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Being sued by portfolio in Louisiana need help


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*Next steps...

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.)

3. How much are you being sued for?

>7,178.77 plus 772.36

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

Ge money bank dillards card

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

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

9. What state and county do you live in?

Shreveport, Louisiana*

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

2008

11. What is the SOL on the debt? To find out:*

*3 years*

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).

Served in person.

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?*

Have 10 days to respond - Just received today*

- Open account was made with bank on or around said date in 07.

- I authorized subsequently contracted for sales, goods, and services on open account .

- Failed to make payments on account

- Plaintiff owes specific amount with accrued interest and fees.

16.No interrogatory provid What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No evidence presented with summons and complaint. No. No. No. Nothing else attached. Only the summons and the complaint.

** *

Need help with this what should I do next?

Am I in the sol?

Any advice would be greatly appreciated

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When exactly was last payment? you can found that one with a credit report, also add aprox. 30 days and you got a default day. If they serve you more than 3 years from that date the debt is past the statute of limitations. If that's the case you rise statute of limitations as an afirmative defense or you could do a motion to dismiss. Check exactly last payment.

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Will this help me any

Thanks so much for everyone's responses. I have pasted below a very rough draft of what I will submit Monday for my answers and affirmative defenses. Can you please take a look at what I have created, and give me your constructive criticism? Am I being too wordy, have I not provided enough, or do you see defenses missing that could be provided? Does it look like I have answered in a correct fashion? If you will look back within the complaint that I posted in post 1, there were three numbered points to be answered but then underneath that, the plaintiff said..."plaintiff respectfully demands judgment as follows"...1. sum requested, 2. costs, 3. any and all relief ---- are these points that need to be addressed in the answer as well, number by number even though it is repeating numbers 1-3? I am confused about this and was not sure how to structure the answer.

Also, since I am referencing the customer agreement in defense 1, is this something that would then have to be attached to my answer? I have been able to find copies of the customer agreement in years previous (2005) and directly after what I need (2007-2008), but not the exact 2006 agreement as of yet.

Any and all help would be very much appreciated . Thank you!!

COMMONWEALTH OF KENTUCKY

XXX DISTRICT COURT

CASE NO. XXX

PORTFOLIO RECOVERY ASSOCIATES, LLC PLAINTIFF

vs.

ME

ADDRESS DEFENDANT

I. ANSWER

Comes now the DEFENDANT, Pro Se, and submits the following answers to Plaintiff’s Complaint:

1. The defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and must respectfully DENY the statements made by Plaintiff in paragraph 1.

2. The defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and must respectfully DENY the statements made by Plaintiff in paragraph 2.

3. The defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and must respectfully DENY the statements made by Plaintiff in paragraph 3.

II. AFFIRMATIVE DEFENSES

1. The Plaintiff’s complaint is time barred because the statute of limitations has expired on the debt allegedly owed, per the relevant Capital One Customer Agreement, Virginia Codes 8.01-246. and 8.01-248., and Kentucky’s borrowing statute, KRS 413.320.

2. The court would unjustly enrich the plaintiff by granting the relief sought herein per Kentucky statute KRS 371.050.

3. This complaint is barred by the fact that plaintiff lacks standing to bring an action. Plaintiff is not a party to the transaction and is not connected to the transaction. Defendant owes no duty to respond to plaintiff's allegations regarding the transaction.

4. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

5. Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

6. Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

7. Plaintiff’s Complaint fails to allege a valid assignment of the alleged debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

8. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

9. Improper Venue pursuant to the Agreement governing the account in question. Plaintiff, as an assign, is bound by the arbitration clause. Defendant may choose to elect Arbitration to settle any and all disputes related to the account in question, and seek reimbursement for costs per the customer agreement.

10. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

WHEREFORE, DEFENDANT prays that this action be dismissed in its entirety and with prejudice.

Respectfully submitted,

___________________________

Me, Defendant

CERTIFICATE OF SERVICE

I, XXXX, do hereby certify that a true and correct copy of the above and foregoing answer and Affirmative Defenses has been sent certified mail, return receipt requested, postage prepaid, to Platintiff, Address.

So certified, this the _____ day of _____________, 20 ___

DATED this day of June, 2011.

_______________________________

ME, Defendant

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Take out the personal information and post the complaint word for word. You are paraphrasing. One word or omitted word can change everything.

Keep the statue of limitations defense and then can the rest of your affirmative defenses, unless they have not pleaded they are the owners of the account. You might be able to use the failure to state a claim. That is why we need the complaint.

Some of those are not affirmative defenses and # 5 the U.S. Supreme Court disagrees with you 9-0. So unless you're feeling really confident and are going to challenge the Supreme Court, that needs to be gone.

Also the arbitration? That's not an affirmative defense. You've just quoted the arbitration clause.

I'm not trying to be rude with this question, but do you even know what an affirmative defense is, or are you just putting them in there because they are floating around on the internet?

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To be honest it was something i found in a forum on here and I was wondering would this help me out or is this the basic concept of how you set up what I would be returning to the clerk of court I think I wagon the right page then left it lol

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Thank you everyone for chiming in, my wife and I are very thankful that we found this forum.

Below is a repcap and my action plan, please chime in if i have missed something.

DV letters went out to everyone who claims I am in debt to, an additional round of letters will go out in 30 days with claims against the CRA's for the marks on my credit.

Summons: I have completed a PLD-050 general denial, 2 copies will be sent CRR. Under affirmative defenses i have the following:

"Plaintiff has not provided one piece of evidence on which to bring this case bearing their burden of proof. No documents, no card holder agreements or signed contracts. Their complaint is unfounded and erroneous in full. "

I have seen 2 separate trains of thought on the affirmative defense, one to hit them with a bunch of stuff, another to leave it blank and fight it in court. Guidance is very much needed.

Reply to the court along with a check for #225

Copy to the Law office.

Additionally I the following BOP letter that will be dropped in the mail the same day,

To PLAINTIFF CITIBANK, N/A and CIR, Law Offices, LLP attorneys of record herein: DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant NAME within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for goods, wares, merchandise sold and delivered of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, all payments or credits that have been made to the account and any agreement assigning the account at issue to the plaintiff.

Dated: April 20th, 2012

DEFENDANT

Name

Once the BOP is sent, this is where I get confused at (I'm a computer guy not a lawyer). Do i need to send a discovery request to the court and the law offices or does the BOP start that process?

Im happy to fight them as long as possible until i can get the case discharged or settle it. I have a few other accounts that are getting close to this stage and hopefully I can push to settle or fight the case in the courts.

If anyone is available for a 15 minute phone call, i would be very much in yur debt

Thanks and have a great weekend

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Additionally I the following BOP letter that will be dropped in the mail the same day.

"DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454"

You are in Louisiana, you are being sued in Louisiana, and you are going to send a BOP that applies to lawsuits in California courts?

The California Rules of Civil Procedure have zero to do with your case in Louisiana.

Once the BOP is sent, this is where I get confused at

Yes, you need to back up and slow down, you are confused right now. You are getting ready to derail your case. Find the Louisiana Rules. I worked insurance claims in Louisiana for a few months and you have some of the craziest laws. Some very helpful to the consumer, some not. You have to at least get the right rule book.

"Guidance is very much needed."

You posting the actual complaint and not paraphrasing it is very much needed, as I stated in my prior post. Again, one or two words can be the difference in trial strategy, if you should use certain defenses or not, and can change the whole case.

And/or shall/may will/can being used in the law makes all the difference in the world. Obviously you take out any personal info, but how can we given you the best advice if we don't have all the facts and info.

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"Plaintiff has not provided one piece of evidence on which to bring this case bearing their burden of proof. No documents, no card holder agreements or signed contracts. Their complaint is unfounded and erroneous in full. "

They have made allegations. The lawsuit is just to put you on notice for what they intend to prove at trial.

Again, need word for word what the complaint states, but the complaint only needs to make a prima facie case (that means if you assume everything in the Plaintiff's (them) complaint is correct, do they have a valid cause of action against you).

You get all that other stuff, which is not an affirmative defense, in discovery, and you have to ask for it properly, per the LA Rules of Civil Procedure.

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My thought on affirmative defenses is to not use them unless you thoroughly understand WHY you are using them, are pretty sure they apply, and have evidence and case law to back them up. You don't have to have one single affirmative defense to win. All the defendant has to do is show the plaintiff hasn't proven their case. Affirmative defenses are the defendant's to prove. An affirmative defense says that even if the plaintiff has proven their case they still shouldn't win because.....

Coltfan is right. You need to read the procedures for your state. Here's the Louisiana Code of Civil Procedure to start. The forum recently has become very heavily California focused, but those cases don't apply if you aren't being sued in California. The BOP seems to be a pretty uniquely CA defense thing.

The exact wording of the complaint is important. Remember Bill Clinton and "it depends on what the meaning of "is" is"? That's a lawyer talking. In the law every word matters and has equal weight. We are used to skimming over little words like "is" and "and", but in the law you can't.

I know it seems overwhelming but you can do this!

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  • 2 weeks later...
They have made allegations. The lawsuit is just to put you on notice for what they intend to prove at trial.

Again, need word for word what the complaint states, but the complaint only needs to make a prima facie case (that means if you assume everything in the Plaintiff's (them) complaint is correct, do they have a valid cause of action against you).

You get all that other stuff, which is not an affirmative defense, in discovery, and you have to ask for it properly, per the LA Rules of Civil Procedure.

Please admit that the plaintiff is the assignee of and or the orginator of an account in your name

Please admit that the amount set forth in the plaintiffs petition is correct

Something about articles 1466-1468

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Please admit that the plaintiff is the assignee of and or the orginator of an account in your name

Please admit that the amount set forth in the plaintiffs petition is correct

Something about articles 1466-1468

Articles 1466-1468 are the court rules for a Request for Admissions. That's the discovery process. Those are not the allegations in the Complaint. We need you to look at the Complaint, and post the allegations word for word. The allegation are the claims made by the Plaintiff that give the reason for the lawsuit. An example of an allegation in this case might be "Defendant opened a credit card account with so and so bank."

Please post the allegations. Also, exactly what evidence have they provided?

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