Hello everyone,

Yesterday I was served a statement of claim by my county small claims court regarding a $2800.00 debt owed to Capital One. The statement tells me I'm being sued by them and their attorney gas filed this with the county clerk.

I have been unemployed for close to 3 years and have only been doing odd jobs to survive. I make less than $10,000 a year and struggling to keep my home. (Which I have not fallen behind on… Thank God!)

I live in Alabama and the statement says I have 14 days to respond or a judgment can be taken against me and my paycheck can be garnished and/or home of property sold to satisfy that judgment. On the sheet attached to it it wants me to check on of the following.

A. I do not live in this county; I want this case transferred to my county.

B. I admit everything in this statement of claim and do not want a trial

C. I admit I owe some money, but not the total amount claimed by the Plaintiffs

D. I deny I am responsible at all (explain below)


I'm not sure how to respond to this. I don't have a dime left after bills, utilities, house, insurance, and now even having to get help from DHR to feed my family.

The last payment I was able to make was back on 7/16/2003. They deposited this check into their account on 7/19/2003. I know in Alabama there is a 3 year Statutes of Limitations on open accounts. They prepared the statement in the attorneys office on 7/19/2006 but it wasn’t filed in the Court until 7/24/2006.

Would this give me a defense case to say their SOL has expired? And would the judge look at this and throw out the legal proceedings in the court? I understand this does not clear me of the debt but it would stop court proceedings. There is no way I can pay this and if I could it would be paid. I do not even have the funds to get an attorney to file BK if I wanted too, which I don’t.

Thanks for taking the time to look and offer any advice.

First it is very unlikely that they will be able to take your house. Most states do not allow forcing sale of a house to satisfy an unsecured debt. The worst that is likely to happen is they might put a lien on your home.

I would just appear on the date of the hearing and explain the circumstances to the judge and throw yourself on the mercy of the court.

Thanks for the reply. But the thing is they have not sent me a summons yet. The Statement of Claim is not a summons its just asking me to respond to it. They legally have to give me due process don't they?

I am wondering what the chances of the judge throwing it out are? I have contacted my AG office and will post what they have to say on the S.O.L.

Thanks

Quote:

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Originally Posted by inatightspot

Thanks for the reply. But the thing is they have not sent me a summons yet. The Statement of Claim is not a summons its just asking me to respond to it. They legally have to give me due process don't they?

I am wondering what the chances of the judge throwing it out are? I have contacted my AG office and will post what they have to say on the S.O.L.

Thanks

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My advice is to respond to it. Tell them basically what you told us. If the amount that you owe differs from the amount that they are claiming, then you may have a leg to stand on.

On a personal note... good for you for acting on this instead of tossing it aside and expecting nothing to come of it. So many people do just that and wonder why they have such huge debt problems. You are setting a better example for everyone!

The problem is that I don't like any of the choices, they are giving you. If you have to fill out one, then choose C or A (if A is true.)

If it is true that Alabama's SOL is 3 years, then use that as your defence.

However, when does the 3 years start is another matter. It sounds like they might have just beat the clock.

You say your last payment was on July 16, 2003.

However, the SOL starts from the day of your first missed payment.

So, when was the next payment due? Aug 16, 2003?

In which case the 3 years would run until Aug 16, 2006.


I would check off D (SOL defence) or C or A (if that is true).

I wouldn't check B at all though.

Quote:

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Originally Posted by CaptainForest

If it is true that Alabama’s SOL is 3 years, then use that as your defence.

However, when does the 3 years start is another matter. It sounds like they might have just beat the clock.

You say your last payment was on July 16, 2003.

However, the SOL starts from the day of your first missed payment.

So, when was the next payment due? Aug 16, 2003?

In which case the 3 years would run until Aug 16, 2006.


I would check off D (SOL defence) or C or A (if that is true).

I wouldn’t check B at all though.

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I spoke with an attorney today, free on the phone was not very helpful though.

He said he thought it was from the day of the last transaction on the account is the way Alabama looks at it. I called my Attorney Generals Office today and still waiting on a call back from them. On the last statement I received I owed about 1900.00 and now it's 2800.00. My credit line was only 1900.00 on the account. Guess I'll wait to see what the A.G.'s Office tells me when the clock starts for the SOL.

Remember to be honest with them.

Always get everything in writing from them.
Do not answer questions over the phone.
Do not skip any deadline they give you.
Always reply to them and make sure you keep a copy of everything you send them through the mail.
Make sure you have proof of your income (tax returns, pay stubs, etc)

Make sure you have the proof of why you haven't had a job in three years. (Medical reasons, Disability, Etc)

If you have a legitimate claim to all this when you do go to court the judge just might rule in your favor and dismiss there case.

Good luck.

Quote:

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Originally Posted by inatightspot

On the last statement I received I owed about 1900.00 and now it's 2800.00. My credit line was only 1900.00 on the account.

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That's not out of line. Since you haven't paid, interest contrinues to accrue and compound. So the claim of $2800 with 3 years of interest on a $1900 balance is not out of line.

Okay,

I am now in limbo, I checked "D". I spoke with Their attorney and told them I would like the debt validated. She said to send her the letter and they would do so.

So I sent the letter out Registered mail and they received it and it was signed for on August 20th, 2006. I still have received nothing back from them and now have received a letter from the County Clerks Office that a bench trial has been set for October 25th, 2006.

I thought if I requested validation of the debt by law they're supposed to respond, is this true?

I have another credit card that I am also behind on received a letter from Curtis O Barnes LP, they say Providian no longer has an interest in this account but my account was purchased by their client as part of a non-performing portfolio. They sent one letter stating I owed over 8400.00, my credit line with Providian was only 3000.00 They charged it off in April of this year. Then 2 weeks later I received another letter from them stating their office made a clerical error and it was only for 4400.00. The account numbers don't match my credit card.

Should I send them the letter disputing it and ask these 44 question in the letter? I have no idea who their client is, or what they bought the debt for. Providian has obviously written it off, can their client still get the full amount? Or can I find out what they bought it for if they try to sue me and only try to pay that? Providian wrote off 3000 like I said in April and now its up to 4400 in 6 months.

This is the post where I found the 44 questions from Mr Yet.

mr.yet mr.yet is offline
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Join Date: Aug 2005
Location: maryland
Posts: 364
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YOu must answer that you intend to defend, or they win by default. Since they are a thrid party debt collector you defense can be demand they they produce the original credit documents and general accounting of the alleged debt. They most likely have purchase the debt for pennies on the dollar.

Since they are not the original creditor, who do they respresent?

Do they respresent the orginal creditor or themselves?

File Motion for discovery for these answers.

View this post:

https://www.askmehelpdesk.com/bankrup...ask-29036.html

Motion for Discovery with these 44 questions, will get you the answers you need.
__________________
"We must affect our country as our parents,
And if at any time we alienate
Out love or industry from doing it honor,

We must respect effects and teach the soul
Matter of conscience and religion,
And not desire of rule or benefit"

It's all about commerce, it's all about contracts!
Reply With Quote



I appreciate everyone's time you guys are a great help to your fellow humans.

If you have not been served with a summon to appear in court, and even if you agree, IF YOU DID NOT DISPUTE THEIR CLAIM THEY WILL BY DEFAULT OBTAIN A SUMMARY JUDGMENT AGAINST YOU. Make them verify their claim.

If they have not respond to you request to validate their claim as require by law in 30 days, then their claim should be consider false. If and when you go to court, make sure to demand that the produce original documents to support that claim, anything less than that would not validated their claim against you.

Quote:

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Originally Posted by mr.yet

If you have not been served with a summon to appear in court, and even if you agree, IF YOU DID NOT DISPUTE THEIR CLAIM THEY WILL BY DEFAULT OBTAIN A SUMMARY JUDGMENT AGAINST YOU. Make them verify their claim.

If they have not respond to you request to validate their claim as require by law in 30 days, then their claim should be consider false. If and when you go to court, make sure to demand that the produce original documents to support that claim, anything less than that would not validated their claim against you.

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Okay,

I am now in limbo, I checked "D". I spoke with Their attorney and told them I would like the debt validated. She said to send her the letter and they would do so.

So I sent the letter out Registered mail and they received it and it was signed for on August 20th, 2006. I still have received nothing back from them and now have received a letter from the County Clerks Office that a bench trial has been set for October 25th, 2006.

I thought if I requested validation of the debt by law they're supposed to respond, is this true?

I have another credit card that I am also behind on received a letter from Curtis O Barnes LP, they say Providian no longer has an interest in this account but my account was purchased by their client as part of a non-performing portfolio. They sent one letter stating I owed over 8400.00, my credit line with Providian was only 3000.00 They charged it off in April of this year. Then 2 weeks later I received another letter from them stating their office made a clerical error and it was only for 4400.00. The account numbers don't match my credit card.

Should I send them the letter disputing it and ask these 44 question in the letter? I have no idea who their client is, or what they bought the debt for. Providian has obviously written it off, can their client still get the full amount? Or can I find out what they bought it for if they try to sue me and only try to pay that? Providian wrote off 3000 like I said in April and now its up to 4400 in 6 months.

This is the post where I found the 44 questions from Mr Yet.

mr.yet mr.yet is offline
Full Member

Join Date: Aug 2005
Location: Maryland
Posts: 364
mr.yet is on a distinguished road
YOu must answer that you intend to defend, or they win by default. Since they are a third party debt collector you defense can be demand they they produce the original credit documents and general accounting of the alleged debt. They most likely have purchase the debt for pennies on the dollar.

Since they are not the original creditor, who do they respresent?

Do they respresent the original creditor or themselves?

File Motion for discovery for these answers.

View this post:

https://www.askmehelpdesk.com/bankrup...ask-29036.html

Motion for Discovery with these 44 questions, will get you the answers you need.
__________________
"We must affect our country as our parents,
And if at any time we alienate
Out love or industry from doing it honor,

We must respect effects and teach the soul
Matter of conscience and religion,
And not desire of rule or benefit"

It's all about commerce, it's all about contracts!
Reply With Quote

Mr Yet I did dispute. I checked "D" and attched a letter to answer of the court requesting validation. I sent their attorney the letter registered mail.

I appreciate everyone's time you guys are a great help to your fellow humans.

Send them a Notice of Default for un-verify calim.

SOmething like this


NOTCE OF DEFAULT

DEBT COLLECTOR HAS FAIL TO VERIFY THEIR ALLEGED CLAIM AGAINST___________ AND IS IN DEFAULT.
Debt Collector's failure, both intentional and otherwise, to complete/answer points “1” through “44” above and return this Debt Collector Disclosure Statement, as well as provide Respondent with the requisite verification validating the hereinabove - referenced alleged debt, constitutes Debt Collector's tacit agreement that Debt Collector has no verifiable, lawful, bona fide claim re the hereinabove-referenced alleged account, and that Debt Collector tacitly agrees that Debt Collector waives all claims against Respondent and indemnifies and holds Respondent harmless against any and all costs and fees heretofore and hereafter incurred and related re any and all collection attempts involving the hereinabove-referenced alleged account.

All notice shall be use in any court of law showing the Debt Collector has no valid claim against ________________________, and you are hereby noticed to cease and desist in your unlawful claim.


Alleged Accout # ________

Not sure if any of you are still on here, and I know it's been quite sometime... but I just wanted to let you know, the attorney was rep the original creditor and had original docs. It was not as bad as I thought though.

They cut the debit in half, and I paid them the $1400 over 15 months. I am now totally debit free, except for the house and will not be using anymore credit cards period.

They are great when you're making money to pay them but are a real nightmare when the company you have spent the last 20 years working is open one day and the next day CLOSED!

I was also able to contact a few others that I had not paid and settled for 25% of what I owed. Like someone else said in this post, don't just throw it to the side, DEAL with it. If you make an honest attempt most will try to work with you. The ones that won't make them wait till the others are paid!

If they take you to court let them explain to the judge why your $30-$50 payment is not good enough till you get back up!

Worked for me and I am thankful for all the great advise that everyone provides here!

On a personal note: don't use charge cards! They are stealing your cash!

Thanks for coming back and relating your experience. Its great to know thet the advice we give helped out. And yout attesting to that will help give others hope.

I must disagree though on the use of credit cards. If you let them manage you, they can certainly be dangerous, but if you manage them they can be a useful tool.