MY HUSBAND SIGNED FOR THE CAPITAL ONE SUMMONS

[Traveltosurvive]

The sheriff's dept has been coming to my home and I have been out of town and leaving stickers for the capital one summons for a court date of Oct 2008. I have no job, car repossed, all other bills are past due. My husband went outside this morning and said that a female officer was outside of the house at 8:30am. He says that he did not sign anything that she had although I am not inclined to believe this because they would not give him that summons with a court date if he had not signed it. I called a bankruptcy attorney today and my husband acteda a complete fool while I was on the telephone. He was yelling and screaming about how I am going to destroy his credit and how we will never get a house once I file bankruptcy. He still has it on his credit fromhis first marriage and stated that he ended up paying back $15K and still has it on his credit. I want to file Chapter 7 but keep the cars since they are almost paid off. I don't know what to do because I do not have the money to drive 400 miles to another county to go to court or to pay. Please some one help, the Capital One debt was $4700 and then on my credit report it shows $9000 with interest added from 2003.

[Miner]

You better find the money to show up (sleep in your car or something).  It will cost you more not to show up then the cost of driving there.  Because if you don't, they will automatically get a judgement against you for the full amount and then they can come against your bank accounts.  However, I've never heard of being sued and having to appear in a court that far away from your home address before.  You really need to talk to an attorney about that.

Another recent thread here talked about how they showed up and the attorney for the CCC wasn't prepared since he was never given the paperwork he needed and asked for a delay.  He felt sorry for the lady and told her that this was normal and if she showed up for the 2nd court date, the odds were he still wouldn't have the paperwork needed and she'd win the case.  His employer often relied on how many people in debt live in denial and just gnore things and thus not showing up to court.  In fact, when she was there, most people did not show and automatically lost.

So PLEASE show up and pray for a similar result with your creditor.  You may luck out.  At the very least, you can argue how the debt owed should be much smaller and hope for a more favorable outcome.

Message Edited by Miner on 09-26-2008 03:00 PM

Message Edited by Miner on 09-26-2008 03:03 PM

[Miner]

I did some searching and found that thread I talked about.  The good news is that it was a case with Capitol One, so you may get lucky when you go.

Read this thread:

http://ficoforums.myfico.com/fico/board/message?board.id=rebuildingcredit&message.id=29097&query.id=...

[Traveltosurvive]

Thank You for the information- I have spoken with several other people. Right now I am not even speaking to his DUMB butt. For him to be from Camden, NJ he really has no common sense. Capital One provided with the summons a copy of one of the credit card statements and a copy of the agreement. I am really not able to make this court date and so bankruptcy may just be the only alternative for a stupid spouse.

[Anonymous]

Well, now I realize the wisdom of the generic term DH and DW to refer to spouses on this board ...

DB did not have to sign anything to accept service.  There is an urban myth out there that you are not served if you don't sign an acknowledgement, don't touch the summons, etc.  Generally, the process server will sign a certificate stating how service was accomplished.  That certificate is considered proof of service. 

Avoiding service is just a tactical delay.  If bankruptcy is your only option today, than most likely it would be your only option in a couple of months.  You should consider apologizing to DB.

[cw81]

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@Anonymous wrote:

Well, now I realize the wisdom of the generic term DH and DW to refer to spouses on this board ...

DB did not have to sign anything to accept service.  There is an urban myth out there that you are not served if you don't sign an acknowledgement, don't touch the summons, etc.  Generally, the process server will sign a certificate stating how service was accomplished.  That certificate is considered proof of service. 

Avoiding service is just a tactical delay.  If bankruptcy is your only option today, than most likely it would be your only option in a couple of months.  You should consider apologizing to DB.

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+1

I think you are deflecting the blame here OP sorry to be blunt but you are the root of the mess him accepting the summons and doesn't have to do with the original problem. I do believe he deserves an apology. You would have been served sooner or later and as the earlier poster said your options would most likely be the same.

[Anonymous]

I just want to remind you to keep your goals in mind at a time like this.
You say don't have the $$ to go to this court date, but you've been "out of town" ?? Well, it takes money to get outta town, and to get back into town! Also, you say the car has been repo'd, but then that you want to try to keep the two cars? Which is it?

Speak to your husband, you would have been served eventually anyway, and he didn't have to sign anything. I saw a neighbor "served" by the big thick lump of paperwork & the notice from Cap1 being taped to his front door while he was out of town!!!

Remember to keep your mindset on success.. start thinking in terms of "what CAN I do to get there" instead of "I can't do anything to get there."

Best of luck.. go to that summons!!

[Anonymous]

Everyone here is spot on.

For one thing, in some states, simply putting an ad in the "Legal Notice" section of your local newspaper is sufficient service. Some also allow simply mailing the notice to your home and/or office (any "reasonable" address where you'll more than likely be found). Some even allow service to be made to a older-than-16-family member (or house-mate).

You really would have been served eventually. Even if they couldn't serve you physically THAT day, they usually have at least 120 days (or, 4 months) to succeed. If they don't, all it means is that they refile the case (in some states) or simply reattempt service after "approval" from the judge.

What you CAN do (and REALLY should do) is answer the summons. You should have approximately 20 days (some states allow more time -- most don't, though) to send a response back to the court, otherwise court proceeds on the stated date. If you respond, you can request a continuance, which is basically a request for additional time to gather YOUR evidence or form your defense. If you can request a continuance (or even request discovery, which will eat up even more time, IIRC), you might have time to come up with the $$ to pay it off or come to a settlement with the OC/Atty.

But everyone here is absolutely right: even if you have to borrow money or sell something, get your patootie to the courthouse. Do NOT default. If you default, the judge could tack on atty's fees and penalties.

And I know that you're frustrated, but really, blaming your DH is not the best course, here. It's not his fault -- unless HE defaulted on the account. Simply being out in the open when a server shows up (and servers have been known to "toss and run" the notice -- and technically, it IS served) is not blame-worthy.

He was being a jerk by yelling and screaming at you when you clearly have a lot going on. If you want to blame him for something, blame him for that.

GL!!

[Anonymous]

Forgot to mention: I'd not breathe a word about BK to the attys. Not a single word if you have a home, bank account or job.

Filing BK takes time (you'll have to undergo credit counseling FIRST AND it has to be "approved" by a judge). It's not an overnight solution. It takes MONTHS. And if you clue the atty in on your intent to file, they'll just push that much harder for judgment so they can GARNISH your wages or attach a LIEN on your property.

You'd never be able to file enough valid motions to stall the atty & judge for months while the case is being reviewed for BK. You'd be garnished or attached far long before a stay is ordered in BK.