by footloose » Wed Aug 18, 2010 11:36:50 AM
GOOD NEWS Time is on your side. Let me congratulate you for not responding to the law firm's request for excessive personal information. Many people would have done so and that is a major mistake.
Now, in your thread, you say that you did not receive a Notice of Litigation due to address problems. The law firm has no proof that you received it. That is where the matter stands as I understand it.
I suggest the following course of action. Request a credit report from both Equifax and TransUnion. You can order one by mail (no cost) and it will take about 3-4 weeks to arrive or you can download your report off of their website for about $15 each. This does not include your credit score but that's not important at this time. On these reports, it will show your last date of activity for Capital One. If you believe that this date is incorrect, check to see if you have any records, i.e. cancelled cheques, receipts, credit card statements, etc. that indicate when you made your last payment. This date is extremely important because it starts the limitation period. If a creditor or it's agent is going to sue you for the unpaid balance, in Ontario, the creditor must initiate a lawsuit within 2 years from this date. If any lawsuit is iniiated outside this time frame, then the debt is statute-barred. That means, the creditor cannot sue you and get a court judgement against you.
My guess is that this debt to Capial One is already statute-barred. Otherwise, why wouldn't the law firm sue you by serving you a Statement of Claim to take you to Small Claims Court. After you have done your research as I have suggested previously, determine if you are within the limitation period. If so, ignore all future Notice of Litigation statements and wait to be served with a Statement of Claim either by registered mail, by a process server or someone representing Capital One. Whether you are inside or outside of the limitation period and are served a Statement of Claim, you must defend it. If you are satisfied that you are outside the limitation period, your defence is that the claim is statute-barred. If you are satisfied that you are inside the limitation period, your defence is that you offered reasonable monthly payments under your financial circumstances and that was rejected by the creditor. You have 20 days to file a defence. Once a defence is filed with the court, the court will set down a pre-trial settlement conference within 90 days of receiving your defence. By the time it gets to this stage, you will probably have saved enough money to pay off the debt, thereby eliminating any trial.
What you are really doing here is buying time so that you can eliminate this debt with Capital One in a lump sum payment.
Good Luck and have a GREAT DAY