Does Capital One every settle?

phantom - I don't know your local laws, so I'm not sure if that's ground for dismissal or not. If you dispute the naming of the Plaintiff as the real party in interest, the courts generally give the Plaintiff some time to provide proof.

This is why you really need to check with a local attorney...trust me, just 30 minutes with one will save you hours upon hours of worry and research.

 

Cap One recently became a national bank, subject to different rules than a state bank is.

I think that's about when they started selling their paper.

Of course, the economic situation right now isn't helping anything either.

 

National Attorney Network

National Attorney Network is a subsidiary of TSYS of Atlanta, Georgia. The affidavit was probably notarized by Dudley Turner who may have signed it Dudley T. He may or may not have used a real notary seal. They have been sued by Edleman and McCombs in a class action lawsuit which won't get settled until sometime in December. The affiant may have been any one of several including but not limited to Maisha Davis. So who actually was the notary and who is the affiant? Cap1 did not sell the debt to TSYS. They still own it. Edelman and McCombs isn't the only one who has sued Howard Lee Schiff and TSYS in federal courts and won good settlements from them. Many more have done the same thing. Even though I know exactly who they are, I can't reveal who those other parties are because of confidentiality clauses in the settlement agreements but the records are available on Pacer. While you will most likely lose in local courts you can win in federal court with little or no problem if false and misleading affidavits have been supplied by TSYS and NAN.

 

Try searching Capital One.

 

Why do you want to see a lawyer? That's just throwing good money after bad. I hate to tell you this but you probably have about a .01 percent chance of winning the case or even keeping them from getting a judgment no matter what you do and getting a lawyer isn't going to change those poor odds.

You said earlier that you do owe the money and a lawyer isn't going to change that or improve your odds of getting out of the debt. You will just waste money on the lawyer.

They aren't magicians and they can't pull rabbits out of hats. The odds I quoted you are probably pretty close to what chances defendants have in local courts all over the nation.

You said that maybe a lawyer could get you an affidavit. Even if a lawyer could force them to come up with an affidavit it would have to contain false and misleading information for it to do anything but hurt you. Even if it did contain false and misleading information the judge probably wouldn't pay any attention to your pleas. The only sure way to get any mileage out of the affidavit would be to take them to federal court.

What defendants need to understand is that the only question before the court is whether the defendant owes the money and if not why not? Nothing else matters to the court and the judge already has it firmly in mind that you must owe the money or the plaintiff would not be there complaining. So the court is already prejudiced against the defendant.

Sorry to be so harsh but that is just about the way it is. The only realistic way to turn the tables on them is to catch them in violation of FDCPA or FCRA and take the lawyer to federal court. If there is a TSYS generated affidavit involved that is just one way to do it but it sure isn't the only way. Even if they get a judgment and go for garnishment they still have to obey FDCPA.

 

phantom - I just wanted to pop in and wish you good luck in dealing with this...

 

1. Does the Defendant owe somebody money?

2. Has the Plaintiff fulfilled all conditions precedent or is there something preventing them from suing (didn't send proper notices, etc.)?

3. Is the plaintiff in fact the party who is owed money, and can they prove how much they're owed?

4. Is the case within the statute of limitations?

5. Has the plaintiff violated anything like FDCPA, FCRA, TILA, CROA, FCBA, etc?

Some courts try to cut through it all of course, but a careful court will look at all of it. And a debtor who tries to force the court to look at all of it is a debtor that the creditor will probably want to disengage from for one reason or another...

 

If the plaintiff did not believe that the defendant owed somebody money he would not have filed the complaint.

Attorneys when in fact they have not done so. They commonly lie both in and out of court and do so blatantly simply because they can get away with it as officers of the court.

Makes no difference to the courts. All that is totally irrelevant as far as they are concerned.

That can be a very valid argument if the defendant can prove it. But what is the statute of limitations in any given state? Take Florida for instance? Is the statute of limitations 4 years or is it 5 years or is it maybe only 3 years? Or could it even be 6 years? I'm willing to bet you can't tell me that with any degree of accuracy. I'm willing to bet that no matter what you tell me you will probably be wrong. What about California? 4 years? 3 years? 5 years? 6 years? maybe even more? What about Texas or any other state you care to mention? I'll warn you that there is a trap here for you so that is why I am making such questions. I'll also warn you that there are court cases to back up what I am or will say. And I'll also warn you that what I am saying only applies to credit card suits and not to any other type of case.

I'll also warn readers that if you try to work the angle you absolutely must know how to argue it properly or the court will probably rule against you. One of the proper answers to my questions lies in whether or not you make the common mistake of trying to call a credit card debt an open (i.e. oral) agreement which it is not. Most of the reference tables found on such places as Bankrate.com, Creditinfo center and many more are usually wrong because credit card agreements are written contracts and are treated as such by the courts. You cannot rely on any of them to be 100% correct even if they might be most of the time. Another problem with the online charts is that they are seldom if ever updated as various states change their laws from time to time.

But what if the state laws that we all (including the courts) have historically relied up are not the law that applies? What if (in credit card cases especially) state law does not even apply? Think about it and see if anybody comes up with the reason why state laws on statute of limitations might not even apply? I'm willing to bet I'm not the only one here who knows about this or can figure it out

That makes no difference in most local courts. While one can file a counter suit it probably won't help much because two wrongs don't make a right. Very few counter suits are successful in debt collection cases.

That probably won't make them any difference at all because most attorneys only face any single debtor more than once in court. That's not enough to teach them any new lessons. They are confident that they will win the vast majority of cases and losing one once in a while don't bother them much.

Please don't misunderstand me. I'm not saying that it is useless to even try to defend against all odds. I'm all for giving it all you can whether you win or not. In reality it makes no difference that the defendant loses because he will lose for certain if he don't at least try to argue his case the best way he can. I certainly hope I will see the day when no defendant ever refuses to go to court and fight to the best of his or her ability. Even though most defendants lose there are also large numbers who are going to court and either winning or at least partially winning. That number must increase dramatically or we will never see the end of injustice, lying lawyers and crooked judges.

I'm not against losing so much as I am against getting hosed in a court system that pays no attention to the defendant no matter how just his pleas might be. That is simply wrong and it must be stopped somehow. Defendants are never going to win if they read these boards and get some idea that all they have to do is make some overly simplistic plea which the judge must listen to by law or else.

Judges do what they want for the most part and there is not much anybody can do about that. I'm constantly amazed at the number of people who think they can simply write a letter to the judge telling why they missed those payments and that will somehow get them off the hook or at least help them in some way. It just don't work that way yet people do it all the time.

 

This is what I've been telling people in any court-related matter. Even if you have a 99.999% chance of losing, you have a 100% chance of losing if you do nothing.

Well don't leave us hanging!

 

1. The only federal SOL law I know of that supersedes state laws in the consumer realm is the 2 year limitation on cell and landline phone accounts. Admittedly SOL is a quandary in many states, although clarity is gradually emerging in most.

2. As for counterclaims, if one is even colorable I feel there is nothing more valuable than filing something that puts the other side at risk of actually paying out. It settles more cases...

 

Very well! But I'm going to try to point in the right direction with another question first not because I want to drag out the suspense but because I want to get the entire argument before the group and develop it step by step for you. The question is this. If I have entered into a lawful contractual or agreement with a creditor can a state or even a federal court change any of the terms and conditions of the contract? Suppose I am a foreign national legally residing in the U.S. and I enter into a mortgage agreement with another foreign national to buy a piece of property in the U.S. and we make the agreement in say Switzerland and the terms and conditions of the agreement state that in the event of foreclosure or other legal action the laws of Switzerland shall apply.

I default on the note and mortgage and the lender brings action in the U.S. because the property is located in the U.S. can I enforce the terms and conditions of the purchase agreement which says that any disagreements must be settled using Swiss law? That is a situation which actually occurred and the case went to the 10th Circuit Court of appeals which ruled that the contract could not be changed and that even though the legal process was carried out in U.S. Courts it had to be conducted under the rules of Swiss law. There are many other cases in which the courts have ruled that the terms and conditions of the contract or agreement cannot be changed.

All credit card agreements have a clause which states that the laws of whatever state the bank is domiciled in as well as federal law shall prevail in the event that a legal dispute arises. Let us suppose that the debtor lives in Georgia which has a 6 year statute of limitations on written contracts. The creditor or his assigns bring suit in Georgia Courts which they must do because federal law states that a consumer must be sued in the county in which he resides or where the contract was entered into (in some types of situations). Let us say that it is a Cap1 card that has gone into default. Cap1 is a N.A. Bank and therefore has the right to sue or be sued in any court of competent jurisdiction according to Title 12 of the U.S. Codes.

Cap1 is domiciled in Va. and the contract states that in the event of any dispute the laws of Va. shall apply. Statute of limitations in VA. is 3 years while the SOL in Georgia is 6 years. The Georgia debtor argues that based on the terms and conditions of the contract which cannot be changed by any court of law the applicable SOL has to be based on the VA. SOL which is 3 years and not the Georgia SOL which is 6 years.

There are two questions here. Can he prevail and will he prevail? It is proven that he can prevail on the argument but will he prevail might be another question because the judge might rule against him in which case he would have to appeal on the question.

Of course, if the debtor lives in VA. or Delaware or other state having a 3 year statute of limitations and is sued by Citibank of S.D. he certainly would not want to bring that argument.

So there you have it, but that is not the only issue that can be raised. What about any differences in interest rates or other applicable charges that might be present? What about certain laws and cases which state that in the event that the contract calls for the inclusion of attorney fees and is sold or assigned to a 3rd party debt collector the contract becomes null and void because the final cost of paying off the note or contract must be calculable to a sum certain? Does the inclusion of so called reasonable attorney fees or the ability of the 3rd party debt collector to add in other fees, penalties, interest, court costs and so forth render the note or agreement uncollectable because those fees and costs cannot be determined by a fixed formula? There is a great deal of old, old case law which says that if the final settlement price of a note or contract cannot be reduced to a sum certain the note or contract is null and void and cannot be collected upon. The latest such case which I have found was adjudicated in 1923 so what laws have been passed since then which would make those decisions worthless today or are they still valid case law? I don't have the answer to that one but if they are still valid case law and have not been superseded by law then they may still be valid today. If they are still valid today that would mean that every mortgage foreclosure and every judgment rendered since about 1923 would automatically be null and void ab initio.

I seriously doubt that is the case because the results of having ignored those cases or laws for so many years would be catastrophic. Although the historic range of those cases go from coast to coast and from border to border, surely the laws must have been changed to allow for what goes on in courts everywhere today.

Why do those cases I have found suddenly stop in 1923? Are there much more recent cases that I just haven't found yet?

 

What about the states right of eminent domain in regards to property rights or is that a whole different issue when it comes to property

 

The Fifth Amendment keeps government from taking a property right without just compensation.

The benefits of a contract are a property right, however they are so only insofar as the contract is not unconscionable, and they are subject to other rules of construction and interpretation, conditions precedent, evidentiary rules, proof of facts, and many other legal variables. None of these typically implicate the Fifth Amendment.

States must afford procedural due process. I imagine there are statutes of limitation that from time to time have been challenged (even successfully) on due process grounds, but I imagine a Fifth Amendment challenge would be exceedingly rare and never successful unless the SOL was measured in minutes. Substantive due process in the contractual arena is a concept that has been banished from the law (although it does still rear its head in disguise now and then).

 

Its called a choice of law provision, and there have been some that have prevailed. From what I at least am reading on the boards, Cap One is getting beaten up with it regularly.