Mugger Used Our Credit Card, Now CapitalOne Sued Us Without Us Knowing For $1200 And Won

Andrew’s wife got mugged, the thief rand up purchases on her credit card, and now CapitalOne has sued them for $1200 and won. How can this be? Andrew writes:

In May of 2005 my wife was mugged at one of the elevated train stations in Chicago. After calling the police and filing a police report, she started calling each credit card company to cancel each account. Except she forgot about one card, her CapitalOne card. A card hardly ever used and only had a $500.00 limit…

When we got the bill, we immediately realized our mistake, called Capital One and faxed in the police report showing she had been mugged on that day. We even got the signatures on file from the local grocery store that showed the mugger’s girlfriend signature was used, rather than my wife’s signature. The mugger even signed my wife’s last name wrong and the clerk who checked out the girl, knew the mugger (I guess they live in the same project housing complex, and threw a party with all that liquor they bought…on our dime). Anyway, any sane, logical person could see this is a pretty clear case of someone else using her card. However, Capital One refused to budge on the issue since it was out of the standard reporting time. They indicated we were responsible for all of the charges.

We tried fighting it longer and refused to pay the card. After a few months of trying to fight Capital One, the card now racked up $700.00 of late charges and over-limit fees that they said we were additionally responsible for on top of the thief’s purchases. Finally, after talking to one of their bill collectors we said we were willing to pay the $500.00 of unauthorized charges and just be done with the whole thing. Them, in true greedy corporate fashion, refused that deal and said we were responsible for the whole $1200.00. We refused, and they have been sending threatening sounding collection notices since then (as well as ruining my wife’s credit, for the sport of it).

Apparently, when we were on vacation this week, Capital One took us to small claims court, supposedly they sent us a notice but I am unaware and unable to find such court notice (It doesn’t help that Chicago’s postal system is notoriously unreliable). Since we were unaware of the court date, and we were out of town to begin with, the judge ruled in Capital One’s favor. Now we have to pay them $1200.00… or we go to jail.

Mugger: 1
Capital One: 2
Average Joe consumer: 0

I’m pissed, frustrated and don’t know what to do. Any advice?

-Andy

There’s good news and there’s bad news. The bad news is that I believe you only have a short period of time to act. One reader says:

Your first action, do this now, is go to the courthouse that your case was heard at and file a motion to overturn the default judgment that was filed against you in your absence. You will have another court date, in front of a judge. You can explain there that you never got the summons to court. In most cases, the judge will overturn the default judgment and schedule another court date. I’ve seen this happen in CC dozens of times. Obviously it’s better if you get a lawyer to help with this, but the CC Court Clerks are also pretty helpful.

If you want to hire a consumer lawyer to help guide you through the appeals process so you don’t get tripped up on all the rules, the National Association Of Consumer Advocate site has a find an attorney function that should help you get started on your search. The good news is that once you actually get a fair day in court, your case should be a slam dunk. Under Federal law, your maximum liability for unauthorized use of your card, no matter what, is $50. The other good news is that this was a civil case, not a criminal one, so there’s no risk of you going to jail, not unless the banking industry reinstitutes debtor’s prisons.

Comments

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  1. bohemian says:

    They need to make small claims and circuit court civil actions require actual service on the person or at least a certified letter with a signature as proof they were properly notified.

    Most states don’t require this and collection agencies know it. I have heard of people getting the notice last minute and way too many people getting no notice at all. Of course the collector claims to have sent it out but isn’t required to prove it.

    I had one back in the early 90’s on a bill that my ex was supposed to be paying take me to court and never send me any notice. I found out about it two years later that there was a judgment against me.

  2. valarmorghulis says:

    Don’t know about IL, but in WA even for small claimes if a defendant doesn’t show for court, proof has to be shown they were served or the judge can re-schedule (if they feel it was an honest mistake) or toss the suit (for whatever reason).

    I would check with someone in the know, and see what the local statues say about it. Requirements for serving someone could also vary (like notification via postal system could be allowable vs. requiring a person to be served by another person).

  3. sleze69 says:

    I can’t wait for Capital One’s first round match vs. Huggies or something. They are a show-in to teach the elite 8.

  4. sleze69 says:

    shoe-in, even (stupid w next to e)

  5. sleze69 says:

    ugh….REACH.

  6. cmdr.sass says:

    @sleze69: Slow down, son.

  7. Amelie says:

    This if from the your Federal Law Link: “… if you don’t report the loss within two business days after you discover the loss, you could lose up to $500 because of an unauthorized transfer….

    It does seem that they may have the right to the $500, but hopefully after Capital One’s illegal and shameful court tactics, you will owe nothing.

    *waits for the self-righteous assholes who will blame the victim for not having a list of all her credit credits readily available, or blame her for carrying a couple in her purse, or something else – because these asshats are of course perfect*

  8. tedyc03 says:

    When I worked for a process server in California we served small claims cases all the time. You have a right to know that you have a court date and Capital One will lose their ass on this one. I, too, encourage them to hire an attorney. They may spend more money than the judgement but at the same time clearing one’s name is invaluable, and given that the credit score is ruined they need to do something.

  9. sirwired says:

    No, you absolutely will NOT go to jail for not paying the debt. There are many possible things Capitol One could do to collect, but sending you to jail is NOT one of them. If ANYBODY from Capitol One or hired by Capitol one is telling you this, they are in violation of a very large pile of Federal Laws.

    SirWired

  10. Illusio26 says:

    That’s pretty horrible. I feel for these people. I need to take the consumerist up on the advice they posted this past weekend to photocopy the contents of my wallet.

  11. Lewis says:

    @ OP: ” Now we have to pay them $1200.00… or we go to jail.”

    Um, can someone please explain this sentence?

  12. I wouldn’t bother filing those motions. Your case sucks. You did the following:

    1.) Failed to report the theft of your card within the requisite period

    2.) Failed to make payments

    3.) Did not act as you were repeatedly sent notices and your credit was destroyed

    4.) Failed to show up to court

    Pay up.

  13. renilyn says:

    @bohemian: Oh you have never been so right. We actually had a lien placed on our house (for a charge from a hospital that we later found out was never billed to us, our health insurance company-just sent straight to collections). This too, was done originally through the small claims system. Never were we served, informed, billed – NOT A THING. This practice should never have been allowed.

  14. jc75 says:

    Lived in chicago for seven years, postal service was just fine…It’s one thing if CapOne was being sleazy and disingenuous, but no need to foist the blame on the supposedly “unreliable” mail service in Chicago.

  15. Ailu says:

    Yet another reason for ripping up those credit cards. Cause one day, sooner of later, they are gonna gitch ya. Kinda like dancing with the devil in the pale moonlight. The joke always ends up being on you, if ya know what I mean…

  16. savvy9999 says:

    I believe there’s a step-wise liability to FCBA:

    1) Report immediately: liability = $50
    2) Report within 2 days: $500
    3) After 60 days: unlimited liability

    It sounds to me from the post (“May of 2005″) that the 60-day window of FCBA protection is up. They’re probably screwed for the entire amount. [www.straightforwardmedia.com]

    You also risk unlimited loss if you fail to report an unauthorized transfer within 60 days after your bank statement containing unauthorized use is mailed to you.

  17. @jc75: [cbs2chicago.com]

    No, it really is unreliable. As of a year ago, it was the worst in the US according to a USPS audit.

  18. savvy9999 says:

    @savvy9999: wait, I think i got those time frames messed up. 0-2 days = $50; 2-60 days = $500; after that, S.O.L.

  19. Parting says:

    @ADismalScience: Legally, credit card cannot claim more that 50$ of unauthorized charges. Does not matter what the customer did wrong, It’s the LAW! By trying to collect money, 1200$, credit card is committing FRAUD. Credit card is only entitled to 50$ by law.

  20. NotATool says:

    I think @Amelie: “waits for the self-righteous assholes who will blame the victim for not having a list of all her credit credits readily available, or blame her for carrying a couple in her purse”

    Well, I actually think this is a good lesson for the rest of us — don’t carry seldom-used credit cards with you, don’t carry your Social Security card with you, and photocopy the contents of your wallet.

    No, not trying to be an asshat here. This is just good advice and we all can learn from the OP’s misfortune.

  21. Underpants Gnome says:

    @jc75: An independant study showed that Chicago does indeed have the worst mail delivery in the nation. [consumerist.com]

  22. Ben Popken says:

    @Amelie: @savvy9999: The laws for credit cards and debit cards are different. The protection I described in the post applies to credit cards, which is what they lost. You’re listing the regs regarding debit cards.

  23. Parting says:

    @savvy9999: If they called when they got the bill, it’s under 60 days. Billing cycles are always less that 30 days, anyway.

  24. KenSPT says:

    I very rarely side with the credit card companies in stories similar to this that I find on Consumerist. Most of the time I agree with the consumer, but also because I’ve run into my own issues in the past with various debt collectors/credit card companies.

    That being said, the black and white of it is that Andy didn’t report the card stolen and for two years refused to pay the debt. It doesn’t matter whether or not he failed to report it stolen because he simply forgot, the bottom line is he didn’t report the card stolen.

    It’s pretty cut and dry from Capital One’s end, if a card is not reported stolen the consumer is responsible for the debt.

    I empathize with your situation, truly I do.However, if you opt not to pay the $1200, I’d expect for them to withdraw the money from your bank account at some point, and then the money is gone.

    The end result of this story will be that Capital One wins. Whether it’s a result of you giving in, or them taking control of the situation, is your prerogative.

  25. SkokieGuy says:

    Why isn’t the obviously fraudulent signature a violation of the store’s merchant agreement?

    Since the notice of the lawsuit was sent by regular mail (no proof of delivery), who is to say the OP didn’t send a similar letter within the required time frame?

    Seems to me if Capitol One isn’t required to prove the validity of their notice to the cardholder, the cardholder cannot be required to prove the validity of their notice to the card issuer.

    If you do decide to avoid further legal expense and pay the $1,200.00 go and register with a firm that places public speakers. You can recoup your costs and LOTS more as you are paid to speak of your experiences.

  26. Rufdawg says:

    @Amelie: The $500 and unlimited liability provisions only affect ATM/Debit cards, not credit cards. Traditional credit cards are subject to only a maximum $50 liability for unauthorized charges. See 12 CFR §226.12(b).

    @ADismalScience: You somehow have come to completely misunderstand this country’s jurisprudence.

    Capital One is completely in the wrong. The writer needs an attorney. At the very least, if Capital One attempts to execute, the judgement would be subject to a collateral attack for lack of personal jurisdiction over the defendant. Any first year law student could tell you that.

  27. Parting says:

    @Amelie: That’s for banks accounts, not credit cards.

  28. y2julio says:

    @sirwired: They took the OP to small claims court and won a judgement against him. He HAS to pay that judgement or he will go to jail. Did you even read the damm story?

  29. jc75 says:

    After thinking about this for a little while longer, anyone else think there is more to this story than the OP is letting on? Think about, in most cases of fraudulent activity, it usually takes one billing cycle for the victim to notice any weird charges on the account. At that point, even though it may have been close to a month since the actual charges were made, the account holder is entitled to dispute the charge, have the account closed, etc. so long as you start the process within a certain time period (on most of my accounts, it’s within two billing cycles). But the fact that CapOne denied OP’s request on the basis that “it was out of the standard reporting time” leads me to the suspicion that perhaps OP did not act on this “immediately.” Even though CapOne may be an evil company, surely they would not require their customers to have the power of foresight to know that fraud took place before they received an account statement.

  30. Parting says:

    @KenSPT: He didn’t know that it got stolen, not until he got the bill. He’s not liable for more than 50$. As per law.

    (If someone steals your credit card number and uses it online, will you pay for a new XBOx for someone?)

  31. Parting says:

    @y2julio: He can appeal, and reverse the judgment.

  32. johnva says:

    @Amelie: That’s only for ATM/debit cards. For credit cards your liability is limited to $50. And I believe that they actually DID report it, technically, within the time period allowed. I believe the law is written so that you have at least 30 (maybe 60) days after you receive the statement containing the fraudulent charge to report it. They reported it immediately upon discovering the fraud. I’m sure Capital One is using the whole discrepancy between when the mugging occurred and when the reporting was done as an excuse to not refund the charges, but again, this is why you need to be forceful. When you call for fraud, simply tell them that it’s a fraudulent charge and don’t volunteer any other information to them. They don’t need to know the exact circumstances, and you shouldn’t tell them unprompted since they may try to use some detail as a way to deny your fraud report.

    That being said, the fact that this dragged on and on and that they now have a judgment against them definitely complicates things. If they want to appeal, they need to get a lawyer at this point.

  33. EricaKane says:

    You know what. The Consumerist should be ashamed of itself. Giving legal advice and posting a link to Lake County, which is not Chicago. If they were sued in Chicago thats Cook County, it is the Cook County Court. Lake County is all the way up near Wisconsin.

    Oh and what they probably got was a default. See here for advice:

    [www.law.siu.edu]
    [www.law.siu.edu]

  34. @chouchou:

    Keep reading that law. You’re obligated to report the theft within a specified period or you become liable for the entirety of the fraudulent activity.

  35. KenSPT says:

    @y2julio: He would not go to jail, the poster is mistaken in that regard. This is not a criminal matter.

    The worst case scenario with this is that Capital One will gain access to Andy’s bank account and withdraw the money, and if the funds aren’t available they will possibly go the route of garnishing his wages.

    In the end, Capital One will get their money. It’s a beastly situation for Andy, but sadly that’s life.

  36. windycity says:

    I’ve spent the last 10 years in Chicago and I can back OP’s statement about the horrible postal system. That said, the clock is now running on your ability to do something about this judgement. In Cook County you have about 30 days to try to vacate a judgment. This is something you could do yourself. I suggest you start here [www.cookcountycourt.org] This site has a link to the “Advice Desk” which I believe is run by local law students. Their job is to help pro-se litigants navigate the legal system.

    Good luck.

  37. johnva says:

    @KenSPT: He DID report it stolen within the time frame established by the law.

  38. Rufdawg says:

    @y2julio: The writer is either using hyperbole, is mistaken, or has left out some other compelling significant fact. The courts will not resort to equity when a legal remedy will suffice.

  39. jc75 says:

    @Spaceman Bill Leah: @Underpants Gnome:

    Thanks for the references…though let’s be clear on something. The survey only covered overnight delivery of first class mail between zip codes encompassing chicago city limits. So fine, in this particular area of service, the chicago postal service is below average. But this hardly represents enough statistical evidence to support the claim that the city has the most unreliable mail service in the nation.

  40. @Rufdawg: Assuming the forum state was Illinois, personal jurisdiction doesn’t apply when you’re on VACATION.

    I hope you’re not a first year law student; if you are, better crack the civ pro outlines, stat.

  41. sirwired says:

    @y2julio: No, you will NOT go to jail for not paying a monetary civil judgement. I did read the story, and that is why I posted. Jail terms are for fraud, which is a criminal charge not handled in small claims court.

    If somebody from Capitol One (or a collection agency) is telling the consumer they will go to jail for not paying, they are lying, and are in severe violation of a very large pile of laws.

    We do not have, and never have had, debtor’s prison in the United States.

    Depending on the state, civil courts can garnish your paycheck, put you into involuntary bankruptcy, seize property, etc., but they CANNOT send you to jail.

    SirWired

  42. johnva says:

    @ADismalScience: According to his story, he did. You don’t have to report it the second it happens.

  43. humphrmi says:

    I’ve sued in Cook County Court before, pro-se. Your first action, do this now, is go to the courthouse that your case was heard at and file a motion to overturn the default judgment that was filed against you in your absence. You will have another court date, in front of a judge. You can explain there that you never got the summons to court. In most cases, the judge will overturn the default judgment and schedule another court date. I’ve seen this happen in CC dozens of times. Obviously it’s better if you get a lawyer to help with this, but the CC Court Clerks are also pretty helpful.

    Again, do this now. You have a very limited time to overturn a default judgment in Cook County, but I would say 80% of the time when you ask a judge and give a good reason, they will grant it to you.

    Next, when you get another trial date, you will have to defend yourself. IANAL, but you’ve got a pretty good case. Again, a good lawyer will help here but there are plenty of resources on the ‘net for defending yourself pro-se too.

    Caveat: I am not a lawyer. But I have lots of experience in Cook County.

  44. Fist-o™ says:

    Regarding signatures: This would be a case in which the signature of the individual is actually useful / incriminating. If it is not taken into account, then in what situation IS the signature taken into account, and why the hell do we have to sign for a $1.99 starbucks if it’s never going to be used for anything?

  45. stinerman says:

    @ADismalScience:
    Surprisingly, you’re right.

    That’s a right shitty law that needs to be changed.

  46. cashmerewhore says:

    @ADismalScience: @KenSPT:

    I agree with both of you.

    And Capital is spelled wrong in the title Consumerist.

    /grammar nazi.

  47. @johnva:

    Incorrect.

    “However, Capital One refused to budge on the issue since it was out of the standard reporting time.”

    They reported the theft of the card after receiving the bill for the charges. The timeframe isn’t supplied, but it could have been several weeks. I believe the requirement is 3 days, with obvious allowances if you are incapacitated etc.

  48. sgodun says:

    This sucks, yeah, and I’m not even gonna touch on the court thing, but I have to side with CapitalOne on this one. You agreed to notify them within a set amount of time if the card was lost or stolen, and you didn’t because you forgot. Well, okay, you made a mistake. That’s understandable. But it was YOUR mistake, not CapitalOne’s mistake, so why shouldn’t you be held accountable for your error? Why do you think that CapitalOne should basically ignore the agreement that you signed into when you got the card?

  49. KenSPT says:

    @chouchou: From the original post, “Except she forgot about one card, her CapitalOne card.”.

    She forgot, plain and simple. Whether it was an honest mistake is irrelevant.

    I understand that this may be a miscue on her end, but regardless, she never reported the card as stolen.

    It’s her responsibility to stay on top of her account. If Capital One didn’t have reporting policies in place, they would have every customer of theirs who is suffering from buyer’s remorse calling them up when they receive their invoice claiming the card was stolen and they were unaware of it.

    You want Capital One to be responsible for the consumers mistakes, but if Capital One made an error that affected the consumer, I doubt you’d have the same feelings of responsibility.

  50. picardia says:

    @ADismalScience: Asshat ahoy!

  51. johnva says:

    @jc75: That’s possible, but I think it’s equally possible that he told them about the mugging part of the story and they used that as an excuse to deny his claim of fraud since he was reporting it later. Like I said above, you need to be very careful about how you talk to credit card companies when reporting fraud. Simply tell them it’s a fraudulent charge, and leave it at that, unless they ask.

    Also, this story makes a good case for reporting fraud via certified mail, return receipt requested, rather than phone. Then you can’t accidentally volunteer more information than you need to AND you have a record of when you mailed your statement. It’s not as convenient, but it protects your rights more effectively.

  52. stinerman says:

    @johnva:
    The law says:

    “…if you don’t report the loss within two business days after you discover the loss, you could lose up to $500 because of an unauthorized transfer. You also risk unlimited loss if you fail to report an unauthorized transfer within 60 days after your bank statement containing unauthorized use is mailed to you.”

    Seems to me that he’s liable to the tune of $500 since it took him until the next billing cycle (which, I assume was less than 60 days after the loss) to report the loss.

    The $1200 is a bit excessive, but he’s out the original $500.

  53. @stinerman:

    Why?

    It’s completely unreasonably to expect a credit card company to be liable for the charges if the consumer negligently fails to mitigate the credit card company’s risk. That is a basic legal concept involved in most fraud or liability statutes.

    There comes a point at which the consumer is obligated. Not only did they hit that point, but they went well beyond it to rack up charges and lose credit. All this without contacting a lawyer or familiarizing themselves with the legislation.

    And yet, somehow, they get a sympathetic treatment in this article. People must really hate banks.

  54. johnva says:

    @ADismalScience: Prove it. Show me the law that says you have 3 days to report a fraudulent CREDIT CARD transaction (not ATM/debit). You have 60 days to report fraud after receiving the billing statement containing the fraud.

  55. Rufdawg says:

    @A.W.E.S.O.M.-O: There are two types of personal jurisdiction. Yes, the court had personal jurisdiction because the defendant was a resident of the forum state. However, if adequate notice and an opporutnity to respond were not afforded the defendant, then the court lacks personal jurisdiction over the person. With the fact the writer presented, it appears that there was a failure of process.

  56. @picardia:

    You know, I haven’t insulted anyone – I’m simply expressing the legal position that Capital One successful took at trial. It’s reasonable to ask that you afford me the respect that I have afforded you and those that share your apparent stance on the issue.

  57. Rufdawg says:

    @ADismalScience: The Federal Reserve regulations indicate no notification period.

  58. johnva says:

    @stinerman: As has been pointed out over and over again in this thread alone, that is for ATM/DEBIT cards, not credit cards.

  59. vladthepaler says:

    I’m kind of impressed that Capital One is using small claims court instead of binding arbitration.

  60. taka2k7 says:

    @chouchou: How could he not know it was stolen? His wife was mugged!
    They called all the credit card companies but forgot about Capital One.

  61. johnva says:

    @ADismalScience: Yes, in this case it’s possible that they would share some liability due to their negligence in not reporting the card stolen. But that’s an entirely different legal theory that has nothing to do with these reporting periods we were discussing.

  62. @johnva:

    [www.ftc.gov]

    “However, if you don’t report the loss within two business days after you discover the loss, you could lose up to $500 because of an unauthorized transfer. You also risk unlimited loss if you fail to report an unauthorized transfer within 60 days after your bank statement containing unauthorized use is mailed to you.”

    Now, there are two seperate events here. They are out $500 dollars for failing to report the loss of the card within two days. Then, they are liable for all accrued late fees and court costs for failing to pay, a position they never got to argue because they never showed up in court.

  63. @Rufdawg:

    The FTC governs consumer credit protection. The Fed statutes are primarily concerned with interest rates and billing structures IIRC.

  64. bustit22 says:

    Wow, letting the late payment charges add up like that was a really stupid move. Did you think CapitalOne was going to say “Oh he said he won’t pay it? I guess we’ll just stop asking!”

  65. humphrmi says:

    @ADismalScience: Agreed, but the fees outweigh the charges here and suing for $1200 won’t be viewed by a judge, who considers himself the only entity legally entitled to award punitive damages, very positively.

    Let’s assume they get the default judgment overturned. Worst case, in a new trial, the judge awards Capital One $500. Maybe interest, but only up to the point in time that the OP offered them a $500 settlement, then they chose to waive interest by not taking the settlement. Best case, the judge believes that the OP made a good faith effort to settle the matter and the creditor turned down a $500 offer and tried to impose their own punitive damages outside of court. Judges can be particularly picky about this – they don’t like court cases clogging up their dockets that could have been settled amicably outside of court. They tend to punish the party that doesn’t accept a settlement. So best case, the judge awards Capital One $500 but offsets the award with the defendant’s legal costs (since the case never had to go to court in the first place, if they took the OP’s settlement offer.)

  66. Rufdawg says:

    @ADismalScience: You seem to have a fundamental misunderstanding of the difference between a CREDIT card and an DEBIT card.

  67. @johnva:

    It does, because that theory is embodied in the statute. Limitation of liability is a concept that is included in most criminal protection law concerning fraud.

  68. @Rufdawg: Well service of process is service of process and not personal jurisdiction.

    However, I think all statutes require mail process to be served via registered mail. There should be a delivery confirmation somewhere.

  69. Rufdawg says:

    @ADismalScience: Regulation Z.

  70. frogpelt says:

    Well, Andy, I don’t know how fond you are of Chicago but what with muggers and poor postal systems it sounds like you need to move to Des Moines.

    As far as Capital One goes….. they’re a credit card company and nothing those scum do surprises me.

    All CC companies are scum.

  71. johnva says:

    @ADismalScience: How can you people quote from that stuff without seeing the bold subheading above the section you are quoting that specifically says “ATM or Debit Card Loss or Fraudulent Transfers (EFTA)”??!

    This was a credit card, not a debit card, according to the OP.

  72. Traveshamockery says:

    This is a great reason to only have one or two pieces of plastic in your wallet.

  73. humphrmi says:

    @humphrmi: Again, IANAL, but I’ve had lots of experience with Cook County judges.

  74. @Rufdawg:

    The law is clear. Read the FTC guidelines I posted, which cover both.

  75. EricaKane says:

    humphrmi is exactly right. Consumerist telling this reader to get a motion to reconsider is exactly the wrong advice!!!! And then posting links to Lake County!!!! Jeebus, you are doing more harm than good.

    I wish Consumerist would think sometimes before posting information that is wrong IMHO.

  76. @johnva:

    The notification guidelines are, if I’m not mistaken, exactly the same for both credit and debit cards. Let me know if you find information to the contrary.

  77. taka2k7 says:

    Anyone know if you can contact credit agencies to handle stuff like stolen cards?
    Given that they, in theory, have all your cards on file, wouldn’t it be fairly easy for them to offer a free stolen credit card service by notifying all open accounts? (Who am I kidding, they wouldn’t do something for free when they think they can charge money for it).

  78. Rufdawg says:

    @A.W.E.S.O.M.-O: No. Adequite service of process is necessary for a court to exert personal jurisdiction.

    If this was my case, I’d be intersted in seeing the Plaintiff’s attorney’s certificate of service.

  79. Rectilinear Propagation says:

    [www.ftc.gov]

    [www.fdic.gov]
    Section 909 Consumer liability for unauthorized transfers

    Maybe I’m missing it (the text formatting isn’t so hot on the FDIC page) but I don’t see a time limit anywhere for reporting credit card fraud.

    Part b is especially interesting:

    (b) In any action which involves a consumer’s liability for an unauthorized electronic fund transfer, the burden of proof is upon the financial institution to show that the electronic fund transfer was authorized or, if the electronic fund transfer was unauthorized, then the burden of proof is upon the financial institution to establish that the conditions of liability set forth in subsection (a) have been met, and, if the transfer was initiated after the effective date of section 905, that the disclosures required to be made to the consumer under section 905(a)(1) and (2) were in fact made in accordance with such section.

    I’d like to see Capitol One pull that off since the thief didn’t even sign the right name on the receipts.

  80. Rufdawg says:

    @ADismalScience: That FTC website is as much law as a menu is a recipe book. The provision which protects consumers from credit card liability in the event of unauthoized charges is 12 CFR §226.12(b). Where’s your citation?

  81. Rectilinear Propagation says:

    @ADismalScience: You’re mistaken. The FTC link in my previous comment points out the difference between debit and credit cards.

  82. Rufdawg says:

    @Rectilinear Propagation: Again, there is a significant difference between DEBIT cards which are connected with a bank account and CREDIT cards which are an extension of credit. Debit transations are regulated differently from credit transactions. The FDIC reguations to which you linked only apply to DEBIT cards. See [ecfr.gpoaccess.gov] .

  83. @Rufdawg:

    I don’t have the specific portion of the law to cite, but I am aware of limitation of liability clause for fraud pertaining to notification periods. I’ll dig it up later, but this conference call is ending. Trust me – one exists.

    Also, keep in mind – even if I’m wrong, which I don’t think I am, they still failed to act during the period where they accrued late charges and failed to show up to court. Even if the original basis for Capitol One’s claim is flawed, these consumers don’t have much of a case IMO. Not a lawyer, just a banker, so you might have more insight there.

  84. statnut says:

    @ADismalScience: You keep missing a key word in that sentence. Bank, as in ATM/debit card. As has been stated a number of times, its different for credit cards.

    Not to mention that they didnt get the notice to show up in court, so how could then argue it?

  85. bsalamon says:

    notice does not need to be served through the mail. It can be done through any newspaper. If you really want to get into it, look at the Federal Rules of Civil Procedure @ [www.law.cornell.edu]

  86. humphrmi says:

    Guys, seriously, the matter of reporting this to the CC is moot now. The OP offered to settle for $500 and the issue at hand is overturning the default judgment and getting a new trial, where the OP can once again offer $500, and the judge will look very unfavorably on Capital One if they don’t take it.

  87. johnva says:

    @ADismalScience: Nope, they are NOT the same. The part you were quoting is SPECIFICALLY dealing with debit/ATM cards ONLY. This is one of the reasons debit cards are riskier…more of the burden of protecting the money is on you (since it’s your money).

    Read this: FCBA at FTC.gov

    Granted, it’s entirely possible that by not getting this fixed for so long, the OP has lost their right of dispute under the FCBA. There are time limits at the various stages of appeal, etc. But this link does show how you have 60 days to report the fraud after receiving the billing statement. This law applies specifically to credit accounts like credit cards.

  88. johnva says:

    @humphrmi: I agree that it’s much more complicated now. That’s why I recommended they get an attorney at this point if they don’t want to just pay it. I was just countering the misinformation being posted here.

  89. Rufdawg says:

    @ADismalScience: You may be confusing provisions in the Truth in Lending Act. see 15 U.S.C. § 1643 [www.law.cornell.edu] However, there have been no allegations of fraud here, and there was notification that the charges were unauthorized. The burden to prove that the charges were authorized and subject to collection is on the Capital One.

  90. Rufdawg says:

    @johnva: I agree. Get a lawyer.

  91. @Rufdawg: Yes, that’s true, but you always need adequate service of process in order to exert any kind of jurisdiction. I wouldn’t categorize it as a specific element of personal jurisdiction.

  92. Rando says:

    People REALLY need to get over the whole signature thing. Signatures mean NOTHING to credit card companies. They are only there for the customer’s security – to make them feel as if there is something that will prevent fraud. Signatures are garbage.

  93. Rectilinear Propagation says:

    @Rufdawg: Pasted the wrong law into Google.

  94. rhombopteryx says:

    @bsalamon:

    They’re her bank, or at least credit card company, and so they have her address. How is putting an ad in a newspaper acceptable if they can mail it to you?

  95. Burn down the city you live in. It’s your only choice.

  96. Tallanvor says:

    @jc75: I lived in Chicago for five years… The one good thing about leaving Chicago was that I no longer had to deal with the WORST POSTAL SERVICE EVER. I lived in three different zipcodes, and each one had horrible service. I once had a priority mail package sent from Peoria take three weeks to arrive.

    That said, there is no excuse for not knowing what credit cards you have and being able to figure out within a couple of days which companies need to be notified. They actually do try to protect you from fraud, but you have to do your part as well, and why should it be their fault if you don’t inform them as soon as possible about your card being stolen?

  97. Rufdawg says:

    @A.W.E.S.O.M.-O: Nope. The Illinois Supreme court disagrees. Adequate service is an element of personal jurisdiction. Belleville Toyota v. Toyota Motor Sales, U.S.A., 199 Ill. 2d 325 explained by People v. Juan S. (In re Antwan L.), 368 Ill. App. 3d 1119, “…inadequate service of process divests the circuit court of personal jurisdiction…”

  98. phedup says:

    @ADismalScience: The ftc.gov site is VERY clear – for CREDIT cards, the cardholder is limited to $50 in liability regardless of when the card is reported stolen. Even if that doesn’t seem reasonable to you, it is the case. The specific words are thus:

    Credit Card Loss or Fraudulent Charges (FCBA). Your maximum liability under federal law for unauthorized use of your credit card is $50. If you report the loss before your credit cards are used, the FCBA says the card issuer cannot hold you responsible for any unauthorized charges. If a thief uses your cards before you report them missing, the most you will owe for unauthorized charges is $50 per card. Also, if the loss involves your credit card number, but not the card itself, you have no liability for unauthorized use.

  99. Buran says:

    @KenSPT: Yes, we do, because the law says they are responsible for everything above $50.

  100. ARP says:

    @bohemian:
    @Rufdawg:
    @A.W.E.S.O.M.-O: Others:

    My guess is that buried on all those capital one terms is a provision that states that mail is a acceptable form of service of process (for the consumer of course, not them). So they might have waived their right to standard service.

    Also is there a manditory arbitration clause? You might be use that piece of nastiness to your advantage to make life difficult.

  101. BeFrugalNotCheap says:

    Great, another crapital one story. Same thing is happening with my dad. He’s been in the hospital for the past week so I’ve been trying to fight this one for him. He got a charge for 69.99 from “internet superhighway”. I called them up and the rep said “Oh, we won’t refund the money, K?” and after flat out telling the rep AGAIN that the charge is fraud, he says they have to “listen to the call”. Posing as my dad I called capital one to report the charge as fraud and they are sending “documents” for him to sign. Now I’m going to have my dad notarize those freaking documents or suffer the wrath of cap-one.

  102. mac-phisto says:

    well, this story differs completely from what capital one advertises on their site:
    [www.capitalone.com]

    Remember, you are covered by our $0 Fraud Liability policy, which means that if your credit card is lost or stolen and used without your authorization, you will not be liable for those charges.

    then there’s visa’s site: [usa.visa.com]

    Visa’s Zero Liability policy took effect April 4, 2000, and is a great improvement on the previous policy. The former policy required that you report fraudulent activity within two business days of discovery. After this two-day period, you could be held responsible for up to $50 of the unauthorized charges. With the new Zero Liability policy, you’re no longer required to report fraudulent activity within two days and you’re not responsible for any fraudulent transactions made over the Visa network.

    good luck, andrew.

  103. Rufdawg says:

    @ARP: If there is a waiver of service anywhere in the customer’s agreement with Capital One, then personal jurisdiction is that much more important. While service can be waived, personal jurisdiction cannot, at least under the Federal Rules.

  104. PirateSmurf says:

    If you can forget to notify one of your credit cards about being mugged and the cards being stolen then you either have way to many credit cards or have oldtimers disease.

  105. Corydon says:

    @sirwired: No, you will NOT go to jail for not paying a monetary civil judgment. I did read the story, and that is why I posted. Jail terms are for fraud, which is a criminal charge not handled in small claims court.

    Actually, I was just involved with a case in small claims court here in Colorado, and there is indeed a way that you might end up in jail, although technically not for the debt itself.

    In this case, the guy failed to pay a contractor (my friend) for work he had done. After attempting to collect, the contractor took him to small claims court. I personally served him with the papers.

    The guy failed to show up in court, so the contractor got a default judgment for the amount owed. They then set another court date for the guy to provide financial information about how he would pay the judgment. I served him personally with those papers too.

    Then he skipped that court date. They scheduled one final court date for him to appear to explain why he wasn’t showing up. I served him personally with those papers too.

    He skipped the last court date too, so now he has a bench warrant out for a contempt of court citation. He’s not public enemy number one or anything, but if he gets pulled over for anything, he will be arrested and his bail will be the amount of the debt, which will be handed over to my friend when he pays.

    So yeah, it’s not debtor’s prison exactly; the charge is contempt of court. But essentially, he’ll be thrown in jail until he pays.

  106. Joedel263 says:

    explain to me how they “failed to report it stolen” yes.. they forgot to call on the day it happened.. but what happens if someone steals your credit card and you don’t know it? right out of your mailbox perhaps? then you wouldn’t know it was taken until the bill came. this is when the poster reported it.. are you telling me then, that using my example, that this person is SOL as well?

    I didn’t think so.. shame on them for waiting two years to do something, but it sure as hell aren’t liable.

  107. ARP says:

    @Rufdawg: True. Thanks for the Civ Pro lesson. It’s been a while. So the question is, where did they sue?

  108. HOP says:

    maybe these people could be the new owners of capitol one

  109. JiminyChristmas says:

    When it comes to Chicago, ‘lost in the mail’ is an entirely different animal. If you’re skeptical of this, you might find reading about The Chicago Post Office Scandal highly entertaining. Some highlights:

    One carrier was found with 40,000 pieces of undelivered mail–some more than two months old–stashed in the back of his uninspected delivery truck. Another 20,000 pieces, some 11 years old, were found when the basement of a retired carrier’s home was cleaned out. Nearly 200 pounds of commercial mail was found burning beneath a railroad viaduct and more than a ton of undelivered mail was found when fire broke out in a Chicago carrier’s suburban condo. Fifteen hundred pieces of mail, much of it five years old, were found beneath the back porch of an ex-carrier’s former home, and a rural letter carrier, who took his car in for new shocks, stunned mechanics when they found his trunk full of old mail.

    The article also describes “mammoth mounds” of undelivered mail at stations, including one 800 feet long.

  110. Techno Viking says:

    @ADismalScience:
    I’ll hurt you, you bastard and how dare you? These people forgot about a single card and you are telling them to pay up. If anything, I hope that your life gets messed up ten times over just for that. You are not a fellow human being, but a piece of garbage and now everybody knows who you are.

  111. MissTic says:

    This is why I photocopy every single thing in my wallet/handbag. I routinely go through my wallet/handbag/car/home/desk/office to make sure my CC’s and other important info are in the right place and accounted for. I also travel light carrying only the cards I need. But, in the event I do lose a CC or get mugged, I’ve got photocopies of the front and back of every CC and scrap that is in my wallet. I keep that under lock and key in a vault. We learned the hard way after my mom got her purse snatched from her unlocked car when she ran into a business for “two seconds” and within hours, had her cards used by ID thieves. It took hours and many dollars later to fix the problem. ID theft sucks. You have to protect yourself. And no, I’m not “blaming the victim”. She truly forgot about this card. It happens. Which is why I’ve got copies of everything in a very safe place.

  112. EricaKane says:

    @ARP:

    735 ILCS 5/2-202, 735 ILCS 5/2-203. Have fun with googling.

    Its obvious to me the person was served, and probably didn’t bother reading the complaint or looking up their court date. Bad decision.

  113. Coder4Life says:

    I thought capital one was the NO HASSLE card? LIES LIES LIESSSSS.

  114. thetango says:

    Andy,

    I’m currently suing my house builder over a shoddy roof (a long story ….) and I have been in the courts about once a month over the past year.

    On those days I see many “Credit Card Company suing Consumer” cases where the consumer is not represented in court. As you would expect in almost all of these cases the court has ruled for the Credit Card Company.

    BUT …. :)

    In some cases I have seen people return to court and simply say “I did not receive notice of the hearing” or, believe it or not, “I didn’t know I was supposed to show up in court.”

    In *some* of those cases (it really depended on the presiding Judge) the Judge overturned the original ruling and withdrew the previous judgement.

    What you should do (and please note that IANAL, and I am in Massachusetts where we have strong Consumer Protection Laws):

    1. Go to the court and talk to a court clerk. This may involve going to the Court Clerk’s office and explaining the situation.
    2. Ask the people in the office what your options are — ask if you can be before a Judge today and ask what you have to do to make that happen. What paperwork do you have to file? Can you provide additional evidence today?
    3. Take ___EVERYTHING___ with you. Nothing annoys a Judge more than when you come unprepared to court. You will almost certainly need a police report of your wife’s mugging, a statement from the grocery store manager, all previous communication with VISA, etc. Take absolutely __EVERYTHING___ you can think of.
    4. Be prepared to pay to make photocopies of everything! The Clerk’s office will do this for you but it will cost you a few $$.

    In Boston, I have found the people in the Clerk’s office to be _very_ helpful. I once saw a clerk help a blind woman fill out paperwork for her case against her landlord.

    One last thing: when you are there be as nice as possible. “Thank You”, “Have a nice day”, “Thanks, I realize you’re busy and I appreciate the time you took to help me out” will carry you a long way ;) I have seen people yelling at the poor employees … a few nice words will make them want to help you.

  115. kittykat23 says:

    A few commentors had the right idea about the signature.

    A few years ago, a gas station charged me three times for one gas purchase, only the second charges were made a year later on the same day, an hour apart. This was fraudulent activity on the gas stations part and all I had to do was call my credit card company. THEY handled everything with the gas station and had ALL charges (including the original charge) cleared.

    I am with Andy on this as I only hope he can clear his name, I just don’t understand why Capital One never checked with the merchant that accepted that payment. The STORE should be responsible, not Capital One nor Andy.

  116. PaperBoy says:

    OK — Here’s where blogs break down. We’ve got more than 100 posts of people arguing about what is clearly a fact of a law, interested in nothing more than defending their position/mistake, and doing nothing more than creating a lot more confusion and uncertainty.

    If you want clear facts, go to a consumer site run by journalists — creditcards.com, bankrate.com, msn.com’s money site. There you find people who are paid to check with experts and be accurate, and who have to post corrections if they are wrong.

    Blogs are create for comments and humor, and everyone is entitled to their own opinion. But you are not entitled to your own facts.

  117. xrodion says:

    That is why I do not deal with Capital One for anything. They are the most corrupt corporation in America and you know what else I had there credit card once thank god. I don’t have it anymore there customer service sucks completely and they are just god damn awful to there people and especially customers. Good luck to you dude hope it works out in your favor.

  118. katylostherart says:

    @JiminyChristmas: anyone read Gone Postal by terry pratchett? just seems appropriate now.

  119. katylostherart says:

    *going

    FAIL :(

  120. stinerman says:

    @ADismalScience:
    The credit card company is never liable. If a charge is found to be fraudulent, the merchant eats that cost, not Capital One or anyone else.

  121. trujunglist says:

    @jc75:

    Ha, I lived in Chicago for 4 years and the postal service is by far the worst I’ve ever dealt with. Notoriously bad, as in, Chicago postal workers stealing letters or just plain throwing them in a garbage can. This was on the news about 3 months ago. I had to fight with the postal service for a few months to get them to understand that yes, all of the mail coming to me was intended to be delivered there. Then, when I moved, I had to do it all over again. Not to mention the fact that Netflix and the Chicago postal service are not friendly, with Netflix telling me as much after I didn’t receive 2 or 3 shipments of movies.

  122. QuiteSpunky says:

    This website illustrates just how seriously credit card companies take your signature:

    [tinyurl.com]

  123. Buran says:

    @SkokieGuy: And if the clerk knew the fraudster, then the clerk would have known that the name on the card wasn’t their actual name — and also, isn’t it true that the OP’s wife never signed the receipt agreeing to pay the charges etc. then she is not under legal obligation to pay them? You can’t hold someone responsible for an agreement you never signed.

    If you know the store employee knew something was up, can’t you sue the store for knowingly allowing fraud to be carried out? (I honestly don’t know if you can but I wouldn’t be surprised)

  124. palgus says:

    I got mugged for an iPod about 9 days after the end of the free lost or stolen purchase protection ended for it. Citibank rejected my claim because of those 9 days. I appealed, and along with all the required documents, sent in a polite letter about being in good standing with them for 10+ years and included a photo of the sitches I received after the mugger slashed my throat… They even refunded the interest for the time that charge spent on my account before it was paid off!

    Fully recommened a very polite personal letter to a higher-up explaining the situation in detail with all supporting documents and suggesting the world doesn’t need to know more about how they enjoy adding insult to injury when nice ladies get mugged.

  125. j3s says:

    “Andrew’s wife got mugged, the thief rand up purchases on her credit card…”

    So to thief made all his purchases in South Africa?

  126. edrebber says:

    Now that Capital One has a judgment, they can seek to garnish the OPs wages. The OP should contact the clerk of the small claims court via registered letter certified mail stating that they never received notice of a trial and request a new trial. The OP should also contact Capital One in the same manner to report the unauthorized use of their credit card.

  127. humphrmi says:

    @edrebber: Cook county doesn’t accept motions to overturn default judgments by certified mail. He has to go into the court house and file the motion. The good news is that it’s almost a forgone conclusion in Cook County Circuit Court that he’ll get the motion to overturn.

  128. caipnj says:

    Under § 226.12. Special credit card provisions.

    (Federal Truth In Lending Statute)

    “(b)Liability of cardholder for unauthorized use. (1) Limitation on amount. The liability of a cardholder for unauthorized use of a credit card shall not exceed the lesser of $50.”

    Any amount that these low life Collection Agencies attempt to collect on which was obtained by Unauthorized Use that is an amount over $50 is Uncollectable and should be Dismissed anyway!

    Meaning; with the Police Report and everything else that is presented in this case, when it goes to Court; this must be brought and the Judge should Dismiss any amount over the amount of $50. The Courts must be held to the Law!
    CAIPNJ

  129. shor0814 says:

    @stinerman:
    Thus, the reason for the $50 maximums. Also, Capital One should have reversed the charge as soon as they investigated and the signatures didn’t match.

    And to the asshole(s) blaming the OP for not reporting this card stolen, you have apparently never been mugged. The last thing on most people’s minds is “OMG I better report the cards missing” so have some damm compassion for a true victim.

  130. joellevand says:

    Capital One did the exact same thing to me, except they didn’t notice me about the judgment until the time to appeal (45 days) had lapsed. I’m sure it’s no mistake either. Best yet, even after making payments on the debt (which I’d already paid via a debt collector for less than the full amount my ex racked up on my card w/o my knowledge) they still show the full outstanding amount, not the judgment amount (which was for less than the full amount) on my credit report.

    Capital One are so evil. I wish some consumerist readers would get together and build a grassroots campaign against them.

  131. cordeduroi says:

    That’s ridiculous. Capital One was one of the first credit cards I had and I quickly figured out what kind of company they were when I went ONE PENNY over my limit and they outright refused to work with me on their fee.

    If (godforbid) I were in this situation, I would fight it to the end, but I wouldn’t pay them a DIME. Even if I were handed a judgment to pay up. Even taking a hit on the ol’ credit report and dealing with creditors–still better than the feeling of paying those swine ill-gotten gains.

  132. sventurata says:

    @stinerman: Wrong. Credit cards can and do write off millions in fraud losses that cannot be charged back.

    [www.vbjusa.com]

    notably,

    “While banks must write fraud off as an operating loss…”

    “In non-swipe transactions, such as online purchases, if there is a dispute, the financial institution can charge the disputed purchase back to the merchant. But in swipe transactions, if the merchant follows the rules by getting a signature, a financial institution cannot charge-back the disputed purchase.”

    Additional chargeback procedures also exist. Where did you get that misinformation propagated as fact? And what is with the scourge of Wikipedia-educated experts around here these days? Please, please, please, check facts. If debate’s necessary, then sure, debate. But otherwise – if you don’t know, phrase your assumption accordingly!

  133. Terminixsux says:

    Sirwired said: “We do not have, and never have had, debtor’s prison in the United States.”

    Robert Morris would like a word with you about this nefarious assertion.

  134. asauterChicago says:

    Sorry guys, the shady law firm hired by CapitalOne was threatening we could go to jail if we didn’t pay up. I guess I was wrong (and they were full of shit). Thanks for all the advice, despite some bickering over the legalities of all of this, there was some good advice on this thread. I think I’m going to try to overturn the default judgment and get a new court date to fight this (which I didn’t know we could do).

    Also an interesting tidbit about the court notice: My wife called the court house wanting to know how we could be brought to court without some sort of certified mail or notification. The court sent a police officer over to our house to serve us, when we were at work, so no-one answered the door. So, the shady law firm then convinced the court that were avoiding answering the door and that we would never answer the door, because we’re afraid of them. So the court went ahead and set a date without notifying us (because apparently we’re shut-ins and refuse to answer the door, as per shady law firm) and then ruled a default judgment against us.

    You have to love the Chicago legal system :D!!

  135. humphrmi says:

    @asauterChicago: If you can remember who threatened you with jail time, you should look into going after them. I’m pretty sure that’s illegal. Maybe the punitive damages you collect from the collection agency can help get Capital One off your back. Wouldn’t that be justice? :)

  136. Concerned_Citizen says:

    @ADismalScience:
    No point in paying up if the damage to their credit has already occurred.
    Of course this seems to make the credit card company’s actions pointless, “The mugger even signed my wife’s last name wrong and the clerk who checked out the girl, knew the mugger (I guess they live in the same project housing complex, and threw a party with all that liquor they bought…on our dime).” If the thief was caught, shouldn’t he be on the hook for the debt? It seems like the wrong person is being sued.