Being sued by Cavalry - served papers today – need advice please

[Anonymous]

Ok so it's been a while since I've actually posted, because I've basically been in the garden with the current rebuilding cards I have, but the day has come that I am officially being sued in civil court over one of my charge-off/collection accounts. It's a $4300+ account formerly with Capital One and now owned by Cavalry Portfolio blah blah blah. I've known this might be coming for some time, but I've been trying to wait them out with no contact because the statute of limitations in my state would have been up this coming October. A couple of things:

1.) My stepfather was the one served today, while I wasn't home, yet the packet is marked that I was served in person. He said the sheriff basically shrugged his shoulders and said "OK, I guess that's good enough" when he told him he was my stepdad... but is that good enough?

2.) As of this moment, my only source of income is SSDI disability, so paying them to settle the debt hasn't really been an option. I've been trying to wait out Cavalry until after the statute of limitations when I could have dictated terms.

3.) I have a copy of a debt verification letter that I got from this forum, because I know that would normally be the first thing I'm supposed to do at this point. The thing is, though, is the packet includes what looks like a bunch of Cap1 computer screenshots showing details about the account. Is that enough on their part to prove the debt? They have to produce something with my signature on it? Should I go ahead and send them a debt verification letter?

Any advice would be greatly appreciated. It says I've got 20 days to respond, but I really want to make sure I have my proverbial ducks in a row. Thanks in advance!

[RobertEG]

1. What is required to establish service varies by state law/rules of civil procedure. Adults residing at the address are often acceptable.

Bottom line is that you have notice, so I would be sure to submit the required response to the court.

Consult an attorney should you consider challenging the service in your response as being inadequate.

It may be a bit tough to challenge the adequacy of service if you acknowledge personal receipt on the day papers were served.

2. Whether or not your income is capable of garnishment can become an issue if/when they additionally pursue a separate motion to attach assets ("writ of satisfaction").

At this point, the primary issue for trial is whether the debt is legit, and not whether your income can ultimately be garnished as a means to satisfy any judgment that may be rendered.

That is an issue to be reserved for if/when they seek an order of garnishment.

Consult an attorney if you wish to include ability to pay in your response to the civil complaint.

However, the main purpose of a response at this point is to notice the court as to whether you are going to contest the civil complaint.

3.  Response by a debt collector to a debt validation request relates to whether the debt collector is or will be placed under a cease collection bar.

It is a debt collection practices matter, of which the adequacy of their response does not necessarily require legal prooofs of legitimacy of the debt.

Civil trial is all about proofs, not debt collection practices issues, and has standards set by the rules of evidence, not simply statements of verification obtained by a debt collector.

Again, you should consult an attorney regarding the standards of proof at trial, which are not the same as the standard for verification of a debt validation request under the FDCPA.

[Anonymous]

It has been my understanding that asking them to verify the debt freezes all collection efforts and court stuff, while they produce something with my signature on it signifying I agreed to pay Cap1 back in the day. Is that not correct?

[RobertEG]

Was your DV request timely (i.e., was it sent either prior to any dunning notice, or within 30 days after they sent a dunning notice) ?

Under FDCPA 809(b), a timely DV request requires the debt collector to "cease collection on the debt" until they first provide verification.

Legal proofs are not generally considered necessary to support a statement of verification, and whether or not a cease collection bar extends to the initiation of civil action is a matter of case law interpretation that varies by jurisdiction.  FDCPA 809(b) does not specifically reference the bringing of civil action as a barred debt collection activity.

It would depend upon relevant case law in your jurisdiction.

If you wish to assert that their civil action is improper in view of a pending and unfilled, timely request for debt validation, that is something to be included in your response to the court.

[Anonymous]

As to the question about the Dunning notice, I received an initial letter from the law office filing against me all the way back in December 2015. It was a regular letter, nothing I signed for or there is proof I ever received. After that, I haven't heard anything in the proceeding 14 months, and I have been following advice from this forum not to contact the creditor to avoid resetting the statute of limitations clock.

[Anonymous]

Is it a valid debt?  Did you have credit with Capital One at that time?

[Anonymous]

I did. The debt is valid in principle. To be clear, I'm not trying to be shady; i'm trying to buy time. I would like to negotiate something, but if I'm going to pay at all it's going to be a lot less than what they want and it – in the long run – isn't going to remove the knock on my credit anyway, so there's no real incentive.

[Anonymous]

The credit card with them at that time was issued before I left work on SSDI disability.

[Anonymous]

My biggest concern at this point is trying to figure out how to move forward and respond, but I'm trying to avoid involving an attorney. Doing so would just cost me a bunch of money, and if I had $1000 to hand to an attorney then I would just offer to pay that on the debt itself.

What I need is to be able to maybe offer a settlement, but I don't know at this point what I'm even supposed to do to answer the summons. All I know is I have 20 days. Do I include a settlement offer in my response letter to the magistrate court? What in the world would the letter even consist of if not either offering a settlement or asking for verification?

[fltireguy]

You could probably call the CA and see if you could work out a settlement... in sure that they would still be open to a resolution at this point