Legal Question in Credit and Debt Law in Virginia
collection
My husband and I obtained a Capital One credit card approx. 5 yrs. ago. We paid on the card for a while and then we paid on it for about 2 yrs. through Ameridebt. Capital One is the only thing we did not pay off through Ameridebt because they were not helpful in lowering interest of finance charges. We found out today that they took $1,095.00 out of our checking acct. at one time. They did not have our consent. They took every penny that we had in the acct. Our balance on the acct. was $1,168.28. My husband mailed off bills yesterday that are now going to bounce because there is no money to cover them. The bank says that they received court papers. We did not. My question is can Capital One, or anyone, take every penny out of your acct. without your consent and leave you penniless?
2 Answers from Attorneys
Re: collection
Yes, they can, as long as they've followed all of the required procedures which are legally necessary to levy against your bank account---which may or may not have occurred in your particular situation.
Re: collection
You should go to the Court in the County where you
live (or where you did live when you opened the
account) and ask them to look up your name. If
the case is there take a look at the court file
and photocopy it.
Normally, no one can sue you without "serving" you
with a copy of the lawsuit. ("Serving" does not mean sending it in the mail; an extra copy is sent by mail.) However, in Virginia, creditors can have the Sheriff 'post' the lawsuit
on your door, as long as they also mail you a
copy.
But what often happens is that the creditor uses
an address where you have not lived for years.
The forwarding order has expired, so the new
resident tosses the envelope in the trash, and
you never hear about the court date.
Then the case comes up in court but because you
don't know about the lawsuit, you don't show up.
SO you lose by default.
More than likely this is what happened in your
case. A judgment was entered against you in your
absence. Look at the court papers, to check
two things: (1) Did the creditor use the wrong
address? (2) Is there any way that the creditor
could have KNOWN that it was not your address?
For example, if they simply looked in the phone
book? Did you tell them your new address? Is
there any other way they could have seen that you
no longer live there? If yes to both, then file
a "motion to vacate default judgment." Ask the
Clerk for the form and ask if you filled it out
right. The Clerk will only tell you if you filled
out the form right, and will not give legal
advice.
Once there is a judgment, the creditor can take
money out of your account with a "garnishment."
The garnishment should have been mailed to you
as well. Since they were not, it is clear that
they are using an old address for you.
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