We offered to settle, now they're suing - how to respond?
Date: Thu, 07/02/2009 - 18:00
I posted on this forum before with some general questions about Cap One and Blitt and Gaines. We can't afford an atty so are drafting our own answer, sworn statement of graduated denial, affirmative defenses, etc. The complaint (dated 6/18/09) is rather simple:
1) We utilized a charge acct issued by Plaintiff (Cap1) or assignors. (we did)
2) We defaulted by not paying the debt resulting in a balance of $2164. (this is more than twice the original amount)
3) They've demanded we pay and we have failed to do so, and they ask for judgment in the above amount plus interest and court costs.
The remaining docs included with the complaint: an affidavit dated 12/28/08, one photocopy of a partial statement (no charges listed or payments, just accrued interest/late payment fee) and one photocopy of incomplete credit card terms.
We sent them several letters (CRRR), prior to their filing of the suit, in which we requested validation (they did not provide) and also offered to settle if they were able to fully validate the debt and prove their entitlement to collect any monies. They never responded. I've read numerous answers to complaints posted on this forum and others, but still am fairly confused. The affidavit specifies Cap One as plaintiff and B&G as attys, but the agent/rep of Cap One they identify is not specifically linked with Cap One, i.e. is she an employee of Cap One or of B&G. This makes a difference, no?
If we had the account can we attach a graduated sworn statement of denial? How would we then respond to Complaint #1? I'm freaking out. :shock: If it would help I can post the affidavit (it lists the account number, which is correct). We are hoping to get this either dismissed or settled for less than half of the original amount (~$500).
Well, Cap One is the original creditor so they did not have to h
Well, Cap One is the original creditor so they did not have to honor the debt validation letter at all.
You want to be careful with #2 because even though it is more then twice the amount, credit cards have some ridiculous fees and interest on defaulted accounts that can easily make an incredible balance, and since this is right in the contract and/or agreement, you wouldn't have a leg to stand on.
Now with that in mind you would want to object to the affidavit as hearsay, require them to produce the signer so you can question them (if they are an employee of cap one, did they have direct contact with you in regards to the card, etc etc)
You can object to the partial agreement if it leaves out the parts about fees, interest and make sure it is actually the agreement you signed (with your signature on it)
Demand the whole accounting, not just one partial statement...that does not show the proper amount (IE - the statement should show the amount that they are suing for..if the amounts differ then object to it as it does not prove what they say you owe.)
I have heard that cap one keeps pretty good records so you will likely have a battle on your hands. Just do your best, but be ready in the event that you will have a judgment....try to work out some kind of a payment plan if you can.
