After 3yrs I was sued by Capital One

[dean407]

I need to check my credit report, but I am pretty sure it has been 3yrs since I defaulted.

Since then, I have moved from FL to NC where the SOL is 3yrs instead of 4yrs.

I was issued the card in FL if that makes a difference?

If it has been 3rs since I defaulted, can I fight the suit based on the NC SOL? I have lived in NC for a year and a half.

The amount is $5806.

I have 30 days to respond.

I am considering bankruptcy as I defaulted on multiple credit cards/credit lines when I lost my income. I am concerned others may sue. Though no other single account was as much as the one I was sued for.

Oddly, I had another Cap One account which I defaulted on for around $1800.

The suit is only for one of the accounts.

One last thing, the lawyer is located in another state, VA.

I am 40yrs old. I now have a stable but low paying state job making $27k/yr. taking home around $20k/yr.

What would you do?

-Dean

[disconapper]

Hi Dean407,

Your situation seems all to familiar both to myself and several other stories I have read on the forum.

I was laid off then took a job offer at a much substantially lower income. I had considered bankruptcy for several months, then in March I was sued by my first creditor (it took them about 6 months to sue me). I was served on a Saturday and met with my bankruptcy attorney that following Monday. I knew that other accounts would soon follow, especially since the Visa was for $3K and I had other account with higher balances that had also not been paid.

The lawyers that sued me were from a state other than mine, but I was summoned to a local district court. I did not respond to the summons at all, my case was filed before the court date. Like yourself, I had 30 days to respond. The only communication I had with the law firm that sued me was to inform them that I have filed for bankruptcy protection. I have since received a letter of dismissal from my district court as well as the firm that sued me.

If you are unable to pay your unsecured debts on top of your day to day living expenses then bankruptcy might be your best option. I had to decide between food and gas for my car over making a visa payment...guess which one I chose?

No one can tell you what to do. Bankruptcy is a business decision. Imagine yourself as the CEO of your own corporation, if you are consistently in the "red" with no means of a "corporate recovery" wouldn't bankruptcy or a "financial restructure" be the best option?

Bankruptcy is an extremely powerful tool; it enables individuals who have fallen on almost if not destitute times to start fresh, the laws are here to protect individuals like ourselves.

Best of luck to you and welcome to the forum.

[IamOld]

That's a good question! At least they can't garnish your wages in NC!!!

I honestly don't know the answer as to which state's law would apply - I'm sure others will chime in - BUT - barring anything else - any other responses - I would use the SOL expiring in NC - after all, you are now resident of NC, and you are being sued in NC, and they're asking NC to enforce the contract...HOWEVER - you probably could get a free consult with a BK lawyer and/or a consumer rights lawyer...BUT - at the very least - make sure you provide an answer, else they'll get a default judgment against you.

Best of good luck!!!!

[catleg]

Are you being sued in a Virginia court? Or in NC?

[treehugger1]

C1 is suing you because your last active agreement at time of default probably stated the contractual laws of Virginia apply. This may or may not be true if you live in NC. Either way, it is my guess that a suit was initiated because the Virginia SOL was about to kick in.

In many states, the suing party must sue you in your local jurisdiction. In addition, many states require the attorney to be a member of your state BAR. As always individual states can vary in their requirements.

As Catleg asked, "In what state are you being sued?" You might also check the summons and see if the attorney listed a NC BAR member number.

I was also sued by C1 approximately 30 months after default. I did not answer the suit. C1 had all of their ducks in a row. They had sent me an original copy of a signed agreement (from 10-12 years past) and about 18 months of statements prior to default. I didn't see any reason to beat a dead horse (me.) The suit was for approximately $3000. The judgment was finally satisfied through wage garnishment.

My other three C1 accounts are either past the Virginia SOL or quickly approaching the SOL. My state, Oregon, has a "choice of law" statute, so I can pick the Virginia SOL, but any suit would need to be tried in my jurisdiction. However, these other three cards varied from $500 - $6000 with no suit at this time. All of these three accounts had no signed contract. I think they were applied for over the telephone. LOL. Those were the days. They were all at least 8 years old. Maybe there are some accounts they say "screw it." I have heard of folks getting a 1099 from C1 for debt forgiveness.

Sorry I got off topic, but there is a very good chance that the suit is valid and the account is still within the SOL. You would be expected to cite the SOL in your reply/answer. If there is a jurisdiction issue of VA or NC, then you might have to argue that also. I can't help you much beyond these guesses.

[dean407]

I am being sued in NC court by the VA lawyer who is a member of the NC bar.

Hmm. Did not know garnishment wasn't possible in NC for credit debts. Just looked that up and seems to be true. That is a relief, but I'd never let it get to that point anyway.

So, I am curious what would they do if they got a judgement against me? How can they enforce the ruling?

I will be contacting a BK lawyer on Monday...er, Tuesday as Mon is a holiday.

I am leaning towards BK at this point - more than not.

Based on the evidence they put forth in the papers- by my calculations I would have been at 3yrs in just 3 more months.

I will run my credit report Monday to see exactly when I defaulted on that account.

I greatly appreciate the responses! I will follow up on here...

[IamOld]

Best of good luck to you!!!! (By the way, they CAN garnish your bank account so yes you do not want it to get that far....)

I am being sued in NC court by the VA lawyer who is a member of the NC bar.

Hmm. Did not know garnishment wasn't possible in NC for credit debts. Just looked that up and seems to be true. That is a relief, but I'd never let it get to that point anyway.

So, I am curious what would they do if they got a judgement against me? How can they enforce the ruling?

I will be contacting a BK lawyer on Monday...er, Tuesday as Mon is a holiday.

I am leaning towards BK at this point - more than not.

Based on the evidence they put forth in the papers- by my calculations I would have been at 3yrs in just 3 more months.

I will run my credit report Monday to see exactly when I defaulted on that account.

I greatly appreciate the responses! I will follow up on here...

[treehugger1]

Yes, the best to you. Your situation does not seem unusual for C1. This is a tough decision for you, but getting an initial consult with a BK attorney is a good idea.

[catleg]

Take your time and don't panic.

[dean407]

Thanks everyone. I just ran my credit report through myfico and I was surprised I even have a 561. Thought it would be even lower.

Oddly, the Collections Agency that sued me doesn't show up in equifax's report.

Sept/Oct 2008 is when I defaulted on everything. 2 collections listed and 10 accounts with negatives. It's pretty much a mess.

[dean407]

Will see a bk lawyer the 13th.

[IamOld]

Will see a bk lawyer the 13th.

Good!

[ryan]

Thanks everyone. I just ran my credit report through myfico and I was surprised I even have a 561. Thought it would be even lower.

The score the lenders are looking at would likely be lower than that, actually.

[IamOld]

The score the lenders are looking at would likely be lower than that, actually.

Hello Ryan - what do you mean? To sue? In other words are you saying the lower your score the "better" regarding possibly NOT being sued???

[dean407]

So, I went to see the lawyer.

It was a 2hr trip and I didn't even get to see the lawyer in person. In retrospect, this isn't a surprise for the basic free consultation.

The woman I spoke with has been assisting the lawyer for 13yrs.

The gist is that with my income I qualify for Ch 7 without a means test.

I have NO assets at all nor have a transfered any assets. All I have is my 2007 Corolla which blue book shows worth $9500. I owe $9000. The book value they use shows it's worth $12,000. Still, there is a $3500 exemption, so it's not an asset. Based on my reasonable expenses, I simply have no $$ to pay the debts.

Regarding the summons she told me that if I did nothing and got a default judgement nothing would happen as I have nothing to take. I'd have to fill out the exemptions form first so there would be no surprises.

They CANNOT garnish wages in North Carolina for credit card debts.

However, I am uneasy about doing nothing.

I will go ahead with the BK, BUT the attorney fee by itself is $1500. Total is $1800.

I will not be able to pay that until Nov-Jan.

I think I will email the lawyer and ask him if he can draft a proper response to the summons. I can't imagine it costing me too much $$ to do that.

I am tempted to look into filing the BK by myself as my case appears to be pretty straight forward. Yes, I am aware it's always better to have a lawyer do it. I'll still research it though.

As an aside, I spoke to my friend of many years on the way back from the lawyer. He also got a summons for $10,000. He sent a response that he couldn't afford to pay anything more than $50/month. Three months went by and they called him out of the blue and set up payments for $50/mo.