Well then ,none of us should ever have lost a case or have been brought to NAF. I wish everything was as black and white as you write.. Woofer
If they are going to continue to attempt to collect from you. That might seem fair but that's not the way the courts are ruling, see Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999), http://pacer.ca4.uscourts.gov/opinion.pdf/981024.P.pdf You mean if they sue you, should they have to provide actual proof of various things like that they are the valid owners of a valid debt? That's different from the FDCPA, that would seem to be a good argument to make.
I did some more research on this... even though the plaintiff is listed as Capital One, the PO Box for the plaintiff listed on the suit is for the CA, Blatt, Hasenmiller, Leibsker & Moore. My wife wants me to call and try to settle with them, because she is afraid of losing the case and then having to pay the full amount of what they are claiming ($1,500+, the original debt of a few hundred dollars, plus 4 years of interest and fees), legal fees and court costs.
Well I just found out that this appeal has been scheduled for arbitration by the Chester County Court of Common Pleas. It is scheduled for Jan 16, 2009. Does the fact that it is going into arbitration instead of in front of a judge help or hurt my case at all? Any tips, since I have never been to arbitration before? Is there anything I can do before hand to have this dismissed? Can I file a discovery motion beforehand? Thanks!
I would like to be able to do this, but I don't think that I have a choice about it here. According to the court's website:
Well so much for that.Just make sure your prepared.all your paper work including all other courts etc.keep us post and keep asking questions.
Why it is only Capital One is the one is suing everyone here. Don't other credit card sue at all? I just rec'd two summon from Capital One, I live in California, can someone please help me with this. I have two different account with them, I stop payment due to finanical hardship.
Let's take a look at some other possibilities. First of all, was there an affidavit filed in the lower court case? If so, who was the notary and who was the affiant? Then the next possibility is to file a federal case against the lawyer and the debt collector trying to sue using cap1 as the plaintiff instead of suing in their own name. That's not illegal but filing suit without providing the documentation you demanded in your validation letter is an FDCPA violation. You can argue FDCPA in local or appellate court until you are blue in the face and it probably won't get you anywhere but a federal case would get their attention. You will definitely have to file a response to their appeal objecting to it. Appellate court is much more difficult than local court is. I'd suggest you get some help with that. Maybe go to a law school in your area and speak to the dean and ask for a student to help you. Students do have to do some pro bono type of work before they can graduate in most law schools. The dean or an associate professor oversees their work.
What if the attorney working the case files a sworn affidavit stating "I am the Plaintiff's attorney in XXXX County" and the plaintiff is shown as "Capital One Bank"? (but they are, without a doubt, actually representing a collection agency)
Sorry to bring up an old thread, but this saga continues and I need some more help with this again. I just received a notice of an arbitration hearing, on 1/16/09 in county court. I need to file a pre-arbitration memorandum with the court and plaintiff. I already received the one filed by the attorney suing in the name of Capital One. Here's the form, and the attorney's hand-written responses: 1. Brief Statement of the Facts: Defendant xxxxx did open a capital one account and made charges and failed to pay on those charges 2. Legal Basis of the Claim of Defense: Defendant used a credit card and failed to pay 3. Special Damages: (this section was left blank) 4. Name and Address of Witness: Capital One Respresentative 5. List of Exhibits: 1. Statements (were not attached or included) 6. Estimate of Amount of Time to Present Your Claim or Defense: 30 mins 7. Special Comments Regarding Legal Issues (this section was left blank) I think my defense is comprised of the following: 1. Statue of Limitations exceeded. I am 99% sure that the last activity (charges or payments) on this account was more then 4 years (PA limit) before they started suing me. I am 100% sure it has been exceeded now. The Virgina limit of 3 years may apply since the agreement was with Capital One, but I don't have a copy of the original cardholder's agreement or any revisions. 2. They sued me in district court, never showed up nor presented any case against me. I won the case, they were hoping I wouldn't show up and that they would get a default judgement entered. 3. They never validated the debt, even though I have proof of certified letters that I sent them asking for validation of the debt, including the agreement, full accounting of money owed, and their rights to collect that money. 4. They are suing in the name of Capital One, but the address used is a post office box owed by Blatt, Hasenmiller, Leibsker & Moore (BHLM), a "law office" that acts a collection agency. I believe that they purchase the debt from Capital One and are the ones trying to collect. My difficulty is that I don't have any evidence (except for the certified valdation letters I sent) to support any of my claims. I also need to know how to best state my defenses onto my pre-arbitration memorandum. I would appreciate any and all help or suggestions! Thanks in advance!
I am not sure about this, is there a way that I can check? I guess I can request this information from the court?
Go to the county clerk's office and ask to see the case file. Get copies of any papers you don't already have. You certainly don't want to arbitrate the case. You are almost guaranteed to lose because most of the rights you would have in court are not available to you in arbitration. You can demand that the case be referred to a full court hearing. Refuse to arbitrate and demand hearing by a judge. Your state law should allow for that. If they won't grant that then you are probably sunk. How long ago was it since you sent your validation demand to this attorney? Is it the same law firm that sued you before? Check to be sure. If it isn't the same law firm as last time then send them a new validation demand. Then lets go from there.
Thanks for the reply! Ok will do, thanks! How would I go about doing this? I know I would do better before a judge then I would an arbitration panel (made up of 3 lawyers). However, it doesn't look like this is possible: "Chester County Rules of Civil Procedure provide that any civil matter where the amount in controversy does not exceed Fifty Thousand Dollars ($50,000.00) and which do not involve title to real property, will proceed through compulsory arbitration. (Chester County Rules of Civil Procedure 1301.1)." See the website dsf.chesco.org/courts/cwp/view.asp?A=3&Q=606658 for this. I sent the validation demand to the lawyer, the collection agency/law firm (BHLM, Blatt et al), and "Capital One" at the address listed on the original district court paperwork, which is a PO box which I believe is used by BHLM. I sent this the day after I got the notice of the original district court lawsuit, this would have been back in April, 2008. I can get an exact date if needed, I still have copies and the return receipts. This is an appeal by the same party as before.
Are you real sure that you read the whole thing, word for word? Or did you just look at the part you quoted and draw your conclusions from that? Did they respond with a full and complete accounting of the debt?
Yes, I just called the court and checked. I can request the case be moved to be heard by the judge only if the plantiff does not show up, or if the matter involves over $50,000. If I lose, I can appeal the decision for a filling fee of $205, and the appeal will be before judge. No, there was no response at all from anyone. The only "proof" I ever received was filed with the district court case, and it was a notarized affidavit from a Capital One employee saying that I owed the amount and the total. I am pretty sure that they are required to respond with the information requested, but my wife seems to disagree and thinks that they don't need to.
Read the part lower down where it talks about what happens if either the plaintiff or the defendant don't show up for arbitration. Maybe you ought to study that affidavit to see who the notary was and what state and county that notary is from. That can be very interesting. Such as maybe the notary is from Georgia? Might be Dudley Turner. Or Dudley T. And who is the lady from Cap One that made the affidavit? What does she say her job is? Cap One is from Virginia. I'm betting the notary isn't from Virginia. Let me know about those things.[/quote] I am pretty sure that they are required to respond with the information requested, but my wife seems to disagree and thinks that they don't need to.[/quote]I think your wife has the upper hand in that argument. Better listen to her. If she knew that then she sure isn't no dummy. (LOL) Of course on the other hand while you might not be able to force them to provide it you very well might be able to make them wish they had.
"In the event one or more of the parties is not present at the arbitration, the matter may be taken to an available Judge without the absent party or parties. Should the Judge decide to hear the matter, the Judge may choose to (1) enter a judgment of nonsuit if the Plaintiff is not present or (2) enter a judgment of non pros if neither party is present or (3) hear the matter and make a decision if the defendant is not present. (Chester County Rules of Civil Procedure 1302.1 (f)). In the event that the Judge decided to hear the matter, the parties have no right to a trial de novo on appeal from the Judgeâ??s decision." So if they don't show up, there will be a judgement of nonsuit entered. But if I don't show up, the judge can hear the matter and make a decision (probably in their favor). I don't understand how this helps me, I think I need to show up, and my best bet is if I lose I can still appeal? I don't have this with me now, but I will get this out when I get home tonight and let you know what it says. This is the only documentation I've seen from them so far, and I assume what they will present as evidence at the aribitration hearing. Well I thought that they are required to do this under the terms of the FDCPA, or does that not apply? And don't I have some basis for suing them in federal court for FDCPA violations? I think that I have a case here, but please let me know if I am mistaken.
I guess the simple question is should I pay them to just go away? It's not the money, but the principal of the whole thing. I know that I probably owe them some money ($100-200), but what they are trying to collect ($1,500+) is mostly fees and interest.
Yes, but the alternative is if you do show up at the judge's hearing after not showing up for the arbitration then what happens? Seems to me you might have a chance of getting it before a judge that way. It applies in all courts of competent jurisdiction. That's not the problem. The problem is getting the judge to even listen to your pleas. Too bad they don't let you take a baseball bat into the courtroom, eh? HA! HA! I think so. I don't think you are mistaken at all. Just need to get a case put together and file it and see what the judge has to say about it.
