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  1. #1
    fatlard is offline Member
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    Illinois Capital One Dismissed without prejudice

    What is the name of your state? Illinois

    I just wanted to post this in the main forum

    Background: I was served a summons back in early 07. Capitol One represented by local lawyer for >$5000. Account was last paid according my credit report in 2001.

    I had a few defenses
    1. SOL of 5 years
    2. TILA Credit Card=Open Account
    3. Definition of written contract
    4. New line of credit established with Capital One. (they should not have issued me new line of credit)

    My return date for the summons was April 07.
    During this return date, the judge hears your plea.... is this your debt or not?
    My reply: NO. The total amount is not my debt. They set a trial date for 7/16/07

    Fast forward to today.

    I arrived an hour before my trial time. The lawyer for the capital one came in and did his paper work. After he was done arranging his paperwork, he called out my name and had me go outside to discuss the case. At this time I present my credit report showing the account of zero balance as well as it being time barred. He said what are you trying to say. I told him I am trying to say that there is no way I owe you the money you claim. I proceeded to ask him.... do you have any statements or credit agreement stating that I owe the amount you are asking for? He muttered No and no. At this time he said he will dismissed the case. I pressed him further.. what do you mean dismissed. He said since he could not find a witness at this time we will dismiss your case and they will re initiate the case once they find a witness...

    We return to our seats... judge comes in.. lawyer asked for dismissal without prejudice.

    I am happy for the dismissal but I would like to use some of my affirmative defenses so I could get a dismissal with prejudice.

    I stayed around since we already took the day off...

    It turns out the lawyer dismissed all the cases for all the people who showed up.. ( I do not know the reason why)..... however 2-3 cases they got default judgment for the ones that did not show.

    So.. they may sue me again... but I think I am better prepared.

    Cost:
    4 PTO Days (me 2 days: wife 2 days)
    $30 credit report
    $6 parking
  2. #2
    debtcollector` is offline Senior Member
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    Quote Originally Posted by fatlard View Post
    It turns out the lawyer dismissed all the cases for all the people who showed up.. ( I do not know the reason why)
    That would be because he did not have any evidence and you showed up. If he didn't dismiss, he would have looked foolish.

    Again, congrats.

    Let us know if they refile.

    DC
  3. #3
    fatlard is offline Member
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    Quote Originally Posted by debtcollector` View Post
    That would be because he did not have any evidence and you showed up. If he didn't dismiss, he would have looked foolish.

    Again, congrats.

    Let us know if they refile.

    DC
    Thanks. I will let you know if they refile. How often do they refile?
  4. #4
    debtcollector` is offline Senior Member
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    Quote Originally Posted by fatlard View Post
    Thanks. I will let you know if they refile. How often do they refile?
    I don't know. As a collector and collection supervisor, I am out of it once it goes to the legal department.

    For my own agency, I never filed a case I couldn't prove. So I don't have any personal experience there. But I'd say that if they couldn't come up with the documents for court, you are probably safe.

    DC
  5. #5
    Scarlet82 is offline Junior Member
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    Wow Fatlard, I can't tell you how grateful I am to have come across your thread. I am in the same situation with Capital One. I have a DOFD of September of 2001, it is out of the statute of limitations, but the lawyer in the initial meeting tried to tell me the SOL for IL was 10 years, I think he was just trying to intimidate me and shake me up! I've done way too much research to believe him though.

    I have a few questions though if you don't mind....

    When they filed their initial complaint, did they provide any statements? They had one attached from July of 2002 on mine that went to an address I wasn't even living at at the time. Then they had the "how to avoid finance charges" stuff. But that was their "proof" for the complaint. Not sure whether or not they can provide much more.

    What information did you have showing the Illinois definition of written contracts? I have the TILA and the UCC documentation, but did you have case law or anything?

    Any help that you can provide would be great! I really have it in for this lawyer, he was a real jerk. My court date is Oct 9th.
  6. #6
    draygnmage is offline Member
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    They'll refile as soon as they get documentation from their client. What that includes varies from client to client. Sometimes its the last 6 statements. Sometimes its every statement ever issued and the original contract. This could take weeks or it could take months. Just keep your eyes open for that summons. Good luck, let us know what happens.
  7. #7
    fatlard is offline Member
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    Quote Originally Posted by Scarlet82 View Post

    I have a few questions though if you don't mind....

    When they filed their initial complaint, did they provide any statements? They had one attached from July of 2002 on mine that went to an address I wasn't even living at at the time. Then they had the "how to avoid finance charges" stuff. But that was their "proof" for the complaint. Not sure whether or not they can provide much more.

    I did not even get any statements from them. They had some person who was from Capital One who affirmed my debt via a notarized document


    What information did you have showing the Illinois definition of written contracts? I have the TILA and the UCC documentation, but did you have case law or anything?

    Any help that you can provide would be great! I really have it in for this lawyer, he was a real jerk. My court date is Oct 9th.
    I did not converse with the collection attorney except for when I was in court

    I used the follow website for support documentation.

    [url]http://members.aol.com/discussiondox/dox/[/url]

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