Capital ONe vs. Angry Mama

hiya--

First, a DV letter will not help you now that this has been filed in court. You still need to push for the same information and force them to prove their case, but you do that through discovery now. We'll go into more detail with that in a minute.

Alright, you said they represented themselves as "capital one". How did they do this? Who is the plaintiff as listed on the summons? You need to remember that youre dealing with an attorney's office, so more likely they are not trying to pass themselves off as capital one, but rather they probably represent cap one. This depends on who the plaintiff is as shown on the court paperwork.

Next, did you verify through the court clerk's office that this is a real summons? I assume so, since you answered and got a court date, but I always ask this question.

Next, is the court where they filed in your county? If they filed this case outside of the county you live in, they very possibly broke the law. Let me know about this one.

You said you answered--how did you answer their claims?

Do you know how old this account is? If it is really old it could even be outside the statute of limitations, which would mean that they cannot sue you over it. Do you know when the last payment was made?

Finally, I assume you're in Georgia. Magistrate court has rules that are different than many other courts. For one thing, it is common for debt collectors to produce an "affidavit" and claim this is evidence that you owe the debt. On Georgia's magistrate court website it even states that these affidavits are not admissable, so if they produce one as evidence, you need to object to it, stating that the rules of procedure for this court do not allow these affidavits because they are hearsay, and therefore inadmissable in this case.

The summons stated Capital One Bank with the Hanna Law Office address in Marietta, and yes it was filed in my county.

I denied the claim. I'm not setting myself up to pay anything without proof, I'm an "ornery southern girl". When I called their office to get more information, they would not provide me with any proof of validity, all the wanted was my social security number, date of birth, and my checking account information for an immediate payment. I hung up the phone.

The last payment was made approximately 20 months ago, so I guess I'm still in the SOL.

Thanks for the "affidavit" information. I'll arm myself with this as well.

Anything else I should know?

Did they attach any proof with the complaint/summons? Here's a little information about affidavits and Cobb Magistrate Court, if they try to go that route!

"Can I bring letters or affidavits from witnesses to the court?
No. Live witnesses who have direct knowledge of the facts to which they testify must present all testimony. If the witness is not physically present in court, under oath, and subject to cross examination, their statements may not be presented to the Court. To do otherwise would violate the Georgia law against "hearsay" evidence."

Since you indicated the last payment was 20 months ago you seem to acknowledge the debt is yours. What is your balance or the amount they are suing for? If you get in a JAM with the court case and if you didn't know, Cap1 has a great arbitration clause in their cardmember agreements. Basically it says that if you elect arbitration, then you waive their rights to pursue the matter in court and you can force arbitration. The Cap1 agreement states that they (Cap1) will just about foot the entire bill for the arbitration and can't get that $ back whether they win or lose. Also, they agree in the agreement to pay that each side pays their own atty fees. Many people have navigated this unknown area on their own. Thus, you limit their ability to get a judgment in court, force them to pay thousands in arbitration costs and atty fees (which they can't get back) and quite possibly they will just go away. You would want arbitration through JAMS, it's the most expensive for them. Even a simple start to finish JAMS arbitration would cost them 5,000++, + their atty fees...Just something to keep in mind. There were 3 companies commonly used and inserted in these cardmember agreements NAF,AAA and JAMS. NAF got busted last year for basically being in bed with the banks. Just google NAF and Minnesota attorney general, and read the story. I would also suggest heading over to another site for more info. Start with ccarbitrationDOTcom for an overview and also debtorboardsdotcom "arbitration forum" for more info...