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Sued by Portfolio Recovery Associates


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Hello everyone I received a summons yesterday and I'm curious as to how I should respond.

It is within the SOL so I cant use that defense. I just don't know if I should deny or admit to their complaints. They're all worded a bit differently then any examples I've seen before.

The complaints:

"1. That account of MY NAME is in default.

2. Said account is due and payable to Portfolio Recovery Associates,LLC, having acquired the account through sale, assignment, or other legal means.

3. The Original creditor is CAPITAL ONE BANK (USA) NA.

4. Said obligation is past due, and the Defendant(s) owe the Plaintiff $914.38 with interest thereon at the rate of 8% per annum from November 16, 2010 to date of Judgement then with post Judgement interest as provided by law until paid in full.

WHEREFORE, Plaintiff demands Judgment against the Defendant(s) for the sums, plus interest, set forth above and court costs."

Attached is an account statement from capital one for the billing period of Oct 17 - Nov 16, 2010 with the last four digits of an account number listed.

As I said I'm not sure how to respond to the complaints and which affirmative defenses I could use.

The summons was "delivered" to me by attaching it to the outside of my mailbox with a rubber band. It wasn't even in an envelope and it was covered in snow. Does this help my case at all?

Thanks in advance for any help!

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The complaints:

"1. That account of MY NAME is in default.

2. Said account is due and payable to Portfolio Recovery Associates,LLC, having acquired the account through sale, assignment, or other legal means.

3. The Original creditor is CAPITAL ONE BANK (USA) NA.

4. Said obligation is past due, and the Defendant(s) owe the Plaintiff $914.38 with interest thereon at the rate of 8% per annum from November 16, 2010 to date of Judgement then with post Judgement interest as provided by law until paid in full.

WHEREFORE, Plaintiff demands Judgment against the Defendant(s) for the sums, plus interest, set forth above and court costs."

Attached is an account statement from capital one for the billing period of Oct 17 - Nov 16, 2010 with the last four digits of an account number listed.

1. What is the plaintiff's definition of "default?" You don't have enough information to admit or deny this allegation, do you?

2. I don't believe Portfolio bought the "account." Denied.

3. Do you really know this for a fact. Lots of people think the creditor is the name on the card, but that isn't always true. Take for example all the store cards acutally offered by GEMB and not the store. You don't have enough information to admit or deny, do you?

4. Denied

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"1. That account of MY NAME is in default.

DENIED Default is a matter to be determined by the trier of fact.

2. Said account is due and payable to Portfolio Recovery Associates,LLC, having acquired the account through sale, assignment, or other legal means.

DENIED Plaintiff is a "junk debt buyer" and must prove standing to sue. Assignment, etc. as referenced is the burden of the plaintiff to prove. Defendant makes no such admission.

3. The Original creditor is CAPITAL ONE BANK (USA) NA.

DENIED The so-called original creditor is not a party to the instant action. Any reference thereto is therefore improper and irrelevant. It is the burden of the plaintiff to prove ownership and standing to sue. Defendant denies any such previous relationship.

4. Said obligation is past due, and the Defendant(s) owe the Plaintiff $914.38 with interest thereon at the rate of 8% per annum from November 16, 2010 to date of Judgement then with post Judgement interest as provided by law until paid in full.

DENIED Defendant asserts that he / she owes nothing to plaintiff. Proof to the contrary is the burden of the plaintiff.

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Indiana Rules of Court

Rules of Trial Procedure

Rule 8. General rules of pleading

B) Defenses: Form of denials. A responsive pleading shall state in short and plain terms the pleader’s defenses to each claim asserted and shall admit or controvert the averments set forth in the preceding pleading. If in good faith the pleader intends to deny all the averments in the preceding pleading, he may do so by general denial subject to the provisions of Rule 11. If he does not intend a general denial, he may:

(1) specifically deny designated averments or paragraphs; or

(2) generally deny all averments except such designated averments and paragraphs as he expressly admits.

If he lacks knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and his statement shall be considered a denial. If in good faith a pleader intends to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and deny the remainder. All denials shall fairly meet the substance of the averments denied.

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Thanks so much for the replies everyone. I'm trying to do as much research as possible before I respond (but still in a timely manner of course).

Coltfan what are the advantages and disadvantages of listing reasons for the denials?

Should I list any affirmative defenses? The research I'm doing seems to bounce back and forth between not being able to use the defenses later unless I list them now, and not mattering if I list them now.

Do you guys think they will just drop the case if I deny everything or will they keep pressing the matter? If so I guess I get to learn a whole lot more about our legal system haha.

Thanks again!

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What about arbitration? This is a small amount of money, it may cost them more than they can get. They might drop the case once they find out you intend to fight. That may be one slight advantage to the way I recommended you answer. That will put them on notice that they are going to be in a war, not a quick judgment against somebody who doesn't know anything about the law.

What you have to learn is how these junk debt buyers operate. They purchase millions of dollars in delinquent accounts for pennies on the dollar, then they sue and start the intimidation tactics. It's like the sharks Robert Shaw described in Jaws; sometimes they'll go away, sometimes they won't. My bet is that for 900, they aren't going to want to devote a lot of time to this. It's a numbers game with them, assembly line litigation. Fighters have a much better chance of winning, especially if they have nothing to be attached in the event of a judgment.

Coltfan will explain special defenses to you.

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Coltfan what are the advantages and disadvantages of listing reasons for the denials?

Personally, I don't like to provide more to my opponent than is necessary. You start stating your defenses, other than what is required, and in my opinion your tipping off your opponent to your strategy. Your then giving them time to adjust.

If I start going on about standing and how you can't even prove you own the debt, while that is a great argument, the best in my opinion, you give them a heads up and give them the chance to get their ducks in a row.

It's the same as when you send a dispute letter. A collection agency hates the I dispute this debt letter. Why? Because it leaves them with no comeback. If you say I dispute this debt as I never got any statements and I'm not sure I owe that much, then they can get you statements and show you how they get to the amount they allege you owe.

If you read the threads there are many that will say, I disputed and received back a letter asking for the nature of my dispute. A reasonable request for sure, however, not required to disclose under your dispute rights.

Yes, at some point you must give more info and start the fight. It's not criminal court where you can just sit there and never say a word the entire case and trial and it not be used against you.

Personally, I don't want them to know what hand I'm holding. Watch one of those poker games on E.S.P.N. The best hand sometimes gets beat by the losing had simply because the stronger hand is afraid of the unknown.

On the flip side, especially for this amount of debt, going all out from the gate and throwing defenses at them, could easily get them to drop the case. As it was correctly pointed out, nine hundred bucks is pretty much a nothing case for them. They might have twenty bucks invested in the debt.

Personally, I would enjoy the fight with a JDB over $900.00. Well really any amount. :D

You come strong right out of the gate and they have one hundred other cases filed and your the only one fighting, they might just say, forget this we will just our money from the suckers that won't fight.

There is really not a right or wrong way to answer as long as both answers are in compliance with the rules of procedure. It's just personal preference. My preference is disclose the bare minimum and then when the time is ripe, It's and all out onslaught.

The advice about arbitration is also right on. For this amount of alleged debt, I would think a motion to compel arbitration and stay the proceedings pending arbitration would wrap this up and send them packing.

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What's that old saying, a .45 beats four aces? Like Coltfan said, it's ultimately up to you.

My take is only slightly different than his, and it could be said that we are both right for different reasons. He likes to dig the hole, put the branches over it, and wait for the poor unsuspecting JDB lawyer to fall in. That is because he has a vast amount of experience and knows how to do this, and to him it is a blood sport. This is fun, which we all know. However, your choice has to be based upon several factors, namely whether or not you are prepared for and want a protracted legal battle over 900 bucks.

You are a "Newbie" to the legal system, and this may require more effort from you than you are prepared to undertake. Guys like Coltfan and myself have been at this for a long time and just love to humiliate an opponent in court. You may not want to do this. You have to tell us.

My suggestion versus his is simply to try to defuse this quickly so they go away quickly. A blanket denial is okay, but the rules in IN are a bit vague. They do mention stating reasons for the denial. Optional? Who knows. Learned Hand couldn't figure out some of these statutes. It eventually boils down to what kind of time you want to spend on this, it could take a year if they decide to take you on. That's a lot of time to devote to study. If you have other debts coming delinquent down the line and this will happen again, then by all means learn how to fight. This could be good practice, and the most you can lose is 900 bucks.

You'll get many opinions here, most of which will have value. A lot of what we do is based on strategy; there is no cut and dried way to run a case. It's like combat. The enemy declares war, you conduct G2 (intelligence) to find his strengths and weaknesses. (This is discovery in civil law.) You then construct your defenses and counterattack based upon what you learned. If the enemy has no Air Force, you use B52s and bomb him into surrender. (Motion to dismiss filed by plaintiff with prejudice) These things are pretty simple, they are won or lost by the paperwork. Concentrate on production of documents, and take a good look at choice of law provisions in the CC agreement.

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If you expect this to be the only time you encounter something like this, then you might want to consider a strong, out of the gate, approach or arbitration. It might make it go away quickly.

However, if you might be in for more of this down the line, this case might not be a bad one to "practice" with. Somewhat like a preseason football game. The JDB, most likely, won't put up much of a fight for the amount owed. There is no guarantee of that though.

The bottom line is, as long as you comply with the rules, the choice will be yours to decide. In acting Pro Se you make those strategic decisions that an atty would make for you.

Due to how I was treated years ago, while going through a bad divorce, I do set out to not only win; but destroy, humiliate, wreck havoc, and turn it into a full three ring circus at the drop of a hat. My mind set is not if I'm going to win, but how bad. The consequences of that approach could be costly if you lose. So do keep that in mind, caveat emptor.

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