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SamanthaL

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  1. This is a general update that may prove helpful to others in NC. I had a discussion with a lawyer in NC regarding an alleged debt (assigned once before a JDB purchased it) that a JDB purchased and is now trying to collect from me by way of filing a complaint, which I received this week. The lawyer stated that NC courts focus on a few things: if it's a person's (defendant's) debt, if the person (defendant) paid and if the lawsuit is filed timely (by the plaintiff/JDB). He said litigation isn't worth it unless a defendant can prove one or more of the below: 1. The alleged debt cannot be collected based on the SOL. I cannot rely on this. 2. It is truly not the defendant's debt, as in, cases of identity theft, fraud or if the defendant wasn't an authorized card user. I cannot rely on this. 3. If a JDB owns the alleged debt, the JDB must provide proof of ownership and proof of the defendant's financial responsibility. I can rely on this, that is, if arbitration isn't pursued. The JDB is required by NC law to include a copy of the contract "or other writing evidencing the original debt, which must contain a signature of the defendant." Now, if the JDB cannot provide this, NC law states that the JDB must provide "copies of documents generated when the credit card was actually used..." The JDB attached two statements to the complaint I received, though both statements do not include any purchases. The JDB must also include "a copy of the assignment or other writing establishing that the plaintiff is the owner of the debt. If the debt has been assigned more than once, then each assignment or other writing evidencing transfer of ownership must be attached to establish an unbroken chain of ownership." Two assignments and bills of sales are attached to the complaint I received. They were both signed by a supposed "Sr VP." I did some research and found out that the guy who signed them is no longer with the JDB, and he was specifically the Sr VP of Call Center Operations. So, my case would be contingent upon item 3 above. I cannot rely on items 1 and 2. Also, the JDB hasn't provided (and I'm sure it cannot provide) "an itemized accounting of all amounts claimed to be owed (see below). Edit: the two credit card statements will probably suffice regarding the itemization of amounts due. The following is per NC GS § 58‑70‑115(6): When the collection agency is a debt buyer or acting on behalf of a debt buyer, bringing suit or initiating an arbitration proceeding against the debtor to collect on a debt without first giving the debtor written notice of the intent to file a legal action at least 30 days in advance of filing. The written notice shall include the name, address, and telephone number of the debt buyer, the name of the original creditor and the debtor's original account number, a copy of the contract or other document evidencing the consumer debt, and an itemized accounting of all amounts claimed to be owed.
  2. Wow, thanks so much, Linda. Separately, and as an aside, I looked up the name of the man who signed the supposed assignments and bills of sale from HSBC to the JDB. His title is shown as Sr VP on the docs I received. Per LinkedIn, he's now with JPMorgan, but when he was with HSBC, his true title was Sr VP of Call Center Operations. He was responsible for East Coast call centers. There's a difference between a Sr VP and a Sr VP of Call Center Operations.
  3. The cardmember agreement states that I may contact NAF or AAA to file a claim. Also, the agreement and the account are to be governed by federal law and, to the extent state law is applicable, the laws of Nevada, even though I don't live there.
  4. Hi HotWheels96! Truly, it isn't of much concern vs what I just read--I've been combing through the terms. The agreement states that the OC or JDB may change or terminate all or any part of the agreement or add new terms at any time. Imagine if the JDB receives a notice of arbitration (or thinks it will), only to immediately change the agreement such that it excludes an arbitration option.
  5. Thank you, Savoir! Think I found it under "Miscellaneous." It reads: "This arbitration agreement shall survive termination of your Account as well as the repayment of all amounts borrowed hereunder. If any portion of this arbitration agreement is deemed invalid or unenforceable under any law or statute consistent with the FAA, it shall not invalidate the remaining portions of this arbitration agreement or the Agreement except that in no event shall the invalidation of any portion of this arbitration agreement have the effect of authorizing an arbitrator to arbitrate a class action or other matter involving joinder or consolidation of claims without express written consent of you and us. In the event of a conflict of inconsistency between the rules and procedures of the arbitration administrator and this arbitration agreement, this arbitration agreement shall govern. No class actions or joinder or consolidation of any Claim with the claim of any other person are permitted in arbitration without the express written consent of you and us." There is also something under the "Waiver" section that I don't like. It states that "We may choose to delay enforcing or waive any of our rights under this Agreement in certain situations. We can delay enforcing or waive any of our rights without affecting our other rights. If we waive a right, we do not thereby waive the same right in other situations."
  6. Thanks for your response, Linda. In looking at credit reports, I can confirm that the alleged HSBC account was originally opened in Oct. 2003. The year of default is 2010. The HSBC cardmember agreement states: "On any claim you file, you will pay the first $50 of the filing fee. At your request, we will pay the remainder of the filing fee and any administrative or hearing fees charged by the arbitration administrator on any Claim submitted by you in arbitration up to a maximum of $1,500. If you are required to pay any additional fees to the arbitration administrator, we will consider a request by you to pay all or part of the additional fees; however, we shall not be obligated to pay any additional fees unless the arbitrator grants you an award..." Edit: see below. How do I know if the cardmember agreement cited above is applicable at this stage? What if there was an addendum or another that was sent to replace what I have on file? I only have the above on hand. But, I cannot confirm that another was or was not sent. Arbitration definitely sounds like the way to go. The following is part of the cardmember agreement, under "Miscellaneous." "This arbitration agreement shall survive termination of your Account as well as the repayment of all amounts borrowed hereunder. If any portion of this arbitration agreement is deemed invalid or unenforceable under any law or statute consistent with the FAA, it shall not invalidate the remaining portions of this arbitration agreement or the Agreement except that in no event shall the invalidation of any portion of this arbitration agreement have the effect of authorizing an arbitrator to arbitrate a class action or other matter involving joinder or consolidation of claims without express written consent of you and us. In the event of a conflict of inconsistency between the rules and procedures of the arbitration administrator and this arbitration agreement, this arbitration agreement shall govern. No class actions or joinder or consolidation of any Claim with the claim of any other person are permitted in arbitration without the express written consent of you and us."
  7. Thanks so much for your reply. Roger that regarding the contract (or potential lack thereof) in conjunction with curable defect. Understood. I located HSBC's (now PRA's) cardmember agreement and disclosure statement (in my hard files). You say that JAMS can run into the $10,000 range, easily. That may be true, but the HSBC (now PRA) cardmember agreement states that, "On any claim you file, you will pay the first $50 of the filing fee. At your request, we will pay the remainder of the filing fee and any administrative or hearing fees charged by the arbitration administrator on any Claim submitted by you in arbitration up to a maximum of $1,500. If you are required to pay any additional fees to the arbitration administrator, we will consider a request by you to pay all or part of the additional fees; however, we shall not be obligated to pay any additional fees unless the arbitrator grants you an award..." I'm formatting the below to send as my notice of arbitration election. I updated the below to mirror the terms of the HSBC cardmember agreement. [My Name] [My Address Line 1] [My Address Line 2] [Attorney/Creditor Name] [Attorney/Creditor Address Line 1] [Attorney/Creditor Address Line 2] Date RE: CASE #XXXXXXXXX NOTICE OF ARBITRATION ELECTION Dear Mr. Lawyer: Pursuant to the HSBC Cardmember Agreement and Disclosure Statement ("CADS"), I hereby elect arbitration via JAMS to resolve any and all of our disputes. As per the agreement, if either party elects arbitration, "the parties hereby knowingly and voluntarily waive their rights to litigate such claims in a court before a judge or jury upon election of arbitration by either party." ***Note: I haven't decided on the wording of this paragraph, as the CADS is quite lengthy*** I don't know if I should cite all of it. Why should I give "too much" information when PRA probably doesn't have the CADS on file relating to the alleged debt in the first place. Upon receipt of this notice, I lawfully request that you dismiss or stay case #XXXXXX regarding the alleged debt pending the result of Arbitration. Should you demand I initiate arbitration proceedings, consider this my written request, per the CADS, for you to reimburse me for part or all of the "administrative or hearing fees charged by the arbitration administrator on any Claim submitted." Defendant name
  8. A very helpful forum member shared with me that he beat HSBC based on its FDCPA violations. He also shared with me that, in NC, Portfolio is most likely required to attach a contract to its complaint. I need to confirm if this holds true for NC. No contract was included. So, I'm going to start researching how I may be able to dismiss. Separately, I'm going to pick up a copy today of the returned summons. The civil summons is dated and the complaint was filed on 2/7/13. In NC, upon filing of the complaint, the summons should be issued within five days. Mine was issued yesterday, on the 5th day. Okay on this note.
  9. Thanks for your input. I have no idea what JAMS even is, so I need to get reading! I'm off to read her threads! I located the cardmember agreement, and it reads: "On any claim you file, you will pay the first $50 of the filing fee. At your request, we will pay the remainder of the filing fee and any administrative or hearing fees charged by the arbitration administrator on any Claim submitted by you in arbitration up to a maximum of $1,500. If you are required to pay any additional fees to the arbitration administrator, we will consider a request by you to pay all or part of the additional fees; however, we shall not be obligated to pay any additional fees unless the arbitrator grants you an award..."
  10. Thanks for your response. Yes, since my original post, I read that Portfolio Recovery is the nation's third largest debt buyer. Also, I understand that trying to incorporate Redine Recovery as part of the defense is not reasonable. Yes, I did - in fact - make the last payment on that date, so that's concrete, a fact. I've communicated briefly with a lawyer in my state. I realize that my only real two options are- to settle and/or submit the written response with my defenses. The lawyer says I should be able to get a settlement, without issue, but it's best to pay the big lump-sum (reduced settlement) immediately or Portfolio will probably only agree to payments on the full amount that's supposedly due. But, I have no contractual relationship with Portfolio. I don't owe money to Portfolio. I'm thinking about what the best option is. It seems the best and strongest defense at this point, should I submit a written response, is that Portfolio is simply a third-party acting independently of any alleged first-hand contract that it's claiming it initiated between itself and me. I didn't enter into any contract with Portfolio. Portfolio included as evidence the "sale, transfer," etc. of my supposed account from HSBC to Portfolio; however, there is no authorization from HSBC included as evidence allowing the transfer of my Social Security number, which Portfolio has and submitted as evidence, per a printout HSBC provided Portfolio. Is that a violation of my rights under the Social Security Privacy Act? Portfolio isn't authorized to have the documents inclusive of my Social Security number attached to HSBC accounts. It's quite clear that HSBC and Portfolio engaged in dialogue regarding transferring my personal and private information, inclusive of my Social Security number, full name, address, home phone, work phone, etc. Could this contitute a conspiracy that violates my constitutional and civil rights, disguised in such a way that it circumvents and violates the laws of the U.S. and IRS tax codes? Anyway, I'm just getting started on this and am formulating...
  11. A sheriff hand-delivered a civil summons today based on an alleged debt that originated with HSBC. The last payment made to HSBC was such that the SOL cannot be used as a defense. The docs state that I owe $1,775, plus interest at the "legal rate of 8% annum..." Edit: HSBC sold the alleged debt to PRA, while Redline Recovery is simply a debt collector. Obviously, HSBC owned the debt while Recovery was trying to secure a settlement. Therefore, the following paragraph is of no significance to my case. Here's a fact that may or may not apply (see item 16 below)--again, the debt originated with HSBC. Then, I received a mailed notice dated February 2011 from Redline Recovery. Redline Recovery stated that my "account has been placed with our office for collection." I never respondend and/or contacted Redline Recovery. The last notice from Redline Recovery was dated 2/3/11, and it offered me a settlement. It states in writing that I had until 2/25/11 to accept the settlement offer. I took no action. However, in the documents I received today, there's an "assignment and bill of sale," which reads that HSBC entered into a purchase and sale agreement as of 2/7/11 with Portfolio Recovery Associates (PRA) "for the sale of Prime Fresh Charged off Receivables..." Meaning, PRA "purchased" my debt, I guess, and PRA is the plaintiff in my case. Is this noteworthy? Is it something that should be mentioned in my reply? How can the bill of sale be valid on 2/7/11 when another collection agency, Redline Recovery, had just sent me a settlement offer dated 2/3/11 for the same debt and extended the acceptance period to 2/25/11? I called the local court and confirmed that, yes, a case has been filed. I have 30 days to answer the complaint received. Any ideas as to the best course of action? I'm reading through people's experiences. Thanks so much! 1. Who is the named plaintiff in the suit? PRA 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Initials are S.R. 3. How much are you being sued for? $1,775 plus 8% interest 4. Who is the original creditor? (if not the Plaintiff) HSBC 5. How do you know you are being sued? Served the paperwork with complaint and civil summons today. 6. How were you served? (Mail, In person, Notice on door) Sheriff 7. Was the service legal as required by your state? Seemingly. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Yes, PRA snail mailed a couple notices. 9. What state and county do you live in? North Carolina. 10. When is the last time you paid on this account? Just under 3 years. 11. What is the SOL on the debt? To find out: 3 Years in NC. 12. 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). N/A, yet. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No. 15. 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? 30 Days. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. The complaint.Two credit card statements from the original creditor, HSBC, are attached as evidence. One clearly shows the last payment date.Two typed "Assignments and Bills of Sale."A printout with my name, account number, address, phone, and other sensitive data that reads, "data printed by Portfolio Recovery Associates from electronic records provided by HSBC Bank Nevada, N.A. pursuant to the sale of accounts from HSBC to PRA."
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