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kja2s

Please help me! Being sued by Portfolio Recovery on behalf of HSBC

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Hello, I am absolutley at a loss and have no idea what to do. I was informed today that a police officer showed up at my home to deliver a summons to court. I was not home so I am going to meet him tomorrow. I called and he told me that the summons was on behalf of Portfolio Recovery who apparently was acting for HSBC or something like that.

I am 23 years old, a full time nursing student, and I only work 12 hours per week...I barely make enough to be able to afford gas to get to work/school and on top of all that I have heart issues that are made a hundred times worse by stress....PLEASE help me out with this. I have absolutely NO idea where to even start. I will post more details on the summons tomorrow after I get it from the officer....please give me any advice possible. I would be ever so apprciative if I could find someone to walk me through this....I just have no idea what to do and am in a complete state of panic.

Thank you:confused:

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You need to search this forum for Tennessee. Start researching the civil procedure in the court in which your case is filed. On the Summons and Complaint, it will state at the top which Court the case has been filed in. Google that court, and find the rules of procedure. Read it ALL. If it's the first Summons and Complaint, it is not a call to Court, but rather a call for you to "Answer" the Complaint. Stop panicking.

You're going to have to put some time into researching civil procedure, and collection litigation, like everyone else here. Here are some starting points:

http://www.creditinfocenter.com/forums/there-lawyer-house/292720-start-finish-winning-against-midland-funding-aka-jdb.html

Rules of Civil Procedure | Tennessee Administrative Office of the Courts

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Everyone's "case" is unique. Some people are able to get their Complaints thrown out on technicalities, while others have to fight to the death.

When was the debt charged off and when did you make your last payment on said debt? The statute of limitations may have expired. Meaning, they may not be legally able to sue you for this debt because too much time has passed- they can always collect, but there's a window of time in which they can sue.

What are the allegations brought forth in the Complaint? List them out for everyone so they can take a stab at making a few suggestions.

Start reading this forum. You need to dedicate some time to this so you don't end up making avoidable mistakes and end up with a summary or default judgement against you. I'm no expert, and I'm still learning myself, but I will say that after reading this forum I feel far more prepared to face litigation.

Edited by DefendantNewb

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Thank you for your responses. I will update with all information available when I go get the information from the officer tomorrow.

I just pulled my credit reports to look up this "portfolio recovery" and found inconsistencies in the dates they listed as the account opening. On my experian account the date opened was 7/1/2010 and on the transunion report the account was opened 7/27/2010. Could I use these inconsistencies as part of my defense in any way? Would this fall under any of the "affirmative defense" issues that I could attach to my answer?

I guess that is just a preliminary thought....I'll post all of the allegations in the complaint tomorrow.

Also, according to my credit report my the account with HSBC was opened in 12/1/2008 and the last payment was 7/2009. Statute of limitations is 6 years in TN from what I've read so I can't argue that unfortunately.

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How much (roughly) is this alleged debt for?

On my credit report the debt is $1,647. I am not yet sure how much they are suing me for though....will update in a few hours when I get the paperwork.

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Ok, keep us posted. Meanwhile, here is a link to the Tennessee courts rules of civil procedure. Get familiar with them, and pay special attention to the timeframe you have to answer the summons and how your answer has to be formatted. It's different in most states. Don't be discouraged or intimidated either, it's confusing at first, but you'll get the hang of it. There's alot of good people in here that'll help you through this.

Rules of Civil Procedure | Tennessee Administrative Office of the Courts

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Please remember the burden of proof is on them. So, make them show you proof. I am in the middle of a lawsuit with the same company. Evidently, it is difficult for them to get the proper documentation, so do a little research and show them you are not going to just throw your hands up in the air and bury your head in the sand. ;)

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I am dealing with Portfolio Recovery trying to collect for HSBC as well, but the account is fraudulent. HSBC assigned this account to a CA in TX, then one in FL, now it is with Portfolio Recovery.

First, did you get any documentation from any CAs that tried to collect on this account? If so, did you send them a validation letter? Did Portfolio Recovery try to harass you through phone calls?

Did you dispute the information provided by Portfolio Recovery to the CRAs, since there are discrepancies?

When you receive the summons, read the complaint and any exhibits carefully. There should be a complaint, an affidavit and a copy of a statement or a copy of the agreement. If they do not attach or state that one of these documents should be attached, then you can kill the account stated claim.

If they do not attach the agreement or reference that you are in possession of it, then you can start to kill the breach of contract claim.

Things will get easier for you considering TN is a very friendly consumer state.

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I just pulled my credit reports to look up this "portfolio recovery" and found inconsistencies in the dates they listed as the account opening. On my experian account the date opened was 7/1/2010 and on the transunion report the account was opened 7/27/2010. Could I use these inconsistencies as part of my defense in any way? Would this fall under any of the "affirmative defense" issues that I could attach to my answer?

Those date discepancies come from the CRAs and won't do any good. The CRA may list as the first or last day of the month or the actual, it's quite random.

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Ok, just got back from picking up this info and its not at all what I expected. Its only two pieces of paper. The first one is a pink form, on the front it says:

Civil Summons

State of Tennessee, county of Rutherford

To Any Lawful Officer to Execute and Return: Summon (my name)

TO appear in the General Sessions Courtroom #303 in the General Sessions Court of RUghertford County, Tennessee on (deate assigned to appear) then and there to answer in a civil action brought by:

PORTFOLIO RECOVERY ASSOCIATES, LLC assignee of HSBC BANK NEVADA, N.A

For goods, services, arbitrition award or monies advanced or loaned to Defendants for which payment has not been recieved as evidenced by the sworn account attached hereto in the sum of $1,672.90 plus interest rate of 10% APR & the costs of this action Under 25,000.00.

JUDGEMENT

(here there are lines that I assume the judge is to fill in after a judgement has been made...ex.

Judgementer entered by: - default -Agreement - Trial

Dismissed: - Without prejudice - with prejudice

Costs Taxed to: - Plaintiff - Defendent

Order

(more blank lines for judge to fill in here)

And then on the bottom of that same pink form (front side) it defines Portolio Recovery Associates as plaintiff and myself as defendent.

At the botton is the contact information of the attorney for plaintiff....

McLemore and Edington, PLLC

Attorney for Plaintiff

Telephone number xxxxxxxx

On the back of this pink paper

NOTICE FOR DEFENDANT(S):

Tennessee law provides ten thousand dollars (10,000.00) personal property exemption from execution or seizure to satisfy a judgement. If a judgement should be entered against you in this action and you wish to claim property as exempt, you must file a written list, under oath, of the items you wish to claim as exempt with the clerk of the court. The list may be filed at any time and may be changed by you thereafter as necessary' however, unless it is filed before the judgment becomes final, itwill not be effective as to any execution or garnishment issued prior to the filing of the list. Certain items are automatically exempt by law and o not need to be listed; these include items of necessary wearing apparel, for yourself and your family, and trunks or other receptacle necessary to contain such apparel, family portraits, the family bible, and school books. Should nay of these items be seized, you would have the right to recover them. If you do not understand your exemption rights or how to exercise them, you may wish to seek the counsel of a lawyer.

AFFIDAVIT

TO the best of my information and belief, after investigation of Defendent's employment, I hereby make affidaavit that the Defendent is not a member of a military service

_____________________________________________________

attorney for Plaintiff or Plaintiff

_____________________________________________________

Notary Public

My Commision Expires:

(All of this was left blank)

APPEAL

From the judgement on the reverse hereof, the ________________________ prayed an appeal, to the circuit court which is granted upon Pauper's Oath or Appeal Bond.

This ___________ day of ____________ __________, 20____

_______________ Judge of the Court of General Sessions.

In small print at the bottom of this pink form:

information about the american's with disabilities act.

Then comes the next form....its white.

AFFIDAVIT

State of Virginia

City of Norfolk ss.

I, the undersigne, Elaine Freeman-Lark, Custodian of records for Portfolio Recovery Associates, LLC hereby depose, affirm and state as follows.

1. I am competent to testify to the matters contained herein.

2. I am an authorized employee of Portfolio Recovery Associates, LLC (" Account Assignee") Which is doing bsiness at Riverside Commerce Center, 140 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the statements, representaitons, and averments herein, and do so based upon a review of the business records of the Account Assignee and those recoreds transferred to Account Assignee from HSBC BANK NEVADA, N.A/GM ("Account Seller"), which have become a part of and have integrated into Account Assignee's business records, in the ordinary course of business.

3. According to the business records, which are maintained in the ordinary course of business, the account and all proceeds of the account are now owned by the Account Assignee, all of the Account Seller's interest in such account having been sold, assigned and transferred by the Account Seller on 7/27/2010. Further, the Account Assignee has been assigned all of the Account Seller's power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustement of said account, and the Acount Seller has retained no further interest in said account or the proceeds therof, for any purpose whatsoever.

4. According to the records transferred to the Account Assignee from Account Seller and maintained in the ordinary course of business by the Account Assignee, there was due and payable from (my name) ("Debtor and Co-Debtor") to the Account Seller the sum of $1,672.09 with the respect to account number ending in 5538 as of the date of 1/30/2010 with there being no known un-creidted payments, counterclaims or offsets against the said debt aas of the date of sale. Plaintiff believes that the defendant is not a minor or an incompetent individual, and declares that the defendent is not on active military service of the United States.

5. According to the records of said Account Assignee, after all known payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, there was due and owing at the time this lawsuit was filed a sum of $1,672.09.

Porfolio Recovery Associates, LLC

(Signature)

Elain Freeman-Lark, Custodian of Records

Subscribed and sworn to before me on JUN 02 2011

(signature)

Notary Public

Finally, a stamp by the notary public and then this statement at the very bottom:

This communication is from a debt collector and is an attempt to collect a debt. Any information obtained iwll be used for that purpose.

And thats it. 2 pieces of paper, no contracts, no records, nothing but the court paper and the affidavit. There is no information provided about how to answer, and the officer that served me the papers said I could call the attorney (plaintiff) to negotiate an agreement. But don't they still have the burdon of proof. Basically all this is is there word against mine at this point. There is absolutely no evidence provided or even any instructions for me.

I am so confused! I was expecting a form to fill out or something, or at least some instructions on how to answer and the amount of time I have to do so!

Is this affidavit the information I use to submit my admitance/denial, affirmative defences, and counterclaims? Can I subpoena for this elaina lady to testify, or at least require that they provide evidence? Shouldn't they have the original contract signed by me to verify the debt? And as per the TN law they did not do the 3 things they should have done, they didn't provide proof of buying the debt including the price, etc.

Any advice would be greatly appreciated....Im lost!

Edited by kja2s

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Agree with VADebtor, those dates won't mean anything.

Check this thread about what a JDB must provide in TN:

]

From what I wrote do you think they did these 3 things? I don't think they did but I don't know what to do about it.They provided the date that they bought the debt, but thats about it. Can I file to dismiss based on this alone or do I need to build a whole case?

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I too have been contacted by Portfolio Recovery. The mentioned debt that they say that I owe does not even show on my credit report anywhere. Does the fact that it is not on my credit report do anything for me in my favor?

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What you received is not formatted the way my Summons and Complaints were, so I'm having a difficult time figuring out how you should answer. It doesn't look like they even filed a Complaint? Maybe you can demand one.

You do need to file either a counter-Affidavit or a Motion to Strike the Affidavit they filed. Look at the Affidavit they filed, notice the way it's formatted. You will need to copy this format and in your own words, deny each and every allegation they bring forth. Make sure you include the total dollar amount in your denial. Title your response either MOTION TO STRIKE AFFIDAVIT FILED BY PLAINTIFF or COUNTER-AFFIDAVIT.

Make sure at the top of each document (not page) you list all of the information that appears on the pink piece of paper. For example, at the top, STATE OF TENNESSEE, under that, "In the ____ Judicial District Court" (Or whatever it says the court name is); under that, list the case number and clearly state that it is the case number. Under that list the judge, "Honorable Judge ____ ____" Then under that list ALL of the details of the Plaintiff: their name(s), address, phone number(s), and their bar numbers. Basically everything they listed. Under that, list your details, in the exact same manner, and after your name, write Pro se. Pro se means you're appearing for yourself, or you're representing yourself.

The body of your Motion or Counter should include each listed paragraph. For example, if they listed paragraphs 1. - 5., you need to list paragraphs 1. - 5. Make sure you address each allegation they bring forth in said paragraphs. The way in which you word these denials is very important. If you want to use a Hearsay defense, you'll need to address the person who made the Affidavit and clearly state that "______ _____" is a third party to the account and therefore whatever ___ ___ says is by definition HEARSAY."

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