry the BK out. Just file an opening pettition. If they know you're going to file, they'll go away. Plus even if they get a judgement against you, what can they take? Texas is known as "The Debtor State". Your house can't be taken, your wages can't be garnished under the TX constitution. So it's an empty judgement. Just don't keep any money in a checking account in your name that they can get to. Then settle the debt via the "Accord & Satisfaction" process. Offer to pay them one lump sum of about 5-10 cents on the dollar. You must follow the process carefully to make it binding. You must send a letter 15 days before the payment, then the payment and letter with a restrictive endorsement. If they don't reply that's a tacit approval of the process. If they cash your check it's done deal if done properly.
OK, who let the crazy in here? Having a dismissed BK on your reports is a nightmare and that's what happens if you file and then drop it. So much for his first paragraph. The second is crazier than the first. UCC 3-311 governs how Accord and Satisfaction now works in virtually every state, and believe me, that ain't it. I use it frequently ... and about the only place it applies is in a medical billing situation ... especially if insurance declined coverage or paid you a reduced sum because the provider was out of network. There may in some places be a second line of case law or a separate statute that provides an alternative procedure to the UCC A&S procedure when a debtor without a bona fide dispute as to the amount owed wants to send a reduced sum in satisfaction. If TX has it, then TX experts are invited to chime in here and describe it ... but based on the first paragraph I wouldn't take anything the poster said as gospel... 1303.40. (UCC 3-311) Accord and satisfaction by use of instrument. - Ohio 1303.40. (UCC 3-311) Accord and satisfaction by use of instrument. - Ohio Code :: Justia
Remember, this is the same guy who says you aren't responsible for paying a CA if the account has been sold or assigned. I already told him to study his contact law more--especially the part about assignment.
Sorry I missed this. I assume you're referring to my sig. In The Hitchhikers Guide to the Galaxy, 42 is the answer to life, the universe, and everything.
still confused?????????? i appreciate everyones advice and i am checking into a lot of those suggestions but i need to know what kind of written response to submit to the courts i only have a couple of more days and then ill be in default. someone please help????
I'm am alos being taken to court by Capitol One and I live in the state of Florida. I've contacted them as requested a payment settlemnt and I was denied and told that I'm being served and the courts will decide but I'm trying to settle out of court. This was a credit card account that was opened back in Nov 2006 and I'm due in court this Oct. What are some options and what is FLA SOL? Please advise
