Im being sued by Cap One for almost 690 dollars. I have been served with summons/notice to appear for pretrail conference/mediation. I got the summon on may 5 and have to appear to court by may 23. I've been had a lot of great advice but not sure what to do. I've also posted this in another forum and if you wish to view it then links below. The advice that ive gotten arbitration which not entirely sure how to do. Andfrom what ive read Florida choice of law which take virginia in the 2008 agreement of capital one which is three years and if that true then from my last payment indicated on my credit report is more than three years from filing date. Last payment was 03/05/2009. Please ask me or read for more detail:http://www.creditinfocenter.com/forums/there-lawyer-house/313777-sued-cap-one-need-help.html http://www.debtorboards.com/index.php?topic=20864.0Please help me, of my options, if you can.1. Who is the named plaintiff in the suit?Capital one bank (usa) na2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) 3. How much are you being sued for?686.014. Who is the original creditor? (if not the Plaintiff)Capital One5. How do you know you are being sued? (You were served, right?)Served summons for pretrial conference small claims6. How were you served? (Mail, In person, Notice on door)In Person7. Was the service legal as required by your state? YesProcess Service Requirements by State - Summons Complaint8. What was your correspondence (if any) with the people suing you before you think you were being sued?None 9. What state and county do you live in?Polk County Florida10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)Look on credit report and says 30 days past due May 2009 but i have to credit cards with them and dont know which one it is and the second one 30 days past May 200811. What is the SOL on the debt? To find out: Statute of Limitations on DebtsFrom what i have researched its 4 years but could be wrong but i heard with choice of law in florida that 2008 agreement with cap1 it is 3 years.12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or b) looking it up online (many states have this information posted - when you find the online court site, search by case number XXXXX your name).13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)No14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.No15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?Not quite sure16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? 3 pages of Summons3 Pages of Statement of Claim and My Counts1 Page of a Copy of a bill from cap one from 2009
State/Country relating to question: Florida
Nothing because im overwhelmed and dont know what to do
Thank you for the post, I am happy to assist you by answering your questions. Is your question what options you have?
Yes sorry for the long post. Id like to know if arbitration is the route i should go. I read that Florida Statute of Limitation is 4 years but had advise given to me that the florida choice of law takes virginia which is 3 years.
Does the florida choice of law takes virginia true? the links i provided has more info about my case that ive been discussing.
Thank you, XXXXX XXXXX specified in your credit card agreement governs and the statute of limitations runs from the date of the last breach of the credit card/loan agreement (i.e. last payment date that passed without payment). Arbitration is a very cost effective approach here, especially if you do not have a valid defense but want to settle for a sum lesser than claimed by the plaintiff. Please let me know if you need additional guidance.
Thanks for your response. I guess what i am really looking for is more about the Florida choice of law and statute of limitations as a defense and will it hold up.This is out of a 2008 agreement with cap one which i assume applies to my default of 03/05/2009."12. Governing law: This Agreement and your Account will be governed by federal law that applies to them and, if federal law does not apply, then by Virginia law. This will be true regardless of where you live or where you use the card. We are located in Virginia. We make the decisions to open and hold your Account, issue your Card and extend credit to you from our office in Virginia. If any part of this Agreement is found to be not enforceable, this Agreement will be read as if the unenforceable part were not there."I dont know much about florida choice of law and if itd apply.
Thank you, XXXXX XXXXX apply VA law to your case. The key language in FL choice of law statute is the parties "may, to the extent permitted under the United States Constitution, agree that the law of this state will govern such contract, agreement, or undertaking," (the full text of the law is available here for your reference: http://law.justia.com/codes/florida/2005/TitleXXXIX/ch0685.html)Therefore, the plaintiff is unlikely to agree to a shorter SOL than it is is entitled, particularly if doing so would preclude enforcement of the contract in this suit. The VA statute of limitations on open accounts is three years from the date of breach. I understand that the last payment was made in march of 2012, but the statute of limitations would run from the last payment date due and failure to pay.
Okay you've helped me a lot and thanks for your time. I just need to clear something out of my head.So plantiff gets to decide if he or she can use Florida choice of law or is it an agreement between both parties?Last payment was march of 2009 which has been more than 3 years considering Virginia Law.
It must be agreed between the parties, one party cannot dictate jurisdiction to the other over the terms of the contract.
Ok one last question. Would arbitration be the best defense to take in this case?
Arbitration really is not a defense per se, but is a method of resolving a dispute without formal court action (litigation). It is an increasingly used method as it is cost effective and generally a fair method of resolving disputes.
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