Hello, I am just beyond the 180 day late payment point, and my account has gone from an initial collection agency (1 month) to another collection agency (2nd month) called NCO. If I want to offer a settlement, should I work through Capital One or the collection agency? I cannot afford a settlement myself, but have a family member that might be able to help. Also, what % should be offered depending who I address it to, and the time past due?
I disagree strongly with Mr. Araujo's advice to represent yourself in a lawsuit. I worked as a collection attorney for several years before switching sides. I almost never lost to self represented debtor. You can waive good defenses because you didn't know to plead them, and when the attorney wins a Motion for Summary Judgment against you, your only option is to appeal. You can't afford to represent yourself in a collection lawsuit, unless you can afford to have your wages and bank accounts garnished when you lose.
You are not being sued yet though, so the issue is settlement to avoid the suit. In my experience NCO will tell you you have to pay 65 to 80% of the balance in a lump sum, or 100% of the balance over time. If you are represented by a lawyer in these negotiations you should be able to settle for much less than that. Look for a lawyer who represents consumers and is familiar with the Fair Debt Collection Practices Act. You have rights that need protecting, and you might have claims you aren't aware of.
Don't tell them you have someone else who is going to help you pay it. That just get's their hopes up.
A quick check of the Minnesota Courts Information System (MNCIS) shows that Capital One usually retains Gurstel Chargo, PA to collect their accounts in Minnesota. You might want to check out what people have to say about that law firm elsewhere online. I think you'll want to settle while the file is still at NCO after you read up on Gurstel Chargo (Formerly Gurstel Staloch & Chargo, PA, formerly Gurstel Law Firm PA.)
Work with the collection agency as the debt has been charged off by Cap One. Do EVERYTHING in writing. DO NOT give them any bank account information. Do not tell them about the relative. Offer 10 cents on the dollar but only if they take the money AND SEND YOU A RELEASE right away as you are going to spend the money otherwise so they cannot get it.
The first thing you need to do if and when you get sued is file an Answer. The summons will tell you that you must “appear” by way of an Answer in 10, 20 or 30 days, “depending on the method of service.”
PLEASE CHECK THE LAW IN YOUR STATE AS YOU MAY ACTUALLY HAVE TO APPEAR IN COURT, AS IN VIRGINIA, IN ORDER TO AVOID A DEFAULT!
You need a lawyer, but if you cannot afford one right away, rather then do nothing and have a judgment entered against you, is to “appear” by filing something!
Many people think this means they have to go to Court and this is incorrect. 90% of all lawsuits end in Default Judgments because the defendant (person getting sued) did not file an Answer.
I recommend you go to the free form I have on my website. Print it out and fill it out as instructed. You must answer the numbered paragraphs on the Complaint by writing them into the appropriate lines in the Answer. The Answer will allow you to preserve your rights and will prohibit a default judgment (i.e. you did not show up) from being entered against you.
Mimic the paperwork you got when you got sued. Answer all the paragraphs of the Complaint by writing the numbers in lines 1, 2 or 3.
Almost 100% of attorneys will deny what is owed because they did not do the calculations and do not know what the basis for the number is…
When you file the Answer that is your “not guilty”. You have the right to make the person suing you (Plaintiff) prove their case, but you must also answer the complaint truthfully.
Make sure you fill in the name and address of the attorney suing you before you bring this paperwork to the Court. Mail it to the attorney suing you right away!
Check out the guide I have drafted on the Avvo profile. This will provide more detailed instructions. If it is helpful remember to indicate that and get the guide read!
Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.