How to handle this situation

[sdot1717]

Here is my situation, it is withing SOL, and I don't want to go to court for this, I want to avoid this going on my public record as a judgment and get this either deleted or paid in full on my report. Below is the situation.

Your account XXXX with portfolio recover was recently reviewed and a decision was made to file a small claims action against you in my local court. This decision was made because, to date, you have failed to make satisfactory payment arrangements on your account with our office. As a result of the small claims filing, we have asked the local court to issue a small claims hearing notice which will be mailed to you by the court, directing you to appear at the court for the trial of the claim.

If you would prefer to resolve your account balance amicably and, perhaps avoid the necessity of an appearance at court for the trial of this action, we require that you complete the financial statement appearing on the reverse side of this letter and return it with your suggestion for a settlement or a monthly payment plan. We will then review your information and contact you by phone to discuss the possibility of reaching a mutually agreeable payment arrangement before any hearing. Provided we have the completely financial statement and are able to reach a agreement for payments with you, the need for you to appear in court for this matter may be avoided.

_________________________________________________________________________________

After that I spoke to them and told them I want to avoid court, and avoid this in my credit report and public record, and offered 75 every 2 weeks, I was told to sign the agreement in the mail and as long as I made payments I would avoid court, this is what I got from them.

Agreement for Judgement and for payment order

Docket Number = blank

Portfolio Recovers vs sdot1717

Requested date of payment review 4/10/12

Judgment for plaintiff it is hereby agreed that in small claim the court may enter a judgment for the plaintiff named above and against the defendant.

852.20 Damages

50.00 Costs

n/a attorney fees

Plus prejudgment interest from 8/31/11

_______________________________________________________________________

I then spoke to them again and said that this is public record, so i called back spoke to someone else and was told to not sign the form if I want to avoid having this public record and to pay the balance before i the court date. As of right now I have not received anything from the court, so not sure when it will be and am curious is this true, as long as I pay this before the court date I can avoid this being on my record? Also generally how far out will a court date even be?

[1stStep]

You were fooled ...they threatened you with court and when you made the offer to pay, they sent this stipulated judgment...meaning if you miss a payment, they will file this in court and you will not be able to defend it - since you agreed to it.

Have you sent money?

[sdot1717]

I have not sent anything or signed anything

[thomassl]

Is this a credit card? We need to know what kind of bill it is to assist you further. If you read the one paragraph they wrote, they indicated that they have asked the court for a small claims filing. The next paragraph asks you to do certain things to avoid a court appearance. First, check your local courthouse to see if there is indeed a judgment against you.

[sdot1717]

yes it is a credit card, it was originally FIA, then went to portfolio recover, now a local attorney. I can go by the local courthouse today to check.

[KentWA]

Look up the local court online to see if you can see the court docket online and see if they have filed, or call the court and ask. If they have not you have a violation right there.

You do not owe these guys a dime. They do not have any proof they own the debt and likely can never provide proof they own it.

[sdot1717]

On the Agreement for Judgment and for payment order document i got to sign and look over there is an area that says docket number and it is left blank

[thomassl]

On the Agreement for Judgment and for payment order document i got to sign and look over there is an area that says docket number and it is left blank

You need to contact your local courthouse...not go by what's on their paper!

[sdot1717]

Just left the court house and nothing has been filed as of now

[Patz]

Sounds like they were just trying to scare you into paying w/o ever filing anything with the court.

[PC1978]

Sounds to me like a violation of FDCPA 807 (10) and (13):

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer

(13) The false representation or implication that documents are legal process.

[Guest usctrojanalum]

If papers are not filed in Court, you got them.

[Coltfan1972]

They played you for the fool. You almost bit, but did not. Now turn the tables on them.

[PC1978]

I would wait a few days and ensure that nothing is filed with the Court. I would then send them a letter telling them that after further review of their and your documents you cannot be sure that the alleged debt is valid or owed to their client (I am assuming that the letter was from a law firm representing Portfolio) but that you can be sure that they have violated the consumer protection afforded you by FDCPA 807 (10) and (13) [15 USC 1692e] through sending the previous communication. Let them know that you would be glad to settle the matter and have enclosed a Full and Final Release for their review and upon full payment and execution of the Release you will consider the matter settled. I would give them 30 days to contact you to inform you if the settlement is acceptable to them and how they would like to execute the settlement or you will contact a consumer attorney to discuss your claims.

Here is a release that was used in a settlement I had with Portfolio:

Full and Final Release

XXX, Portfolio Recovery Associates, LLC and ABC Law Firm (respectively “XXX”, “PRA”, “ABC” and together, the “Parties”) wish to resolve the Debt (defined below) and any claims between them.

For the sole consideration of One Thousand Dollars ($1,000.00) paid, and the elimination and waiver of any and all obligations related to Account Number xxxxxxxxxxxxxxxx (the “Debt”), XXX hereby release and discharge PRA and ABC, and their officers, directors, employees, agents, representatives, divisions, executors, successors, assigns, and insurers from any and all claims, actions, causes of action, and demands, known or unknown, which XXX have or may have arising out of PRA and ABC’s attempts to collect the Debt from XXX.

It is further understood that the claimed amounts owed, injuries, damages and the legal liability therefore are disputed and denied by the Parties, and that this Release is solely intended to compromise and terminate all claims for both known and unknown amounts owed and damages of whatever nature, in any way growing out of or connected with any attempt of PRA and ABC to collect the Debt from the beginning of the World up to and including the date of execution of this Release.

It is expressly warranted by the undersigned that no promise or inducement has been offered except as herein set forth, that this Release is executed without reliance upon any statement or representation of the party released or its representatives, to the nature and extent of the claimed damages and/or legal liability therefore; that acceptance of the consideration, set forth herein, is in full accord and satisfaction of the disputed claims for which liability is expressly denied by the Parties.

PRA will eliminate the Debt from XXX’ responsibility (which shall include, but not be limited to deleting any trade-lines from XXX’s credit reports and refraining from filing a 1099-C with the IRS) and will not sell the Debt to anyone else.

This Release shall become effective upon its execution, which may be executed in counterparts.

Signed this ________ day of February, 2012 by,

_________________________________________

XXX

Signed this ________ day of February, 2012 by,

_________________________________________

Portfolio Recovery Associates, LLC

Signed this ________ day of February, 2012 by,

_________________________________________

ABC Law Firm

[sdot1717]

I appreciate all the advice but my concern now is the 1st letter never said papers were filed, it was

"decision was made to file a small claims action against you, we have asked the local court to issue a small claims hearing notice while will be mailed to you by the court"

then next paragraph was

"if you prefer to resolve your account and avoid appearance at court bla bla bla"

I then called and was told they would agree to my payment plan and to sign the form i got which was a agreement for judgment"

to be honest i just want to make sure i do the right thing, I talked to a attorney over the phone and he said to just pay the debt after i explained the situation

[1stStep]

we have asked the local court to issue a small claims hearing notice while will be mailed to you by the court"

I think you've got an FDCPA violation, especially you now know there is no open case against you.

[PC1978]

I talked to a attorney over the phone and he said to just pay the debt after i explained the situation

He like everyone else works to make money and there is no money to be made in defending an $800 credit card debt. There is also a high likelihood that he is unfamiliar with the FDCPA.

It would cost a whole lot more for an attorney to defend the debt than to pay it but you could defend it yourself for free with some research and may not even have to with the FDCPA gift handed to you.

Edited January 31, 2012 by PC1978

[sdot1717]

He like everyone else works to make money and there is no money to be made in defending an $800 credit card debt. There is also a high likelihood that he is unfamiliar with the FDCPA.

It would cost a whole lot more for an attorney to defend the debt than to pay it but you could defend it yourself for free with some research and may not even have to with the FDCPA gift handed to you.

Spot on, not sure about the rights, and to be honest don't, have any money for a attorney, my credit is terrible i have no cash, but I am working on trying to get my credit back on track, and I just don't want this to be on my public record, there is two lines on my report for this, one from the collection agency and one from fia car services, I would like at least one to be removed.

Will they take any sort of settlement does anyone think? I am unemployed at the moment but hope i can come up with half by the end of the month, because one I offered the payment plan i got the agreement for judgement in the mail, I am just very confused, worried and just don't want this to kill my credit anymore.

[BV80]

I appreciate all the advice but my concern now is the 1st letter never said papers were filed, it was

"decision was made to file a small claims action against you, we have asked the local court to issue a small claims hearing notice while will be mailed to you by the court"

then next paragraph was

"if you prefer to resolve your account and avoid appearance at court bla bla bla"

I then called and was told they would agree to my payment plan and to sign the form i got which was a agreement for judgment"

to be honest i just want to make sure i do the right thing, I talked to a attorney over the phone and he said to just pay the debt after i explained the situation

They stated they "asked the local court to issue a small claims hearing notice". A court wouldn't issue a hearing notice without a case being filed. Their statement implies they filed the case. You checked and nothing was filed.

Also, the document they want you to sign states "judgment and payment order". Then it states "Judgment for Plaintiff". They have implied there was judgment. There can't be a judgment if there was no lawsuit.

In my non-attorney opinion, they have violated the FDCPA, U.S. Code 1692E(9) and (10):

(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

[PC1978]

Spot on, not sure about the rights, and to be honest don't, have any money for a attorney, my credit is terrible i have no cash, but I am working on trying to get my credit back on track, and I just don't want this to be on my public record, there is two lines on my report for this, one from the collection agency and one from fia car services, I would like at least one to be removed.

Will they take any sort of settlement does anyone think? I am unemployed at the moment but hope i can come up with half by the end of the month, because one I offered the payment plan i got the agreement for judgement in the mail, I am just very confused, worried and just don't want this to kill my credit anymore.

The original creditor should be reporting a 0 balance and sold or transferred, if not I would dispute.

They will settle for sure, especially if you inform them of the violation, but you don't have to at this point. They have violated the law and now you have leverage and are negotiating from a position of power.

[sdot1717]

They stated they "asked the local court to issue a small claims hearing notice". A court wouldn't issue a hearing notice without a case being filed. Their statement implies they filed the case. You checked and nothing was filed.

Also, the document they want you to sign states "judgment and payment order". Then it states "Judgment for Plaintiff". They have implied there was judgment. There can't be a judgment if there was no lawsuit.

In my non-attorney opinion, they have violated the FDCPA, U.S. Code 1692E(9) and (10):

(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

the form states agreement for judgment if that makes a difference?

[sdot1717]

The original creditor should be reporting a 0 balance and sold or transferred, if not I would dispute.

They will settle for sure, especially if you inform them of the violation, but you don't have to at this point. They have violated the law and now you have leverage and are negotiating from a position of power.

its listed as 844 and as charged off account

[PC1978]

its listed as 844 and as charged off account

You may want to wait until after the situation with Portfolio is resolved, however you decide to handle that. Then I would dispute the balance.

I did this with a similar situation with my wife's credit report where a creditor sold the account. They were still reporting a balance and after my dispute they changed it to a $0 balance. It shows as a charge-off and sold/transferred but a $0 balance.

[1stStep]

BTW- did you get a mini-miranda on anything they sent?

It would say something like "You have 30 days to dispute the debt..."

[sdot1717]

You may want to wait until after the situation with Portfolio is resolved, however you decide to handle that. Then I would dispute the balance.

I did this with a similar situation with my wife's credit report where a creditor sold the account. They were still reporting a balance and after my dispute they changed it to a $0 balance. It shows as a charge-off and sold/transferred but a $0 balance.

yea i will touch that at a later time