Being Sued by Attorney for Cap one

[dystopia]

Originally Posted by masterduke

Remove your $$ from the bank now. Only keep an overdraft amount in there. I would defintely look into suing this clown because it looks like he is doing the sewer service trick to get his rotten default judgement verdict from his crime partner the judge. I would also file a complaint with the state bar association(not that will mean anything but it least it starts to build your case). Actualy you should maybe talk to a consumer advocate attorney regarding this issue. I think you have good grounds on which to hang this creep. Turn the tables on them for a change(since you had mentioned that you were thinking of paying this 'debt, why not use the money and hire an attorney to go after him with). I would bet your not the first victim he has sewer serviced before! Why not call your local paper and see if any reporters would be interested in hearing your story of; Lack of due Process, or Unjust Enrichment since you did not even know you were being sued until another 3rd party(debt conslidation co.) made you aware that this was taking place. A debt attorney in Detroit got busted for this exact same thing(and pulling this stunt over and over for 17 years) and even though he got off easy, house arrest, probation, barred from practicing for a couple of years and a fine, he originaly faced 25 years and a really big fine but got it whittled down. The court was freaked out because they were afraid that they would have to re-visit ALL of the cases this chump had brung all those years and overturn all of the Default/ Summary Judgements that had been used to screw all sorts of people(I think they swept it all back under the rug, unfortunately, as this case alone could have set a real prescident over the debt attorney 3rd party debt collector scam that the courts live for to provide a major source of revenue). That debt attorneys last name was Katz and this case took place in Oak Park, Mi. County of Wayne or Oakland if you want to try to look it up. Hope this helps

I'm actually not sure he's trying to pull a fast one because the case was only filed about 10 days ago and I just received a letter from his office with the case number.

Funny that I got the letter from the other place first. These vultures probably monitor court cases and send sales letters to people.

Are they required to serve you with papers? Just curious, thanks for the info.

[dystopia]

Originally Posted by Chinese Panda

When the IRS sends you a notice of levy, do you assume an agent has made an assessment? Personally, I like to actually see the Assessment Certificate, I also like to see the 1099 from the bank. But hey, I'm just funny that way! Besides, if its charged off, I'd like to see how much they collected to make sure they aren't try to over-enrich themselves by asking for the full amount. But hey, that's just me.

You're right I shouldn't assume and I will check that out. Thanks.

[BOBT12]

Originally Posted by dystopia

I'm actually not sure he's trying to pull a fast one because the case was only filed about 10 days ago and I just received a letter from his office with the case number.

Funny that I got the letter from the other place first. These vultures probably monitor court cases and send sales letters to people.

Are they required to serve you with papers? Just curious, thanks for the info.

Yes, a Notice to Defend, so you can defend your Rights in court. Failure to defend will likely lead to a default against you.

[PANICPASS]

Originally Posted by dystopia

I'm actually not sure he's trying to pull a fast one because the case was only filed about 10 days ago and I just received a letter from his office with the case number.

Funny that I got the letter from the other place first. These vultures probably monitor court cases and send sales letters to people.

Are they required to serve you with papers? Just curious, thanks for the info.

Yes, they are required to serve you with summons and complaint. I don't know of any other way a court action can get started. Since you have the Case No. you might try to go to the court's website to see what has been filed in the case. There may already be a proof of service filed in the case. But the bottom line is you haven't been served yet. No court can grant judgment without it-- at least not that I know of...

Once you have been served, you are in a for a long fight- at least 6 months worth. Bank credit card debts are not supposed to be filed in the state court. State courts do not have subject matter jurisdiction, which is why debt attorneys file them there. The federal courts have subject matter jurisdiction.

It sounds like you are new to this process, and there is a lot to know.

You said you received a letter from some company who would help you try to settle ?? It sounds to me like it was initiated by the debt attorneys to get you to do something. If you received no letters from them prior to the lawsuit, they basically don't have a case, but there is a lot to know... and if you don't know what you are doing, you are going to mess up and make things worse.

I don't know what else to tell you...other than... hit the books...

[dystopia]

Originally Posted by mrg

Make certain that the "attorney" actually does represent Capital One.

They WILL lie and bring a suit purporting to represent someone they are not.

Lawyers lying? I don't believe it

[BOBT12]

Originally Posted by PANICPASS

Bank credit card debts are not supposed to be filed in the state court. State courts do not have subject matter jurisdiction, which is why debt attorneys file them there. The federal courts have subject matter jurisdiction.

I don't think this accurate. Most states require these businesses to register with the state in order to do business within the state. Thus, the state likely has jurisdiction over these entities.

Additionally, I am fairly sure that the FDCPA states that suit may be brought in district court, or state court.

[PANICPASS]

I don't think this accurate. Most states require these businesses to register with the state in order to do business within the state. Thus, the state likely has jurisdiction over these entities.

So ? Debt collectors are required to register with the state because they are debt collectors. Does that mean they are barred from suing in federal court? No.

Just because debt collectors are required to register with the state doesn't mean the state courts have automatic subject matter jurisdiction to adjudicate bank credit card debts.

Additionally, I am fairly sure that the FDCPA states that suit may be brought in district court, or state court.

I haven't seen that anywhere in FDCPA.

[dystopia]

Originally Posted by PANICPASS

Once you have been served, you are in a for a long fight- at least 6 months worth. Bank credit card debts are not supposed to be filed in the state court. State courts do not have subject matter jurisdiction, which is why debt attorneys file them there. The federal courts have subject matter jurisdiction.

Thanks for your input.

Yes, it seems from reading some other threads that going VOD route would be a mistake.

It sounds they give you an invoice and the judge doesn't let you contest it. Then you're screwed because you've agreed that you will pay if they provide this and they have as far as the court is concerned. No?

I would have to challenge the attorney's standing or the SMJ, is this correct?

Any resources or laws I should read up on? I know some but if anyone has something on this particular topic I'd be interested.

I'm trying to avoid any response other than what is necessary until I learn what I'm doing. For now just the notice to defend.

Papers were served today.

[valahian]

I would personally go with a motion to dismiss for failure to state a claim upon which relief can be granted. I would look at what Richard Cornforth has to say about the debt collectors, he is the man and then research the court procedures where you have been sued.

[Livefire]

Panicpass is wrong about state courts not having jurisdiction. FDCPA grants concurrent jurisdiction to the feds AND state governments. As a matter of fact, the DC is required to file in your local court or the jurisdiction where the debt was incurred. You could include question in an interrogatory as to whether or not the debt was purchased by the law firm. If yes, then the LAW FIRM is acting on its own behalf. not the client and isnt entitled as a 3rd party to payment (You didnt contract a debt with them! they shouldnt have standing to sue!)

Also you need a affirmative defense, DEMAND that they produce a copy of the original signed agreement. That is your right according to the UCC (Uniform Commercial Code) No agreement, no debt. Most of the time all they will prodice is a computer statement with payment history and an affidavit by someone at the bank/company stating they have personal knowledge that you owe this debt. You have to object to the affidavit as being proof positive because the affiant cannot be cross examined! All this person states in the affidavit is that they have knowledge of the account. Is this knowledge that a computer record exists??? Thats not proof! A certified copy of the agreement needs to be produced. Its up to you to force the issue. The judge is not going to do this for you. They just want to move on to the next case to clear the docket before lunch or quitting time!