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Just Got Served Today...Portfolio Recovery


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They sent you at much as the law requires for validation - they are not obligated to provide copies of signed contracts, etc.

If the last actual payment on the account was in December '04 (or even January '05) then it looks to me as if this account is OOS and your girlfriend could cite that as an affirmative defense. However, I'm not expert on California law so I'd suggest you investigate that.

Whatever records you need to substantiate the date of the last payment can be obtained from them through the Discovery process (assuming they have those records).

If you are going to bother to answer the summons then you must make sure you do so NLT the date specified in the summons.

With that said, you need to consider whether this is something worth fighting or not. Fighting a lawsuit; especially on your own can be time intensive plus they may win even if you fight and even if they shouldn't win.

So...if she has no assets they can touch and isn't likely to have any in the future then whether they have a judgment or not becomes something of a moot point and may not be worth the effort.

Then again, if you want to just file the answer and show up in court and give your story; you really don't have much to loose.

By the way, paper or not paper checks is irrelevant - they can mess with any account in her name if they have a judgment (although if all the cash in it is from SSI your girlfriend will win that fight) so if they obtain one, I'd suggest you not keep that money in any sort of checking/savings account attached to her name/SSN.

You'll just have to weigh the pros/cons and decide for yourselves.

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hey thx alot Rob for the prompt response...and yes...if they do get the judgement...she will just close the account with her SSN attached to it...she will just have to cash her disability check at a check cashing store :(

the reason I would like to show up and fight it is because sometimes there are instances that come up where a bank acct is needed....and we dont want to lose it without a fight

thats the only reason we are going to show up

now...I am familiar with the discovery process (I actually went the process when I got a speeding ticket here in cali)

it says on the summons the lawyers who are suing her are "Samantha Lopez" and "Emily Pierce" with Portfolio being the plaintiff...both located in Norfolk VA

who exactly would I request discovery from?

the 866 number on the summons led me to some rude lady...I doubt she will be any help..lol

I just want to make sure I answer the summons properly...I assume I cannot ask for discovery BEFORE I answer the summons

so

what exactly would her defense be on the summons answer?

and can the answer be changed later??

thx again for all your help and advice

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I'm not an attorney and even if I thought I could give you those answers I'd rather not do so.

Most of what you need to know can be found in the California rules of civil procedure. You can probably find out a lot by searching the web and/or look for any self-help manuals that can help you with the paperwork. You might also seek some help through the MS society or some other community/social services group to see if you might qualify for some pro-bono work from a local attorney.

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I'm not an attorney and even if I thought I could give you those answers I'd rather not do so.

Most of what you need to know can be found in the California rules of civil procedure. You can probably find out a lot by searching the web and/or look for any self-help manuals that can help you with the paperwork. You might also seek some help through the MS society or some other community/social services group to see if you might qualify for some pro-bono work from a local attorney.

thx for the advice...you know as I research a little more...her past payment could have been sent in Jan 05 and didnt post until Feb 05

so it looks like those greasy slimey vamps might have slipped the lawsuit in right before the SOL expired

so Im not going to have her use that as a defense

what would be a good answer for this?

debt never validated??

no contract with her signature???

:cry::cry:

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she will just close the account with her SSN attached to it...she will just have to cash her disability check at a check cashing store

She'll want to get in touch with her local SSA office prior to doing that, so her payments can be switched to paper checks BEFORE you close the bank account. If not, SSA will likely suspend the payments until they figure out what's going on.

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She'll want to get in touch with her local SSA office prior to doing that, so her payments can be switched to paper checks BEFORE you close the bank account. If not, SSA will likely suspend the payments until they figure out what's going on.

thx for the reply nascar....yes...I will make sure to do that before we close the account

I think the defense we will use is 'no knowledge'

the way I understand it...with this defense...you are saying that you dont deny having the card....but you disagree with a portion of the amount or the entire debt amount

then at that point the burden of proof is shifted to the plaintiff to provide documents i.e singed contracts, statements etc to the court...to prove this debt is actually owed

I would be SHOCKED if they can pull out something with her signature on it from 4 years ago...but hey...I guess we'll find out that day in court!

I also have a copy of her DV letter along with the signature showing they accepted it...I will have her give that to the judge as well...along with the blurry 4 page statements portfolio sent us

thx

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I would still raise SOL as an affirmative defense.

It might help if you can find the check/bank statement that shows her check was cashed before Feb. 5, 2005.

Send discovery and request full chain of ownership, contract, signature, etc.

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I would still raise SOL as an affirmative defense.

It might help if you can find the check/bank statement that shows her check was cashed before Feb. 5, 2005.

Send discovery and request full chain of ownership, contract, signature, etc.

but dosent she have to answer BEFORE they would send me discovery??

are you saying I could request discovery today??

and I think she paid her bills back then using online bill pay through her bank....and she dosent have that account anymore....I dont have any documents showing when that last payment was made...Im just ASSUMING it was posted in FEB05...but the payment was actually made in JAN05

what if I have her respond with the SOL defense...and the plaintiff shows that it is within the SOL? (in cali its 4 years)

can I have her change the response later??

I want to make sure I dont botch the response/summons answer

thx for you time

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Talk of Discovery is premature. Plenty of time to worry about that later. Right now the thing is to file the Answer.

To do that use form PLD-C-010, Answer, Contract from this website:

http://www.courtinfo.ca.gov/cgi-bin/forms.cgi#forms

You may be able to get the fees to file the Answer waived. Be sure to ask the clerk for the form and fill it out.

Much of the Answer form is just "fill-in-the-boxes". It asks which claims by plaintiff you deny. You fill in the paragraph numbers. It asks which claims do you have no information for, thus deny. You fill in the paragraph numbers. It asks for Affirmative Defenses. There's a Sticky up above with many examples. Pick those that apply, but make sure you understand them. You will almost certainly want to use these standard ones:

- The complaint fails to state facts sufficient to constitute a cause of action as against this defendant.

- Plaintiff is not a proper party to this action and is therefore barred from pursuing same.

- Plaintiff has failed to mitigate its damages, if any it had.

- Claim is barred by the Statute of Limitations.

The Answer must be filed with the court, and a copy mailed to plaintiff's attorney. The address to use should be at the top of the summons you were given. I looked up your attorneys, Lopez and Pierce. Each appears to be employed by Portfolio, and they have offices in San Diego and San Francisco, respectively, and they are licensed to practice law in California.

Good luck.

DH

PS Search for a lawyer to help you at www.naca.net.

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Talk of Discovery is premature. Plenty of time to worry about that later. Right now the thing is to file the Answer.

To do that use form PLD-C-010, Answer, Contract from this website:

You may be able to get the fees to file the Answer waived. Be sure to ask the clerk for the form and fill it out.

Much of the Answer form is just "fill-in-the-boxes". It asks which claims by plaintiff you deny. You fill in the paragraph numbers. It asks which claims do you have no information for, thus deny. You fill in the paragraph numbers. It asks for Affirmative Defenses. There's a Sticky up above with many examples. Pick those that apply, but make sure you understand them. You will almost certainly want to use these standard ones:

- The complaint fails to state facts sufficient to constitute a cause of action as against this defendant.

- Plaintiff is not a proper party to this action and is therefore barred from pursuing same.

- Plaintiff has failed to mitigate its damages, if any it had.

- Claim is barred by the Statute of Limitations.

The Answer must be filed with the court, and a copy mailed to plaintiff's attorney. The address to use should be at the top of the summons you were given. I looked up your attorneys, Lopez and Pierce. Each appears to be employed by Portfolio, and they have offices in San Diego and San Francisco, respectively, and they are licensed to practice law in California.

Good luck.

DH

PS Search for a lawyer to help you at .

wow

thats some great info "husband"...way to look out for the little people :)++

so in a sense...when you respond...you actually can respond with multiple defenses

hmm

so lets say your defense is SOL AND failure to prove the debt

and the judge rules in the defendants favor

are those violations of the FDCPA?

you think a consumer lawyer might be interested in making some easy money???

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The rules vary by state and depending on the court, whether it is small claims, state or federal, but in general, many states allow you to send discovery requests with your petition and/or your answer. At least the basic request for admissions and request for disclosures.

You have time to send interrogatories and requests for productions later on. Get your answer ready first.

Find a consumer attorney in your area at naca.net

Maybe you can find someone to take it on contingency.

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so in a sense...when you respond...you actually can respond with multiple defenses

Yes, yes, yes. I didn't realize you didn't know that. You want to use as many Affirmative Defenses as apply. I've seen Answers filed with about 23 Affirmative Defenses. That was by a lawyer, of course, and may be a little excessive, but there you go.

so lets say your defense is SOL AND failure to prove the debt

and the judge rules in the defendants favor

are those violations of the FDCPA?

I'm not sure, but I don't think so. I've seen posters here claim that filing or threatening to file a lawsuit when the SOL is expired is an FDCPA violation because it is "misrepresenting the legal status of a debt."

But then you read that an expired SOL is just an Affirmative Defense that must be raised if one is sued. That would seem to imply that there's nothing illegal about them filing the suit; you just have an iron-clad defense to get it dismissed if the SOL has expired.

The best thing to do is call a NACA attorney and ask them.

Good luck,

DH

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a lawyer posted this on a law website...according to him...the SOL clock is determined from the "date of last activity"

For SOL purposes, the operative date is the last date of activity (the last date you made a payment). If the time between the last date of activity and the date of the filing of the lawsuit is more than the length of the particular statute of limitations that applies, then the affirmative defense of limitations will ultimately lead to the suit being dismissed. However there are some exceptions.

another question...is raising the SOL defense admitting to the debt?? :confused::confused:

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