Cassandra

Subject: Capital One Debt
Question: Hello,

I am looking for some good advice on how to proceed with my dilemma. I have a Capital One credit card account that has been charged off and referred to a law firm for collection. I had received one letter from the law office back in April when they had not filled yet.

I did not contact them until last week when they advised that a suit had been filed (I verified). The papers we filed with the courd on May 1 with the courts 30 days ago and at some point in the near future will serve me with papers. They have tried to serve me but I guess they only have my old address.

I have tried to negotiate on the phone with the legal assistant and she will not budge on the lump sum amount even though I am only $1000 from what they are looking to settle for. I am sure the impact of having a force judgement on me will be detrimental to my credit score and will be tough since my employer will now know and my bank account will be frozen.

If I settle with a payment plan, I will be forced to pay the ENTIRE balance so at this point, I am trying to come up with the money to settle the account.

Could you walk me through what the time line and realistically what will happen. I want to keep saving to pay off the settled amount in lump sum but I don't know how much time I have. I have e-mailed the attorney twice and he has not responded and I don't want to volunteer my address.

Answer: I don't have a Cap1 card that has gone into default or that I am likely to be sued for but if I did I would approach the problem far differently than you have so far.

The first thing I would have done back in April would have been to mail the law firm a dispute/validation letter. Yes, I am aware that you owe the debt and that if I were sued I too would owe the debt but that really has nothing to do with how I would react. This is no longer so much of a morality issue as it is a practical matter.

When I got served I would wait until the last day or two before the time I had to respond was up and then would file a response to the court. What my response would be would depend to some extent what state I lived in and what the rules of civil procedure might have to say about acceptable responses but here in Oklahoma and most other states I would probably use a graduated denial.

Then I would follow that immediately with a demand for interrogatories,
admissions and production of documents. If the attorney had filed an affidavit from someone I would examine it very carefully for impermissable wording, outright falsehoods or misrepresentations of any sort. I would also investigate the notary public who witnessed the affidavit to see what state they were from and then check with the secretary of state for that state to see whether or not they were a real notary or some idiot who just went out to the nearest stamp shop and ordered a rubber stamp. That happens on rare occasions and I would want to be certain that such was not true in my case.

Next I would try to find out whether or not the Plaintiff had offices
in the city and state where the notary was from. If the plaintiff did not have any offices in the city or state where the notary is from I would immediately know that some outfit like TSYS and it's so called National Attorney Network has it's fingers in the pie. I'd also check out both the affiant and the notary to see if they were on any of the notary or affiant problem lists available on line. Edleman & Combs has one such list.

If notary or affiant problems surfaced I would file a motion to quash or strike the affidavit and probably to sanction the Plaintiff's attorney for providing false and misleading information to the court.
Of course, if I did file any motions with the court I would also prepare a notice of hearing and an order of the court as well as a certificate of mailing.

Then I'd take two copies of my motion to the clerk of the court and have them both file stamped and one copy actually filed in the case. Then I'd go to the judge's office and get a date set for the hearing of my motion. Then I'd go back to the clerk's office and file the notice of hearing.

Of course, before preparing anything I would have previously went to the post office and picked up a few green cards to use for certified mailing needs. That way I could have them handy so I could include the tracking numbers on my certificate of mailings documents.

Once I had finished with the business at the court house I would then go to the post office and mail copies of all the paperwork to the plaintiff's attorney.

And by that time I would most likely already have sufficient causes of action that I could file a case against the attorney and maybe the plaintiff too in the nearest federal courthouse. If things had progressed sufficiently I would then go ahead and file my case against the defendant attorney and if possible the plaintiff in the local court case as well in federal court.

Things are a bit stickier in federal court than they are in local courts but the outcome will almost certainly be in my favor compared to the probable result of the local case.

Bill Bauer
405-684-9297
405-227-9423

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