Portfolio Recovery Suit - State PA. Help with Responce.

[spll]

Hi everyone. New here, but this seems like a good place from reading all the helpful responses from previous post and trying to gather information.

I will include as much information as I have, plus a rough draft of my Answer. Which I read a lot on here and tried to see what was suited for my case. Not sure if it is right/wrong. Would love some opinions on corrections or any help that can be provided.

LAWSUIT INFO

1. Who is suing you? PORTFOLIO RECOVERY ASSOCIATES LLC

c/o Blatt, Hasenmiller, Leibsker & Moore, LLC

2. For how much? $1148.08

3. Who is the original creditor? GE MONEY BANK/WALMART

4. How do you know you are being sued? Served summons

5. How were you served? Were you served? Left on door by Sheriff

6. What was your correspondence (if any) with the people suing you before you think you were being sued? None

7. Where do you live? Pennsylvania

8. When is the last time you paid on this account? 10/28/2010

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). Summons issued, summons filed. Hearing date is set.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? No

12. Does your summons require a response in writing? Yes

13. Does your summons require a response in writing? We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Plaintiff PORTFOLIO RECOVERY ASSOCIATES LLC, claims as follows:

1. The Defendant(s), My NAME, is a resident of Allegheny County,

Pennsylvan ia.

2. The Defendant(s) obtained extensions of credit with GE MONEY BANK,

(Original Credit Grantor) agreeing to make monthly payments as required by the terms of the account, for purchases charged to the account.

3. The Oefendant(s) did make purchases and charged same to the account but failed to make the monthly payments called for on the account. There is a balance due and owing of $1148.08.

4. Plaintiff is the successor in interest of said account having purchased the account in the regular course of business in good faith and value.

5. Plaintiff declared Defendant(s) to be in default and demands payment of the balance.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

AFFIDAVIT 1

State of Virginia

City of Norfolk

I, the undersigned, Nicole J. Moore , 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 business at Riverside Commerce Center, 140 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the

statements, representations and averments herein, and do so based upon a review of the business records of the Account Assignee and those records transferred to Account Assignee from GE MONEY BANK, F.S.B./W AL-MART ("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 10/28/2010. 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 adjustment of said account, and the Account Seller has retained no further interest

in said account or the proceeds thereof, for any purpose whatsoever. ,I

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") the Account Seller the sum of$1,148.08 with the respect of account number ending in XXXX , as of 9/24/2010 with there being no known un-credited payments, counterclaims or offsets against the said debt as of the date of the sale.

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 is currently due and owing the sum of $1,148.08 as of the date of this affidavit.

6. Plaintiff believes that the defendant is not a minor or an incompetent individual, and declares that the Defendant is not on active military service of the United States.

Signed and Dated

VERIFICATION

I, NO NAME the undersigned attorney for the Plaintiff, hereby verify that the

statements made in the foregoing Complaint are true and correct to the best of my knowledge,

information, and belief, based upon information provided by the Plaintiff, that the Plaintiff is

presently located outside of this jurisdiction, and that in order to file the within document in an

expedient and timely manner I am authorized to sign this verification on behalf of the Plaintiff.

I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.

Section 4904 relating to unsworn falsifications to authorities.

Signed

PRAECIPE TO ENTER APPEARANCE

TO THE PROTHONOTARY:

Kindly ENTER my appearance in the above-captioned matter on behalf of PLAINTIFF

PORTFOLIO RECOVERY ASSOCIATES LLC.

Papers may be served at the address set forth below:

Blatt, Hasenmiller, Leibsker & Moore, LLC

AFFIDAVIT OF NON-MILITARY SERVICE

COMMONWEALTH OF PENNSYLVANIA: County of Chester:

I, Daniel Santucci/Gregory R. Dye, being duly sworn according to law, depose and say I am the attorney for Plaintiff and I am authorized to make this affidavit on Plaintiff's behalf.

I hereby certify that the Defendant is at least 18 years of age and not in the Military Service of the United States, nor any State or Territory thereof or its allies as defined in the Servicemembers' Civil Relief Act of 2004 and any amendments thereto.

I also herby certify that the statements made in the foregoing Affidavit of Non-Military Service are true and correct to the best of my information, knowledge, and belief. I understand that

false statements herein are made subject to the penalties of 18 Pa.C.SA Section 4904 relating to unsworn falsification to authorities.

Signed and Dated

NOTICE TO DEFEND

You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or

objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may

lose money or property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.

IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

Edited October 28, 2011 by spll

[spll]

My Answer for the above.

Answer

1) ADMIT. I, MY NAME are who Plaintiff says I am.

2) DENY. The Complaint filed herein against Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged statement(s) and puts the Plaintiff to its strictest proof thereof.

3) DENY. This request calls for admission of matter defendant has denied and thus it is improper. as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant puts Plaintiff to its strictest proof thereof.

4) I ADMIT in part. I did have an account with GE MONEY BANK. DENY in part, I have been presented no evidence that the account I had with PORTFOLIO RECOVERY is the same account as the debt alleged in this complaint. No contract has been submitted into the record to evidence the allegation and leaves Plaintiff to provide proof. Defendant demands strict proof thereof.

5) DENY. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 5 of the Complaint as plaintiff has failed to provide any documentation of alleged debt and therefore denies the same and puts Plaintiff to its strictest proof thereof.

Affirmative Defenses

1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

2. Plaintiff has not provided any evidence showing that they were retained by GE MONEY BANK as its representative in this matter.

3. Plaintiff has not proven that GE MONEY BANK is the real party in interest or that the rights, title, and interest to the alleged GE MONEY BANK account were assigned to the Plaintiff.

4. Defendant has not been provided with no proof of ownership. In order to comply with The Truth in Lending Act (TILA), 15 U.S.C. § 1642, the original lender must have a signed request or application, or in absence of such writing, there must be a record detailing the date and circumstances of the request or application for credit. 15 U.S.C. § 1642. The plaintiff’s complaint includes none of these requirements. Defendant demands strict proof thereof.

5. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person. Pa. Code of Civil Procedure 1019

6. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

7 Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

8. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

WHEREFORE, the defendant prays that the court take nothing of Plaintiff's Complaint by virtue and dismisses the complaint. Further the defendant sayeth not.By the Defendant acting pro se

[1stStep]

Deny everything - make them prove that you indeed have the account... PRA is beatable if you answer and attack their "evidence."

[MamaCaldo]

Plaintiff PORTFOLIO RECOVERY ASSOCIATES LLC, claims as follows:

1. The Defendant(s), My NAME, is a resident of Allegheny County,

Pennsylvan ia.

2. The Defendant(s) obtained extensions of credit with GE MONEY BANK,

(Original Credit Grantor) agreeing to make monthly payments as required by the terms of the account, for purchases charged to the account.

3. The Oefendant(s) did make purchases and charged same to the account but failed to make the monthly payments called for on the account. There is a balance due and owing of $1148.08.

4. Plaintiff is the successor in interest of said account having purchased the account in the regular course of business in good faith and value.

5. Plaintiff declared Defendant(s) to be in default and demands payment of the balance.

My Answer for the above.

1) ADMIT. I, MY NAME are who Plaintiff says I am.

2) DENY. The Complaint filed herein against Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged statement(s) and puts the Plaintiff to its strictest proof thereof.

3) DENY. This request calls for admission of matter defendant has denied and thus it is improper. as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant puts Plaintiff to its strictest proof thereof.

4) I ADMIT in part. I did have an account with GE MONEY BANK. DENY in part, I have been presented no evidence that the account I had with PORTFOLIO RECOVERY is the same account as the debt alleged in this complaint. No contract has been submitted into the record to evidence the allegation and leaves Plaintiff to provide proof. Defendant demands strict proof thereof.

5) DENY. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 5 of the Complaint as plaintiff has failed to provide any documentation of alleged debt and therefore denies the same and puts Plaintiff to its strictest proof thereof.

Just "spitballing" here.... but--

Their #4 and your answer to #4 don't match up. In the #2 answer you "Deny" where they specifically ask about GE Money. Then in #4 where they don't specifically reference GE Money you bring up the "yeah, I had a GE Money account BUT..." Your answers ALL have to match up. Once you admit to having an account, it might be all down hill from there. Others with more knowledge and experience please chime in here.... am I reading it wrong? Or do I have point?

[Downto0]

Deny everything except the obvious, like your name, address, and military status. You can explain the detail at trial.

You should also file a Motion to Strike the affidavit. The affiant works for PRA and does not have personal knowledge of how the account with GE was created and maintained. They only have knowledge after the purchase of the debt and cannot verify how it came to be the amount asked for.

All you have to do is show up in court and ask for assignment and you will win your case. Don't settle for anything less than an affidavit from GE and expect that PRA won't spend the money to get it.

[BV80]

I agree with 1stStep.

Here are my suggestions:

3. Take out the "This request calls for admission of matter defendant has denied and thus it is improper". First, it's not a request. Also, you're just now denying the account, and they didn't know that before. I'd state:

Denied. Defendant has insufficient information to admit or deny and, therefore, must respectfully deny.

4. Denied. Plaintiff has provided no evidence to support this allegation.

(In your answer to this allegation, you stated that you had an account with GE Money Bank. You denied that fact in the previous 3 answers. You can't contradict yourself. In this allegation, they claim they now own the account. They've provided no proof of that.)

5. Denied.

Affirmative Defenses:

#2 doesn't work. They are not representing GE. They're claim to own the account.

#3. Delete. GE is not the real party in interest, because they sold the account to Portfolio.

#5. Make sure your state law requires what you claim.

I would add:

Plaintiff has failed to provide evidence sufficient for which relief can be granted.

Lack of Standing. Plaintiff has failed to prove ownership of the alleged account with standing to sue. (If they can't prove they own the account, they have to standing (right) to sue.)

Keep Lack of Privity. That can go along with their standing to sue. If they can't prove they own the account, then they did not step into the shoes of the creditor. Therefore, they can't claim an agreement with you.

You're dealing with a Junk Debt Buyer. GE is out of the picture, because they sold the account. Note this statement from the affidavit: "the Account Seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever." The Account Seller is GE. They have no further interest in the account.

Your focus is to show that Portfolio cannot prove they own the account.

Read your court's Rules of Civil Procedure regarding discovery. Find out if you should send a Bill of Particulars, or Interrogatories, Request for Production of Documents, and Request for Admissions.

Their affidavit is bogus. The signer claims they have records to show that GE transferred the account to Portfolio. You must request those records in discovery.

If they provide a copy of a document from GE, that document has authenticated as a true and accurate copy. That can only be accomplished by personal knowledge. No one at Portfolio works for GE. Therefore, Portfolio employees cannot claim personal knowledge of records created by GE. The employees have knowledge of Portfolio's records, but not GE's records. No one at Portfolio will be able to claim the records are true and accurate copies of the original records. Any GE document they submit will be hearsay.

The signer of the affidavit also claims the business records were kept in the regular course of business of the Account Assignee (GE). She doesn't work for GE and has no knowledge of how GE maintains their records in the "regular course of business".

[spll]

Wow you all are great. Thanks for taking the time to read over everything and offer your advice and corrections. Much appreciated.

BV80 - I found this on Discovery

Pennsylvania has adopted the Pennsylvania Rules of Civil Procedure which contain rules governing discovery.The discovery rules also apply in divorce actions.

Discovery Methods: Subject to the provisions of this chapter, any party may obtain discovery by one or more of the following methods: depositions upon oral examination (Rule 4007.1) or written interrogatories (Rule 4004); written interrogatories to a party(Rule 4005); production of documents and things and entry for inspection or other purposes (Rule 4009); physical and mental examinations (Rule 4010); and requests for admission (Rule 4014). Rule 4001

So I would write a Interrogatories and also Request for Production of Documents, and Request for Admissions and send everything in together?

Having a hard time finding anything on writing Interrogatories. Any thoughts or examples?

This is law for #5

pacode.com/secure/data/231/chapter1000/s1019.html

I will try to read back though it all and redo the answers and try to come up with the other things.

Thanks again.

[Downto0]

For the amount asked for, it appears that you would be in small claims and would not be allowed Discovery. Which court are you in?

I would, after answering the complaint, file a MTS the affidavit as hearsay. You could even file a Motion to Dismiss claiming no assignment. I'd go for the MTS and Answer and Counterclaims and ask for some money.

[spll]

Thanks Downto0. I will look into that.

It is Allegheny Co. PA Supreme Court - Court of Common Pleas.

[DonqIII]

Your answer #4.

DO NOT ADMIT you had had an account.

The rest of your answer is fine, just change that to read after

Deny....

Does/did your card member agreement have an arbitration

clause? If so, see if it has JAMS as an option.

If so, you might want to consider adding private arbitration

to your defenses...

They would spend way more money to take this through

arbitration then what your being sued for.

So read your agreement and decide if you want to do that.

You would have to file and present a motion in your court to

get the judge to stay your case pending the outcome of

private arb. but it could be worth it.

Once a case is in arbitration it takes it out of court.

[spll]

I shall check that.

[spll]

I guess I over looked this part. It was a separate paper with the hearing information that says the Judge: Arbitration Panel. So looks like it is an Arbitration.

[DonqIII]

I guess I over looked this part. It was a separate paper with the hearing information that says the Judge: Arbitration Panel. So looks like it is an Arbitration.

You DO NOT want state mandate arbitration if you can avoid it.

What you would want is private contractual arbitration.

Under our state they appoint a 3 person panel to make the call.

Which means that you would not need to convince just one judge

that your defenses have merit but you will need to convince two out of three that they do.

This is likely to only happen if you are successful in deflecting

a summary judgment hearing and that will be based on your answer and defenses.

And your being pro-active in the discovery end of things to make them prove

the things they claim...

Everything that the others have advised is good for you.

.