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  1. OK. So I am the defendant in a debt collection lawsuit. I sent my verified interrogatories, affirmations and demand for documents along with proof of service. The empty envelope was returned to the "proof of service" person with a stamp claiming the envelope arrived empty. The empty envelope was obviously opened, because they taped it closed. I am 100% positive the envelope contained all docs and I was with my "proof of service" person when she mailed them at the post office. What do I do about this? I am dealing with Portfolio Recovery Associates LLC. Thanks for all help! Calico
  2. Introduction: Sued by JH Debt Portfolio Equities, LLC (JDB2), debt purchased from Oliphant Financial, LLC (JDB1) whom purchased from OC (Capital One) Account and Debt are unknown to me (Pro Se Defendant) Responded to Petition with General Denial and Special Exceptions, requested Disclosures from Plaintiff (required multiple additional requests to comply to get documents) Responded to Plaintiff's Request for Admission with Denials. Current Delimma: Plaintiff (JDB2) filed Motion for Summary Judgment. In the motion the Plaintiff specifically refers to Bussiness Record Affidavit and an Affidavit for Attorney Fees. The motion fails to enumerate the facts at issues and which pages of attached evidence address the facts, it does have documents attached as evidence, all of which fail to show a direct link between the Plaintiff and account. (Attached) How do I specify issues of fact and objections if the motion is stated in a general manner? Strategically, if I go through all of the pleadings and motion and identify related evidence + weaknesses I do myself a disservice. I would be stating the grounds for their case, giving them all the info they need to strengthen their case, and it providing them with information regarding my strategy, knowledge base, and abilities. Can someone please help me with how best to address this issue? I know that I can request revisions by specifying things that are vague or ambiguous, but that my request is too general it will be denied, and am again unsure because their entire motion is too vague and ambiguous. I welcome your related experiences and advice. Thank you in advance. JDB-MSJ.pdf
  3. 1. Who is the named plaintiff in the suit? Portfolio Recovery Associates, LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) "Portfolio Recovery Associates," with Original Petition signed by Orjanel Lewis, Texas SBN 24083667 3. How much are you being sued for? $3,134.72 4. Who is the original creditor? (if not the Plaintiff) Cit Online Bank / Dell Financial Services, LLC 5. How do you know you are being sued? (You were served, right?) Served 9/15/2016 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? None. Never any phone calls or mail from anyone from Portfolio Recovery Associates. 9. What state and county do you live in? Texas, Brazoria County 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Not sure. Claimed to be January 21, 2013 in Complaint, but should have been sometime prior to mid-to-late 2012 if it is an account of mine. Date complaint filed with the court was August 23, 2016. 11. What is the SOL on the debt? 4 years. Account opened in 2005 as claimed in suit would have been in Mississippi, with 3 year SOL. I moved to Texas in August 2012. 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). Suit Served 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? 14 days, ending Thursday, September 29, 2016. Answer filed with the justice court on September 28. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. The complete Original Petition is inserted below, but a summary of attachments is: a. Affidavit of PSA Custodian of Records supposedly certifying “personal knowledge of Account Assignee's record keeping system,” b. un-notarized “Bill of Sale” from “Kelly M. Barrett, Title: President” with title at bottom the page of “WebBank Secondary Bill of Sale FY15 FFDS Month 8,” c. “Schedule 1 to Bill of Sale dated October 14, 2014 – Accounts specifically identified in the following file: Secondary FF Oct2014 sales WebBank.xlsx Is save and encrypted on Hyperoffice at the following path: WebBank / DFS / Asset Transfer / Oct (2014) FY15 FFDS Month 8 d. Apparent photocopy of Dell Financial Savings statement from October 2013 with my name and address e. Status Report to Servicemembers Civil Relief Act (I am not and have never been in the military) The Original Petition served from the justice court is as follows: =========================== (Begin Petition) =============================(end Petition) I have filed an Answer with the justice court which is basically the one posted on this forum by TexasRocker: =============================(begin Answer) Case No. xxxxxxx PORTFOLIO RECOVERY ASSOCIATES, LLC § IN THE JUSTICE COURT ASSIGNEE OF CIT ONLINE BANK / DELL § FINANCIAL SERVICES, LLC § Plaintiff § § PR 4 PL 1 v. § § xxxxxxxxxxxxxxxxxxxx § Defendant § BRAZORIA COUNTY, TEXAS DEFENDANT'S ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS ANSWER Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of The Plaintiff's allegations. Defendant asserts that the claims are barred by the applicable statute of limitations. Defendant asserts that the interest rates charged by the original creditor are usurious. PLEA TO THE JURISDICTION Grounds for Dismissal for Lack of Standing This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges "Defendant's(s').credit account was assigned to Plaintiff on October 16, 2014, and Plaintiff is the current holder of Defendant's(s') account. See Plaintiff's Original Petition under "Facts," paragraph 7. There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit. A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Ceramic Tile Intern., Inc, v. Balusek, 137 S.W.3d 722, 724 (Tex. App, – San Antonio 2004, no pet.); Delaney v. Davis, 81 S.W.3d 445, 448-49 (Tex. App, – Houston [14th district] 2002, no pet.). Plaintiff has not done either. If Plaintiff is the assignee and rightful owner of the debt, this should be very easy for Plaintiff to allege and prove, yet Plaintiff avoids and dodges the issue, when such issues cannot wait until trial. Without a pleading of an assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and this case must be dismissed. Whether plaintiff has standing to bring this lawsuit is a threshold issue that should be resolved at the onset, and the instant plea to the jurisdiction is a proper means by which to address this threshold question. Legal Standards for a Plea to the Jurisdiction The purpose of a plea to the jurisdiction is to dismiss a cause of action without regard to whether the underlying claim has merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the court's power to adjudicate the subject matter of the controversy. Texas Dept. of Transp. v. Arzate, 159 S.W.3d 188, 190 (Tex.App. – El Paso 2004, no pet.), Axtell v. University of Texas, 69 S.W.3d 261, 263 (Tex.App. – Austin 2002, no pet.). Standing is a basic requirement of the judicial system and goes directly to the court's subject matter jurisdiction over a case. It may be raised at any time and, unlike a challenge to a party's capacity to sue, cannot be waived or presumed. Nootsie Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 661-662 (Tex. 1996), Continental Coffee Products v. Cazarez, 937 S.W.2d 444 n.2 (Tex, 1996). A plea to the jurisdiction is the proper way to challenge a party's lack of standing. Waco ISD v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000). The Plaintiff must come forward with sufficient evidence to demonstrate that there is at least an issue of fact as to the existence of jurisdiction. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227-228 (Tex. 2004). The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the Plaintiff is not the original creditor, which therefore puts standing at issue, and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit. SPECIAL EXCEPTION TO ACCOUNT STATED 1. Credit Card Cases Are Based on Express Contracts and Cannot Be Brought On Implied Contract Theories Like Account Stated. The Texas Supreme Court made clear in Truly v. Austin, 744 S.W. 2d 934, 936 (Tex. 1988) that a plaintiff may not avoid the terms of its express contract by seeking recovery on an implied contract theory if the damages claimed are covered by the express contract. Credit card cases brought on an account stated theory violate this Supreme Court holding. Credit Card arrangements are governed by express contracts. The only viable cause of action for breach of a credit card is breach of contract. Implied or quasi-contractual causes of action like an account stated cannot be brought on a credit card debt without violating Truly v. Austin. Texas courts will not imply the existence of contract where an express contract already exists. Fortune Production Co. v. Conoco, Inc.,52 S.W.3d 671 684 (Tex. 2000), Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex 1964), Musick v. Pogue, 330 S.W.2d 696, 699 (Tex. Civ App.- San Antonio 1959, writ ref'd n.r.e.). The reason for this rule, as described by the Supreme Court in Fortune Production, is that parties should be bound by their express agreements. When a valid agreement addresses the matter, a party should not be able to recover more than is provided for in the agreement. Id., 52 S.W.3d at 684. "Count 1" of the Original petition fails to provide fair notice as to how The Plaintiff can avoid this express contract in favor of an account stated. The principle that a plaintiff should not be able to use an implied contractual theory to recover more than his contract authorizes is particularly applicable to credit card cases. Credit card fees and interest rates are heavily regulated. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended. See e.g. 15 U.S.C. § 1637 ¶ (1)-(7), 12 C.F.R. 225.5-225.16. Credit card plaintiffs should be able to produce these disclosures or otherwise prove the interest rates and fees that their customers agreed to pay. Using an account stated theory to imply an agreement to pay the interest and fees would improperly relieve plaintiff from establishing the amount of interest and fees that were required to be disclosed to the defendant under Federal law, and must have been included in the terms of its alleged express agreement with the defendant. 2. A Credit Card Account Is Not an Account Stated A credit card account is not an "account" as that term has been used in the common law governing suits on account. A credit card account does not arise out of a course of dealing between two parties engaging in transactions in goods. A credit card account is a multiparty arrangement. Each transaction involves at a minimum, the debtor, a merchant, the merchant's bank, a clearing organization such as Visa, Mastercard, American Express, the card issuing bank and the card issuing bank's credit card processing unit. Every transaction brings a new merchant and merchant bank into the web of transactions that make up the account, with the result that over the term of a credit card account, hundreds of parties may be involved, not just two as envisioned for a common law account. Moreover, the transactions in a credit card account are not merely sales of goods. The account issuer does not sell goods to the account holder: instead, it makes extensions of credit to the account holder or to third party merchants on the account holder's behalf. For these reasons the cause of action for account stated does not apply to credit cards. An account stated is merely an open account that has been closed because the party charged has agreed that the account is correct. Whittlesey v. Spofford, 47 Tex. 13, (Tex. 1877), Wroten Grain & Lumber v. Mineola Box Mfg. Co., 95 S.W. 744 (Tex Civ. App.-1906), Padgitt Bros. Co. v. Dorsey, 194 S.W. 1124, 1126 (Tex Civ. App.- El Paso 1917, no writ). An open account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from one to the other. McCamant v. Batsell, 59 Tex. 363, 367-369 (Tex 1883), Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex App.----Beaumont 199, no writ). Over a century ago in McCamant v. Batsell, 59 Tex. 363, 1883 WL 9175 (Tex. 1883), a case that has never been overruled, The Supreme Court construed the word “account” as it is used in this context as limited to suits arising out of relationships in which title to goods was transferred from the plaintiff to the defendant and further excluding suits in which the rights of the parties were defined by a written agreement. In McCamant, a suit on a promissory note, the plaintiff sought to make use of the then existing statute governing suits on account, which like current Rule 185, set up abbreviated procedure for resolving disputes involving such suits. Unlike the current rule the statute did not enumerate the kinds of action that could be brought as suits on account. The Supreme Court construed the meaning of the term “account” in the statute as being consistent with the common law meaning of the term: “As used in the statutes of this state, in the act referred to, we believe that the word 'account' is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon one side and purchases upon the other, the title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing.” The Court also ruled that the plaintiff’s suit against the maker of a note and his sureties could not be brought as a suit on account or an open account because it did not arise out of the course of dealings between a buyer and seller, but was based upon a written agreement in which all the terms were fixed and certain. Id., 1883 WL 9175 at 6. The Supreme Court reaffirmed the holding of McCamant in Meaders v. Biskamp, 316 S.W.2d 75 (Tex. 1958), in which The Court distinguished a suit on an account from a suit based upon an express contract for purposes of awarding attorney’s fees. The then-applicable language of Tex. Civ. Stat. Art. 2226, the predecessor to Tex. Civ. Prac. & Rem. Code Ch. 38 permitted an award of attorney’s fees for a suit upon a sworn account but did not include the present language authorizing fees in a breach of contract case. The Meaders court, citing McCamant, held that a suit founded upon a written contract for the drilling of an oil well was not a suit on account because the relationship of debtor and creditor did not arise from a course of dealing but from a contract. Id., 316 S.W.2d at 78 The classic statements of the elements of the account stated cause of action expressly draw a distinction between suits that grow out of a course of dealing and suits that grow out of an express agreement. For example, in Central Nat. Bank of San Angelo v. Cox, 96 S.W.2d 746, 748(Tex. Civ. App.—Austin 1936, writ dismissed), the court said: “The cases are legion on what constitutes an account stated. In general the essential elements involved are: Transactions between the parties which give rise to an indebtedness of one to the other; an agreement, express or implied, between them fixing the amount due; and a promise, express or implied, by the one to be charged, to pay such indebtedness. 1 Tex.Jur. p. 371 et seq.; 1 C.J. 678; 1 Am.Jur. 272; 1 C.J.S., Account Stated, p. 693.” The first and defining element of the claim is existence of a debtor-creditor relationship that arises from a series of transactions—from a course of dealing, not a contract. This element is identical across all suits on account, whether open, sworn or stated. While the other elements of the claim do reference an agreement, the subject matter of the agreement is not the creation or terms of the debtor-creditor relationship, but the acknowledgment, after the transactions that gave rise to the relationship have occurred, of the amount due and the obligation to pay. Recent court of appeals decisions allowing a stated account on a credit card have overlooked these Texas Supreme Court authorities and instead are based upon mere dicta from a footnote in a decision out of the Dallas court of appeals. In a footnote in that case, Dulong v. Citibank (South Dakota) N.A., 261 S.W.3d 890 (Tex.App.----Dallas 2008) the court stated that a sworn account requires the passage of title and is thus not a proper tool for a credit card case but noted that it differs from an account stated in this regard. But neither that decision nor any of the other appellate decisions that have followed it have explained how they reached this conclusion. These decisions are utterly devoid of any analysis or legal authority on the issue, and none of them discuss McCamant v. Batsell. These decisions are simply contrary to Texas Supreme Court authority PRAYER Wherefore, premises considered, Defendant prays that the Court grant his Plea to the Jurisdiction, grant his Special Exceptions, enter judgment in his favor and against Plaintiff, that Plaintiff take nothing, that the Court assess costs against Plaintiff and award Defendant all other relief, at law and in equity, to which he is entitled. Respectfully Submitted, Signed_________________________________ Name: xxxxxxxxxxx Address: xxxxxxxxxxxx Phone: xxxxxxxxxxx CERTIFICATE OF SERVICE I do hereby certify that I will mail by Certified Mail with return receipt a true and correct copy of this ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS to the Plaintiff on the 28th day of September, 2016. Signed____________________________________ Name: xxxxxxxxx Phone: xxxxxxxxx ======================= (End Answer) I have received the green certified mail Return Receipt card from the plaintiff for this Answer. I've been working through the book "O'Connor's Texas Rules - Civil Trials" recommended by TexasRocker, and from it and other reading I've done in civil procedure ebooks available from the Texas State Law Library, I'm feeling more and more confident that a lot of the deficiencies cited by other forum members in their cases are contained in the plaintiff's Original Petition. The "Bill of Sale" is generic and does not even have a notarized signature, and the affidavit from the PRA employee to establish the business record refers only to a vague entry in some computer file somewhere, not a specific record with my name or data. The more I read and observe, this Petition appears to contain just enough "evidence" to back up a default judgment, but with plenty of holes--with many referenced by the points in TexasRocker's Answer--that would be easy to exploit if the suit continues. I am presently working on Discovery questions to submit to the justice court for approval to send to the plaintiff; as of today I have received no Discovery questions or other correspondence from the plaintiff or anyone else from Portfolio Recovery Associates. I would appreciate any suggestions on proceeding further, but TexasRocker's example Answer has already been indispensable. Just before finding it here I almost filed just a General Denial, but TexasRocker's arguments looked better than anything else I had found elsewhere or that I had tried to cobble together myself. I'll be sure to post any and all developments here so that everyone can benefit from what happens with me in this suit. I will also be happy to answer any questions if I've been unclear with anything I've posted. Just note that I suffer from debilitating migraines and fibromyalgia that can put me out of commission for days at a time, so if I don't respond immediately to a post this is most likely the reason. It's not that I'm ignoring anyone, and the occasional fibromyalgia "brain fog" could make one of my postings more incoherent than I would like it to be. (I'm hoping a medication adjustment appointment with my internist next week will help enough for me to make it relatively symptom-free through this next push with Discovery and anything else that crops up with the suit.) Thanks in advance to all... Bozee
  4. Hi everyone, I am new to the board and this is my first post. I am looking for some advice on how to proceed with two debts being collected on by Portfolio Recovery Associates. The first debt was originally owned by HSBC before they were bought by Capital One and the account balance is $1,900. The last payment was made sometime during 2013 and was later charged off. The other debt was originally owned by Comenity Bank, the last payment was also in 2013 before it was charged off and the balance is $1,400. I was not aware of what the debts were at first so I sent a debt validation letter to PRA. So far they have "validated" only the Comenity Bank debt by sending me copies of 3 credit card statements, one showing the balance that they are requesting. I am now worried sick that they will attempt to sue me for the debt as I am now trying to rebuild. I have been reading a lot about junk debt buyers, settling, and arbitration but I am unsure as to what steps I need to take next or if I do nothing at all and just wait to see what they do. I'm hoping someone can offer advice on what my options are and what I should do to attempt to protect myself from a judgement being placed on my CR. Any advice? Thank you in advance!
  5. I am a victim of identity theft, and I have reported to the police & FTC. Thanks to the advice given by members on here, I have been able to resolve quite a few fraudulent accounts & collections (approx. 20 to date). There is 1 CA that continues to report fraudulent collections, and they threaten to report more. I have had 7 collections removed that Commonwealth Financial Systems have placed on my credit reports due to failure to verify when disputed with the CRA's. After failing to verify with 1 bureau, they turned around and reported the same collection to another bureau. So they know 1 bureau deleted a collection due to their failure to verify, but they report to another bureau knowing they couldn't verify the collection from the beginning? Is this a violation? They have done this 3 times now, and they threaten 6 more collection that are not mine! I included every collection to date from this company in the police report, and have security freeze with all 3 CRA's to prevent further fraud, but this CA calls my home phone numerous times a day, and they recently started calling my cell phone (I am guessing they got my cell number from the contact information included in the fraud alert statement with all 3 CRA's). They are using an automated system to place the calls to my home phone, but not sure about cell because I haven't answered any of their calls made on there yet. I am just wondering what can be done to stop this without having to continue wasting my time/money disputing & requesting validation when they are 0/7 even verifying with CRA's? Thank you in advance for taking the time to read this, as this site has been a great help to me through all of this. I forgot to add this info earlier, and not sure if it makes a difference or not. I disputed most of the collections reported by CFSI prior to having ID theft complaint/police report completed, but all of the fraudulent debts they reported were included in the complaint. They reported 1 of the collections that had been deleted from 1 CRA already to another CRA after filing the report. I disputed it again with this CRA (EX), and included a copy of the police report. I have not contacted CFSI directly because they have yet to verify anything they have ever reported on my credit. I know the suggested method is to notify the CA, send them a copy of the ID theft complaint/report, but I have not done this to protect my personal info that they hopefully don't already have. There is ALOT of information in the report (approx 73 pages total once the police completed their actual report), including bank account info, license #, etc., that I am not comfortable giving a CA which has disregarded the law and my rights. They have reported nothing other than fraudulent debt/collections, and they are fully aware of what they are doing. Am I still obligated to provide the report to them? Would the CRA provide them with a copy since it is supporting documentation for dispute? Or do they just inform them that the account is a result of ID theft, then block/delete it? As far as the debts they are threatening to report, the freeze should prevent for now, but considering filing a complaint to resolve permanently. Also, I do not have an attorney because I have been able to resolve most of the fraud with the help of this site, info on government sites, and the help of local police. If I need to take legal action against a CA, then I will retain one.
  6. IS MY COMPLAINT VERIFIED? Hello all! So, I've been looking through these forums and they just seem so awesome and helpful! I've been searching for a case similar to mine and I believe I found a very helpful one here: http://www.creditinf...a/#entry1202922 BUT… I need to know If my complaint has been verified. The filed Complaint itself has no mention of the statement "I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct this date…" - the only place where that statement is present is on the Statement of Venue - so is this considered as a verified complaint? All that is present in the Statement of Venue is: I, the undersigned, hereby declare that: (1) The contract herein sued upon is hereinafter called and referred to as "the contract". (2) This action is filed in the judicial district in which: One of the defendants currently resides. Is this a verified complaint? Thank you all so much for your help!! P.S. I'm still looking into when my last payment was and I will update by tomorrow with that info. 1. Who is the named plaintiff in the suit? Cavalry SPV I, LLC. 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Winn Law group 3. How much are you being sued for? $2563.46 4. Who is the original creditor? (if not the Plaintiff) FIA Card Services, NA/Alaska Airlines (Bank of America) 5. How do you know you are being sued? (You were served, right?) Was served. 6. How were you served? (Mail, In person, Notice on door) In Person. 7. Was the service legal as required by your state? I believe so. 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? Sacramento County, Sacramento California 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 11. What is the SOL on the debt? Since its Bank of America I believe that it's 3 years 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). Summons Filed - Proof of Service of 30-Day - Summons and Complaint filed as of 4/10/14 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. And 'tis too late. 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? Have 30 days from 4/10/14 - or is it from the day I was served, which was the 4/8/14? Claiming that no part of the $2500 debt was paid to the plaintiff. "Within the last 4 years, Defendant became indebted to original creditor (see answer to question 4) in the sum of $2563.45 for money lent to or paid out… Neither the whole or any part of the above sum has been paid. Judgments prayed for by plaintiff: (1) Principal of damages in the sum of $2563.45 (2) Costs of Suit (3) Such other relief as the Court may deem just and proper. No questionnaire. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No affidavits, no statements from OC, no contract, nothing attached as an exhibit Again, thanks so much for your help!
  7. Looking for some advice on dealing with this collection agency Portfolio Recovery Associates. Same old story, I went thru some very hard times about 4 years ago and now im dealing with the consequences. Recently Ive been contacted by Portfolio Recovery Associates regarding TWO accounts that they have purchased and are now trying to contact me about settling debt. One of the accounts is an old GE Bank Credit Card (Walmart) that is out of the Statue of Limitations in my state. (im in Texas and I believe the SOL is 4 years on debt.) The letter that I received regarding that account is has this text written on the bottom: "Because of the age of your debt, we will not sue you for it and we will not report it to any credit reporting agency."The letter also states that they bought the debt from "ARROW FINANCIAL SERVICES LLC", so I assume it should be out of the SOL. The most recent letter has stated that I owe around $650 but they will settle for 3 options:1.) I pay $251.00 straight out2.) I oay $47.00 for 6 months3.) I pay $26.00 for 12 monthsSince this debt is so old, and isnt being reported to credit agencies then whats the point of settling with them? And If I remember correctly, the credit line on that card was only $200 or something.My question on this one is, how can I figure out if it is actually out of SOL and if it is then how can I stop them from contacting me about it or have them shut down that account. Debt Validation? Cease & Desist Communications on this account? I have read that a cease & desist increases the probability of getting sued but since the letter states they CANT sue me then would it hurt to send the C&D to shut them up on that account? Now, the second account that they have is an old Capital One Bank credit card account which according to the mail document was purchased directly from Capital One. This account was purchased in 2013 and from one brief conversation I had with one of the reps on the phone, they said the last activity was from 2011. I have since ignored all calls as they have increased after accidentally speaking to them once. I am unsure if this is outside the statute of limitations since I dont recall when I ceased to make payments and it got charged off. Unless it just now was charged off and Portfolio Recovery Associates just now got their hands on it. I am currently in the process of obtaining my credit report to see whats actually there and if both of these debts are reporting. On this account, they claim I owe something between $800-$1000 but I know for sure that this card was another low credit line of something like $250. A letter states I owe $850 but on the phone the rep said something like $1100. It seems they are increasing the amount due with every communication.My question on this one is how can I clarify what exactly I should owe, whether or not it is within the SOL, and whether I should make a deal with them. Also, should I start this off with a Debt Validation Letter and just go from there? Is the probability of being sued for this one higher since it may not be out of SOL yet? Its a relatively low amount so I dont see the need for getting lawyers involved. Even though they purchased the debt in 2013, I am almost certain that its been charged off since at least 2011. I have not yet received the "deal" letter on this account as they were just able to get ahold of me via phone. Ive been receiving random letters from CA's but I usually read them over quick and throw them away. They somehow dug up my cell number so now the calls are coming in more and more frequently. So thats the collection agency drama, please send any helpful advice. This is just the beginning of fixing the debt hole that I got into back when i fell on hard times but hopefully with some helpful tips and tricks it will get all figured out. I will continue to update this post as I move through the processes of dealing with all of this so hopefully it will help someone else who may be in the same issue.
  8. 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.) Weber Olcese 3. How much are you being sued for? < $10,000 4. Who is the original creditor? (if not the Plaintiff) HSBC 5. How do you know you are being sued? (You were served, right?) Yes. Served, Sumons and Complaint as well as MSD and I am trying to file an opposing MSD. Case has been adjourned 4 times. Next hearing in about 30 days. 6. How were you served? (Mail, In person, Notice on door) Summons and complaint in Person around July 1, 2013, Served MSD via Mail around October 2013, Served Discovery Requests/Admissions via mail around Jan 1, 2013- (They said it was their second time serving me) 7. Was the service legal as required by your state? Yes. 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, It's not my debt I believe it is fraud. 9. What state and county do you live in? Michigan, Wayne County. 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Never Paid on it though their records show there was a small payment made in July of 2009 11. What is the SOL on the debt? To find out: 6 years Statute of Limitations on Debts 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). Hearing scheduled later this month. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)Yes. I have recently mailed a letter dispting the debt to the collection agency, attorney on record and alleged original creditor. They have responded with the original summary statement included in the original Summons and Complaint. They did not produce a Signed credit application, Signed Purchase receipts, Original signed credit contract, Not even one detailed credit card statement, and no phone number that authorized use of the credit card. I asked for those things in that order. 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, I did not know about the debt until te suit was filed. Which was in Late June of 2013. 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? I have responded in a timely manner and we are on our 4th visit to see the Judge for an adjourned MSD Late February. I need to know how to properly file an opposing MSD and whether I need to try to subpoena documents. I have just sent in answers to their first set of Discovery requests, admissions, interrogatories and documents to produce. I can copy and paste if needed. Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They sent an affidavit of account assignment from alleged original creditor, They sent a copy of a credit card statement dated Feb, 2009 with the Summons and Complaint. After I asked for discovery, Original signed application, contract, and purchase receipts as well as all cancelled checks for payments made, They sent the 1) same statement, 2)along with a computer print out of a screenshot of a payment that was allegedly made under my name and my SS# an address I never resided- which is reflected on the Statement as well, 3) And an affidavit from the alleged original creditor as to a Bill of Sale, 4) and an affidavit from one of the collection agency's employees stating that the said account is true and accurate to their knowledge. 17. Read this article: OK. I have lots more information to provide, i.e. the last things I filed, I can paste it in a reply to this stream. Sued by a Debt Collector - Learn How to Fight Debt Lawsuits ====================================================
  9. Last month I made a written offer to settle a debt claimed that I owe by Credit Control, a collection agency acting on behalf of JH Portfolio Debt Equities, a JDB that had apparently purchased debt from a charged off Chase account. I received a response in writing from Credit Control stating that they were authorized to agree to my offer and that once my payments were complete, the account would be settled in full. They also sent me the complete agreed upon payment schedule and stated that my first payment must be received "on or before" November 29th by check, check by phone, debit or credit card by phone. As it was already close to that date by the time I received their response letter, and also a holiday week, I opted to make the first payment by phone and not trust the mail to deliver the first payment on time. I called to make the payment at around 10am on the 29th, (thinking that this would satisfy the "ON or before" due date that they had stated in their letter) and I was told that JH Portfolio had reclaimed the account and placed it with another agency. Is that even legal? Before the due date of the first agreed upon payment had even passed? A week later I receive a letter from a new collection agency, Alpha Recovery Group, requesting that I pay the original amount in full (what happened to the reduced amount that Credit Control had agreed to?). Alpha Recovery's letter was dated November 29th, again showing that this account was placed with them before the due date of the first payment per the previous agreement had even passed. Very confused, and this all seems more than a little shady to me. Not sure what my next step should be. Validation letter? Sit back and wait for them to sue me so I can submit this info to the court? I don't really see the point in trying to negotiate a settlement again if they're just going to accept and then renege before the ink is even dry on the agreement.
  10. This is the 4th time the judeg is hearing the JDB summary disposition. I am a complete novice. I want help defending myself. I need to submit an amendment by tomorrow to be within the 7 days of judge hearing the motion. I will type Plaintiff's motion for Summary disposition here: 1. On or about Nov 2002, Defendent entered into a Contract with Plaintiff's assignor whereby Plaintiff's assignor provided certain credit to Defendent based upon Defendent's promise to pay for same and more specifically described as account number *************. (see exhibit 1) 2. Based on the above, Plaintiff's assignor did ptovide the credit, which Defendent did receive. 3. Thereafter, Plaintiff's assignor sent monthly invoices to Defendent for the credit extended and Defendent made payments, or partial payments, thereof. 4. Prior to June 21, 2008, Defendent breached the Contract for the credit extended with Plaintiff's assignor by failing to properly remit payments to Plaintiff's assignor based on the monthly invoices (See Exhibit 1). 5. The account and underlying debt subsequently assigned to Plaintiff. (See Exhibit 3). 6. Plaintiff filed its Complaint on or about June 28, 2013, in order to recover the sums due and owing from Defendent under the terms of the Contract. 7. Defendent fi;ed an Answer, denying owing Plaintiff for the credit extended. 8. Pursuant to MCR 2.116©(9), Defendent has failed to state a valid defense to Plaintiff's cause of action. 9. Pursuant to MCR 2.116©(10), there is no genuine issue as to any material fact, and Plaintiff is entitled to Judgment by law. _______________________________________________________________________________________________________ I am prepared to send my answer to the summons and Complaint to whomever is willing to help me on this forum via inbox as well as my responses to their Motion for Summary Disposition, which I can paste here. I am in the process of amending those answers by tomorrow morning based on Case Laws: 1. Lack of Capacity to Sue 2. Mistake 3. Insufficient Personal Guaranty 4. FACTA "prevents victim of Identity theft including a prohibition of collection of debts incurred." As well, I have read threads from bcm100 which states that if a proper bill of sale and notorized copy of the assignment wasn't included in the filing, I should have the case immediately dismissed. ________________________________________________________________________________________________________ Trust me, time is of the essence and I will do as I am told. I have had phone conversation with the JDB as well as tried to settle with them via phone. Those calls were recorded. "I NEVER ADMITTED TO HAVING THE DEBT nor RECEIVING ANY STATEMENTS. I did however impluicate that it may have been my mother or sister....because I truly believe this is the case- if the debt is true. My sister and mother denies ever having incurred the debt as well. I do not know exactly what to do. Please answer in as timely a fashion as possible. I was hoping I could get help from bcm100. Thanks!