Summons from Capital One

[Anonymous]

Hey all. Here recently I received a summons both attached to the door of my apartment, as well as a manilla envelope in the mail from the Sheriff's department from Capital One regarding an old credit card that had been charged off. Reading through the documentation that was provided mentions this -

 "An answer or other appropriate response in writing to the complaint must be filed either by you or your attorney within twenty(20) days, commencing the day after you receive this Summons, (or twnety-three (23) days if this Summons was received by mail), or a judgement by default may be rendered against you for the relief demanded by the plaintiff."

 Having never dealt with anything along these lines before, I was hoping for some suggestions/insight on how best to proceed with handling this and responding to the summons. Unfortunately I've been a bit delayed in dealing with this, so as per the noted timeframe above, I'm looking at a little over a week left to respond going by the 20 days(though I would imagine officially they're going by the 23 due to not having received this in person, I'd rather be safe than sorry), which obviously I'd like to do to avoid the judgement.

Being young and ignorant, I took the "bury your head in the sand" approach to handling this up until late last year where I began setting aside money to DV/PFD, but it should be noted that I don’t dispute that the debt is mine. Unfortunately after I had all my ducks in a row and had the funds set aside to proceed with this route, my Father unexpectedly passed away and I had to utilize that money for bills with the following time taken off of work. At this point in time I can begin making payment almost immediately, but do not have the funds available to pay in full in one lump sum as I had initially intended.

I'm hoping that someone may have some advice on how best to correspond back and avoid the pending judgement. From the sounds of it a written response with my intentions to work with them on repayment would likely be the best response, but is there anything else that I should be sure to include, or anything I should refrain from mentioning? Last but not least, should this be mailed(guessing CMRRR) to the plaintiff or mailed/delivered by hand to the County Superior Court listed on the documents provided?

Thank you in advance for assistance with this, it is greatly appreciated.

[llecs]

If I had that, I would answer the summons now. Basically they'd assign a court date once you do so and that'll buy you time to settle or negotiate. When responding, follow the instructions on the  service. You'd respond back to the court; you wouldn't want to trust the plaintiff to respond for you.

CapOne is tough. Once you have a CO, they'll continue to add interest, fees, and add a late every month to your CR up to the point it is paid in full or settled. They continue to keep the debt up to your state's SOL (check that for sure), and will usually decide to sue or sell the debt to a CA at that point. CapOne loves to sue.

Ideally, you'd want a PFD. From personal experience in sending dozens of PFDs to them over the course of a year, they don't like to accept PFDs. And you can't DV because they are an OC. If I had that, my first choice would be to PIF. Paying in full would obviously eliminate the risk of a judgment but could possibly improve odds for getting them to remove lates at a later date. If you can't PIF, then settle in one payment. If settling in one payment isn't an option, then offer a settlement over as few payments as possible (2-3). A payment can reset SOL in some states. Missing a payment can screw the discount from the settlement all up (e.g. they can void out any offer and charge 100%).

You don't have to be strict on your response to them. In fact, I'd probably call their attorney and negotiate with them. The only time you have to worry about the verbage is to avoid fodder if sued. But you are already there, unless you had a strong defense.

[pipeguy]

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@Anonymous wrote:

Hey all. Here recently I received a summons both attached to the door of my apartment, as well as a manilla envelope in the mail from the Sheriff's department from Capital One regarding an old credit card that had been charged off. Reading through the documentation that was provided mentions this -

 "An answer or other appropriate response in writing to the complaint must be filed either by you or your attorney within twenty(20) days, commencing the day after you receive this Summons, (or twnety-three (23) days if this Summons was received by mail), or a judgment by default may be rendered against you for the relief demanded by the plaintiff."

 Having never dealt with anything along these lines before, I was hoping for some suggestions/insight on how best to proceed with handling this and responding to the summons. Unfortunately I've been a bit delayed in dealing with this, so as per the noted timeframe above, I'm looking at a little over a week left to respond going by the 20 days(though I would imagine officially they're going by the 23 due to not having received this in person, I'd rather be safe than sorry), which obviously I'd like to do to avoid the judgment.

Being young and ignorant, I took the "bury your head in the sand" approach to handling this up until late last year where I began setting aside money to DV/PFD, but it should be noted that I don’t dispute that the debt is mine. Unfortunately after I had all my ducks in a row and had the funds set aside to proceed with this route, my Father unexpectedly passed away and I had to utilize that money for bills with the following time taken off of work. At this point in time I can begin making payment almost immediately, but do not have the funds available to pay in full in one lump sum as I had initially intended.

I'm hoping that someone may have some advice on how best to correspond back and avoid the pending judgment. From the sounds of it a written response with my intentions to work with them on repayment would likely be the best response, but is there anything else that I should be sure to include, or anything I should refrain from mentioning? Last but not least, should this be mailed(guessing CMRRR) to the plaintiff or mailed/delivered by hand to the County Superior Court listed on the documents provided?

Thank you in advance for assistance with this, it is greatly appreciated.

---

A "summons" requires you to appear in court to answer the suit, in this case as a defendant. A summons can NOT be used to secure a "default judgment" in and by itself. A default judgment results from you NOT showing up in court to answer the charges which means by default (you didn't show up) the court grants a judgment.

Any pre-trial negotiations should be done through the plaintiff (Capital One in this case) as the court makes no determination of the merits of a case until the case is heard. In other words you need to contact Capital One, or the CA (attorney) handling the lawsuit to work out a payment schedule. As a strong word of caution, make sure you get any agreement in writing that includes a withdrawal of the lawsuit because many lenders will go ahead and secure a default judgment anyway, even with an agreement, to insure they have fall back insurance if you don't holdup your end of the agreement.

I am NOT an attorney, but if it was me, I'd go to court and state when the case is called "I do NOT agree with the case is stated" (the added fees, etc alone would make this a valid fact) and request both Validation of all costs and fees being requested along with a detailed bill of particulars.  You can also ask the judge to meet with the plaintiff's attorney "in the hall". The judge should automatically set a trial date (6 to 8 weeks out), order a detailed bill of particulars and tell the plaintiff's attorney to meet with you before you leave. 

When you meet with the attorney, do NOT admit the debt as yours, simply state that you don't agree with their accounting and say that you need to see complete documentation of all alleged facts and figures before you could possibly consider the suit as valid. NOW you say, I know I had a Capital One account and if you would like to save both of us a lot of trouble, what would you take in settlement with payments to withdraw this suit? An offer to settle is a sign of weakness but the attorney representing Capital One is not interested in extra paperwork, extra research, multiple court appearances where he might actually have to prove his case. They will settle the case for 50-60 percent of the requested amount and you demand that if you are going to pay an account that at this point you don't agree with, that they withdraw the lawsuit stated in writing in the settlement agreement.

I'm not an attorney, but I've been there and done this - 90% of the people that admit the debt as valid in court (first appearance) get stuck with the whole inflated claim, 100% of the people that don't bother to go to court get stuck with a default judgment. I'd say 50% of the people that challenge the claim win their case through no proper documentation of the suit and the other 50% "settle" for much better terms after meeting with the plaintiff's attorney.

Court is not as scary as you think it is, but if you want to understand it a little better, go to court and just sit and watch say a week before your court date. You'll also see how the system works and you'll see "rent-an-attorneys" with stacks of lawsuits winning 90% of their cases through default judgments when no one shows up to defend their case. In addition you'll see how when a defendant shows up and fights back how the plaintiff's attorney reacts.  

I'm not saying that you should not pay your debt, but my guess is that the amount of the debt being sued for is probably 3X what the actual debt is and any settlement should take into consideration what is a fair amount to settle. You may be able to do all this before court, just be very careful that everything is in writing and that in writing the plaintiff states that the lawsuit will be withdrawn.

[Anonymous]

Hey Ilecs, thank you for the quick response. With it being memorial day today, I'm guessing that the courts will be closed but I'll double check that. As far as responding to the local superior court, showing up in person with a written letter effectively saying "I'm -defendant- and acknowledge the summons" would be sufficient, or are there any particulars I'll need to include(cause #?) in this response in writing?

As far as paying in full, the amount listed is around $1400 with a "reasonable attorney fee in the amount of $ 125.00 and costs with relief." - due to my current financial situation,  I'd be looking at going the route of at least the 2-3 payment range, possibly spreading it out a little bit more, but I do have family that I could reach out to if desperately needed, I'm just trying to avoid getting them involved if possible due to having enough going on as it is. SOL for the state I am in is 6 years, which I am well within already. In regards to the "discount from the settlement" you mention, do you mean them coming at me for additional fees/costs on top of what is already listed, or is that regarding an attempt to settle for less than the amount listed on the summons?

Thank you again for your assistance, I'm looking forward to moving on from this but don't want to take any mis-steps that can be avoided.

[llecs]

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@Anonymous wrote:

Hey Ilecs, thank you for the quick response. With it being memorial day today, I'm guessing that the courts will be closed but I'll double check that. As far as responding to the local superior court, showing up in person with a written letter effectively saying "I'm -defendant- and acknowledge the summons" would be sufficient, or are there any particulars I'll need to include(cause #?) in this response in writing?

As far as paying in full, the amount listed is around $1400 with a "reasonable attorney fee in the amount of $ 125.00 and costs with relief." - due to my current financial situation,  I'd be looking at going the route of at least the 2-3 payment range, possibly spreading it out a little bit more, but I do have family that I could reach out to if desperately needed, I'm just trying to avoid getting them involved if possible due to having enough going on as it is. SOL for the state I am in is 6 years, which I am well within already. In regards to the "discount from the settlement" you mention, do you mean them coming at me for additional fees/costs on top of what is already listed, or is that regarding an attempt to settle for less than the amount listed on the summons?

Thank you again for your assistance, I'm looking forward to moving on from this but don't want to take any mis-steps that can be avoided.

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Frankly I wouldn't know what to specifically include, and I'll leave that for others. but read what they provided carefully. I know it's a YMMV on where you live, but here in VA, they'll give a very specific instruction on how to answer a summons.

In that last part I was trying to say that if you settle for $900, for example, and make an arrangement for $300/mo as an example. If you miss one payment, let's say the second $300, instead of owing $600, you'd owe $1100 (less $300 already paid...plus additional fees and interest). Basically they can rescind the offer if a bad payment is made or missed. That's why you want to avoid paying over time because you never know what tomorrow might hold. But you've gotta do what you've gotta do. I'd do that to avoid a judgment if I had no other alternatives.

BTW, pipeguy brought up a very important component in his post above that I failed to mention. In your settlement letter with them, include language to get the case vacated/withdrawn. I'll defer to others on the specific verbage.

[Anonymous]

pipeguy, thank you as well for the fantastic advice. Really appreciate you guys taking the time. I've confirmed court is closed today due to memorial day so I'll get down there first thing in the morning to acknowledge the summons and avoid a judgement as that will be the first thing to get out of the way.

My account on Capital One's website is no longer active(I forget the exact message, but when I log in they direct me to contact them via phone) so I can't see all the details, but if I remember correctly the amount originally on the card as of my last payment was in the $600-800 range. Including the "reasonable attorney fee", I'm looking at approximately 50% higher than the last bill I received before everything else has been fees, etc. So when it comes to negotiating with the attorney, would it be advised to phrase it like you mentioned - asking them what it will take, or should I suggest something in this range? I can only assume they'll want to avoid having to appear at all if possible, as the address listed for the attorneys office is approximately a 3 hour drive.

[Booner72]

pipeguy said they'd take 50-% percent, so don't ask, say, I will pay you X amount (Half, say 700?) - and also will need a letter in writing that the suit is completely dropped before I pay you - and then we can avoid further court proceedings. I'd beg and borrow to be able to show up to court with that money in hand so that I could negotiate on the stop and end it. But don't give it up w/o the letter. Good Luck! (IMO, I'd ask dad for the money in this case).

GREAT POST PIPEGUY! I bookmarked it.

[proudnavymom]

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@llecs wrote:

If I had that, I would answer the summons now. Basically they'd assign a court date once you do so and that'll buy you time to settle or negotiate. When responding, follow the instructions on the  service. You'd respond back to the court; you wouldn't want to trust the plaintiff to respond for you.

CapOne is tough. Once you have a CO, they'll continue to add interest, fees, and add a late every month to your CR up to the point it is paid in full or settled. They continue to keep the debt up to your state's SOL (check that for sure), and will usually decide to sue or sell the debt to a CA at that point. CapOne loves to sue.

Ideally, you'd want a PFD. From personal experience in sending dozens of PFDs to them over the course of a year, they don't like to accept PFDs. And you can't DV because they are an OC. If I had that, my first choice would be to PIF. Paying in full would obviously eliminate the risk of a judgment but could possibly improve odds for getting them to remove lates at a later date. If you can't PIF, then settle in one payment. If settling in one payment isn't an option, then offer a settlement over as few payments as possible (2-3). A payment can reset SOL in some states. Missing a payment can screw the discount from the settlement all up (e.g. they can void out any offer and charge 100%).

You don't have to be strict on your response to them. In fact, I'd probably call their attorney and negotiate with them. The only time you have to worry about the verbage is to avoid fodder if sued. But you are already there, unless you had a strong defense.

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How can I find out if this is applicable in Texas?  I have a few collections that I'm making monthly payments on.  

[2NE1]

@Booner72 didn't OP said his dad passed away?

Sorry for your loss @illadviced.

@pipeguy great advice!

[Booner72]

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@2NE1 wrote:
@Booner72 didn't OP said his dad passed away?

@Anonymous for your loss @illadviced.

@pipeguy great advice!

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OP!  I am so sorry about that.  I meant I would ask my dad, you had mentioned that you didn't want to ask your family for a loan unless you had to, so I was just saying, If I were you, I would ask, I'd rather pay family back and get this over with, end the stress of a legal proceeding!  Obviously that's your call.  I hope I didn't hurt your feelings, and I'm sorry about the loss of your father..  Good Luck.