On Saturday, I received a summons for the local district court, from Capital One. Last Dec I set up a payment plan with them, where they would take out 51.00 a month for 3 months, and all was fine. Then in March I called back asking them to do it again and they wouldn't and right away sent my case off to an attorney. Ive spoken to this attorneys office every month and paid 50.00 a month, but now all of sudden they will not take less then 150. Since I cannot afford that they are bringing me to court. I do not understand why they are suing me, thought I am paying them a monthly payment. I don't get it. Is there anything I can do to stop this, besides giving them more money a month. Trust me if I could I would. We got into this mess because my husband and I were both out of work and now he is working and I still am not. But they are the only credit card company that is not willing to work out payments. Any ideas where I should go from here?
There are a few things that would be helpful to us in guiding you. We can tell you what you might want to do but we can't give you legal advice or tell you how to do it. You will need to go elsewhere for that. Some of the things that would help us make valid suggestions is knowing what state you are from, how long it has been since you made your last payment directly to Cap One, whether or not there were any affidavits in the paperwork they served you with, how long do you have to respond. Quite frankly, I don't agree with Enigma who said you need to file an ANSWER the summons. That is exactly what the plaintiff's attorney expects you to do. He wants you to fall into the trap of trying to defend against each and every allegation his client makes and he knows that if you do that he will win automatically for the simple reason that the only question before the court is whether or not you owe the debt. Your problem is to prove that you don't owe the debt and tell the court why you don't owe the debt and prove it. And of course, since you have been making payments to the plaintiff and to the attorney you have admitted that you woe the debt already. Trying to prove to the court that you don't owe the debt or answer the complaint is little more than an insult to human intelligence and the court. Filing an answer will prove to be an exercise in futility because you have no answer other than to admit you owe the debt. That means you already lost the case unless you can pull a legal rabbit out of the hat somehow. So let's see if we might be able to find a legal rabbit or two. First of all, what state are you from and when did you make your last payment Cap One? Secondly, were there any affidavits in the paperwork? If so what state was the notary public from? Who was the affiant, the person making the affidavit? Third, how long ago was it when you got your first written communication from the attorney? How many days do you have to respond to the summons? Fourth, has the attorney properly identified himself/herself as a debt collector in each and every phone call they made to you and in each and every letter they sent you? Did the attorney send you a set of discovery questions that you must respond to? Those are important things to know for us to be able to give you some suggestions as to how you might want to respond. You can get a more complete idea of how to respond by clicking on the link. I'll be updating it from time to time as need be.
Before you paid for three months, when was the last time you paid? It is possible they did this to restart the SOL. This also might be used to create an "account stated" where you have admitted that you owe a certain amount by paying on it and not ever suggesting there were any problems with that amount. This can make their court case much easier, although usually original creditors have little trouble assuming they have their records available. I don't think you said what the total was. If it's $10,000 and you are paying $50 a month, they may feel that you'll never pay them off and it's better to get a judgment and simply attach whatever funds they can. Not considering any of your other obligations, can you pay $150 a month? Because that's all that really matters if they have a judgment. There are various state protections, of course, and you'll want to look into these, but it is often very possible to get $150 a month (or more) from garnishing a paycheck. Also, often, people have savings and checking accounts that can be tapped into. If there are multiple cards potentially in default, it isn't illogical for any one credit card company to seek to be first in line. That first judgment is probably going to be the most effective. If this is the largest account, they could rightly fear that eventually you will BK out. Also, when they sue you, they can add in various fees including attorney's fees.
Have you read what FDCPA has to say about what will and will not restart the SOL? If so, does FDCPA agree with your statement?
It's not the FDCPA that determines what does or doesn't reset the SOL. That varies from state to state, just as the length of the SOL does. In some states, even a promise to pay resets the SOL. In some states it doesn't. I believe there are a few states where even partial payments don't restart the SOL, but I'm not positive about that.
Your point is well taken but regardless of what state law says federal law trumps state law if federal law is stronger than state law or state law contradicts federal law. FDCPA states what resets the statute of limitations and the federal law is very clear on that point. A federal lawsuit against the plaintiff for illegally attempting to reset the statute of limitations should take care of that problem. So I believe that FDCPA does determine what does or doesn't reset the SOL. If I were ever in a position to have to prove the point and the judge ruled in a way that conflicted with FDCPA I would first of all object to the ruling stating FDCPA. I would do so expecting to get overruled. When that happens I would request that the judge certify the question and take it to appeals. If the judge refused to certify the question I would demand that he recuse himself. Of course that would be denied too so the recusal demand would most likely also end up in appeals court.By the time the whole mess got through both appeals and a federal lawsuit the plaintiff would be very likely to tire of the whole process. In the process more FDCPA questions would be likely to pop up giving rise to one or more additional federal cases against either the plaintiff or the attorney or both. Who wins depends on who has the most determination to win. And no, getting rid of the judge isn't all that hard to do either. Every state has a process in place to accommodate forcing the judge off the case. The defendant simply has to have the fortitude to go through the very emotionally trying process. The first step is knowing your rules of procedure and your rules of evidence. If a defendant don't know those thoroughly s/he will lose every time. The best time to start learning is when you know that you are going to default on your payments if not long before that.
Other than giving consumers a year to file for violations, where does the FDCPA specify a SOL? There is none for collections, only for filing for violations.
Yes, Hedwig, you are absolutely correct. Excellent observation and comments. Now all you have to do is go back and read and understand what I said, not what you thought I said.
