Capital One never sent me any credit card statements for almost a year and a half after I defaulted on their credit card. Last December, I was served a summons with complaint claiming that my $300.00 limit was now inflated to over $2,000.00. I admit I made the mistake of not paying my credit card bills when I lost my job about six years ago, but being sued for $2,000.00 on a $200.00 balance seems a bit excessive.

At the same time I was being served by LVNV Funding which I ended up winning. But, now I am being served by the original creditor which is a whole new ball game, especially since Capital One is known to be a very aggressive creditor. The only thing I had going for me was the fact that they hired an outside law firm to file the complaint which makes them a “collector”.

The first thing I did was check the complaint to see what proof they had attached, and most importantly how they came up with $2,000.00. To my surprise there was nothing attached. I did research to see what my chances were of beating Capital One seeing they are the original creditor and all of the advice on the Internet was of little use. Capital One keeps good records, and it appears that most defendants simply settle with them.

I decided to buck the trend, and defend my lawsuit head on. I thought “I’ll take this thing as far as I can go with it and if they come up with enough proof, then I will settle”. But I had nothing but a complaint which wasn’t good enough for me. I wanted to know just how they came up with that huge amount and I wanted to make them work.

So I said to myself “I’m going to get these lawyers to come up with every ounce of evidence they need in order to prevail”. Up to that point, they had not been complying with my court rules by failing to attach the contract. I filed a motion to dismiss for failure to comply and it was granted without prejudice. Capital One then filed a motion for extension of time to comply with the court rule and were granted that as well.

A week before their time was up they filed some papers that also didn’t comply with my court rules plus they had credit card statements from the time I opened up the account until I defaulted on the account. They did not comply because they did not amend their complaint like they were supposed to do. So, I called the court and asked them what was the last document filed in this case and the clerk said “It says here that Capital One are complying”. I ask if this was accepted by the court and she said “It was filed so, yes”. I hung up and knew something wasn’t right.

I was confident they were supposed to amend the complaint. What they did was just put on a piece of paper “Capital One complying – attached is the customer agreement and monthly billing statements”. So now I had to see what I could get out of this “evidence” and make them work again.

The next thing I did was check the customer agreement that was submitted as evidence. I opened the card in 2002 and defaulted in 2003. Capital One’s lawyers submitted a customer agreement with a copyright date of 2005. This gave me another opening to challenge Capital One’s evidence.

So, I filed a motion to strike the credit card agreement because the 2005 agreement submitted to the court was not the year I had the account open with them which basically means they had no contract that governed my account. I told the court that by submitting the 2005 customer agreement that they failed to comply with the court rules, and once again and I asked the court to strike the agreement and dismiss the case with prejudice this time.

A few days later, I received a letter from the court with a hearing date. I showed up for the hearing and so did the lawyer. While waiting for my case, I noticed a lawyer walking the hall in front of the court room snapping at other people, threatening them and saying “Why didn’t you just pay your bills? You are going to get a default”. He was literally scaring these people. And from my experience, I was confident in my case and was not intimidated by this attorney. Unfortunately, many of the defendants were scared by that attorney because they did not know their legal rights.

In any event, the lawyer for Capital One called me into the conference room and told me that the 2005 agreement that was submitted is the same as the 2002 agreement. All the Agreements are the same.

I said: “Really? Prove it!” To which he replied: “I don’t have to prove anything, they are the same”. Again, I asked the attorney to prove to me the agreements are all the same. He looked at me, really agitated this time and said” “I don’t have to prove anything. It doesn’t matter because it’s not signed”. In all, the attorney did not have a valid legal argument, and was simply trying to intimidate me into settling. I polity told the lawyer we would be going before the judge, and left the conference room.

We were the first to get called up to the judge and the judge addressed me and the lawyer saying, “The defendant filed a motion to dismiss in January and that was granted. The plaintiff filed a motion to extend time to comply and that was granted. However, the plaintiff failed to comply as of today because they did not amend their pleadings. I cannot rule on the defendant’s motion to strike and dismiss this case until the plaintiff has corrected their pleadings. This case is still dismissed, and the plaintiff has 30 days to correct their pleadings in regard to the defendant’s first dismissal. Once this is done the court will take the defendant’s motion to strike and dismiss this case under advisement”.

So, he said the case was dismissed since the plaintiff failed to comply with court rules. They had 30 days to comply and then the judge would rule on the motion to strike and dismiss the case with prejudice. The judge also admitted that there was a court error, saying that we should have received a court paper telling us that the plaintiff failed to comply. I was angry because I called the courthouse and asked if what they submitted was accepted by the court and she said “yes”. So, all of this was a waste of my time and I could have gotten a dismissal with prejudice to begin with if the court had handled my case properly.

Anyway, they were given 30 days to properly amend their complaint. Capital One’s attorney also knew that I would not be easily intimidated, and that I would not let the issue with copyright date of the customer agreement go. With that said, 30 days came and went, and Capital One never amended their complaint. I filed motion to dismiss with prejudice for failure to comply with the court rules and for failure to comply with a court order, and it was granted. Case closed!

If they had come up with that 2002 agreement and kept the case going, I would have gone with the case being time barred because Capital One has Virginia Law governing their account and I would have come up with additional strategies to beat them.

Anyway, I am proof that just because you are being sued by the original creditor for old credit card debt does not mean you automatically lose. Often, the creditor’s lawyers make procedural mistakes because they do not ever expect to be challenged. Therefore, it is important check your court rules to see what needs to be attached to the complaint and go from there. I also suggest you check your state’s choice of law rules, and look up cases to see if there have ever been any other Capital One cases in your state where people have won. See how they won, and if it pertains to your case, be sure to use it to your advantage. When looking up cases, they do not have to relate to contracts specifically. Look for any cases that are related to “Choice of Law”.

Capital One specifically states in their customer agreements that this customer agreement is governed by Virginia Law and Federal Law. Virginia statute of limitations is three years for an unsigned contract and five years on a signed contract. Capital One is time barred on their own governing law. This is important because when you signed that contract, you and Capital One agreed to that customer agreement, it clearly states Virginia Law governs that contract.

Below is text taken verbatim from Capital One Customer Agreement:

Governing Law: “This Agreement is to be construed in accordance with and governed by the laws of the United States of America and by the Internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause this application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made in Virginia. It will be governed only by Federal Law, and Virginia law (to the extent permitted by Federal Law).

Virginia Code:

§ 8.01-246. Personal actions based on contracts.

1. In actions or upon a recognizance, except recognizance of bail in a civil suit, within 10 years; and in actions or motions upon a recognizance of bail in a civil suit, within three years, omitting from the computation of such three years such time as the right to sue out such execution shall have been suspended by injunction, supersedeas or other process;

2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;

3. In actions by a partner against another for settlement of the partnership account or in actions upon accounts concerning the trade of merchandise between merchant and merchant, their factors, or servants, within five years from the cessation of the dealings in which they are interested together

4. In actions upon any unwritten contract, express or implied, within three years.

§ 8.01-248. Personal actions for which no other limitation is specified.

Every personal action accruing on or after July 1, 1995, for which no limitation is otherwise prescribed, shall be brought within two years after the right to bring such action has accrued.

My Opinion: If we have to abide by Capital One’s customer agreement, so should they!

Without a signed contract, Capital One should not be suing people after three years of defaulting on their account. They should be held to abide by their own governing law and that is Virginia. Trying to sue a consumer in default over three years should time bar Capital One from suing under their own terms of the contract!

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