utahcredit

Plaintiff admits to no written agreement in Interrogatory!!

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Help me with this Please!

I just received back My First Discovery from Plaintiff(Portfolio Recovery Associates, LLC) and their lawyer Johnson Mark, LLC.

In Admission No.4: Please admit that there is no written agreement between Portfolio Recovery Associates, LLC and the Defendant.

Response: Admit

Well, then isn't this the end of the case. They admitted that they do no have a written agreement with me. How can they sue me if we never had an agreement?

What do I need to do to get the case dismissed? By the way, I have a counterclaim with them for $1000 FDCPA violations. Their defense was 1. Defendant fails to state a claim upon which relief may be granted. 2. Any violation was unintentional and result of bona fide error.

Help--Thank you

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What is the basis of their claim? In Utah without a written instrument (which is not a CC agreement) the SOL is 4 years. 78B-2-307 allows Open Store Accounts to be persued for up to 4 years also. So they do not need to provide a written contract. If they have a choice of law in another state on the agreement then under 78B-2-103 if that state has a shorter SOL, it applies.

However PRA is never going to be able to provide a valid chain of ownership.

BTW, this law firm is one of the worst in our state and will likely violate even during the course of the trial. They have gotten better since they kicked Riddle out, but still manage to have almost 40% of the FDCPA action in Utah filed against them. In Utah there is no litigation privledge for FDCPA violations in pleadings. So watch those carefully for false or misleading statements.

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The claims Johnson Mark has against me are:

1. Defendant resides in this county and/or signed the contract giving rise to this action.

2.Defendant entered into a contract with Capital One Bank which was assigned to the Plaintiff

3. Defendant has defaulted on the obligation under the contract

4. Amt Owed xxxx.xx

5. further, equity requires Defendant to pay the value of the benefits received.

The Bill of Sale that was in the Discovery package they sent me back doesn't have my name,acct, or anything else pertaining to me. So I'll try a Motion to Strike the Affadavit. But they state it was Assigned,then they admit they Purchased this account and then admit, in the Admission portion of Discovery, that we never entered into an agreement with each other. Totally confusing???? This is the first time I've tried to fight one of these Complaints and it seems like this is alot work and effort for the average citizen and not enough Documentation required before they can bring suit against someone.

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I'm not from your state and don't know your civil procedure rule which you should do. but in reading a lot of case law in different parts of the country the one key element in debt collection or jdb cases where the complaint allege transferred ownership by way of an assignment then they would need a bona fide assignment the shows the terms agreed to between the assignor(seller) and assignee(buyer) and purtinet info showing your liability to the account else how do you know that someone else won't come along and make the same claim as they have made so aside from everything else they have to provide that document or their claim is dead in the water.

Check also your credit report from all the credit reporting agencies they're usually free if you haven't as yet used one. See whats being reported and that its being correctly reported. If the jdb is on your report it may be in violation of the FCRA FAIR CREDIT REPORTING ACT of which you could sue them. Just a thought. Be Blessed! S.A.

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In NO 1 what was your claim for relief?

In April of 2011 in the case of Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA

The Supreme Court reversed the 6th Circuit and held that the bona fide error defense does not apply to mistakes of law in interpreting the legal requirements of the FDCPA. The Court reasoned that it would be counter to the well-understood maxim that ignorance of the law is not an excuse. Further, the Court explained that the requirement that there be procedures in place to avoid errors makes it clear that the errors covered by the defense are more clerical or procedural in nature, rather than legal. Additionally, the Court explained that the advisory role of the FTC would be eliminated if debt collectors could avoid liability using the bona fide error defense for mistakes of law. The Court also addressed the concern that debt collection attorneys may have in zealously representing their clients if they can be held personally liable for their reasonable misinterpretations of the FDCPA’s requirements, noting that the statute protects against abusive lawsuits, limits damages, vests courts with discretion in adjusting damages and fixing reasonable attorneys’ fees, and provides debt collection attorneys with other defenses.

Edited by BTO429

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The counterclaim was based on the fact that I did not receive proper validation after I had told them that their claims were being disputed. I wrote: "A simple paper with Defendant's name, address, last four digits of SSN and amount owed is mere Hearsay(Utah Court Rule 801). Defendant does not understand why, if these documents and assignments allegedly exist, they are not shown to the Defednant and can only assume prejudice on the Plaintiff's behalf(Violation 807(2)(A)FDCPA, 15c 1692(e)(2)(A). Falsely representing the character, maount, or legal status of any debt. Plaintiff failed to provide Defendant with Contract, accounting of the amount that was alleged was calculated(Falsely representing the amount), and proof of Assignment (giving debt legal status).

Breech of Contract: If the Plaintiff was ever assigned this alleged contract, as they claim in their Complaint, then they did not notify this assignment and subsequent default to the Defendant prior to filing a lawsuit. Implying an Improper Notice of Breach and rendering an unenforceable contract. (Violation of section 807(2)A FDCPA, 15c 1692 (E)(2)(A) )Falsely representing the character, amount, or leagal staus of any debt. Portfolio Recovery Associates has no legal status on the alleged loan if no assignment or proof thereof is provided by the Plaintiff.

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Help me with this Please!

I just received back My First Discovery from Plaintiff(Portfolio Recovery Associates, LLC) and their lawyer Johnson Mark, LLC.

In Admission No.4: Please admit that there is no written agreement between Portfolio Recovery Associates, LLC and the Defendant.

Response: Admit

Well, then isn't this the end of the case. They admitted that they do no have a written agreement with me. How can they sue me if we never had an agreement?

What do I need to do to get the case dismissed? By the way, I have a counterclaim with them for $1000 FDCPA violations. Their defense was 1. Defendant fails to state a claim upon which relief may be granted. 2. Any violation was unintentional and result of bona fide error.

Help--Thank you

Look at the admission. "Please admit that there is no written agreement between Portfolio Recovery Associates, LLC and the Defendant."

Portfolio Recovery never claimed to have an agreement with you. They claim you had a agreement with Capital One.

If they included a bill of sale that doesn't have your name or account number on it, concentrate on that.

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If they included a bill of sale that doesn't have your name or account number on it, concentrate on that.

Many times, they will only have the 1st page of a bill of sale and reference another 'exhibit.'

There's no way to know if your account is included in the sale, so you'd want to try and get it precluded... or conversely, subpoena the entire exhibit (which will throw them into a tizzy).

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Have you requested a copy of the alleged contract they cite in their complaint? How about a full accounting of the amount of the alleged debt?

You have 3 very good ways to knock the legs out from under their suit right now. First is their proof of assignment. Second is them producing a copy of the contract. third is a full accounting. You need to attack all three at once.

I would file a motion to strike right now on the assignment paperwork, if you wait you run the risk of losing the ability to do so later.

Send more discovery for the contract, agreement, terms and conditions, etc. If they come up with anything the dates likely will not match.

Same goes for full accounting starting from a balance of zero.

If you hit them with these motions and discovery requests all at once, they are more likely to look at the cost benifit of continuing a suit.

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Guest usctrojanalum

Well, then isn't this the end of the case. They admitted that they do no have a written agreement with me. How can they sue me if we never had an agreement?

No, why would they need a written agreement? Where has this been coming from recently, every single person think there is supposed to be a written agreement.

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I have a pre- trial conference for Aug.22,2011.

In my first communication with Johnson Mark I sent a letter for validation requesting signed contract, detailed accounting and proof of assignment. All they sent me was a letter with name,last four digits of SSN and amount owed, then preceded to sue me.

Iasked in Discovery for the original documents and they stated that their client object to the term "original". Plaintiff has a copy of and/or exemplar copy of the terms and agreement entered into when the account was opened.(However nothing with my name/signature---Bill of sale has no reference to me. This is why I brought up the countersuit against them.

The two statements they sent me contradict each other: one says Capital One Facsimile Report cycle #15 07/16/2010-08/15/2010 and the other says: Capital One Facsimile Report cycle #15 05/16/2009 -06/15/2009. Both have a balance brought forward. The contradiction is How can they both be for cycle #15? and the one dated 07/2010 from Capital One is one year after the date on the Bill of Sale dated 07/08/2009.

I'm going to file a motion to strike the affadvits on Monday. They also sent me, what looks like a printout from their computer as to how long they've had my alleged account on their files. It also references my complete SSN--not just the last four digits. Isn't it illegal to have printouts with the whole SSN? Becuase of possible theft or fraud?? I thought I read somewhere that when a CA/attorney communicates with you ,their documents need to only have the last four numbers. Any help is appreciated.

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I have a pre- trial conference for Aug.22,2011.

In my first communication with Johnson Mark I sent a letter for validation requesting signed contract, detailed accounting and proof of assignment. All they sent me was a letter with name,last four digits of SSN and amount owed, then preceded to sue me.

Iasked in Discovery for the original documents and they stated that their client object to the term "original". Plaintiff has a copy of and/or exemplar copy of the terms and agreement entered into when the account was opened.(However nothing with my name/signature---Bill of sale has no reference to me. This is why I brought up the countersuit against them.

The two statements they sent me contradict each other: one says Capital One Facsimile Report cycle #15 07/16/2010-08/15/2010 and the other says: Capital One Facsimile Report cycle #15 05/16/2009 -06/15/2009. Both have a balance brought forward. The contradiction is How can they both be for cycle #15? and the one dated 07/2010 from Capital One is one year after the date on the Bill of Sale dated 07/08/2009.

I'm going to file a motion to strike the affadvits on Monday. They also sent me, what looks like a printout from their computer as to how long they've had my alleged account on their files. It also references my complete SSN--not just the last four digits. Isn't it illegal to have printouts with the whole SSN? Becuase of possible theft or fraud?? I thought I read somewhere that when a CA/attorney communicates with you ,their documents need to only have the last four numbers. Any help is appreciated.

There is not going to be a "signed contract". An application maybe, but no contract. The cardmember agreement will state that your use of the card indicates your acceptance of the terms and conditions of the agreement. However, a cardmember agreement is never signed.

Focus on the bill of sale and the fact that the generic cardmember agreement doesn't reference your name or account either. If the agreement doesn't reference the name of your card (for instance, Discover Bank has a gazillion cards with different names such as Discover More, Discover Motiva, etc), point that out. How can they prove the copy of the agreement they provided was applicable to your card?

Is the agreement dated around the time of default? If not, it should be. They should provide the agreement that was in effect for your card at the time of default.

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No, why would they need a written agreement? Where has this been coming from recently, every single person think there is supposed to be a written agreement.

I think there is a lot of confusion on this point for many reasons. The most likely is the written instrument SOL arguement. In many states, if they do not have a signed document, then the shorter SOL applies. Other people see this discussion and incorrectly try to apply it to their case.

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Look at the admission. "Please admit that there is no written agreement between Portfolio Recovery Associates, LLC and the Defendant."

Portfolio Recovery never claimed to have an agreement with you. They claim you had a agreement with Capital One.

If they included a bill of sale that doesn't have your name or account number on it, concentrate on that.

Exactly what I was going to point out.

You simply asked them to admit there is no written agreement between Portfolio and the defendant. They admitted because there isn't one. There would possibly be a written agreement (the cc terms) between you and capital one but not portfolio. If they can properly show chain of custody then they stand in the shoes of the OC and they basically inherited all of the rights of crapital one in the written agreement when the account was sold/assigned to them. That's basically what they say when the issue is raised in court too.

Of course they have to be able to proof chain of custody and ownership with adequate documentation.

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I thought you only need to strike affidavits of assignment if they try to use them at trial? How do you strike prior to any court proceedings? My thanks!

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Well, there is a pre-trial. Shouldn't I strike them before then?? I'll just concentrate on the Bill of Sale and statements. There was no copy of an agreement included.

The laws need to be changed so that validation is more clearly defined by the FDCPA. My idea and theirs varies. That would probably stop alot of these JDB from legally going forward without proper documentation to begin with.

So many people do not know what to do and JDB's are taking clear advantage of this. Forcing most people into Bankruptcy out of desperation--actually hurting our economy, because now these people are unable or scared to purchase anything. Better to do without--I say!!!!! Lesson learned.

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