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  1. Today
  2. They are suing my husband for Citibank Simplicity Card they allegedly purchased. Are you not interested in trying to force them into Arbitration? I think that that's the best way to get it dismissed, I am just not sure if he should file a General Denial with AD's or just file a Petition to Compel Arbitration...?? The Agreement I found on the CFPB website has a pretty nice Arbitration clause in Section 11 that I think may push them to dismiss. If anyone else has solid advice, I would appreciate it! 😉
  3. Yesterday
  4. PRA is suing me for a charged off Walmart credit card issued by Synchrony bank. I have received no snail mail or phone calls from PRA; however they may have called but I do not answer unknown numbers. I have received no snail mail from their filing attorney or representative of same, either. I have reviewed the Arbitration link, and have saved a MTC/Order of Arbitration I found in another thread posted by someone in FL who was successful in getting their case dismissed through demanding the arbitration. Since I have not been served at this time, do I file the MTC now, or do I wait till the pre-trial hearing? 1. Who is the named plaintiff in the suit? Portfolio Recovery Associates 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Pollack & Rosen, PA 806 Douglas Rd. Coral Gables, FL 33134 3. How much are you being sued for? $1,491.32 + costs & any other relief the Court deems just and proper 4. Who is the original creditor? (if not the Plaintiff) SYNCHRONY BANK 5. How do you know you are being sued? (You were served, right?) I have not yet been served. I received an advert from a "mediation" attorney, then found the filing on the Clerk of Courts website. 6. How were you served? (Mail, In person, Notice on door) I have not yet been served. 7. Was the service legal as required by your state? NA at this time Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None. 9. What state and county do you live in? FL, Polk County, 10th Judicial Circuit 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) July 2016 11. When did you open the account (looking to establish what card agreement may be applicable)? November 2015 12. What is the SOL on the debt? To find out: 4 years. Statute of Limitations on Debts 13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Case is set for a pre-trial hearing on 09/13/2019. 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. 15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No. 16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? No questionnaire was inluded in the Statement of Claim. They state they are the current debt holder pursuant to an assignment from OC on or about May 21, 2017. Plaintiff states I as sent correspondence, its representatives or both more than 30 days prior to their filing. (I received no such correspondence.) Plaintiff states $1,491.32, plus costs and any recovery the Court deems appropriate, is owed them. The filing shows Count I-Account Stated. The July 2016 statement is attached to the filing. Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. I have not yet received a summons. 18. How did you find out about this site? Via Google search. 18. Read these two links: Links reviewed.
  5. To clarify, the defenses listed are those I considered using before I realized "account stated" cause. I guess my question should be has anyone successfully defeated account stated claim? Is this something I would have to argue within my answer like any affirmative defenses are? What if any besides sol are defenses to claim? Btw sol on sol thinking. Nothing attached to summons. requested dv received their "validation" with 2 statements after they served me.
  6. The Cap1 agreements I’ve seen state they are governed by the laws of Virginia. Idaho does have a borrowing statute. Idaho Code §5-239. ACTIONS BARRED IN ANOTHER STATE. When a cause of action has arisen in another state or territory, or in a foreign country, and by the laws thereof an action thereon can not there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state and who has held the cause of action from the time it accrued. “Idaho's borrowing statute is a choice of law rule that by its terms applies only where the action arises in another state — a situation that indicates another state most likely has a substantial interest in the action in most circumstances. Furthermore, the statute does not cause the application of a foreign limitations period unless the plaintiff was either not the original holder of the cause of action or was a non-resident of Idaho when the cause of action arose — situations that also indicate another state most likely has a substantial interest in the action.” Miller v. Stauffer Chem. Co.,99 Idaho 299, 581 P.2d 345, 349 (1978) Virginia’s 3-year SOL applies to contracts that are in writing but not signed. That could be argued for a credit card. § 8.01-246(4) 4. In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied, within three years.
  7. Big picture: Sued by Cavalry on behalf of Citi for $2.5k. Am composing Answer along with MTC. Specific: One of Cavalry's allegations is: #12. That the balance due and owing as of blah, blah 2016, was $2.5k. A true and correct copy of a billing statement is attached hereto as Exhibit A and is incorporated herein as though fully set forth in detail. That seems a bit of an overreach. Is that even a thing they can allege? I mean, obviously, they did- but how does that work? They did attach a statement. I am considering, as a response: #12. I deny. I reject the premise that one purported billing statement may be "incorporated herein as though fully set forth in detail." Am I perseverating upon minutiae here?
  8. No. Won't work. PRA does not have to be the OC. They are also not required to submit their proof of ownership with the suit filing. The cause of action is account stated. Cap 1 agreements do not have a choice of law and Idaho does not have a borrowing statute. The SOL on credit card debt is 5 years not 3. When did you default? See my answer the first time you used this in #1. This never works when filed within the SOL. NEVER works. The courts know PRA paid pennies on the dollar. The problem is under contract law they are legally entitled to the full value of your account not what they paid. See if the court has a pre-printed answer form where you can simply check "denied" and submit it. Cap1 removed arbitration as an option almost a decade ago so you either have to file bankruptcy, settle or go to trial.
  9. Just realized the "account stated" claim in this summons, now I don't know how to answer. Help please?? Does this change any defenses I can claim. I have not submitted my answer, need to by 9/3. So far I have denied everything except my name. Defense I have claimed: 1. Failure to state a cause of action. The plaintiff is not the original creditor and did not state it is now the legal owner and has a right to sue on it. 2. Statue of limitations. OC is Capital One who's CC agreement states "card holder defaults once they miss a payment or go over their credit line". The agreement also has a choice law statement using Virginia laws three year statue on open ended accounts. 3. Lack of Standing. The plaintiff is not who the defendant entered into contract with and did not state that is is the legal owner and failed to attach any agreement that shows it is the owner. 4. Latches. fresh recollection, documents 4. Unjust Enrichment
  10. Hello and my apologies if i have any mistakes. I have been served with a summons last 08/06/2019 and I am really overwhelmed and freaking out on what to do. My problem is i am having a hard time trying to get important info like last time i paid and when i opened my account but i can't find it, i tried checking my credit score to find out, but my details wont post online so i have to request it manually and it would take minimum 15 more days that i do not have, I am freaking out. Any Help is appreciated! 1. Who is the named plaintiff in the suit? Portfolio Recovery Associates 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Hunt and Henriques Attorneys at Law 3. How much are you being sued for? $2 thousand something 4. Who is the original creditor? (if not the Plaintiff) Capital One Bank 5. How do you know you are being sued? (You were served, right?) Yes 6. How were you served? (Mail, In person, Notice on door) In Person 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? I sent Portfolio Recovery Associates an Email when they sent me a mail threatening to sue me. i received a confirmation email that they received the email but i got no response. 9. What state and county do you live in? California 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) N/A 11. When did you open the account (looking to establish what card agreement may be applicable)? N/A , probably 2015? 12. What is the SOL on the debt? To find out: 4 years 13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit served 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No 16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 13 Days , i have until September 5 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Exhibit A is an online page printout of the account from Sept 03,2017 to Oct 02,2017 Exhibit B is page of the account from Apr 03,2018 to May 02,2018 18. How did you find out about this site? Google! Thanks to all the power above that made this site possible. Credit-Card-Agreement-for-Consumer-Cards-in-Capital-One-N.A.pdf
  11. Last week
  12. The proper way is to sue them in federal court. They have a financial hardship packet that they send out that you complete and return. I would make a reference to their website and the section that talks about them suspending collection activity for health reasons, and I would send everything certified mail so you have proof that they received it. I would also take a screenshot of that website so you have it for future reference. I happen to believe that it would be an additional fdcpa violation if they were to continue collection activity after you send them reasonably convincing evidence of your financial hardship due to medical reasons.
  13. HI All!!!! Good news We settled for $2,8** ❤️ They were actually very pleasant to work with. If you are facing Zwicker, do not hesitate to call. they have compassion are if you are kind to them, they will be kind to you
  14. @Harry Seaward and @WhoCares1000 thank you - fair enough. I'll take that approach then. Should they refuse to respond or refuse outright, how would I go about pressing the violation? Just so I am prepared, if you don't mind. I will send them a letter explaining my health situation and asking them to suspend collection activity. Thank you very much!
  15. @Disngkadumasfuc Here's an actual attorney-prepared motion to compel arb filed in Fairfax County Circuit Court against Chase Bank in 2010: https://webcache.googleusercontent.com/search?q=cache:grd59hsIJ4cJ:https://www.jdsupra.com/legalnews/motion-to-compel-arbitration-and-stay-pr-74575/+&cd=7&hl=en&ct=clnk&gl=us
  16. I would keep the letters showing the violation but I would not bring up the violation if you are requesting that they stay the file for health reasons. If they don't answer on your request to stop collecting due to health or refuse, as long as you are within 1 year from the violation, you can always press the violation later. So @Harry Seaward is correct, don't bring up the violation if you are asking them to act in good faith.
  17. No special place for Virginians. You would use Virginia in the search terms. Here's a law firm article on arb in Virginia: https://www.beankinney.com/media/publication/390_Compelling and Staying Arbitration in Virginia _00986602xAC2B5_.pdf
  18. I'm sure others here disagree with me on this, but I wouldn't mention the FDCPA violation if i were asking them for a showing of good faith.
  19. I received this summons today I’m being sued by them for a loan that was fraudulently taken out. I have police reports can I still ask for arbitration in Virginia
  20. To be honest I don’t if it is the default rate or not and I haven’t spoken to any Virginia members of yet. Is there a specific forum for them? Also could I MTC and have an affidavit without the OC agreement?
  21. Here's an article from 2013 written by a debt collection attorney. I don't know if this is up to date or not. Virginia Debt Collection Laws b. Consumer/Retail Collections One of the more unusual features of the Virginia legal process is the “return date” system for all cases filed in the general district courts. Essentially, this means that every single case has to be scheduled for an initial return hearing date, even if there is no contest or dispute (disputes and trials are identified at the return date and may be scheduled for later hearings). This procedure is cumbersome for high volume collection attorneys and requires the scheduling of numerous initial hearing dates and available attorneys. The return date system applies to all civil cases, including commercial, though commercial cases are more likely to have higher balances and therefore to be filed in the circuit courts (exclusive jurisdiction over claims over $25,000). A significant development that has occurred over the last several years is an increasing scrutiny by the courts with regard to what claim documentation is needed for a debt purchaser to file suit and obtain judgment. The so-called “Fairfax Rule” for claim documentation has spread via judicial conferences and is now followed by the majority of Virginia judges, citing their role as gate keepers of the judicial process. The documentation required varies somewhat by venue, but the essential elements are: (1) a statement from the original creditor showing the balance claimed; (2) documentation showing the defendant used the account; and (3) the terms and conditions or account agreement. In addition, many judges also require documentation showing that the debt purchaser owns the account (bills of sale, assignments, etc). Finally, a number of courts are requiring similar documentation on original creditor retail cases, though it is typically much easier for the original creditor to provide such documents.
  22. Yes, that is when you can appeal to State Court and it is a trial de novo. The judgment is stayed until the appeal is heard, it will not be dismissed. That is because you will be required to post a bond in the amount of the judgment in order to appeal. That way if you lose they collect immediately.
  23. Dismissal, as in the judge dismisses the case with prejudice and they leave you alone forever? Sadly for you, no. The debt buyer bought a pool of defaulted accounts which have survived the demise of HHGregg. Do you think the 29.99% that's on the cc statements may be a default rate for missed or late payments? I'm not familiar with Virginia debt collection laws. I believe Fairfax County has requirements for junk debt buyers bringing cases there and what documents need to be attached to complaints. Have you check this site for Virginia members?
  24. If they cannot produce the agreement since HHgregg is out of business would that be means of dismissal? So just to confirm I would need to send an answer to the court house, which would by my affidavit and copy of the OC agreement and saying that my affirmative defense is that the court house has no jurisdiction bc of the arbitration agreement found in the OC agreement? sorry for the dumb questions I’m just going off of information I’ve been reading on here
  25. This is very tricky. Just say something like “I elect arbitration for all matters with this account”. Thing is, they may just ignore that. At some point they will send it to an attorney. If you tell an attorney you elect arbitration, one of three things will happen, and they have all happened in my cases 1. They will ignore you and file suit anyway. 2. They won’t want to bother with you and will send the account back to the OC or JDB, who will send it to another attorney 3. They will give you a deadline of x days for you to file in arbitration, otherwise they will file in court. MOST of the time you can keep a case out of court by doing the following: A. After you hear from an attorney, send in your DV letter. That will buy you enough time to write up your arbitration file. Mention in the letter that you elect arbitration B. At some point they will probably reply. Not always. See #2 above. For one law firm the case sat in the bottom of a drawer for a year or so before they answered. C. After you hear back from them, either you have a deadline to file in arbitration or you don’t. If you have a deadline, file before the deadline and send a copy to the law firm. If they didn’t mention arbitration at all, that means they will file suit very soon unless they hear from you about settlement offers. In that case, file in arbitration immediately. Remember in step A you prepared for this. Send a copy to the attorney. NOTE: this does NOT work 100% of the time. Sometimes the case is sent to an attorney, and the attorney will Immediately file in court with no warning. They can legally do that.
  26. The arbitration provision in credit card contracts is for arbitration in a private forum like American Arbitration Association (AAA), or Judicial Arbitration and Mediation Services, Inc. (JAMS). Court mediation is run by the court system and is not what your motion to compel arbitration would request. Please understand that court clerks cannot give legal advice. They are there to do vital adminisitrative tasks for the court system. If you can find a Synchrony card agreement (without "Amazon," "Paypal" or "Gap" or other branding) from the time period that the account was in good standing, with the standard arb provision posted above, and it has the 29.99% interest rate, I would use it attached to an affidavit. (IANAL) If they say it isn't the correct agreement, they should have to produce the agreement they claim is the applicable one. As your research has indicated, the Synchrony Bank agreements all have the same clause, so how does it help them?
  27. Actually your right it is on there it’s 29.99. Should I just find a agreement with matching numbers? Also I just called my local court (Fairfax county civil) and the clerk so that there division of civil and small claims does not do arbitration but has mediation. I told her I wanted to know the rules and file for MTC but she again said they don’t do that and said they do mediation and gave me a number to a local mediator? My question now I guess is, is she correct and I cannot MTC?
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