LawKitty

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LawKitty last won the day on March 17 2018

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About LawKitty

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  • Birthday March 2

core_pfieldgroups_99

  • Biography
    Recent law school graduate studying for the Bar
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    Fishing, camping, guns, law, politics, cats, PS3 gaming, flying RC airplanes/helicopters, knitting
  • Occupation
    Studying for the Florida Bar Exam

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  1. My experience with Lawkitty in Florida: 

    I want to take a moment to thank Lawkitty for all the great work on a JDB lawsuit in Florida, she is an amazing lawyer and a wonderful person besides the fact that she is affordable. She always replied to all my inquires and emails very quick and after taking my case it was dropped a few weeks after. From the very first moment that I hired her, I felt in great hands with all her patience and all her knowledge. 

    If you or someone you know has been sued by one of the blood suckers in Florida, don't hesitate! hire Lawkitty, you will not regret it! 

  2. hi @LawKitty 

    i have been sued by portofolio recovery in south florida. I had a cc with Comerica Bank that I used and was making payments until my situation changed and I was not able to pay any more. Portotofolio stated in the complaint that they bought the debt from the original creditor US National Bank Association.  I don’t know who USB is and what is their relation with COMERICA BANK if any.  I responded to the complaint and affirmative defenses.  However today I received by mail from hyat and hyat a request for admissions and a motion for summary judgment. My life is just starting to come around and I really need to win on summary judgment.  What is your advise? Do you have an office in Florida?  Can you help me?

    E.

  3. Hi @lawkitty.

    I moved to Florida from Texas almost 4 years ago. Tried to keep up with payments on Cap 1 card but couldn't. Asked if they could lower % rate due to hardship and they refused.  Last pmt was 6/2015.  

    Last year got notice from PRA that they have the loan. Calls started. I tried to settle for less and they refused even when I explained I was not working (had to quit because position was deleted and was being put in position that would aggravate my neck injury...herniated discs and spurs).

    I told them to stop calling me. A female called me the very next day. After telling her the same thing she even stated she saw the no call on my file.

    I sent validation letter and they replied with basic acct info and amt.

    Irma came along, then family emergency, then kicked husband (of 1.5 years) out, and now right back to where I was after horrible divorce several years ago. 

    Started getting solicitations from mediators stating I am being sued by PRA. Checked with clerk and I am. It was filed mid March, court date is beginning of May, I have not been served.

    I am broke. Husband lied about finances, family etc and left me holding bag on bills and credit card he had in my name.

    What should I Do? Should I go pull lawsuit and serve myself? Should I try and settle prior (no $ to do so)? Can I countere sue for that phone call (but I do not have the date and time...They should?)? Should I ask for arbitration? And when/how?

    Thanks,

     

     

  4. Yes, you can PM me about your situation. I'm licensed in two districts in Florida, but not the third. If necessary, I can refer out if I have to.
  5. Arbitration only works if they don't follow you into arbitration. It's expensive for them to arbitrate so they often drop the case instead of arbitrating. If they follow you into arbitration, you will lose. They aren't going to take a promise to pay later when you have a job. They will get the judgment, sit on it, let it earn interest, and then wait until you have a job and garnish you. By then, the judgment will have interest tacked onto it. If you can use arbitration, I'd suggest going that way in hopes they won't follow you into arbitration. But if they are going to follow you in, you will need to try and settle if you can to avoid a judgment. Even if you have to promise to pay $50/month or they get the judgment, that will at least keep you from having the judgment entered right away. As long as you keep up the payments, you would be fine. Better option if you have to settle is to use student loan money (if you can of course), or borrow it if needed and pay a lump sum because they often discount it. If you have medical bills in collection (which could sue you too) or any other debts in collections, charged off, etc., you can also consider bankruptcy to get a fresh start.
  6. Most likely they will file a lawsuit against you, as that seems to be what they like to do. With it being an original creditor and for the amount of debt it is, going the arbitration route once you are served with a lawsuit might be the best way. The cardmember agreement will need to have an arbitration clause in it. There are a lot of people on this forum experienced with using the arbitration method and can help with what you need to do in a general sense. Fighting an original creditor lawsuit in Florida in Court these days is almost always a losing battle. If you can't use the arbitration method, you may be able to negotiate settlement terms with Discover but even if they agree to payments to settle the amount, if you fail to make payments they will still end up with a judgment. If you're getting student loan money, you could also consider trying to do a lump sum settlement with them as sometimes they will discount the amount if you can pay a lump sum. You don't want a judgment because the judgment will follow you for many years and they could wait to come after you until you have a good job and some assets.
  7. I'm just stating that I've seen collection lawyers get past an arbitration demand with that argument and I've seen judges go along with it. I didn't say it was right. Debtors don't usually appeal those decisions though. As a pro se I would just be mindful that their attorneys have used that argument and state they are not suing on the basis of a cardmemeber agreement in account stated actions.
  8. Who is the attorney on the lawsuit? If it's an inhouse attorney that is good. Lately the JDBs are farming out their lawsuits to collection law firms and some of them can be a real bear. Also the statutory notice that used to be a condition precedent has now had an appellate court rule it is NOT a condition precedent anymore so it's no longer a valid defense. Generally we can still attack standing, of course, and also the requirements of an action for Account Stated, which in Florida generally requires that they be able to show the entire accounting, including payments and purchases, from the account inception until present day. A lot of these JDBs can't do that because they only get 6 months to maybe a year of statements from the original creditor. Also, some of these collection law firms are getting wise to the arbitration method and arguing that account stated does not require a written agreement so trying to bring in a cardmember agreement with arbitration provisions can sometimes be stricken because the cause of action is based on the account stated of mailing statements and agreeing to a balance to be paid, etc. So just be mindful of that.
  9. I would watch the court docket regarding service. If they haven't personally served you by pretrial date, the plaintiff will usually get an extension to try and serve you. If they know where you work, you could get served at work. Pretrial will be all about settling and getting you to agree it's your debt and making payments or consenting to a judgment. Debt collectors love this because they don't want to have to prove their case. If you hire an attorney you will have a FAR greater possibility of getting Midland to dismiss, especially in a small claims case. Arbitration is one way to go but Midland suits can often be defended and even taken off your credit reports along with a dismissal with prejudice (generally with an attorney). If you're going to do it pro se, then read up on arbitration as others around here successfully used arbitration to defeat the lawsuits. One wrinkle is that if they sue on "account stated", they can often get around arbitration demands because the lawsuit isn't based on the catdmember agreement per se, but on the mailing of statements and you 'agreeing' that a certain amount is owed. Account stated is the debt collector's favorite and most used cause of action too. Feel free to PM me if you have other questions as well.
  10. @LawKitty I hope you don't mind,

    To those looking for help with a credit issue, this is my experience with @LawKitty

    I have been lurking on this site for about a month due to being sued by PRA.  I had handled everything myself, including having their default judgment overturned.   Everything I did up to that point I learned from people on this site and research of Florida law.   So thank you everyone, it was stressful but successful but when trial was set it was time to make a decision on a DIY approach or hire a professional.  

    Now a special thank you to @LawKitty  When the judgment was overturned the judge set a trial date for June 1st.  I then took all I had learned and made a very smart decision to contact @LawKitty and take advantage of her free time for a few minutes and explain my predicament.  I sent a message through this site and was on the phone with her by the next day.  

    All of my debt issues are due to an ex-family member stealing my identity in 2010.  I refuse to settle and fight everyone of these.  This particular debt was just shy of $5000.00.  Mine was a convoluted mess that has been dragged out for over two years by PRA and detailing their questionable behavior for the judge along with the proof of my case got their default judgment dismissed. For the record, they only got the default because I kept showing up so they set a hearing and my paperwork got lost and I wasn't notified.  Watch them.

    After 15 or 20 minutes on the phone with @LawKittyI hired her for a reasonable cost, it was a set fee, not hourly and she would take over and see what she could do.  A few weeks went by and I hadn't heard anything but wanted to wait until this week (trial on Thursday) to see if I needed to be at trial or not.  @LawKitty got back to me yesterday to first apologize because she was sidelined with a personal emergency  (tell me who ever heard of an attorney who apologizes)  She then told me that the case was dismissed last week at the request of PRA.  

    @LawKittyis my new super hero(ine) and she saved the day.  I highly recommend that you consider @LawKitty if one of this garbage debt extortionists is suing you. She is personable, highly knowledgeable on the Florida Law dealing with these cases and just speaking with her you know you are in good hands.

    Thank you @LawKitty I am impressed and grateful.  I know it's not easy but you make it seem that way.  

    As a side note, I received the case dismissal letter today for the case @LawKitty handled along with another letter from PRA saying that another debt they bought and were seeking payment on was being removed from my credit file and they were disposing of it.  I had been trying have this debt of several thousand dollars removed by the credit bureaus for about 18 months for the same reasons.  The only thing I'm sure of is that I don't believe in coincidence.  

    Good luck everyone

  11. You need to object to the witness appearing by telephone right away. That gives them an unfair advantage as the witness will have access to information and/or be coached when if they appeared in person on the witness stand they would not have notes on the stand. File a motion to invoke the rules of civil procedure at the same time as that gives the basis to object to the witness appearing by phone. Once they file their motion for summary judgment it gets harder now to beat the case in Florida, especially for a pro se. You will need to argue material facts in dispute and that will depend on what causes of action they sued you on. If it is Account Stated (which is the favorite) then you have to argue standing (whether they have proven that they actually own the account), the entire accounting including purchases, payments etc. and whether there was an agreement as to amount owed (look at jury instructions for Account Stated), and try to get the affidavit of their witness struck due to lack of personal knowledge. I'd also ask for a continuance of the trial to do discovery and ask to take the deposition of the records witness, send requests for admissions, interrogatories and request to produce.
  12. You can motion for dismissal but you need to read up and understand WHY you are asking it to be dismissed and be able to argue that at the hearing. And to be honest, the PRA attorneys are pretty good at getting past a motion for dismissal, because it is a common tactic for defendants and lawyers to try and use. In fact, it is commonly used in a large percentage of lawsuits of all types and therefore it is usually fairly easy to get past a motion for dismissal. As for starting discovery, you will need to read up on this site and also the Florida Small Claims Rules and Civil Rules. Since you are pro se, PRA cannot initiate discovery against you. If you initiate discovery, then PRA can also ask for discovery. But you can't really prepare a case for trial without discovery. Discovery consists of written discovery requests, such as Requests for Admission (which you definitely want to file because if they don't answer them timely, it may really help your case); Requests for Production (which is where you ask for any documents, such as all of the statements of the account from its inception, all documents showing exactly how PRA got your account, and procedures for checking records, etc.); and Interrogatories (where you ask them written questions regarding the evidence they have or witnesses they will call, etc.). Interrogatories must be answered under oath. You could also ask to take depositions of their witnesses. This is where you ask them oral questions under oath in front of a court reporter. PRA will also be able to ask you to produce things. They often send requests for bank statements to try and get you to prove you made payments on the account they are suing you for.
  13. With small claims cases, we usually ask or stipulate to "invoking the rules" of civil procedure as those rules are different than small claims rules and then it would be on the plaintiff to get their witness there if you objected to telephonic appearance. They sued you in that venue so you shouldn't have to pay for their witness to appear to prove THEIR case. With a witness on the phone you can't tell if they are being coached or have info in front of them so most likely at trial they will seem very knowledgeable. I also always ask for a jury trial. You could still do a motion to invoke the Rules, file an answer asking for a jury trial. And file an objection to any witness or party appearing by telephone. Then I would send out requests for admissions, interrogatories, and requests for production. PRA is usually not geared up for a long fight in small claims court but with you being pro se, they will fight some but will generally do a Motion for Summary Judgment as their next tactic to end the case quickly and get their judgment, relying only on affidavits of their witness. If at all possible, I would do a consult with an attorney ( many will consult for free) or be prepared to spend some time on this site learning how to defend the case yourself. Plenty of people on this site have successfully beaten PRA. I've defended a lot of small claims cases for pretty cheap (always less than what the debt is) and I think people felt better about paying me than paying the JDB who bought your debt for pennies on the dollar and is trying to collect the full amount to make a profit. They file a ton of lawsuits because it's cost effective and they usually get payments or judgments that have extended their SOL considerably and have greater collection power AND earn interest. I've seen them get default judgments for $2000 or so and then sit on them for 5 years. After 5 years they will clean out a debtor's bank accounts or garnish wages or take a vehicle to be sold at auction and now the judgment is closer to $5000 to pay off. I had one client that actually got arrested because the judgment was on his business, not him personally, yet he ignored a personal summons to appear for a deposition in aid of execution and to fill out an information sheet on his assets. He ended up filing a bankruptcy at the end, but the judgment had been sitting for several years before the creditor decided to go after his assets. You may have nothing they can go after right now but people's financial situation can change and they will be watching for the time when it does and then go after you. So do what you can to avoid a judgment if at all possible. Once they get one, often the only way out is to pay it, or to file bankruptcy, which is generally more expensive than people realize. There is a lot of material on this site to help you and you have a bit of time, but you want to get discovery sent out right away because they need 30-45 days to respond to any discovery and they generally ask for an extension.
  14. It will be a LOT cheaper and easier to hire an attorney at this stage than post-judgment. It is much more difficult to have a judgment set aside than to avoid a judgment to begin with. Portfolio generally does not have the documentation to prove their case. Also I would object to their witness appearing by phone. You don't want their witness to be able to look something up or have notes. That's why it is so important to force them to appear in person so the jury or judge can see how well their "personal knowledge" is under cross examination.
  15. I see your court date is tomorrow. Hopefully you will appear to avoid the default. Just don't admit to the debt or any amount of it. They are going to try to get you to agree to make monthly payments or if you can't make any payments, to consent to a judgment. I would advise against either of those. Most people don't follow through on the payments and end up with a judgment anyhow. And consenting to a judgment, not making them prove their case, is never a good idea. Make them prove their case at least. They bought your debt for pennies and want to collect the whole amount plus interest. Plus a judgment can last a long time and they are often forgotten about until your financial situation improves and you suddenly have money in a joint account or are working a good job, or just paid off your car. Then they can go after your assets at that time. Some judgment holders prefer to sit on judgments because they earn interest and several years down the road, your $5000 judgment now is $10000. Since you are probably representing yourself, don't admit to the debt, having the credit card or anything. Anything you say can be used against you, but unlike criminal court, you don't have the right to remain silent. After all, it's quite common you may not recall the account. Tell the court you're not sure if they are the proper owners of the debt or that the debt is even yours. You want to do some discovery and ask for it to be set for a jury trial. A jury trial pushes it out even farther, usually. You always have the option to settle later. Many cases settle the day of trial, so having it set for trial will buy you some time to figure out what you want to do. If you are planning to try the arbitration route, I think that will have to be brought up at pre-trial tomorrow that you wish to elect arbitration. Make sure to read up on using that method and that you have the correct cardmember agreement that has arbitration in it. There are plenty of people on this site that can advise you regarding using the arbitration defense. Good luck and hopefully you will post back and let us know how it went.