Hello, I recently received a summons and complaint in regards to a credit card with Capitol One from 2005. Let me preface this by saying that the Statute of Limitations has not been reached, so that is not an argument for me in any way. Anyway, I received the summons and took action from that point. I called Capitol One to look up the account and they informed me that it had been turned over to a debt collector. Along with the summons and complaint, I received 2 pieces of evidence that they will be using. The first thing is an affidavit from someone who claims to be an "authorized agent of Capitol One Bank for purposes of this affidavit." It also states "I have personal knowledge of the manner and method by which Capitol One creates and maintains certain business books and records, including computer recodrs of defaulted accounts." The affidavit goes on to describe how the books and records are maintained by Capitol One and then that those records show I opened an account and what the balance is, yada yada yada. Am I wrong in being led to believe then that the person who did that affidavit isn't necessarily a Capitol One employee...they are instead someone who likely works for the debt collection agency who Capitol One has sold the account to? If that's correct, would I then be able to attempt to have this affidavit thrown out as hearsay? The second exhibit in my summons was simply the Capitol One agreement that people sign when they get a card. It was not a copy of the one I signed as my signature is nowhere on it. It is simply what you can pull up and look at when you go to their website and view the terms and conditions. Without posting my entire reply, I'll summarize what I said. I admitted to being the person the summons says I am and living where it says I live. I denied and objected to the accusation that I opened this account and agreed to pay on the grounds that they vaguely alluded to an account and I was forced to speculate as to whether or not I actually owed anything on this account because they provided no evidence of the account itself. I then of course denied that I owe the balance and the attorney's fees because admitting to that would require an admission of the first charge. I also listed affirmative defenses as being in violation of the Statute of Frauds, that to the best of my knowledge, they lack the legal standing to bring this complaint against me and I requested that they come up with evidence of the contract I signed, account statements from the account I'm being asked to pay off and purchase receipts that prove the amount of debt. So...what I'm asking is...what comes next? From the information I gave there, does it sound like I have any chance of winning this case and is there anything else I should argue or dispute? The lawsuit says I'm being sued by Capitol One, which I know isn't the case (I'm being sued by the debt collectors who either bought or got assigned this account), but is their any legal grounds I can argue that point which could allow me to win? Also, I know the answer is already sent and processed, but is there anything I could have or should have done differently? I didn't discover this website until after already drafting my reply to the complaint, but I'm curious if I've helped myself or shot myself in the foot with what I've said thus far. Any advice on what to do next and what you'd say my chances are would be greatly appreciated, as well as any particular topics I should focus on when the court date comes around.
The affidavit is most likely from a CA employee, they're only claiming that they know how C1 does their accounting. The C1 agreement is general, but included because under the FDCPA they need to show a basis in either the LAW or the AGREEMENT to validate charges. Was the summons & complaint the initial contact of the attorney/CA? (If it is, and it's still within 30 days of receipt, following up with an "official" validation demand couldn't hurt. Even though the denial and demands to produce the alleged original documentation should suffice as a written notice of dispute.) Similar affidavits are often referred to as Chaudry Affidavits, because they are often used by a CA to validate a debt by simply alleging "yep, you owe it." They use guidance from their industry trade association which applies Chaudry (a case where a CA didn't need to validate (1) charges that had not yet been incurred, or (2) non-redacted legal bills where releasing the non-redacted legal bills would violate attorney/client privilege because they include specific portions of the laws which were being researched for the case) to virtually any account. I don't see any bullet holes in your shoes. But of course, the standard "I am not an attorney, nor do I play one on TV" disclaimer applies.
Capital One has (or used to when I was sued by them in 2010) verbiage in their terms and conditions which states that the laws of Virginia govern the credit agreement. That means the SOL is three years and thus your debt is time barred. Check into it before you pay anything!
