Capital One never sent me any credit card statements for almost a year and a half after I defaulted on their credit card.
Come last December, I was served a Summons with Complaint claiming that my whopping $300 limit was now inflated over $2000.00.
I admit I screwed up paying my credit card bills when I lost my job about 6 years ago but $2000.00??? From a $300 limit c’mon!
At the same time I was being served by LVNV Funding which I ended up winning. But, now I am being served by the Original Creditor which is a whole new ball game. Especially Capital One.
The only thing I had going for me was the fact that they hired lawyers to do this which makes them a “Collector”.
The first thing I did was check the complaint to see what proof they had attached, and most importantly how the hell they came up with $2000.00 and to my surprise there was nothing attached.
I went searching around to see what my chances were of beating Capital One seeing they are the original creditor and almost all of the advice around the internet was a basic GOOD LUCK. Capital One keeps good records and what I got out of it was basically to settle with them.
I however, figured why not? I thought I’ll take this thing as far as I can go with it and if they come up with enough proof then I will settle. But as for now that do not have anything but a Complaint which wasn’t good enough for me. I wanted to know just how they came up with that huge amount and make them work (lol).
So I said to myself I’m going to get these Lawyers to come up with every ounce of evidence they need in order to prevail.
So far I had them on not complying with my court rules by failing to attach the contract.
I filed a Motion to Dismiss for Failure to comply and it was granted without Prejudice.
Capital One then filed a Motion for Extension of time to comply with the court rule and were granted that as well.
A week before their time was up they filed some papers that also didn’t comply with my court rules plus they had credit card statements from the time I opened up the account until I defaulted on the account.
They did not comply because they did not Amend their complaint like they were suppose to do. So, I called the court and asked them what was the last document filed in this case and the lady said I have here Capital One complying. I said was that accepted by the court and she said IT WAS FILED SO YES. I hung up and knew something wasn’t right.
I thought, hmmmm I’m no lawyer but I thought they were suppose to Amend the Complaint. What they did was just put on a piece of paper “Capital One complying attached is the Customer Agreement and Monthly Billing Statements”.
So now I had to see what I could get out of this “evidence” and make them work again.
The First thing I did was check the Customer Agreement. I opened the Card in 2002 and Defaulted in 2003. Capital One’s Lawyers submitted a Customer Agreement with a Copyright Date of 2005!
So, I filed a Motion to Strike the Credit Card Agreement because the 2005 agreement submitted to the court was not the year I had the account open with them which basically means they have no contract that governs my account. I told the court that by submitting the 2005 Customer Agreement that they failed to comply with the court rules ONCE AGAIN and I asked the court to Strike the agreement and Dismiss the Case with prejudice this time.
A few days later I received a letter from the court with a hearing date.
I showed up for the Hearing and so did the lawyer. Was I scared? NO.
You see before I talked with him there was this other lawyer walking the hall in front of the court room snapping at other people, threatening them and saying why didn’t you just pay your bills? You are going to get a default. Literally scaring these people. And from my experience I would have told that lawyer to stick it up his ass. The way these people got scared by that attorney made me sick. They didn’t know their rights, nor know any better.
Anyways, the Lawyer for Capital One calls me into the conference room and says the 2005 Agreement that was submitted is the same as the 2002 Agreement. All the Agreements are the same.
I said really? PROVE IT. He said I don’t have to prove anything they are one of the same. I said YOU. PROVE. TO. ME. THEY. ARE. ONE. OF. THE. SAME. like he was a 2 year old. He looked at me really pissed off and said I don’t have to prove anything it doesn’t matter because it’s not signed. I was looking at him like what the heck are you talking about. ….. because he made no sense.
With him raising his voice and telling me they are one of the same is complete B.S. He needs to prove this to me, he knows it and I know it but he thought I was going to believe what he was saying, get scared and just settle with him then and there.
He said there is no way we can settle this? I said NO. He said FINE we’ll see what the JUDGE has to say. I said FINE let’s do that (lol).
We are the first to get called up to the Judge and the Judge says to me and the lawyer. “The Defendant filed a Motion to Dismiss in January and that was Granted. The Plaintiff filed a Motion to Extend Time to Comply and that was Granted. HOWEVER, the Plaintiff failed to comply as of today because they did not AMEND their pleadings. I CANNOT rule on the Defendant’s Motion to Strike and Dismiss this Case until the Plaintiff has corrected their pleadings. This case is still dismissed, and the Plaintiff has 30 days to Correct their pleadings in regards to the Defendant’s FIRST Dismissal. Once this is done the right way the court will take the Defendant’s Motion to Strike and Dismiss this case under advisement.”
So what he is saying is the case is dismissed. Plaintiff failed to comply with court rules. They had 30 days to comply and then the judge would rule on the Motion to Strike and Dismiss the Case with Prejudice.
I tried not to Smirk but did anyways at the lawyer. I mean here I am a PRO SE Defendant who knows more about the Court Rules than he does.
The judge also admitted that there was a court error. That we should have received some court paper telling us that the Plaintiff failed to comply. I was PISSED because I called the courthouse and asked if what they submitted was accepted by the court and she said YES. So, all of this was a waste of my time and I could have gotten a Dismissal with Prejudice to begin with.
Anyways, they were given 30 days to properly Amend their Complaint and I also knew by our little conference that the Attorney knew I wasn’t stupid and I wasn’t going to give up on that Customer Agreement date being wrong….
Well, 30 days have NOW PASSED in fact it is day 35 since they were suppose to Amend their complaint and GUESS WHAT? THEY DIDN’T!
I have filed Motion to Dimiss with Prejudice for failure to comply with the Court Rules and for failure to Comply with a Court Order.
If they would have came up with that 2002 Agreement and this kept going I would have went with the case being Time Barred because Capital One has Virginia Law Governing their Account and I would have came up with a ton of more crap on them as well.
SO I am proof here that just because you are being sued by the Original Creditor for Old Credit Card Debt does not MEAN you automatically LOSE. These lawyers screw it up one way or another and if you know your COURT RULES you could probably find some errors just like I did.
All I have to say is check your Court Rules look to see what needs to be attached to the Complaint and start from there.
Check your State’s Choice of Law Rules… Look up cases to see if there have ever been any other Capital One Cases in your State where people have won. See how they won, if it pertains to your case use it to your advantage.
When looking up cases they do not have to relate to contracts specifically. Look for any cases that have to do with “Choice of Law”.
Capital One specifically states in their Customer Agreements that this Customer Agreement is governed by Virigina Law and Federal Law. Virginia Statute of Limitations is 3 years for an unsigned contract and 5 years on a Signed Contract. Capital One is time barred on their OWN governing law.
When you signed that contract you and Capital One agreed to that Customer Agreement, which clearly states Virginia Law governs that contract.
CAPITAL ONE 2005 CUSTOMER AGREEMENT STATES THE BELOW:
Governing Law: “This Agreement is to be construed in accordance with and governed by the laws of the United States of America and by the Internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause this application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties.This Agreement is made in Virginia. It will be governed only by Federal Law, and Virginia law (to the extent permitted by Federal Law).
Virigina Code:
§ 8.01-246. Personal actions based on contracts.
2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;
4. In actions upon any unwritten contract , express or implied, within three years.
§ 8.01-248.
Personal actions for which no other limitation is specified.
Every personal action accruing on or after July 1, 1995, for which no limitation is otherwise prescribed, shall be brought within two years after the right to bring such action has accrued.
My Opinion??
If we have to abide by Capital One’s Customer Agreement so should they!
Capital One without a SIGNED CONTRACT should not be suing people after 3 years of defaulting on their account. They should be held to abide by their own Governing Law and that is Virginia. Trying to sue a consumer in default over 3 years should time bar Capital One from suing under their own Terms of the Contract!
CAPITAL ONE CASES WON
Capital One v. Steven Pincus FLORIDA
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