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lastminuteman · Oct 28, 2009, 10:13 PM

Hi There,

I'm being sued by capital one. This is what the court shows but I don't understand it. What has been vacated.

Viewed Date Action Text Disposition
10/06/2010 8:30 AM DEPT. R11 OSC RE: STATUS OF DEFAULT JUDGEMENT PURSUANT TO CRC3.740
03/24/2010 8:30 AM DEPT. R11 OSC RE: SERVICE COMPLETION PURSUANT TO CRC3.740 VACATED
10/07/2009 VACATE OSCSVC HEARING SCHEDULED FOR 03/24/10 AT 08:30 IN DEPARTMENT R11. Not Applicable
10/07/2009 PROOF OF SERVICE OF SUMMONS AND COMPLAINT FILED AS TO. PARTY SERVED ON 10/03/09. TYPE OF SERVICE IS PERSONAL. WITH FEES OF $64.50. Not Applicable
09/30/2009 AFFIDAVIT OF VENUE - FILED. Not Applicable
09/30/2009 CASE AND PARTY INFORMATION ADDED Not Applicable

this8384 · Oct 29, 2009, 08:45 AM

Originally Posted by lastminuteman

Hi There,

I'm being sued by capital one. This is what the court shows but I don't understand it. What has been vacated.

Viewed Date Action Text Disposition
10/06/2010 8:30 AM DEPT. R11 OSC RE: STATUS OF DEFAULT JUDGEMENT PURSUANT TO CRC3.740
03/24/2010 8:30 AM DEPT. R11 OSC RE: SERVICE COMPLETION PURSUANT TO CRC3.740 VACATED
10/07/2009 VACATE OSCSVC HEARING SCHEDULED FOR 03/24/10 AT 08:30 IN DEPARTMENT R11. Not Applicable
10/07/2009 PROOF OF SERVICE OF SUMMONS AND COMPLAINT FILED AS TO. PARTY SERVED ON 10/03/09. TYPE OF SERVICE IS PERSONAL. WITH FEES OF $64.50. Not Applicable
09/30/2009 AFFIDAVIT OF VENUE - FILED. Not Applicable
09/30/2009 CASE AND PARTY INFORMATION ADDED Not Applicable

What you have posted shows that a suit has been filed and that Capitol One obtained service on you, which proves you are aware of the pending lawsuit.

What paperwork have you sent to the court? Have you admitted to or denied the claim?

lastminuteman · Oct 29, 2009, 09:28 AM

I have not done anything. It is my debt, I was planning on contacting the collector to work out a payment plan.
Do I need to respond to the court within 30 days if I'm working with the collector?

Thanks.

this8384 · Oct 29, 2009, 09:34 AM

Originally Posted by lastminuteman

I have not done anything. It is my debt, I was planning on contacting the collector to work out a payment plan.
Do I need to respond to the court within 30 days if I'm working with the collector?

Thanks.

Absolutely. Some collectors are shady enough to "agree" to a payment plan and not tell the courts about it, you end up getting stuck with a default judgment and they start freezing your bank account.

It could also be out of statute of limitations, which is why there's talk of vacating the suit. When was the last payment made/last time you used the card? What state are you in?

lastminuteman · Oct 29, 2009, 11:14 AM

Last time I used/paid the card was around oct 08. I am in California.

What happens if I don't respond to the court within the 30 days? Because I think that is tomorrow.

Thanks,

this8384 · Oct 29, 2009, 11:18 AM

Originally Posted by lastminuteman

Last time I used/paid the card was around oct 08. I am in california.

What happens if I don't respond to the court within the 30 days? Because I think that is tomorrow.

Thanks,

If you don't respond and don't show up to court, then the plaintiff(Capitol One) is awarded a default judgment and will be awarded the full amount of what they're asking for, and typically any court/attorney fees that they incurred by filing the suit.

Since it's tomorrow, your best bet is to go to court and try to reach a payment agreement before getting in front of the judge. If they'll accept a payment agreement, usually the court will leave the case open - if you default again, then they'll automatically award a default judgment to Capitol One.

lastminuteman · Oct 29, 2009, 07:40 PM

Thanks for your response. I read the summons more carefully and if I read it correctly it says I have 30 days from when I was served. I thought it was 30 days from when it was filed. Am I reading this correctly? If that is the case then I have a few more days.

I contacted the plaintiff and they are asking me to pay the amount due when filled, which was 3500, Then they added 500 for interest (23%) then 250 for court fees. So now they say if I pay the full amount within 6 months (monthly payments) they won't charge interest. Or I can pay 25% with monthly payments while accruing 23% interest until paid off.

I was hoping they would settle for about 20% of the balance but they are not interested.

this8384 · Oct 30, 2009, 06:14 AM

Originally Posted by lastminuteman

Thanks for your response. I read the summons more carefully and if I read it correctly it says I have 30 days from when I was served. I thought it was 30 days from when it was filed. Am I reading this correctly? If that is the case then I have a few more days.

I contacted the plaintiff and they are asking me to pay the amount due when filled, which was 3500, Then they added 500 for interest (23%) then 250 for court fees. So now they say if I pay the full amount within 6 months (monthly payments) they wont charge interest. Or I can pay 25% with monthly payments while accruing 23% interest until paid off.

I was hoping they would settle for about 20% of the balance but they are not interested.

Why would they settle for 20% when they can sue you instead and get paid in full? You have to offer them a bigger settlement than that.

Either way, you need to respond. I think your best option at this point is to send a certified letter to the plaintiff stating that you are would like to come to some type of settlement agreement outside of court and then show up in court with a copy of that letter. If you're making a reasonable effort to pay the bill - that means a lot more than 20% - than the judge will usually grant you some more time to reach an agreement with the plaintiff. That is, if the plaintiff wants to work with you.

JudyKayTee · Oct 30, 2009, 06:33 AM

I will add it's 30 days from service, not 30 days from filing.

lastminuteman · Oct 30, 2009, 09:51 AM

Thanks for your responses. I'll respond to the summons that I am in communication with the attorney to work out a settlement or repayment plan.

The court date is not until Oct of 2010, so hopefully I should have it paid off by then.

Thank You.

JudyKayTee · Oct 30, 2009, 10:31 AM

Originally Posted by lastminuteman

Thanks for your responses. I'll respond to the summons that I am in communication with the attorney to work out a settlement or repayment plan.

The court date is not until Oct of 2010, so hopefully I should have it paid off by then.

Thank You.

That is not an adequate response - you have to address the various "charges" in the Complaint.

You can, of course, send a cover letter that you are attempting to work things out but you MUST respond to the "charges" or you will be in default.

drivedoctor · Nov 1, 2009, 10:42 PM

Originally Posted by JudyKayTee

That is not an adequate response - you have to address the various "charges" in the Complaint.

You can, of course, send a cover letter that you are attempting to work things out but you MUST respond to the "charges" or you will be in default.

JudyKayTee is absolutely correct. Telling the court a defendant is trying to settle with the plaintiff's attorney is not an adequate response and could possibly lead to a default judgment.

Remember, if a defendant fails to dispute the allegations made in the lawsuit, those allegations will be considered as fact by the court (judge). It's usually best if a person goes line by line and disputes any allegation they disagree with.

Also remember the Summons is not the actual lawsuit. The summons is just the official notice from the court clerk that a person has been sued and when an Answer (response) is due. The "Complaint" or "Petition" usually is the actual lawsuit explaining the Plaintiff's "allegations" against the Defendant.

Also if it's possilbe, it's best to file a response 3 full business days before the deadline so it can be mailed to the opposing attorney and if for any reason the court clerk doesn't "accept" your paperwork, you have an opportunity to make corrections.

I hope this helps.

JudyKayTee · Nov 2, 2009, 08:17 AM

Originally Posted by drivedoctor

Also remember the Summons is not the actual lawsuit. The summons is just the official notice from the court clerk that a person has been sued and when an Answer (response) is due. The "Complaint" or "Petition" usually is the actual lawsuit explaining the Plaintiff's "allegations" against the Defendant.

Actually this is very incorrect information/advice. A Summons is NOT a notice from the court clerk that a person has been sued.

Where are you located?

drivedoctor · Nov 2, 2009, 09:57 AM

Originally Posted by JudyKayTee

Actually this is very incorrect information/advice. A Summons is NOT a notice from the court clerk that a person has been sued.

Where are you located?

From dictionary.law.com -

summons n. a document issued by the court at the time a lawsuit is filed, stating the name of both plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff's attorney, and instructions as to the need to file a response to the complaint within a certain time (such as 30 days after service), usually with a form on the back on which information of service of summons and complaint is to be filled out and signed by the process server. A copy of the summons must be served on each defendant at the same time as the complaint to start the time running for the defendant to answer. Certain writs and orders to show cause are served instead of a summons since they contain the same information along with special orders of the court. After service to the defendants, the original summons, along with the "return of service" proving the summons and complaint were served, is filed with the court to show that each defendant was served. A summons differs from a subpoena, which is an order to a witness to appear.

So "generally" speaking, a summons is an official notice a defendant has been sued and in the "majority" of states, it's issued by a court clerk.

However, there are some states where the complaint or petition is not required to be filed with the court before the it is served on the defendant.

The following states do not "require" the summons and complaint (lawsuit) to be "initially" filed with the court before it's served (delivered) to the defendant:

1. Colorado
2. Minnesota
3. New York
4. North Dakota
5. South Dakota
6. Utah
7. Washington.

So depending where you live, your mileage may vary. That's why it's important to become familiar with the Court Rules & Civil Procedures of the court your operating in.

I hope this helps.

JudyKayTee · Nov 2, 2009, 10:23 AM

Originally Posted by drivedoctor

So depending where you live, your mileage may vary. That's why it's important to become familiar with the Court Rules & Civil Procedures of the court your operating in.

I hope this helps.

You are confusing issues - in my area the law firm prepares the Summons and the Court Clerk simply stamps it. That's why I asked where you are.

Whether it has to be filed with the Court Clerk prior to service is a whole different subject.

And I have no idea what "... your mileage may vary ..." has to do with servicing a Summons.

You are confusing - in my area - a Summons and a Subpoena. Who are you saying gets paid mileage in connection with a Summons?

And for the record - I own/operate a process service company.

drivedoctor · Nov 2, 2009, 10:39 AM

Originally Posted by JudyKayTee

You are confusing issues - in my area the law firm prepares the Summons and the Court Clerk simply stamps it. That's why I asked where you are.

Whether or not it has to be filed with the Court Clerk prior to service is a whole different subject.

And I have no idea what "... your mileage may vary ..." has to do with servicing a Summons.

You are confusing - in my area - a Summons and a Subpoena. Who are you saying gets paid mileage in connection with a Summons?

And for the record - I own/operate a process service company.

I think my response is in plain common English that most Americans are familiar with. However, the definition for summons is straight from the Law Dictionary website and therefore are not my words.

The educational information provided is "general in nature and is an effort to help respond to LastMinuteman's question.