10-23-2012 12:51 PM
OK... I am really confused. I had two deliquent accounts with Capital One. One was through Capital One USA, the other through Capital One Auto Finance.... both thanks to an ex-wife that let them go after our divorce.
I have a judgment on my credit from Capital One USA. I called the courthouse and they gave me the info of the attorney collecting the debt. Law firm called Hosto and Buchan out of Little Rock, Arkansas
I was served with papers when living in Florida and drove to Tennessee to attend court in March 2009. The judgment was dismissed because of me living in Florida and the law firm was not licensed there and didn't have jurisdiction. A few months later, I was supposedly served again (was not served notice)... still living in Florida, that another judgment was being heard against me. Since I was never served, I didn't know anything about it and just recently found it on my credit report that they got a default judgment against me.
I called Hosto and Buchan to find out about this. They got my info, then stated this was an attempt to collect a debt. They told me that they are contracted by Capital One USA to collect for a deliquent credit card. The balance now being $3,487.85. Funny part... Capital Once sold this account to Portfolio Recovery Associates and I settled this account with them already.
The guy at Hosto and Buchan is telling me that the account number I am giving him (one I settled in full) is different than the one he has and must mean I have another credit card with Capital One that they are trying to collect on.
I'm not sure why the account numbers are not matching up, but I know I only had one credit card with Capital One. They are trying to collect on the same debt. He told me to fax him all the info where I have settled this and he will let the attorneys take a look at it. Should I do this?
He told me that the first judgment was dismissed becuase I lived out of their jurisdiction. When the second judgment was given by default, I was still living out of jurisdiction. Can I get this removed... what is the best way to handle it?
Appreciate any advice.
10-23-2012 05:06 PM
Finally got ahold of someone at Capital One. They are saying that this account in the judgment is a Capital One Mastercard. They said the one they sold to Portfolio Recovery was a Capital One Visa. This is a second CC they are saying.
I'm totally upset. I only had one credit card with Capital One. I am 1000% positive of that. This mysterious second credit card not on my credit report or has ever been.
What should I do now? Should I call the attorney's office that Capital One has assigned this to and have them investigate that it is my debt. I asked Capital One to verify that it is my debt and they lady said the attorney at Hosto and Buchan would have to verify it. That makes no sense that Capital One cannot verify a debt that I supposedly have with them.
10-23-2012 06:12 PM
Does anyone know if an attorney's office/collection agency can file a judgment against someone legally living in a state that they do not have a license in to collect debt in?
I was living in Florida when this judgment was filed. I attended court in TN for one in March of 2009 and they dismissed it because I was living in Florida. I didn't know about this second court date (July 2009) and the same attorney office, Hosto Buchan, got a default judgment because I didn't go to court.
Is this legal, collecting debt where they are not licensed?
Can I still ask them to validate the debt now?
10-23-2012 06:20 PM
Found the info.... looks like I can sue probably. Look at Section 811.... "debt collector may sue only where the consumer resides"
I was sued in TN but a legal resident, living in Florida until June of 2010.
10-23-2012 10:43 PM
They have to file in the state you live in. Since they couldn't get a judgement the first time because you were in Florida, they knew you were in Florida. So I do believe they can't play ignorant on this.
10-24-2012 02:57 AM - edited 10-24-2012 02:58 AM
You are not fully quoting FDCPA 811, which provides an option on their part if the contract creating the debt was signed in another jurisdiction.
811 Legal actions by debt collectors
(a) any debt collector who brings any legal action on a debt against a consumer shall-
(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located, or
(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar entity -
(A) in which the consumer signed the contract being sued upon, or
(B) in which the consumer resides at the commencement of the action.
You need to first contact the judgment court, and raise your issues regarding proper venue and notice of service.
The judgment court obviously saw jurisdiction, in that they held trial. They also accepted the right of the plaintiff to bring the action.
Your first issue in challenging the judgment will be to address those issues with the court.
10-24-2012 04:40 AM - edited 10-24-2012 04:44 AM
Correct me if I'm wrong, 7 years after the DOFD is when this will drop correct? Is that the SOL to sue also?
The Capital One rep said this will be removed 7 years after the charge-off date of July 2007. I thought it was 7 years after DOFD, which was February 2007. She disagreed and said it wont be removed until the charge-off date.
It's not on my credit report, but can the attorney/collection company still try to collect after the DOFD?
I am wondering if it's not best to just leave this thing alone until the 7 years is up? Does the 7 years from DOFD matter since I was sued in July 2009?
10-24-2012 04:43 AM
The big thing I'm worried about is... Did Capital One sell an account to Portfolio Associates that wasn't mine and I already paid it? I know I had only one credit card with Capital One, but cannot be 100% sure right now which one I had. I'm trying to find my old paper work.