Should I talk to Dennis E. Henry? Or just show up in court?

[moonbeam9209]

A court summons does not have to contain any proof of your debt, including the original account number. It should list the money value of the debt they claim you owe and the name of the plaintiff. They have complied with that.

If you don't appear, despite your filing an answer, you will get an automatic default. It's possible the judge may ask for more evidence of the debt, but that is not his job so don't count on that.

If you appear, you should claim they have provided no evidence the debt is yours or they have the right to sue you, and that they need to provide proof to the court. That is what a hearing is for - to challenge the plaintiff if you think the debt is not yours or they have no evidence that it is. Any competent attorney will have evidence to present to the court at the hearing, and the judge will then rule for them. Your only hope it that they either do not show for the hearing, or they fail to bring the evidence. If they do not have the necessary proof of debt the judge may simple give them another 30 days to deliver it to the court. It is the court that needs to be convinced the debt is legitimate, not you.

If you attend the hearing please let us know what happened. So many posters just drop out of sight after a hearing and we never know the result.

Yes, I will come back and let you know the outcome. (as long as they don't lock me up and throw away the key! (just kidding)

Thank you!

[WhatMoney]

Yes, I did answer the summons in a timely manner. I said I couldn't confirm or deny without proper accounting and that there was not even an account number listed and that I had multiple Capital One accounts. They haven't provided me with any accounting to date. If they do, and have their ducks in a row, I guess I will just tell the judge that we are filing bk and ask for an extension.

Good luck - I'm not sure what the extension would be for, relating to the court case against you. If it's just to delay so you can file BK, the Cap One attorney has a right to object - as that's just a delay tactic. He can claim you might not file for BK and he's going to ask for a judgment against you in case you don't file.

I was hoping that if I showed up I would get a chance to speak to the Cap One attorney beforehand and ask for proof that he has a contract with Capital One, and if I was really lucky he would want me to sign a dismissal form with him. I am not giving up without a fight.

Be careful they don't try to talk you into some kind of agreement, like a payment plan, to get a dismissal. Unlikely they will dismiss your case until you have the BK file # to hand them.

Do you mean by "written affirmative defenses" the answer to the summons?

Well, a proper answer contains the point by point answers to each item of their complaint. You admit, deny, or have insufficient evidence to admit the item. You said you did that.

However the answer also contains a section for Affirmative Defenses. In some courts if you do not provide affirmative defenses at the time of your answer you forfeit your right to defend the case. Here are some common defenses, in a separate section called Affirmative Defenses. Obviously you only use the ones that apply to your case. Failure to State A Claim or Cause of Action, Statute of Frauds, and Lack of Privity might be some of your defenses.

# Failed to state the basis of the claim: They did not cite an actual state law which was violated, or failed to present enough facts to support their claims.
# Debt is time-barred: The statute of limitations has passed.
# Statute of frauds: No contract exists as proof.
# Failure of Consideration: No exchange of money or goods occurred between the plaintiff and the defendant.
# Lack of Privity: No relationship exists between the collection agency and you. You never signed a contract or agreement with the collection agency, remember?
# Unclean Hands. If the Plaintiff is giving falsified evidence or producing false witnesses, definitely invoke this defense.

There are many other legal defenses. See this page:

http://www.creditinfocenter.com/lega...defenses.shtml

Since most small claims courts are more informal, you may get by just explaining all this to the judge. It depends on the local rules of procedure, which are different for each state. The best thing would be to ask the local court clerk for a sample of a written answer with affirmative defenses for your small claims court. They may say it's not required in their small claims court. Really, your summons should have given you some guidelines. Otherwise that's what local attorneys are for.

[WhatMoney]

Yes, I will come back and let you know the outcome. (as long as they don't lock me up and throw away the key! (just kidding)
Thank you!

Well, are you out of jail yet? Just wondering what happened.

[moonbeam9209]

Yipee!!!!!! Victory against JDB

Well, are you out of jail yet? Just wondering what happened.

Thanks for asking! I am out now. (just kidding)

Well, here's how it went:

When my friend and I arrived, in the courtroom there were two attorneys calling out names and stacking up files. I didn't know it at the time, but they both worked for Capital One. I guess that was their night in court.

Once they took their "attendance" and probably had a huge pile for people who just didn't bother to show up, the fun began.

It was interesting, there were two big desks right in the middle of the courtroom, and the judge came out (she was very sweet) and told everyone to remain seated.

The attorneys began calling out names, one by one, people came up and sat with them, and you could hear little bits and pieces, like "I have no money right now" then they gave them an extension, or the people that came up and sat with them would make some sort of payment arrangement, etc.,

Then they would bring their paper up to the judge, and she would ask if you had any questions, then make a copy of your agreement or whatever, then send you on your merry way. Well, I was getting a bit nervous, because I didn't see any dismissals.. oh boy.

Then one of the attorneys called my name (I believe I was around the 10th or 12th, out of probably 50 people. He was very nice (not too bad looking, either). The guy that I got to deal with was not Dennis Henry, that was the other guy at the other table. My attorney(or actually the plantiff's) was Mr. S. Louis Schiappy. We sat down and he said

"I see in the answer that you filed, you need accounting for these debts" then proceeded to show me two statements. "These are the first and last statements". I said "Do you have anything with my signature on it?" and once again he showed me the statements and said "Well, don't you have a Capital One account?' and I said, "I don't know, I had lots of credit cards".

So then I said "do you have a cardholder agreement?" and then he proceeded to show me some 4 page bs generic agreement(you know, the folded up paper with disclosures, etc, that they send with your card), which I looked at and asked "so, do you have anything with MY SIGNATURE?" Then he very politely said "we can just file a DISMISSAL: (MUSIC TO MY EARS! I WAS SHOCKED!) then he says, "we will just go ahead and file this with the State Courts" and I said, knowing damn well that they wouldn't bother with the state for $1500.00 (well, at least I hope not-but at that point I will either have filed bk or bring a lawyer, this is really nervewracking)

"Go ahead, we are filing bankruptcy anyways at the beginning of May"

So then (sorry this is so long, but I don't want to leave anything out) I go up to the judge and she says "Do you have any questions?" and I hand her my dismissal form, she looks at and then says, "Well I guess you wouldn't have any(questions) with a dismissal" She was very sweet, made me a copy, and said "thanks, and have a good evening." The judge seemed almost like she was happy that I got a dismissal, and kinda seemed to feel sorry for all the people having to actually pay these scumbags. I was so happy and told my friend as we were leaving, that I wish I could go back in there and make an announcement to the others not to give up without a fight, and make them prove that it was your debt, and show your signature.

So, it all went way better than I could have hoped, and maybe it will buy me some time. I have so many other things coming up, like Graduation (for all 3 of my kids-one from Elementary, one from Middle, and one from High School) and just overwhelmed trying to work and take care of all of this, and to boot my oldest daughter still having health problems from her car accident two years ago. Anyhow, probably not much different from the life that a lot of you lead, trying to keep up with it all.

If nothing else, this experience will give me more confidence to go in front of a judge and deal with lawyers, especially if I file pro se.

Thanks to everyone here on this forum for giving me the help that I need to try to attempt standing up for myself.

I know there's still a long road ahead, with all of the other creditors and filing bk, but at least I know you will all still be here..

Thanks again!!!

[WhatMoney]

Congratulations for standing up to them and getting a dismissal!

Most people would have simply admitted it was their debt when shown the first and last statements, which I assume had your name and address on them. I don't think the 'no signature' defense would work with all creditors, but these guys were looking for easy targets - not one that kicks and screams.

I don't understand what they meant by "filing with the state", they had already filed with the state/county small claims court, unless they meant a higher state court, which would cost more money. Sounded like a bluff and you called it.

I've seen too many debtors show up, go through what you did in small claims, and end up admitting the debt to the attorneys and then signing a consent agreement or agreeing to payment terms. Once that happens you have lost, and the judge just signs the papers.

[moonbeam9209]

Congratulations for standing up to them and getting a dismissal!Thanks!

Most people would have simply admitted it was their debt when shown the first and last statements, which I assume had your name and address on themYes, they had my name and address on them, but I didn't want to look too closely and seem over interested. I just stuck with the defense of "do you have anything with my signature on it . I don't think the 'no signature' defense would work with all creditors, but these guys were looking for easy targets - not one that kicks and screams.

I don't understand what they meant by "filing with the state", they had already filed with the state/county small claims court, unless they meant a higher state court, which would cost more moneyI am not sure either, but this claim was with the "Magistrate/Civil division/small claims. Maybe State court is the one for the bigger debts?. Sounded like a bluff and you called it.

I've seen too many debtors show up, go through what you did in small claims, and end up admitting the debt to the attorneys and then signing a consent agreement or agreeing to payment termsYou wouldn't believe how many of these people did just that. I also think that they expect half of them to not show up at all and they would automatically get a default judgement.. Once that happens you have lost, and the judge just signs the papers.

I have to say, I never wanted to know this much about the law, and I knew very little to begin with. I am not sure where I saw it, but one poster said that no matter what the attorneys said to him, he was not going to admit that it was his debt. I guess that's where they getcha!

[frogger]

Good job!

[bravo]

Moonbeam,

Good fight! I was wondering what exactly is the dismissal? Does it mean that you are no longer on the hook for the alleged Cap One debt? If so, does that mean you would not have to put it into your pro se BK filing? Thanks.

[PoorGrammyinBK7]

Here's the situation...calling them will probably not do any good because you have not yet filed and they have no proof that you are going to file and no case number in hand nor a name/number an attorney. It is just your word. If you don't show up, they will have a judgment entered which will be on your credit reports along with your bankruptcy that you will file on 5/1. Judgments, charge offs, etc. taking place prior to your filing date will remain on your credit reports so you will have that showing along with a BK. Sometimes decisions are tough but you have to do what you think is best for you.

Hmm - we did show up when sued, but still got a judgement (summary jdg - main reason for our BK). We filed BK a couple months later and it (judgement) has not showed on our credit report. Don't know why but its not there.

[moonbeam9209]

Moonbeam,

Good fight! I was wondering what exactly is the dismissal? Does it mean that you are no longer on the hook for the alleged Cap One debt? If so, does that mean you would not have to put it into your pro se BK filing? Thanks.

That's a really good question. I expect that the debt will still show up on my credit report as it did before, under Capital One, it shows that they wrote it off. I know that this Attorney that was in court for Capital One actually works for Frederick J. Hanna, did an "inquiry" on my credit report. I don't know if they actually "bought" the debt from Capital one or what? Maybe one of the Gurus here could answer that, please?

I am still planning on including it in bk, under Capital one, because it still shows up on credit report. I cannot imagine that it would just disappear because I got a dismissal from the court. I am not sure....

[catleg]

Chances are it was "dismissed without prejudice" which means they can try and sue you again. But any win is a good win.