We owe (after interest and a multitude of late fees) $2777 to Capital One for non-payment of a credit card. We were in a debt reduction plan, but we later were unable to afford their payments when I was laid off from work in 3/2009. Our house in NC is in foreclosure and we are just barely getting by paycheck to paycheck since moving to FL after accepting a job offer there. I would just like to know what I can expect to happen at this pretrial conference/mediation, and should I have legal representation, which I really cannot afford? Thanks.
The first thing you need to do if and when you get sued is file an Answer. The summons will tell you that you must “appear” by way of an Answer in 10, 20 or 30 days, “depending on the method of service.”
PLEASE CHECK THE LAW IN YOUR STATE AS YOU MAY ACTUALLY HAVE TO APPEAR IN COURT, AS IN VIRGINIA, IN ORDER TO AVOID A DEFAULT!
You need a lawyer, but if you cannot afford one right away, rather then do nothing and have a judgment entered against you, is to “appear” by filing something!
Many people think this means they have to go to Court and this is incorrect. 90% of all lawsuits end in Default Judgments because the defendant (person getting sued) did not file an Answer.
I recommend you go to the free form I have on my website. Print it out and fill it out as instructed. You must answer the numbered paragraphs on the Complaint by writing them into the appropriate lines in the Answer. The Answer will allow you to preserve your rights and will prohibit a default judgment (i.e. you did not show up) from being entered against you.
Mimic the paperwork you got when you got sued. Answer all the paragraphs of the Complaint by writing the numbers in lines 1, 2 or 3.
Almost 100% of attorneys will deny what is owed because they did not do the calculations and do not know what the basis for the number is…
When you file the Answer that is your “not guilty”. You have the right to make the person suing you (Plaintiff) prove their case, but you must also answer the complaint truthfully.
Make sure you fill in the name and address of the attorney suing you before you bring this paperwork to the Court. Mail it to the attorney suing you right away!
Check out the guide I have drafted on the profile. This will provide more detailed instructions. If it is helpful remember to indicate that and get the guide read!
Good Luck!
Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.
Essentially you are to meet and confer with the attorney representing Capital One and if possible reach a stipulated settlement which the judge will sign off on. If you don't show up there will be a default judgment against you for what Capital One is seeking, if you don't agree to something, the case will have to be tried at a later date.
If Capital One is not the owner of the debt at this juncture, legal help might be of great value in disputing the chain of ownership of the debt, which could get the case tossed.
If you can't afford an attorney, you may be able to get legal help through legal aid or another local program (perhaps one attached to a local law school).
P.S. -- if your "debt reduction plan" was with a shady debt settlement company and they never paid Capital One anything at all, that could actually be a break for you ... Capital One's agreements adopt Virginia law, and in Virginia the statute of limitations on a credit card is three years (not 5 like Florida), and arguably (although it's an arcane argument), the statute COULD be only two years.
appear for the pretrial. As to mediate the case. Try to work out an agreement with the Plaintiff. Remember if you do sign a stipulation to agreement that you are honor bound by court to oblige. If you default an immediate judgment will be placed on your credit and if they can find any assets they will attach.
Mr. Araujo means well, but he is not familiar with Florida procedure. You are being sued for a claim that is $5,000.00 or less--so the Small Claims Rules apply. Under Small Claims, you must appear for the pretrial conference in person. A written response is not sufficient.
An alternative is to hire an attorney to attend in your presence.
You may not need to have an attorney with you. The parties will be sent into mediation. Mediation is not arbitration. A mediator will try to get the two sides to an agreement, but can not make any decisions. A mediator does not render any rulings.
Often, judges will send parties to mediation first and if they work out an agreement, will review the agreement. Other judges will ask the defendant if they owe the money. You should not admit to owing the amount sued for before going to mediation. You may not know the actual amount of the debt. You do not know whether the interest when compounded exceeds the maximum rate of interest in the state in which Capital One is located--at least not yet. You are entitled to have a trial to have the creditor prove up its case.
The creditor's attorney will be interested in setting up a payment arrangement. Do not think that $10 a month or $20 a month would be acceptable. It may be all that you can afford, but....look, even if interest does not continue to accrue while you make payments, at $20/mo it would over 10 years to pay. If someone owed you money, you would not want to have to wait that long, true?
Here is a little known fact: under Small Claims Rules, the judge can set up a payment arrangement, whether the creditor agrees with it or not. So, keep that in mind in the mediation.
One problem with asking for a trial when you know you owe the money is the possibility that the creditor will get its attorney's fees awarded against you. If the credit card agreement provides for attorney's fees, the judge would be obliged to award fees, which could well exceed the amount you are being sued for.
You may also want to consider getting advise regarding bankruptcy relief, and whether that would be a good remedy for you to pursue.
Good luck getting through this process.
I will only address the mediation piece.
In a pretrial/mediation conference, you have the opportunity to sit and speak with the creditors, with the help of a mediator. Mediation is GREAT, especially when compared to all the arbitration clauses so many other big companies have. Mediation gives you a chance to talk without someone picking a side.
PREPARE for your mediation conference. Write a Mediation "brief".
1. What is the issue for which I am in mediation?
2. What are the circumstances that got me here?
3. What solutions can I offer to the other party that may be acceptable (even if not ideal)?
4. what evidence do I have that my "story" in number 2 is TRUE.
Do yourself a big favor and if you end up needing to attend the mediation, write yourself a mediation brief. Spend alot of time on this brief and get all your information clear in your head as more importantly, realistic solutions based on your income, your expenses, and your new job.
Call both parties before the medaition and ask permission and an address to send the medation brief.
Send it (without the evidence!!!!) to the mediator and the capital one rep. ten days before the mediation (if they will allow it).
BRING your mediation brief to your mediation. You never know when people are face to face how compassionate they can be. It's always possible but it's easier to be compassionate to someone who can show evidence that they are trying their best.
I hope this helps. If you think this post was helpful, please check the thumbs up (helpful) tab below. Thank you!
[This communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.]
