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Being sued by Portfolio Recovery Associates in Gwinnett County Ga.


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Hello everyone.

My name is Chris and I was just served with a Statement of Claim this past Sunday. I have researched the boards and have found others answer the claims starting with a General Denial however, I do not see any of these forms on the Gwinnett website or in formsworkflow.com (Yes, I work for a law firm ,but want to do this on my own)

So here are the details of the Statement of Claim if anyone could point me in the right directions I would be very appreciative.

1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

None

3. How much are you being sued for?

$2236.05

4. Who is the original creditor? (if not the Plaintiff)

HSBC

5. How do you know you are being sued? (You were served, right?)

I was served

6. How were you served? (Mail, In person, Notice on door)

In person

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None at all, not even a phone call.

9. What state and county do you live in?

GA, Gwinnett

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Dec 20, 2009

11. What is the SOL on the debt?

Don't know.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Here is all that is listed online

Case Type: Magistrate Court Civil Case Category: SMALL CLAIMS GENERAL CIVIL

Case Description: Disposition Date:

Disposition: Disposition Manner:

Jury Trial Demand: Filing Type:

Official: judge magistrate :

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

30 days.

No Questionnaire

Allegations:

1. The Defendant is indebted to the Plaintiff on account for Charges incurred by the Defendant under a credit card account (HSBC Bank NEVADA. N.A / Metris)and credit privilages provided by Plaintiff's Predecessor to Defendant which account has been assigned to Plaintiff

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

AFFIDAVID.

I the undersigned Nicole J Moore, Custodian of Records for PRA herebydepose, affirm and state as follows.

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

2) I am an authorized employee of PRA..... I am authorized to make statements, representations and averments herein, and do so based upon personal knowledge and a review of the business records of the account assignee and those account records transferred to account assignee from HSBC.... which have become a part of and have intergrated into Account assignee's business records in the ordinary course of business.

It goes on to state that the account was transferred on Feb 18th 2011 and the account seller has retained no further interest in said account.

A Statement of Account was attached.

Date Account Opened . Dec 28 2005

Date of Last Payment Dec 20 2009

Date of Charge off Aug 31, 2010

Balance at purchase 2236.05

Puurchase date Feb, 18, 2011

And a copy of a bill was attached.

Again any help would be greatly appreciated :)

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You're in small claims. No answer is required, but you definitely need to appear in court. I would write up an answer anyway and take it with you.

Research the judge carefully. See if they are a real attorney.

You won't be able to ask for Discovery ahead of time, but you can certainly request Discovery-like proof when you testify in front of the judge. Here are some things to read.

What to Say to Judge in Court Sued by Creditor

How to File a Lawsuit in Small Claims Court

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Thank you very much.

Is Small claims the same as Magistrate Court with just a different suit$ caps?

At the bottom of the Statement of Claim there is a paragraph Notice And Summons.

You are required to file or present an Answer to this claim within 30 days after service of this claim upon you. If you do not answer judgment by default will be entered agains you.

It also states that I may file in writing or in open court in person.

No hearing date has been set at this point.

Should I still appear in open court or simply answer the claim in writing as to not get into a Q/A with the judge?

Thanks again.

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Thank you very much.

Is Small claims the same as Magistrate Court with just a different suit$ caps?

At the bottom of the Statement of Claim there is a paragraph Notice And Summons.

You are required to file or present an Answer to this claim within 30 days after service of this claim upon you. If you do not answer judgment by default will be entered agains you.

It also states that I may file in writing or in open court in person.

No hearing date has been set at this point.

Should I still appear in open court or simply answer the claim in writing as to not get into a Q/A with the judge?

Thanks again.

hello Chris

PRA also filed a suit against me recently and I am preparing to fight back. Though I live in IL, I would like to share as much as I can that I got from other members in the forum helping me.

First off, file an answer with the court and deny all claims(allegations) they've made against you. For me, I had a complaint form attached to my summons that listed reasons why I am indebted to PRA. Reading your post above, they only listed 1 allegation?

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Georgia has no Small Claims courts, rather small claims are a category within Magistrate Court.

The Rules of Civil Procedure are here:

http://www.georgiacourts.gov/files/UNIFORM%20MAGISTRATE%20COURT%20RULES%20-%2012_08_11_.pdf

Forms are available here:

Council of Magistrate Court Judges :: Forms

Admin is right that there is no discovery in Magistrate Court, also there are relaxed admissibility standards which means they may get junk admitted that would never fly in another court. If you want or need discovery you can always remove to Superior Court. Practice one sentence up quite a bit: "Objection Your Honor".

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:mrgreen:

Georgia has no Small Claims courts, rather small claims are a category within Magistrate Court.

The Rules of Civil Procedure are here:

(Can't post links yet)

Forms are available here:

Council of Magistrate Court Judges :: Forms

Admin is right that there is no discovery in Magistrate Court, also there are relaxed admissibility standards which means they may get junk admitted that would never fly in another court. If you want or need discovery you can always remove to Superior Court. Practice one sentence up quite a bit: "Objection Your Honor".

Thank you very much.

Ok, given that there is no discovery in Ga Magistrate courts I assume that I would exclude any demands to produce Chain of Custody, Bill of Sale from the OC etc correct?

In this case do you simply appear at the hearing once a date is set and object to every piece of evidence that is admitted as hear say?

Sorry if these questions are remedial, I have researched this forum up and down and it's difficult to find anyone in my situation (meaning Magistrate court).

I know this is a loaded question ,but if you were in my shoes would you simply appear in court ready to dispute everything or shoot for Superior Court?

Thanks!!!

LegalEagle Would you elaborate a little on this please? "Arbitration anyone? Small amount, they won't pay."

Again, thank you everyone for your help

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Begging Admins pardon, but you do have to file an answer in Georgia's Magistrate Court.

After receiving the complaint/summons - "The defendant then has 30 days to file an Answer either admitting or denying the allegations. If the defendant fails to file an Answer, your claim(s) are deemed admitted as to liability."

Read more here - http://www.bfvlaw.com/UploadedFiles/Publications/Representing_Yourself_or_Your_Business_in_Small_Claims_Court.pdf

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FYI, I am what is referred to by JDBs as a litigious debtor (Interestingly none of the debts I sued them on were even mine).

If it was me I would remove to Superior Court with counter claims. You would need to look carefully for counter claims, but PRA can not help themselves in violating. Many people however would not take this route as they are scared of court, want to get it over with, etc. The advantage you are going to get is they may be able to slip by in small claims, where as PRA will not have a leg to stand on in a real court.

You may have one more option, but you will have to review how it works. If you were to lose in Magistrate, you can appeal and get a whole new trial in Superior Court I believe.

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HSBC? When was the alleged account opened?

Edit: I see, 2005.

I have the 2006 agreement containing JAMS. xangelx

In some courts, you can challenge the issue of lack of standing. The affidavit is hearsay and their bill of sale probably does not show your name or the account number, meaning it was sold in a bundle of debts and therefore they can't prove it was in there.

However, since you never know if you're going to be in a kangaroo court or not and since you have such a "sweet" agreement to work with - I would elect arbitration and initiate arbitration with JAMS. I'd be sure and file my answer in court before the deadline and the first affirmative defense I would have is that it is not within the jurisdictional limits of the court as the defendant has elected arbitration.

Let me know if you're interested and we'll discuss this further. :)++

Edited by Linda7
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Good morning and thank you for the responses.

I have a few questions about Arbitration. I was reading over the GA bar and noticed that this is a free service in Ga.

LegalEagle you made a comment that they won't pay, what exactly does that mean? {EDIT} I just read where they have to pay 250$ for JAMS.

Given that may I force them to use JAMS if I so elect?

I was also reading that arbitration was only award binding if both parties agree and in this case I would never agree to pay a JDB a dime.

"It is if both parties so agree. In such cases, it cannot be appealed except for very limited reasons. If both parties do not so agree, it will be considered as prima facie evidence in any future litigation. And in certain situations, an award in favor of the client may entitle him or her to the free services of an attorney to represent the client in any necessary subsequent litigation regarding the fee"

Do most JDB dismiss the case when the Defendant elects Arbitration?

I am just curious and weighing my options before I submit my answer to the courts.

also I did confirm that you may appeal to superior court after losing in the Magistrate court.

Thanks for all the help with this everyone!:mrgreen:

Edited by JustChris
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Mandatory arbitration by the court is not the same as arbitration with a forum like JAMS. In court ordered arbitration, it's merely more like mediation. There's a mediator who tries to get the parties to come to an agreement.

What Legal meant by "they won't pay" is that private contractual arbitration is expensive for the Plaintiff. There's more than just the $250 fee. If you're being sued for a smaller amount, some Plaintiff's don't want to go to the expense of an arbitration...especially if they can't prove their claims.

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From past threads I have read regarding magistrate court hearings for debt lawsuits, the number one bit of information I can pass along, aside from the proper paperwork that is needed which you are getting assistance on here, you need to be sure to have a big cup of COURAGE and will in the morning. You must refuse to allow the court and the lawyer for the JDB to walk all over you and intimidate you.

From past stories I have read about these magistrate courts, there will be a host of other defendants there on that day, the JDB's group them all into a couple days a month. There will be a number of defaults. For those who do show up, many will not be as knowledgeable of their rights as you will be from what you learn here. The lawyer will take advantage of this and will pressure people into payment plans and the like, even though they probably don't have any proof of the debt.

More than likely things will move very smothly for them until your name is called. The lawyer, and if you are like many others who find themselves in magistrate court (again from what I have read) the judge will pressure you and make you feel like you have no rights and that you have to pay.

All of the knowledge in the world will do no good unless you are ready to assert your rights, you have to be prepared to do so. Good luck to you, you will get plenty of good help on here.

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Good morning everyone,

Thanks again for the responses. Ok, I have been reading a ton about the Magistrate court process and Arbitration and think I may go the Arbitration route.

I am going to file my answer today and like Linda7 said (thank you btw) it is not within the jurisdictional limits of the court as the defendant has elected arbitration.

A few more questions if I may.

First, should that be my only affirmative defense or should I throw a few more in there from the Sticky List I read?

Second, I have read several threads about what to actually write on the Casesubmission form under Claims & Relief Sought by Claimant so I am unsure how I should proceed?

I am sure that the Plaintiff (JDB) will try to deny the request (just thinking ahead here) so what would be a good rebuttal if this happens in court?

Last question for now. Should I include a copy of the HSBC agreement (thanks again Linda7) with the Arbitration clause highlighted as Exhibit A when I submit my Answer to the court today?

Again thank you EVERYONE for your responses. I only wish there was some way I could contribute to the community here more then just what I have read.

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Ok,

Here is the Answer to Complaint that I have come up with. Do I need to include JAMS somewhere in the answer for the elected arbitration venue?

Critique at will.

ANSWER TO COMPLAINT

Defendant in answer to complaint states:

Defendant admits in part the allegation that defendant is an individual residing in Gwinnett County, but lacks information or belief in the truth of the allegation that venue is proper and therefore denies that venue is proper. The alleged Account Originator has publicly stated that the terms of its agreements (see attached Exhibit A) are governed by arbitration clauses; these terms are publicly posted on the Federal Trade Commission’s website and the defendant further states that he has elected arbitration.

AFFIRMATIVE DEFENSES AND COUNTERCLAIMS

1. The plaintiff has failed to state a claim for which relief can be granted. Failing to attach necessary writings to the complaint to support its allegations has not stated a claim for which relief can be granted. Plaintiffs failure is unamend able as if plaintiff had the necessary writings they would have attached them. Plaintiffs assertion that the documents are in the possession of the adverse party are not grounded in fact.\

2. Plaintiffs lack the legal capacity to sue. Plaintiffs failed to attached required writings specifically bills of sale to the complaint with required signatures to confer standing. The complaint doesn't show with specificity the chain of assignment of the alleged account at issue.

3. Defendant reserves the right to amend this answer at any time to add affirmative defenses at any time.

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Arbitration stops litigation, therefore you need no special defenses because there is nothing to defend against.

Ok so I will delete that from my Answer.

Does the other part of my answer look okay?

Last, do I need to submit a copy of the JAMS Arbitration Demand to the courts?

Thank you,

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Good morning everyone,

Well I filed my answer with the courts last Friday listed below.

ANSWER TO COMPLAINT

Defendant in answer to complaint states:

Defendant admits in part the allegation that defendant is an individual residing in Gwinnett County, but lacks information or belief in the truth of the allegation that venue is proper and therefore denies that venue is proper. The alleged Account Originator has publicly stated that the terms of its agreements (see attached Exhibit A) are governed by arbitration clauses; these terms are publicly posted on the Federal Trade Commission’s website and the defendant further states that he has elected private contractual arbitration before JAMS.

AFFIRMATIVE DEFENSES AND COUNTERCLAIMS

1. Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff's attorney of his election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. This court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration agreement.

2. The plaintiff has failed to state a claim for which relief can be granted. Failing to attach necessary writings to the complaint to support its allegations has not stated a claim for which relief can be granted. Plaintiffs failure is unamend able as if plaintiff had the necessary writings they would have attached them. Plaintiffs assertion that the documents are in the possession of the adverse party are not grounded in fact.

3. Plaintiffs lack the legal capacity to sue. Plaintiffs failed to attached required writings specifically bills of sale to the complaint with required signatures to confer standing. The complaint doesn't show with specificity the chain of assignment of the alleged account at issue.

4. Defendant reserves the right to amend this answer at any time to add affirmative defenses at any time.

COUNTER CLAIMS

1. The Defendant has counterclaims, but reserves them for Private arbitration pursuant the HSBC card member agreement.

2. The Defendant reserves the right to add additional counterclaims, if proceedings go further in this action.

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to HSBC card member agreement.

My only questions at this point have to do with the JAMS demand for arbitration process.

Do I need to file my counterclaim with JAMS now ( FDCPA violations ) or should I wait for my case to either be dismissed or until after my trial date?

My last question has to do with the nature of the dispute and the claim & Relief sought by claimant fields.

I have read that you never state the orig claim in the nature of the dispute so I am up in arms as to what to write in there. Also, the claim & relief section should I include the amount they (JDB) state I own with a counterclaim of 3200$ for failing to send dunning notices or provide documentation of the actual purchase?

I have scrubbed the forum and couldn't find any specifics on the verbiage used in the JAMS arbitration Demand letter.

In advance thank you,

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