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Franconomic · May 26, 2009, 03:16 PM

I was suit by Capital one about a year ago. About 5 days ago, I received a Affidavit in the mail from the debt collecting law firm, showing my bills, that are unsigned with my signature. The Affidavit is also signed by someone from capital one certifying that the documents are real. My questions are as follows:

1. My signature is no where to be found on the documents they provided. I will contest this by stating, there is no signature bonding me to repay. If they can provide my signature on a document showing that I agreed to repay then I will repay it. This is part of American contractual law. What say you.

2. Also, it seems like a default judgment was issued against me. HOwever, I did not receive any documents from the courts requiring me to defend myself. In fact, the court documents that I found on the web states, that the summons was unserved.

I have send a letter to the courts to have the judgement vacated on two counts.

1. Capital one did NOT provide a contractually signed agreement stating that I should repay. I know I'm evil in my ways when it comes to this, however, that is the purpose of contracts. To guard against this type of behavior. If the roles was reverse they would do the same thing.

2. I was not given a summons to appear in court.

At first I did not want to pay no matter what. I believe my mental state was not right at the time. I suffer from mental illness. In fact, my bipolar illness may have contributed to my being in this situation. However, I am willing to pay back the debt if a reasonable agreement can be made. THanks

JudyKayTee · May 26, 2009, 09:03 PM

You must have signed SOMETHING or agreed to SOMETHING by telephone at the time the original card was issued. This is what you should be demanding.

Did you use the card? Are the charges yours?

Mental illness is not a defense.

If you were not served, that is a defense.

Franconomic · May 27, 2009, 05:34 AM

I know mental illness is not a defense. That is not my defense. All I stated was that I got into this mess as a result of my mental illness. I am not going to use this as a defense. Anyhow, I believe I got the card over the internet. Or I receive something in the mail. Don't recall. So how does this default judgement work.. So I will be forced by the court to pay, correct? If so that's fine, I will pay it. Will I have to agree to pay it in a lump sum or on a monthly basis? Lastly, yes, I was not summons. The court documents on the web stated that the summons was unserved. This might be my defense. However, I have heard that they will just refile the judgement later if it is dismiss. Any more advice would be appreciated. Thank you.

JudyKayTee · May 27, 2009, 01:49 PM

The creditor, if granted a Judgment, can use any legal means in your State to collect - wage garnishment, freeze bank accounts, again - whatever is legal in your State.

And, yes, if it's dismissed you will promptly be erved. They don't refile the Judgment. They serve you properly and go through the whole process again.

As far as how you got the card - somewhere, somehow you agreed to accept it, particularly because you used it.

Franconomic · May 27, 2009, 03:30 PM

Well let the fun begin. Thanks for your input. I guess they will have to garnish my wage. I will taking out my saving as soon as the default judgment is issued. I would be willing to pay monthly but I guess that is now out of the question. As I said before, let the FUN begin. Thanks Peace...

JudyKayTee · May 27, 2009, 03:43 PM

Originally Posted by Franconomic

Well let the fun begin. Thanks for your input. I guess they will have to garnish my wage. I will taking out my saving as soon as the default judgment is issued. I would be willing to pay monthly but I guess that is now out of the question. As I said before, let the FUN begin. Thanks Peace.........

You can ALWAYS negotiate some sort of payment plan. The creditor will undoubtedly get the Judgment but very possibly won't act on it, hoping you make the payments as agreed. If you CAN get an agreement, by all means get it in writing.

As far as the bank - once the Judgment is granted it's not a good idea to move money. Move the money BEFORE the Judgment is granted so it doesn't look like you are avoiding a lien.

Again - attempt to negotiate something. You may have a somewhat upper hand if you truly weren't served and it's close to the statute running. You HAVE to be served before the statute runs out and maybe they don't have time to do that - ?

I truly wish you well - with this terrible, terrible economy you are not alone.

Peace.