Trying to negotiate Credit Woes!

Check the local court rules to determine what your next steps are. Small claims courts often have their own set of rules so you need to know the rules of the specific court. I would be proactive in this and not wait for some service that may or may not come. They CAN file for default judgments even if you never receive proper service (e.g. "sewer" service).

Refer to the court rules. You should probably respond as required by the court and then see about negotiating a settlement before the trial or hearing dates.

 

why settle?

you said you live in texas... your homestead and wages are protected....do you have a lot of other assets to protect? watch your bank accounts...since they are in the process of suing they might try to levy your cash in your bank accounts....

 

You got my curiosity up with that one. Where can I find some information on that?

Of course that can get you into a pack of trouble too. If they hit you with an assets hearing best you don't lie about what bank accounts you have regardless of where they might be. If you don't tell them and they have found out about the out of state or on line account they can get you some real bad problems.

 

Expect that the JP is not going to be sympathetic to anything except how to get the conflict resolved and the plaintiff happily on the way to getting their money no matter how that has to occur. If that means scaring, chiseling, browbeating, outright thievery, freezing bank accounts, garnishing wages, seizing property or whatever then they just might tryany or all of the above. Those who think that you can't get blood out of a turnip need to have their turnip deeply buried. If not they may be in for a rude awakening some day.

 

That's true. The judge will be interested in the answer to one question--do you owe the money?

If you have violations that you can bring up as counter arguments, that may help you. But usually in small claims, the question is simply if you owe the money.

 

Usually violations of FDCPA.

Never be money in the checking account because it all goes to pay bills? Is that what you are saying?

If so and they get a judgment and garnishment order they will find out when your checking account gets money in it and one fine day you will find out that they froze your account and took all the money in it leaving you without money to even buy a loaf of bread, let alone pay any bills.

 

I don't think anyone's angry with you, although I see how you could see that. I've noticed as well that some responses on this board are a bit curt, and without the benefit of face-to-face conversation, can appear to be unfriendly. I sincerely believe that the people who have responded to your posts only want to help however, so try not to read too far into the way the messages are conveyed, no matter how easy it can be sometimes--especially considering how stressful the situation at hand is.

 

Unfortunately, Cap One can be ruthless. BUT--I just had a thought. Have you been paying on these accounts all along, or have you stopped paying? If you've stopped, how long ago?

If it's the original creditor that's suing you, then the FDCPA doesn't apply to them. It is probably hard to have violations to countersue for. You can ask them to prove the balance, but it may not get you very far.

I don't want to come across as mean, but so many times people go to court thinking the judge will let them off because of their circumstances. While this may occasionally happen, more often than not the person leaves feeling like they've been punched in the stomach because the judge only asks if you owe the money. We just want you to be ready for what is reality in most cases. If you have a judge who is more lenient, good luck to you. I hope it works out.

 

They can't garnish your wages in Texas, nor can they place a lien on your homestead unless you don't show up in court...

If the only money you have are wages then there's nothing wrong with going to cash only. You're not trying to hide anything....just trying to keep paying your bills....

 

Wait a minute. This is what I was hoping for. Capital One has a choice of law provision in their cardmember agreement stating that the laws of Virginia apply. SOL in Virginia is three years (and there are some arguments that it's only two). So here's your defense--in their own agreement, Cap One has made the agreement subject to the laws of Virginia, and the SOL has passed. Therefore this debt is SOL, and Cap One is SOL--in a different way!!

See if you can find a copy of your cardholder agreement somewhere. If not, use the argument and make them produce a cardholder agreement (dated before you stopped paying) that shows that it is not subject to VA law.

 

I'm not the least bit angry with you. Why should I be?

The whole point is that most defendants need to understand that they don't have any defenses. They owe the money and that is about the end of it in most cases. Hedwig gave you a possible defense but in order to get a judge to go along with it the defendant must have a properly prepared argument and that requires cites of court cases where other judges have ruled that way. There are some cases out there but I don't know of any from Texas. The ones I have see have all been from Florida. One judge there ruled that way and when the second defendant tried the same argument in the same county the second judge took the case under advisement but I've never heard what the decision was in that case.

So lacking any more cases to rely on it becomes a matter of you presenting your argument to the judge and giving him the case cites from Florida and hoping the judge will see it the same way that the Florida judge did. The argument you would have to try make is that if an agreement between the parties is in effect then it is equally binding upon all the parties. Therefore, if they expect you to be bound by the terms and conditions of the contract then it is only fair that the terms and conditions they agreed to would also be binding. They are claiming you broke the agreement but if the Virginia laws clause of the contract is not to be enforced then the contract is null and void and no part of it can be enforced. The judge might buy that and proclaim that the Virginia statute of limitations applies because of the terms and conditions of the contract are binding on both parties.

Of course, the opposing counsel will try to argue that such ideas are nonsense because the case is being tried in Texas, not Virginia in order to try to preserve his case. Texas law is 4 years and not 3.

Whether or not you can prevail is strictly a matter of conjecture at this point until your judge rules what will and will not apply.

There is also a 10th Circuit Ct. of Appeals case in which Moshe Tal successfully made that argument in a mortgage foreclosure case in which the parties had agreed that in case of default on the mortgage the laws of Switzerland were the applicable laws and not state law. That case had nothing to do with statute of limitations but the decision in that case would make a far more compelling argument because of the fact that the decision was handed down by a federal circuit court of appeals and not just some county court judge. Had that decision been made in your federal appeals court you would have an almost unbeatable argument because it would be a compelling decision by which your judge would have no choice but to rule in your favor but since it was not in your circuit it is still only advisory. The judge is still free to rule in any way he sees fit and if he rules against you then you would have to take it to Texas Ct. of appeals and maybe have to work it all the up to your federal district court. I know you don't have anywhere near the legal expertise to do all of that. Moshe Tal is a multi-millionaire so he could afford to pay his lawyers to take it all the way but you don't have that kind of money. It just so happens that I happen to know Moshe Tal personally so that is how I know about his case.

No, I'm not being angry with you but it is a bit disconcerting to constantly see people posting on this and other forums who are just trying to do the right thing and believe that all they have to do is go tell the judge their side of the story believing that they can beat an experienced lawyer that way.

Having little or no money and trying to do the right thing in this type of situation is simply begging for a disaster.

With the knowledge and the experience I have under my belt I know beyond a shadow of a doubt that if I were to be sued in a local court for some debt such as a credit card or other similar debt I would lose. I know that beyond a shadow of a doubt the plaintiff would win in local court. I would present my best defense knowing what the outcome was going to be, a judgment against me. But I would also go into it knowing that I could trap the plaintiff's lawyer into making at least one or more serious violations of FDCPA and maybe FCRA too and then I would take that lawyer to federal court where the lawyer would come out with a judgment against him if he chose to take it to trial. Since there would be no possible way to win that lawyer would end up wanting to settle out of court and part of that settlement would be that the judgment gets vacated. That is the only way I know of to be certain of turning an impossible to win situation into a winner. If you want to win you have to forget about doing the right thing and start worrying about how to be a real pain in the posterior.

You also ask whether or not you can protect your assets by putting stuff in your husband's name. If memory serves me correctly Texas is a community property state and if so then no, that won't help you any. You also ask about closing the account and paying everything in cash. You may in fact actually have to do something like that but I would advise against closing the account. There are several reasons why I believe that would not be the best move. Keep it open but just let it sit there and rot away. Use bank certified cashier's checks instead of your own personal checks for things such as mortgage or rent payments or anything where the payment has to be sent away somewhere and cash for all else. They can't garnish wages in Texas but once it hits the bank then it is fair game so have employers pay by paper check instead of by direct deposit.

 

Nobody is mad some are curt but if your on here long enough you just over look some of the frankness.If you look at some of the other posts its the same way.I took it wrong at first,but they have helped me so much,and some of the advice they gave me was not what i wanted to hear,but true.