Need help please ( Portfolio Recovery Associates) NV

[merkene]

1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates

2. What is the name of the law firm handling the suit?

Rausch, Sturm, Israel, Enerson & Hornik

3. How much are you being sued for?

$2782

4. Who is the original creditor?

Capitol One

5. How do you know you are being sued?

Served summons at home

6. How were you served?

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? NV, Clark

10. When is the last time you paid on this account?

July 2009 (according to their complaint)

11. What is the SOL on the debt?

4 yrs.

12. What is the status of your case? Suit served? Motions filed?

10/30/2012 Answer

11/05/2012 Affidavit of Service

13. Have you disputed the debt with the credit bureaus ?

No

14. Did you request debt validation before the suit was filed?

No.

15. How long do you have to respond to the suit?

Already FILED MY ANSWER with all of them " defendant doesn't have sufficient knowledge....bla bla bla"

16. What evidence did they send with the summons?

Nothing with summons.

Since they couldn't get a default judgement on me. They had to send me this "Early Case Conference Report" along with bank statements and an Affidavit of Account as evidence. Some statements have different address (NOT MINE) and Affidavit is written by a Portfolio Recover a$$. employee for SOMEONE ELSE. Wrong person, wrong account number, wrong amount. Isn't this hearsay even if it was for me ?

Also what was interesting to me, was that the wording they used in affidavit of account. It says:

".wrong name........ is/are justly indebted to Portfolio Associates LLC. Assignee of Capitol Bank in the principal amount of ...wrong amount "

But when I look at the Summons complaint #8 it says :

"Plaintiff, for good and valuable consideration, was assigned the above mentioned claim."

Well my English is not great but complaint is talking about getting paid and being assigned by Capitol One for their collection efforts. Affidavit is talking about me owing that money directly to PRA. I am confused. Did they buy the debt (Bill of Sale ) or were they assigned to collect the debt ? (no proof provided by the way)

Anyways on their complaint,they were talking about things like

- they are authorized to transact business in the state (No proof provided)

- I applied for and was issued a credit card (No proof provided)

- I defaulted on the card agreement ( No card agreement provided)

- They made demand of payments but i have failed and/or refused to pay under the terms of the charge account agreement (No proof of ever contacting me and no proof of so called charge account agreement) I don't even know if charge account agreement and card agreement are the same thing. I am really frustrated with this whole thing, they are wasting my time and my money (parking courthouse $4 an hour, this fee that fee, taking time off from work). I really want to call them and tell them to stop this nonsense. I doubt they will listen. Please help me guys what do i need to do next to get this scumbags off of my back.

Thank you

Edited November 19, 2012 by merkene

[1stStep]

Have you filed an answer? If not, you've got 20-30 days to file one.

From what you describe, this is typical of PRA and other JDBs- they often are sloppy and never have the evidence to prove you owe them - hence the use of affidavits.

[merkene]

Sorry if it wasn't clear. I already have filed my answer. Now we are at the next step. They send me those two documents i have mentioned as evidence. I need an advice from someone with knowledge and experience to guide me through this.

[1stStep]

So prep your own discovery - you will find examples all over the board.

[Beergoggles]

From the Late Great LegalEagle

Discovery Requests

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitimacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

(this is an explanation to #11 and 12 This is an element of account stated, their favorite cause of action. The theory says that if you received and retained statements for an unreasonable amount of time without protest, you have admitted that the amount is correct. They usually say 30 days. BS in my opinion. That's why I suggest making them define unreasonable. Why is it you only get 30 days, and they can wait 3 years to sue while interest piles up?)

[BV80]

Since they couldn't get a default judgement on me. They had to send me this "Early Case Conference Report" along with bank statements and an Affidavit of Account as evidence. Some statements have different address (NOT MINE) and Affidavit is written by a Portfolio Recover a$$. employee for SOMEONE ELSE. Wrong person, wrong account number, wrong amount. Isn't this hearsay even if it was for me ?

Also what was interesting to me, was that the wording they used in affidavit of account. It says:

".wrong name........ is/are justly indebted to Portfolio Associates LLC. Assignee of Capitol Bank in the principal amount of ...wrong amount "

Is this your account? If it is, they have to explain why the statements have the wrong address.

The affidavit could be a mistake. However, I wouldn't point out their mistake right now. If they eventually file a motion for summary judgment, it would be interesting to see if they use it to support the motion. If they do, that affidavit would be part of the reason the summary judgment would be denied. Also, the judge might let them come up with another one.

Also what was interesting to me, was that the wording they used in affidavit of account. It says:

".wrong name........ is/are justly indebted to Portfolio Associates LLC. Assignee of Capitol Bank in the principal amount of ...wrong amount "

But when I look at the Summons complaint #8 it says :

"Plaintiff, for good and valuable consideration, was assigned the above mentioned claim."

Well my English is not great but complaint is talking about getting paid and being assigned by Capitol One for their collection efforts. Affidavit is talking about me owing that money directly to PRA. I am confused. Did they buy the debt (Bill of Sale ) or were they assigned to collect the debt ? (no proof provided by the way)

They've claim to have purchased the account. Assigned can have 2 meanings. It can mean assigned to collect for the original creditor and, as in this case, it can mean assigned through purchase of the account.

The Bill of Sale is not proof of the purchase. If it's like most bills of sale, it doesn't reference your name or account number. It only shows that the JDB allegedly purchased some account from the OC. That's not proof any account related to you was included in the sale.

They made demand of payments but i have failed and/or refused to pay under the terms of the charge account agreement (No proof of ever contacting me and no proof of so called charge account agreement) I don't even know if charge account agreement and card agreement are the same thing.

A charge account agreement and card agreement are the same thing. It's simply a cardmember agreement.

I am really frustrated with this whole thing, they are wasting my time and my money (parking courthouse $4 an hour, this fee that fee, taking time off from work). I really want to call them and tell them to stop this nonsense. I doubt they will listen. Please help me guys what do i need to do next to get this scumbags off of my back.

Unless you have proof this account is not yours, they probably wouldn't listen. They just want your money.

Start studying your court's rules of civil procedure and prepare your discovery requests.

BTW, what was the cause of action? Account stated? Breach of Contract?

[merkene]

It was Breach of Credit Card Agreement.

This was more than 3 years ago. I thought I closed my credit card with capitol one before i went overseas. I see lot of weird charges on the statements like fast food restaurant charges every single day etc.

I was thinking about calling capitol one and confirming this debt with them. I honestly don't have the time or energy to fight through legal system. My job is way more important. I would like to work on a settlement, If it is REALLY MINE. But I would prefer to settle it with capitol one rather than this scumbags. Do you think it is possible to settle it with capitol one provided they prove it that was really my debt.

[BV80]

It was Breach of Credit Card Agreement.

This was more than 3 years ago. I thought I closed my credit card with capitol one before i went overseas. I see lot of weird charges on the statements like fast food restaurant charges every single day etc.

I was thinking about calling capitol one and confirming this debt with them. I honestly don't have the time or energy to fight through legal system. My job is way more important. I would like to work on a settlement, If it is REALLY MINE. But I would prefer to settle it with capitol one rather than this scumbags. Do you think it is possible to settle it with capitol one provided they prove it that was really my debt.

If Cap1 has sold the account, they're out of the picture. They cannot accept payment from you.

If charges were made here in the states while you were overseas, it's possible it's either identity theft, or the JDB simply has the wrong person. If you can prove that it's impossible for you to have made certain charges because you were out of the country, you have proof of identity theft or mistaken identity.

[Huey Pilot]

From the Late Great LegalEagle

Discovery Requests

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitimacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

(this is an explanation to #11 and 12 This is an element of account stated, their favorite cause of action. The theory says that if you received and retained statements for an unreasonable amount of time without protest, you have admitted that the amount is correct. They usually say 30 days. BS in my opinion. That's why I suggest making them define unreasonable. Why is it you only get 30 days, and they can wait 3 years to sue while interest piles up?)

What happened to the Eagle. Does this mean he's gone or just not participating in the CIC Forum any longer??

HP

[merkene]

Well dates on my passport don't match the dates of those charges. So I can't prove this as identity theft. I don't want to give my money to a JDB. I have no choice but to fight them.

I found capitol one 2008 card agreement online with arbitration clause.

Should I file MTC or Amended answer ( with Affirmative Defense Arbitration and Award column checked on the form ) ? Or did i lose my right to go through arbitration route because i haven't checked that affirmative defense on my initial answer ?

[BV80]

Well dates on my passport don't match the dates of those charges. So I can't prove this as identity theft. I don't want to give my money to a JDB. I have no choice but to fight them.

I found capitol one 2008 card agreement online with arbitration clause.

Should I file MTC or Amended answer ( with Affirmative Defense Arbitration and Award column checked on the form ) ? Or did i lose my right to go through arbitration route because i haven't checked that affirmative defense on my initial answer ?

The Arbitration and Award defense wouldn't apply in your case. That defense means that there's already been arbitration.

When did the default occur? Cap1 removed their arbitration provision, I believe, in 2009 or 2010. If you defaulted after that, Cap1 will fight any arbitration attempt.

However, if you can prove ID theft or that the account isn't yours to begin with, you have valid defenses.

[texasrocker]

From the Late Great LegalEagle...

Legaleagle is dead?

[merkene]

They just sent amended disclosure with new affidavit from their employee. Default is from July 2009. So i can't use arbitration ? Can i have a valid defense just with wrong address on SOME statements ? Woulndt they just say you you must have changed it.

[BV80]

They just sent amended disclosure with new affidavit from their employee. Default is from July 2009. So i can't use arbitration ? Can i have a valid defense just with wrong address on SOME statements ? Woulndt they just say you you must have changed it.

I think you might be safe on the arbitration provision. It might have been 2010 that it was removed.

Cap1 was sued in a class action suit in which it was claimed the arbitration provision was not fair to consumers. As part of the settlement, Cap1 agreed to remove it and not enforce past agreements.

However, I forgot you were being sued by PRA, not Cap1. PRA may not know about the settlement.

Regarding the address, if you can show you never lived at that address, it's up to them to explain why the statements show an incorrect address.

BTW, is the account yours?

[merkene]

I think it is. I did have a card with them.

So are you suggesting that I should try arbitration ? if they took it out in 2010. The default was in 2009. I should be OK ?

[BV80]

I think it is. I did have a card with them.

So are you suggesting that I should try arbitration ? if they took it out in 2010. The default was in 2009. I should be OK ?

The settlement occurred in 2010, so you should be ok. Again, PRA may not even know about the settlement.

Also, have you checked your bank records to see if you made that final payment in 2009? Don't ever trust a JDB's word for anything.

[merkene]

yes last payment was July 2009. So shoul I go ahead and initiate arbitration ?

[BV80]

yes last payment was July 2009. So shoul I go ahead and initiate arbitration ?

I know next to nothing about the process. Read the arbitration threads here on the boards. They should have the information you need to get started.

BTW, have you requested discovery or answered any discovery requests from them? If you've done either one, you may have waived your right to arbitration.

[merkene]

Nope no discovery yet. They just sent the initial disclosure statement attached with bank statements and affidavit as evidence.

Yeah I am reading Linda's thread right now. Very helpful.