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Capital One summons HELP

Sabii
Valued Contributor

Re: Capital One summons HELP

You can post free questions to be helped by verified lawyers on Avvo.com There is also a large database that usually covers most questions. I've always gotten great results from it. Many will walk you through each of the steps you need to take and they aso have cheap phone consultations, like for 30 minutes of advice.



Message 31 of 57
bass_playr
Frequent Contributor

Re: Capital One summons HELP

OK, I mean zero disrespect in this post---but there's a lot that needs to be said here.

 

First, DO NOT TALK TO ANYONE ABOUT SETTLING ANYTHING.  PERIOD.  You have evidence in front of you that they filed a lawsuit against someone OTHER THAN YOU!!  Why would anyone advise you to settle anything at this point?  You said that the SSN they provided does not match yours---that's a stopping point right there.  WHY would ANYONE try to settle an account when they just handed you potential evidence that they are barking up the wrong tree?  This is a lot more common than you think--they skip trace to find possible matches based on same or similar names, and then go from there.  

 

Second, the service is pure BS.  You know it.  We all know it.  It's likely that someone did some skip tracing and found your facebook page, etc, and pieced together the description of you by looking at a photo.  You said you were not at home that day.  That's a second piece of evidence that they are barking up the wrong tree and playing games.  If you look back at that proof of service document--the one with the physical description on it--there may be a date and time listed that they claim service occurred.  One way to address this is to gather evidence that you were not physically located at that address at the date and time they claim you accepted the papers.  Also, I would find out exactly who the process server was---their name must be on the proof of service.  We can try to research them to see if they have had claims against them for fraudulent service before.  The thing is this though--if you do nothing, they will file a motion for default--and they will get it.  That means a judgment against you.  Debt collectors do this nonsense quite often.  If you can show that you were not even at home at the time they claim to have personally served you, you can also file a claim against the process server's bond for the fraud in many states.  A lot of people blow this off, but I don't.  

 

Next, DO NOT contact Cap 1 or their attorney at this point.  You are very unfamiliar with this system--court, I mean--and talking to them know will likely lead to them tricking you into admitting something, etc.  No good can come from you speaking with them right now.  You said that they claimed a balance due of over $4K....and you mentioned having Cap 1 accounts in the past.  Look back through your records, credit reports, etc--did you ever have a balance in that similar area as to what they claimed?  If you did not, that's another red flag.

 

Look, do the best you can to try not to let this freak you out.  Debt collector attorneys sue people every day, and more times than you know, they sue the wrong person.  The SSN could just be all 9's on the paperwork, but it would seem to me that if they had to include an SSN, they would have at the very least taken care to put a legit one there.  

 

So, let's try to simplify this a bit.  First thing you can do is either go to the courthouse and file an answer, denying their claims that you owe them money.  NEVER admit to the debt, especially when they may have tipped their hand already and provided an incorrect SSN.  Or, you can write a letter to the judge explaining that you were NOT ever served, that you were not even home the day they claim that they handed you the papers.  But the faulty service will most likely not be enough to get the case thrown out.  The judge will know from your response that you are now aware of the lawsuit against you, which is the purpose of service.  The judge will most likely just allow the case to proceed, since you're clearly aware of it now.  

 

Another important thing you need to know before you do anything else---Cap 1 used to have mandatory arbitration clauses in their credit agreements.  They do not anymore as best I can recall, but if this happens to be on an old account, there might still be an arb clause in effect, and if so, you need to know about it.  You need to go to the courthouse anyway, so go to the clerk's office and obtain a copy of the summons and complaint, unless you already have gotten the whole thing online.  The complaint often spells out some details, such as when the account was opened, when it went into default, etc.  That info will help us to determine just how old this is, and what other options you may have.  Get on this ASAP because you don't want them to file for default and get it in the meantime.  If you post some of that info here we can help steer you in the right direction.

 

Also, know this---initially speaking with an attorney will not cost you money up front usually, but if you want to retain their services you will have to pay them up front there.  Don't know if you have the budget to afford that or not.  But any attorney worth hiring will want this same info right off the bat anyways, so you're not harming yourself by gathering it now.  And yes, I would write that letter to the judge, explaining that you were never served, that you were not even at your home address on the day they claimed to have served you, and so on.  You hopefully will be allowed some time in which to file an answer by the court--that would be the purpose of the letter, to buy you some time to properly research and respond.

 

 

Message 32 of 57
Shooting-For-800
Senior Contributor

Re: Capital One summons HELP

Avvo can be a great source just be prepared for 9 out of 10 lawyers to tell you that you need to hire a lawyer no matter what your question is.

You can get some annomous help there though.

 

Rebuild started in 2014  -  $100k unsecured credit in 2017  -  $400k unsecured credit in 2022.

DON'T WORK FOR CREDIT CARDS ... MAKE CREDIT CARDS WORK FOR YOU!


Message 33 of 57
Shooting-For-800
Senior Contributor

Re: Capital One summons HELP

OP - How much total debt do you have both current and past due?

Rebuild started in 2014  -  $100k unsecured credit in 2017  -  $400k unsecured credit in 2022.

DON'T WORK FOR CREDIT CARDS ... MAKE CREDIT CARDS WORK FOR YOU!


Message 34 of 57
pnrbma
Regular Contributor

Re: Capital One summons HELP

Thank you so much for taking the time to read and respond so thoroughly. I took your advice and reopened the records I found online and it stated that I was served "7th day of July, 2018 at 12:58 PM". So I went back through my phone to see what I was doing at that time, and I was still home at that exact time. I remember that day clearly. & because I of texts I was sending and the timestamps of photos I took that day, I know exactly what I was doing at that time. I even sent a text at 1:02 and there is no way I would be texting like that if I had just been served. I would have been shaken up and panicking. 

It does list the process server and their address, and it is two hours away. There are two pages: one looks to be a 'declaration of service of summons; complaint' , and the next page is a small claims summons and at the bottom under 'return on service' it lists the same name of the server as the first page, but the address is different - and when I Google it, it shows to be Alacrity Legal Services, and is four hours from where I live. 


@bass_playr wrote:

Second, the service is pure BS.  You know it.  We all know it.  It's likely that someone did some skip tracing and found your facebook page, etc, and pieced together the description of you by looking at a photo.  You said you were not at home that day.  That's a second piece of evidence that they are barking up the wrong tree and playing games.  If you look back at that proof of service document--the one with the physical description on it--there may be a date and time listed that they claim service occurred.  One way to address this is to gather evidence that you were not physically located at that address at the date and time they claim you accepted the papers.  Also, I would find out exactly who the process server was---their name must be on the proof of service.  We can try to research them to see if they have had claims against them for fraudulent service before.  The thing is this though--if you do nothing, they will file a motion for default--and they will get it.  That means a judgment against you.  Debt collectors do this nonsense quite often.  If you can show that you were not even at home at the time they claim to have personally served you, you can also file a claim against the process server's bond for the fraud in many states.  A lot of people blow this off, but I don't.  

Message 35 of 57
pnrbma
Regular Contributor

Re: Capital One summons HELP

When I went to the courthouse last Friday, the lady did not offer me a copy of ANYTHING or for me to file an answer. All she did was write down the case number on a tiny sticky note and the address to send in a letter letting them know I was not served. This was the only guidance she gave me, granted, I did not ask additional questions, such as, ask for a copy.

 

A record I found online labeled "STATEMENT OF CLAIM (Complaint) General" says
YOU ARE BEING SUED IN THE SMALL CLAIMS COURT BY THE PLAINTIFF(S) SHOWN ABOVE. THE JUDGE HAS NOT YET MADE ANY DECISION IN THIS CASE, AND YOU HAVE THE RIGHT TO A TRIAL TO TELL YOUR SIDE.
HOWEVER, IF YOU, OR YOUR LAWYER, FAIL TO FILL OUT THE ENCLOSED ANSWER FORM AND DELIVER OR MAIL IT TO THE CLERK AT THE ADDRESS SHOWN BELOW, SO THAT IT WILL GET TO THE CLER'S OFFICE WITH FOURTEEN (14) DAYS AFTER YOUR RECEIVE THESE PAPERS, A JUDGEMENT CAN BE TAKEN AGAINST YOU FOR THE MONEY OR PROPERTY DEMANDED IN THE FOLLOWING COMPLAINT, ONCE A JUDGEMENT HAS BEEN ENTERED AGAINST YOU, YOUR PAYCHECK CAN BE GARNISHED AND/OR YOUR HOME OR PROPERTY SOLD TO SATISFY THAT JUDGEMENT.
COMPLAINT
1. I claim the defendant owes the plaintiff the sum of $4836.96 because:
The claim arises from a Mastercard Credit account entered into by the Defendant with Capital One Bank USA, Account Number ..... Money was loaned to the Defendant with the intent that it would be repaid; but, it was not. Plaintiff owns the Account and sues herein for Breach of Contract, as an Account Stated and as an Open Account. Plaintiff expressly waives its right, if any, to recover its attorney fees in this matter. The Account was closed on March 27, 2017. {To settle, please call (800) 600-2005}
2. Plaintiff also claims from the defendant court costs in the sum of $260 (and there's a little more words but I am tired of typing)

 

So now that I am going to draft my letter today, do I ask in it for them to send me a copy of the information that was supposedly served? I obviously don't know what the "THE ENCLOSED ANSWER FORM" says, but then again, it is way past the 14 days since they supposedly "served" me this. 

 

I am pretty confident I opened this particular card August of 2015, so it was not an old card. 

I will work on the letter and post the draft to seek guidance before printing and getting it in the mail.

 


@bass_playr wrote:

So, let's try to simplify this a bit.  First thing you can do is either go to the courthouse and file an answer, denying their claims that you owe them money.  NEVER admit to the debt, especially when they may have tipped their hand already and provided an incorrect SSN.  Or, you can write a letter to the judge explaining that you were NOT ever served, that you were not even home the day they claim that they handed you the papers.  But the faulty service will most likely not be enough to get the case thrown out.  The judge will know from your response that you are now aware of the lawsuit against you, which is the purpose of service.  The judge will most likely just allow the case to proceed, since you're clearly aware of it now.  

 

Another important thing you need to know before you do anything else---Cap 1 used to have mandatory arbitration clauses in their credit agreements.  They do not anymore as best I can recall, but if this happens to be on an old account, there might still be an arb clause in effect, and if so, you need to know about it.  You need to go to the courthouse anyway, so go to the clerk's office and obtain a copy of the summons and complaint, unless you already have gotten the whole thing online.  The complaint often spells out some details, such as when the account was opened, when it went into default, etc.  That info will help us to determine just how old this is, and what other options you may have.  Get on this ASAP because you don't want them to file for default and get it in the meantime.  If you post some of that info here we can help steer you in the right direction.

 

Also, know this---initially speaking with an attorney will not cost you money up front usually, but if you want to retain their services you will have to pay them up front there.  Don't know if you have the budget to afford that or not.  But any attorney worth hiring will want this same info right off the bat anyways, so you're not harming yourself by gathering it now.  And yes, I would write that letter to the judge, explaining that you were never served, that you were not even at your home address on the day they claimed to have served you, and so on.  You hopefully will be allowed some time in which to file an answer by the court--that would be the purpose of the letter, to buy you some time to properly research and respond.

 

Message 36 of 57
pnrbma
Regular Contributor

Re: Capital One summons HELP

not including my student loans...

According to credit reports, I have an installment account loan - never been late - opened August 2016 - with balance of $657.

Under Revolving Accounts (open), I have my Navy Fed credit card, balance $4965, and my Navy Fed line of credit, balance $1979.

Revolving closed, this particular Capital One account showing a balance of $5,237, the other Capital One I mentioned in this thread with balance of $576, a Merrick Bank card balance $865.

 


@Shooting-For-800 wrote:

OP - How much total debt do you have both current and past due?


 

Message 37 of 57
pnrbma
Regular Contributor

Re: Capital One summons HELP

Please see draft of letter below and let me know if this is sufficient.  I appreciate all guidance with this!!!!!!

 

To whom it may concern:

 

I received a letter in the mail from an attorney’s office as an advertisement that stated, “According to court records, a lawsuit has been filed against you in Houston County by Capital One Bank (USA), N.A.. Records show that you were served with this lawsuit on July 7, 2018.” However, I was not served.

 

Upon receiving this advertisement letter, I went to the Houston County Courthouse on August 10, 2018 in order to find out more information. I showed the advertisement letter to an employee and she searched her computer for records. She notified me that there was indeed a lawsuit and confirmed that her records showed that I was served on July 7. I explained to her that I was never served and she advised me to write this letter to the court, letting you know I have received no correspondence in regards to this lawsuit.  She wrote down the case number as SM 18-900256.

 

Please let me know how I may obtain more information, specifically the information I never received, so that I may review the complaint and answer accordingly.

 

Thank you.

 

I will sign with my name and address – should I also include my email address???

 

Message 38 of 57
pnrbma
Regular Contributor

Re: Capital One summons HELP

Please let me know if I need to include additional information in this letter
Message 39 of 57
wa3more
Established Contributor

Re: Capital One summons HELP

i think you will need to file an Order to Show Cause and explain why you were not served properly. Research court procedures for your county.

 

Do not settle and stay off the phone. Do everything by email but I would fight this since you were not served properly

Message 40 of 57
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