Legal Question in Credit and Debt Law in Florida
I have been served and have been summoned to appear for a pretrial conference. Capital One is the plaintiff and their complaint consists of three counts.
Count 1 is (the short version)a breach of contract for both credit card agreement and terms, and the agreed upon statement statement. Total principle due of $3,971.17 together with interest (8% per year aggregate), court costs, reasonable attorney's fees and any other relief the court may seem proper.
Count 2 claims that the account was stated, that a copy of credit agreement was sent to me (exhibit A), that I agreed to the balance and terms and that i did not object to the statement (Exhibit B). Total principle due of $3,971.17 together with interest (8% per year aggregate), court costs, reasonable attorney's fees and any other relief the court may seem proper.
Count 3 states that I received unjust enrichment and financial benefit from their card and that it would be inequitable for the court to retain the value of the funds without repaying the plaintiff the same.
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NOTE: This case falls just under the SOL, so I can't defend myself with that motion. I understand Capital One is notorious in this respect.
The Complaint was filed by a P.A. but the Plantiff is Capital One. How does this work? My credit report shows the account in question has been Charged Off as bad debt, but never transferred? do I need to confirm the attorney at the pretrial is a legitimate representative of Capital One? Don't I also need to confirm that he/she has the power to settle? Isn't this required under FL Small Claims Rules?
I agree that I have had a relation with Capital One in the past. I have even run up the card in the past, exceeding my limit ( in 1998), but was able to fully pay it off in 2002. I have since moved and with continuing hurricanes, slow business, and economic sluggishness I found myself maxed out again in 2006. This time the fees and interest rates were much greater and, making less money, I found it impossible to maintain payments. I stopped payment and communication in late 2006.
My credit report shows the last balance at $8,727. At $3,971.17, I am tempted to think I might be getting pretty good deal (especially if we can settle for a bit less), but I obviously worry about interest, court and attorney fees. What might I expect here?
The most I could afford for monthly payments would be about $450. Is this an offer likely to settle this matter?
I currently make about $25,000 a year. The most I've made in any of the last 7 years is around $29,000 and the least is $19,000. (The $29,000 is only high because of $5,000 compensation I received b/c of the Gulf Oil Spill in 2010). I still have $2, 000 of this in a savings account. should I be concerned about this?
While I admit to a relation with Capital One, and I am willing to settle with some sort of a payment plan, should that be my best course of action, I have questions about some claims:
1. Should I ask for the agreement and the statement at the pretrial conference? they are identified as exhibits A and B but were
not attached to my summons. Or, would this be requesting discovery, and is that a good idea? Or am I better off just denying
the principle amount and "agreed upon" interest and terms, and work for a settlement?
2. How can I assure any additional fees or cost attached to a settlement fee be reasonable? I've heard of a maximum allowed
amount to interest in some state courts. Any insight on this?
3. I am not sold on the idea that Capital One needs "relief" from me. A $3,971 debt is nothing to Capital One. They're already
written it off and received tax deductions for it. I don't even think I should address any other (government) "relief" they may
have already received. In my gut, I know I was negligent in this matter. I agree that some payment is due on my part. I'm not
going to use this as my defense or even mention it in conference, but people make bad investments in corporations all the
time. I know it doesn't work this way, but I feel like Capital One made a bad investment in me, and it's not going to kill them.
Get over it!
4.Count 3 is the most disturbing to me. I used this card out of necessity, starting with hurricane Ivan in 2004, and in the 2005
and 2006 hurricanes and winters. I work in a restaurant and business suffers when the weather is not good. Winters are not
good for business either. I only used the card when I had too. I did not benefit in any luxury form the use of this card. I wasn't
fun for me. Could it not unjustly enrich the plaintiff if I were to pay? Considering the debt has been charged off? Considering
that they've probably gone through more trouble than any of this is actually worth (in $$$ and sense).
I don't mean to sound bitter, and I am willing to do what I can to make this right. I would rather settle and "clear this matter up," than go to trial or have a judgment against me. Aside from a vehicle and the $2,000 in the bank I have no assets. I just want to be dealt with fairly on all issues and not be scammed into an even more ridiculous scenario. PLEASE HELP!!!!
2 Answers from Attorneys
A pre-trial conference to assess the merits of the case and the possibility of settlement is standard in Small Claims cases. Whether Capital One charged off the debt is irrelevant.
Capital One may be represented by a FL attorney who may have a P.A. And the term "relief" merely refers to payment. Regardless, the only relevant issue is: Under the credit card agreement, is the debt valid? If you want to pay the debt, at the pre-trial conference you may consider making an offer to settle for an amount less that the requested $3.9 and include all other costs including attorney fees. A court order will
not exceed $5k, and you can likely settle the case for less than the $3k. If no agreement is reached, a trial will be scheduled, but you can always settle the matter, including agreeing to installments, before the trial. Settlement may be advised if you want to avoid garnishment, adverse credit reports, etc.
It is best that you consult with a consumer lawyer in your area. Most of us who handle these types of cases can win them for a modest fee. Go to www.ConsumerLawyerHelp.com and look for the NACA link for a consumer lawyer in your area.
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