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Help When Being Sued by Capital One

Whether you have received a summons by mail, found one pinned to your door or you received one in person, being sued is always a worrying experience. When you’re being sued by one of the biggest credit card companies in the US, a high level of intimidation and panic is added to the mix.

Even though it may be your natural reaction, this is not the time to let despair and panic take over. Start to take control straight away but understanding what is happening and why. The summons you have been served is initiating legal proceedings to resolve a claim or a number or claims against you.

When you opened a credit card account with Capital One, you entered into a contract. This may have been a verbal contract or you might have actually signed a contract which bound you into the terms and conditions set out by the company.

After a while of using your credit card and meeting those conditions, something may have changed which meant that you could no longer pay your minimum payment each month. This is called ‘defaulting’ and normally constitutes a violation of your original agreement. Capital One may have attempted to resolve the issue but for whatever reason you were unable to pay the outstanding debt or reach an agreement to settle it.

Things may go quiet for a while and years may even pass but Capital One rarely let debt go easily. Eventually they decide to draw up a document called a complaint which lists the allegations against you including how much is owed and why they say you owe it. They filed this with the court and the court then issued a summons which is a document that notifies you that you have been sued and explains how long you have to respond.

Next, the summons and complaint, sometimes along with other documents, were passed to Capital One’s attorney and later a messenger who ‘served you’ with the papers in some way.

Now we return to that moment where you are struck with fear and panic. At this point, the first reaction for most consumers is to ignore the summons, either thinking that fighting the case is futile, because they cannot afford an attorney or because they hope it will just go away.

If the debtor ignores the summons, the creditor can be awarded a default judgment against the debtor. Many consumers fail to realize that a default judgment does not mean a conclusion to the situation. The case may be closed but the creditor now possesses further powers to collect the debt including the authority to garnish wages and seize bank accounts.

Statistics show that in some areas, as many as 90% of credit card lawsuits end with the creditor obtaining a default judgment because the defendant never responded to the initial summons and complaint.

Considering these facts, on receipt of a summons, it is more than worth immediately investigating possible solutions and responding to the summons and complaint. If you definitely know that you owe the debt, one option is to try and negotiate with Capital One to reach a settlement. If you do decide to go down this avenue, don’t forget that you still need to file a response to your summons to avoid penalties. Furthermore, if you do reach a settlement, make sure that you receive documentation from the creditor acknowledging payment and indicating that the case will be closed.

However, if you decide against attempting a settlement, there is still plenty that you can do to give yourself a chance. For the reasons already mentioned, fighting the lawsuit, even pro se, will always lead to a more agreeable result compared to doing nothing and receiving a default judgment.

Fighting back begins from the moment you realize you are being sued and how you compose your answer. The Defendant’s Package contains templates and guidelines that have helped many consumers with their answer.

Even if you know that you owe the debt, Capital One may not have complied with the areas of the law pertinent to them, thus giving you an opportunity to excuse yourself from the debt and ending the lawsuit. Essentially there are a few key areas where Capital One may have left gaps and that should be considered as you analyze the allegations against you.

  • First, assess what proof Capital One have provided of the debt and the amount they claim you owe. Credit Card companies don’t always keep contracts and original documentation for individual accounts. Therefore, they may not have the proof to back up their claims and surprisingly, this is not unheard of.

  • Secondly, you should decipher the age of your debt. The statute of limitations dictates how long someone has to initiate legal proceedings regarding breach of contract. This differs in each state and may be anything from 4 to 15 years. If you receive your summons after this time has passed, the lawsuit is not valid and you cannot be sued on that contract. For example, if the statute of limitations in your state is 5 years and you defaulted 7 years ago, your debt is actually too old for Capital One to sue you.

Depending on what you find in your analysis of your complaint and personal records, you will now want to formulate your response to the allegations in the complaint and outline your own affirmative defenses. You will also need to consult your local court rules to learn exactly what specific guidelines you must follow when you file an answer.

Check out The Defendant’s Package to help you with your wording and which affirmative defenses apply to your case.

One note of warning though: in their attempts to collect the debt, Capital One may be very aggressive and even threatening. Note that there are now very strict guidelines against harassment of debtors. Keep a journal of any communications between you and Capital One, keep letters, note down what is said on the telephone or in person. Check their behavior against The Fair Debt Collection Practices Act, (FDCPA) which clearly dictates how a creditor must act when collecting debt.

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