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.

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).

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.

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

ugh....REACH.

@sleze69: Slow down, son.

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*

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.

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

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.

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

Um, can someone please explain this sentence?

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.

@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.

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.

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...

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.

@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.

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

@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.

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.

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

@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.

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

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.

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.

@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.

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

@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?

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.

@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?)

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

@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.

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]

@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.

@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.

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.

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

@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.

@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.

@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.

@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

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

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