Consumer complaint received 2020-01-15
Company: CAPITAL ONE FINANCIAL CORPORATION
State: AZ
Product: Debt collection
Sub-product: Credit card debt
Issue: Attempts to collect debt not owed
Sub-issue: Debt is not yours

Complaint:
I previously filed a complaint with Capital One Bank regarding the collection of debt. I requested that Capital One Bank prove the debt they allege, is my responsibility. I received a letter from Capital One Bank stating that they do not have the original contract with my signature. I am enclosing that letter. I sent a letter to Capital One Bank and stated the following : Dear XXXX, I received your letter dated XX/XX/XXXX, on XX/XX/XXXX, regarding my complaint filed with the CFPB. I did not state that this account was opened without my permission, I stated that Capital One Bank has me confused with my son, also XXXX XXXX XXXX, at XXXX XXXX XXXX, XXXX, Arizona, XXXX. 

Since there is no contract with my signature on the document, there is no possibility of differentiating between my son and myself. If you have the original contract with my signature on this document, please forward it to me immediately. During the time that you allege I opened this account, I was in the hospital recovering from a serious XXXX XXXX. 

You stated in your letter to me that the account was opened online, there is no application copy to provide you. 

The lawsuit filed by your attorney, XXXX XXXX XXXX, at the court in XXXX, Arizona, under the allegation that a breach of contract has occurred, is incorrect. In Arizona, in order to prove that a breach of written contract has taken place, the actual contract with the debtors signature must be on the contract. If there is no contract as you stated in your letter, there is no valid claim of breach of contract. 

Apparently the Capital One cardholder agreement states that Arizona law shall control, and, since the contract alleged by you and is now admitted to not exist, and not signed by either party,  whatever agreement might have existed between myself and Capital One must be an oral contract. Since the statute of limitations for oral contracts in Arizona is three years and since Capital Ones lawsuit was filed three and a half years after the date of the last transaction, Capital Ones case is also time barred. 

Capital One Bank has violated my rights under the CFPB rules and is therefore liable for damages to my good name. I am in consultation with an attorney regarding the filing of a law suit against Capital One Bank in this matter. 

I am requesting in this letter by formal demand that Capital One Bank cease and desist from all collection efforts in this alleged debt that you have brought against me. I want Capital One Bank to petition the court where the lawsuit is filed and ask the court to dismiss the case and vacate the judgment that has been instituted. The case number is : XXXX. 

When I receive a letter of confirmation that these matters have been closed and the case listed above is dismissed and the judgment vacated, I will cease with my lawsuit and we will consider this matter closed. 

I expect an answer to this letter no later than XX/XX/XXXX, so I may proceed accordingly. XXXX XXXX XXXX

Company response to consumer: Closed with explanation