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Sued by Portfolio Recovery Associates!


tjabq
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I just got a summons from lawyer representing Portfolio Recovery Associates.

They are bringing suit in metro court instead of district court. Probably small claims court! They only have their complaint attached to summons, no alleged account number, affidavit, dates of alleged charge off or purchase by them, just an amount allegedly owed!

Here is exactly what their complaint looks like!

State OF NEW MEXICO

IN THE BERNALILLO METROPOLITAN COURT

COUNTY OF BERNALILLO

Portfolio Recovery Associates, LLC

Plaintiff,

My Name Here

Defendant,

Defendant(s) address: My Address Here

Defendant(s) date of birth: My DOB Here

Defendant(s) Last 4 of SSN

COMPLAINT ON AN OPEN ACCOUNT/BREACH OF CONTRACT

Portfolio Recovery Associates, LLC ("Plaintiff"), as the purchaser and assignee of the obligation under suit, and any other assignee that may have or have had any interest in the obligation, states as follows:

1. The Defendant is a resident of the County in which this suit is filed. This Court has jurisdiction.

2. Defendant(s) are indebted to plaintiff $1xxx.xx for goods and services purchased which includes contract interest on a breach of contract or in the alternative open end account(s) or on a theory of account(s) stated. The Defendant(s) has defaulted by failing to repay the Plaintiff, and that the Defendant(s) have been unjustly enriched.

3. This obligation arises out of an extension of credit obtained on an account(s) with Capital One Bank.

4.The Plaintiff took an assignment of the account(s) in good faith, for value and in the regular course of business.

5. Defendant defaulted under the terms of the obligation, despite demand for performance by the Plaintiff.

6. The balance due is $1xxx.xx

7. If any defendant was or beacame married during the time extensions of credit were made on the account(s), Plaintiff alleges the debt on the account(s) to be both community and seperate in nature.

WHEREFORE, judgement should be awarded Plaintiff against Defendant(s), both seperately and as a community, if applicable, and each of time, for the amount stated above, on the principal. costs, interest, as may be established at the time of trial, reasonable attorney fees, and such other relief as may be appropriate.

Guglielmo and Associates, PLLC

signed by jdb lawyer

lawyers address and phone.

What a crock , this looks like they expect to get an easy default with no supporting evidence!

Of course I plan to answer, any suggestions ?

what about a sworn denial and motion to dismiss on appropriate grounds?

Edited by tjabq
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This does not apply to statute of limitations in VA, This is in New Mexico!

They have not provided any documentation supporting their allegations!

He's saying VA because Capital One supposedly says in their agreement that any disputes are supposed to abide by the rules of Virgina. Does New Mexico has a borrowing statute?

In any case, you need to start preparing your answer. There are many examples on this forum.

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I beat Capital One in court.....The judge included in his ruling among other things that since the customer agreement states " This agreement will be governed by Virginia State law and Federal Laws".

They chose their own choice of law provision and has been held up in court all over the country. So the SOL is 3 years on a Cap 1 case.

Capital One keeps good records...They will provide copies of all statements. But you can argue the fact that this is not a valid contract since there is no signature on anything. You do not have or recall receiving the FTILA disclosure that is required for a valid in this instance credit card contract.

In the paperwork they will send, it will have a customer agreement or multiple customer agreements. They all state the terms of this contract can be changed at any time. Without the FTILA disclosure you have no idea where the intrest rate started or where it could go to, thus invalidating the contract.

File a motion to dismiss based upon lack of standing. The case was not proven with the paperwork they provided.

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what about asserting the Arbitation clause from their Cap 1 agreement?

apparently alleged account showing on credit report is from before they took arbitration clause out.

How should I include this point in my answer to their complaint?

How does this look...?

Allegation 1: Admit that Defendant is a resident in the County of Bernalillo, State of New Mexico. Deny that court may have jurisdiction pending determination of existence of an Arbitration Clause present in alleged contract from Capital One Bank whereby once Arbitration is exercised by either party, pursuant to the alleged agreement; both parties waive their right to litigation.

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  • 1 year later...

My name is Rob. I live in New Mexico. I came across your posts while I was searching for advice in this site to help me with my case. I'm being sued by portfolio recovery. I wondering if I could get some advice from you on how you handled you case? I got a notice in the mail, saying notice of hearing. Then is says the judges name, and location. Following that is a Date and time, but under that it says 10 minutes allotted for pretrial Conference. What does that mean? 10 minutes of discussion, then trial right after? Any help will be greatly appreciated, since I am very new to this, and feel lost.

Thank you,

Rob

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  • 1 month later...

I'm in this for the long haul. filed MTD in lieu of answer, TR 9.2 violation, ca filed amended complaint. I'm confused by affidavit being 2 yrs. newer than the BOS that PRA claims they are now the assignee of. Can anyone take a stab at this, and please advise?

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I'm in this for the long haul. filed MTD in lieu of answer, TR 9.2 violation, ca filed amended complaint. I'm confused by affidavit being 2 yrs. newer than the BOS that PRA claims they are now the assignee of. Can anyone take a stab at this, and please advise?

Part of your objection to the affidavit will be that it was not created in the normal course of business, but solely for purposes of litigation.

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