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Served today by PRA in NC - Info Overload


KME67
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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.)

Sessons & Rogers PA

3. How much are you being sued for?

approx $1000

plus 8% annual interest from Jan 2012 forward

plus court costs

plus any other unspecified applicable relief

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

GE Money Bank/Paypal Buyer credit

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

served with civil complaint

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

hand delivered by sheriff

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?

North Carolina, New Hanover County

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

3-23-10

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

3 yrs

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).

complaint served

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 from being served

 

complaint attached in pdf

 

no questionnaire


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

 

Exhibit A:

- photocopy of last statement from GE Money Bank dated 4-2010

- photocopy of chargeoff statement dated 11-02-2010

 

Exhibit B

- Bill of Sale (included in attached pdf)

- Data record printout of acct info transferred from GE Money Bank to PRA

 

===================================================================================

 

I have been studiously reading up on thread after thread and am unsure of my options here. I hear good and bad things about requesting arbitration (I have an applicable account agreement listing JAMS as an arbiter), and am unsure if SOL became moot the day they filed the complaint, even though it's a hair from expiring.

 

The Bill of sale seems odd to me as well, since signatures were attained on 2 separate copies and the sale statement includes no identifying info about the account (other than the accompanying data sheet in the summons)

 

Also, other than the "30 days from being served" response requirement, there is no court date to be found anywhere in the papers I was served.

 

I am ready to act on a response immediately but am still painfully unsure of what that response should be.

complaint.pdf

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Did PRA not include an affidavit or anything signed by one of their custodians or legal specialist? 

This is the first one I have seen where they didn't include one with a "signature" of an employee on it. Legal or not.

 

Exhibit B is just funny. They don't even have both parties signing the same piece of paper. Not to mention your name is not mentioned anywhere on it. Just a general bill of sale where they purchased something with no amount and very little information. Definitely attack this piece of paper if it gets that far.

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Nope, no affidavit from PRA.  Nothing but the complaint and exhibits. Nothing signed by anyone with PRA. The only plaintiff name and/or signature is on the complaint itself, which I should also note does not contain any clause of being accurate under penalty of perjury that I can find.

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#9 in the complaint states that "The statements reflect an itemization of the charges and fees owed, along with an explanation of how the balance owing on the Account was calculated."

 

I take it the only 2 statements provided were the two you mentioned in your post.  Do they show an itemization?  Do they show any charges and/or payments?

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Usually the easiest way to beat PRA is to attack the affidavit they include. Normally sending a subpoena to the person who signs it should get the case dismissed. I would definitely attack the bill of sale which has zero information about you in it.

 

Since you don't have an affidavit I would check with some of the other N.C. posters here to see if they have dealt with this. I also read a while back that in N.C. the person who sues you must tell you in writing 30 days in advance. I don't have the link but others in N.C. may be familiar with this. Check on this and start reading up on your local and state rules of court.

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BV80,

 

The first statement is a photocopy of a regular billing statement from GE/Paypal showing Prev Balance, Payments, Purchaes, Finance Charges and New Balance, with a Transaction Summary at the bottom. The second statement is the chargeoff statement from GE/Paypal, showing the final balance plus chargroff finance charges, with the total equalling the amount cited in the complaint. I would have to say they do itemize all that could be itemized.

 

Art,

Concerning the 30 day notice of intent to file, to my knowledge nothing of that sort was ever received. Definitely nothing certified or that could be proven was actually delivered.

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So many strategies that may or may not apply, so much legalese and terms and references that are just going straight over my head. . . it's just so much to take in in so little time and I don't have a clue where to start. Really starting to get freaked by the whole thing.

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So many strategies that may or may not apply, so much legalese and terms and references that are just going straight over my head. . . it's just so much to take in in so little time and I don't have a clue where to start. Really starting to get freaked by the whole thing.

 

Edit your first post and change the amount to 1K. I think you did a good job hiding your personal information.

 

What you are going through is normal. They expect you to freak out and give in. Almost all of these JDBs have very little evidence to win a real case and they regularly violate debtor's rights. The thing is they don't care because it is a very cost effective strategy.

 

Most defendants never show up for court and get default judgments against them. Some others show up and just give in. Only a few show up to fight and these are the ones they try to avoid. If you decide to be that person then you are in the right place. A win is never guaranteed, but if you work at it you have a good chance.

 

Start by calling the court clerk and find out the date of your first court date. Then find out if you need to answer the complaint and find out how much time you have. Then come back here and start asking questions. You are already doing a good job by listing everything at the top of your post:)

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http://law.onecle.com/north-carolina/58-insurance/58-70-115.html

 

#6

 

(6) When the collection agency is a debt buyer or acting on behalf of a debt buyer, bringing suit or initiating an arbitration proceeding against the debtor to collect on a debt without first giving the debtor written notice of the intent to file a legal action at least 30 days in advance of filing. The written notice shall include the name, address, and telephone number of the debt buyer, the name of the original creditor and the debtor's original account number, a copy of the contract or other document evidencing the consumer debt, and an itemized accounting of all amounts claimed to be owed.

 

Other parts listed in the link may apply also, but this is a start. Get some of the more experience posters here to comment on this and also look for N.C. case law involving it.

Google Scholar is a good place to start..

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I also forgot to make sure you keep all letters they send you and keep any messages they leave on your answering machine. If you can find where they violate your rights under the FDCPA you can sue them. If you have a strong case a good consumer attorney should take the case and make PRA pay their fees. A successful FDCPA settlement can also get your debt cancelled. 

 

Suzanne Begnoche 2008 Suzanne Begnoche, Attorney at Law Chapel Hill North Carolina Edward C. Boltz 2005 Law Offices of John T. Orcult Durham North Carolina Ms. Lynn Ellen Coleman 2010 Lynn E. Coleman, Attorney Kernersville North Carolina Travis E. Collum 2010 Travis E. Collum, Atty. at Law, P.A. Mooresville North Carolina Thomas W. Anderson 2004 Office of Thomas Anderson Pilot Mountain North Carolina J. Matthew Norris 2008 Norris Emery, PLLC Raleigh North Carolina Benjamin H. Whitley 2010 The Whitley Law Firm Raleigh North Carolina Carol Ann Zanoni 2009 Office of Carol Ann Zanoni Raleigh North Carolina Don L. Coomes 2009 Donald L. Coomes, PLLC Sanford North Carolina Mr. Oliver Max Gardner III 1998 Gardner & Botes, PLLC Shelby North Carolina Glenn E. Emery 2010 Norris Emery, PLLC Wilmington North Carolina

 

I know nothing about these attorneys, but they are listed on the NACA Website. http://www.naca.net/

 

Max Gardner is one of the best known. He teaches seminars on FDCPA cases to other attorneys.

http://www.maxgardner.com/

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Art,

Thanks very much for the info and resources. Your input is extremely appreciated. This will be very useful should counteractions be called for. For the time being however, I should concentrate on the immediate concern of how to respond to the summons I received since the clock is quickly ticking on that matter. I see some topics arguing for affirmative defense, others saying screw that just insist on arbitration and hope they just drop it, others saying just offer a quick 20% settlement. . . I'm reading everything I can find but it almost seems the more I read the murkier it gets.

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OK, so if I am understanding corectly some of what I have read, North Carolina passed a law in 2009 called the Consumer Economic Protection Act, which, among other things, required debt buyers to be registered as debt collectors in the state in order to curtail some collcetions abuses. The act also appears to invalidate the affidavits frequently submitted by debt buyers which were used to validate the debts, instead requiring that actual documents be submitted in a complaint:

 

(1) A copy of the contract or other writing evidencing the original debt, which must contain a signature of the defendant. If a claim is based on credit card debt and no such signed writing evidencing the original debt ever existed, then copies of documents generated when the credit card was actually used must be attached.

 

(2) A copy of the assignment or other writing establishing that the plaintiff is the owner of the debt. If the debt has been assigned more than once, then each assignment or other writing evidencing transfer of ownership must be attached to establish an unbroken chain of ownership. Each assignment or other writing evidencing transfer of ownership must contain the original account number of the debt purchased and must clearly show the debtor's name associated with that account number.

 

So if I were to challenge the materials attached to the complaint based on the above standards, is that done in the Answer, or that be done in a countrclaim entirely separate from an Answer, or would the counterclaim supersede an Answer? The first required document is iffy. I cannot locate any copies of the original application and it may very well be that the application was completed online with an electronic signature. In that case it would seem on first glance that a statement copy would suffice as "documents generated when the credit card was actually used."

 

The second class of documentation seems clearer. The only assignment PRA provided is a Bill of Sale that only mentions the transfer of an account from GE MOney Bank to PRA. it does not identify me by name, does not include any account number, in fact is has no identifying account information at all (unless you count the data printout that appears to have accompanied the Bill of Sale, which includes some clearly inaccurate information - the DOFD is definitely wrong).

 

Still I dont know if that is sufficient grounds for a counterclaim. Either way, do I still file an Answer regardless?

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I guess we may have added to your info overload. A lot of us just get excited when we see someone that wants to fight and has their head together. Its a rare combination!

 

You are correct. For now concentrate on the next step. Call the clerk's office and see if you have a hearing or trial date. Ask them about the time frame for answering questions if its required. I know we have some more NC people on here, but they may not check in every day. Find out this information and go to the next steps.

 

It looks like you have already uncovered some useful info. It answers the reason what they sent you is so much different than what they send the rest of us in other states. So after you find the answers to the above come back here and ask the more experienced legal minds how to proceed.

 

Just by going this far you have already passed up 90% of those in your situation. Most have already given up and lost at this stage of the game.

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Each assignment or other writing evidencing transfer of ownership must contain the original account number of the debt purchased and must clearly show the debtor's name associated with that account number.

 

Does the Data Record printout contain the original account number?  If so, I guarantee you they're going to claim that their Data Record printout is the "other writing" that evidences transfer of ownership of the debt.

 

 

The second statement is the chargeoff statement from GE/Paypal, showing the final balance plus chargroff finance charges, with the total equalling the amount cited in the complaint.

 

Are you sure the chargeoff statement is from GE/Paypal and not a document created by PRA?

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Art,

 

Thanks. I don't really feel like I have my head together on this though. I seem to have misplaced a bit of the tenacity I used to have.

 

BV80,

 

If it's not an authentic statement it's an incredible fake. Looks to me like like an official final statement from GE/Paypal, logos and all. Formatting matches. And yes, the data printout has the original account number.

 

I dont know that I have it in me to put up much of a fight on this. To be honest, I'm tempted to contact the PRA and just say "Look, you've seen my credit. We both know it's irrevocably trashed. Even though I dispute everything in its entirety, my only incentive at this point is to avoid a judgment. So I'll send you xx% to withdraw the case and settle the account. Because the second a judgment hits my credit report is the second I have no reason left to deal. And it's he second you can kiss away any chance of ever seeing a dime."

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While you have to make whatever decision you feel is best for you, I would say to fight it and fight it hard! PRA and their attorneys tend to violate the FDCPA (at least in my experience) left and right giving you plenty of opportunity to file a cross complaint.

 

It looks as if they have filed this right before the SOL ran out, which is a bummer, but they still have to prove their claims. One statement does not proof make!

 

The best advice I have is to get a calendar together and keep track of important dates. There is nothing worse than making a goof on timing. Also keep every letter, note, etc. they send to you ALONG with the envelope it came in to prove date of mailing.

 

We have been in your shoes and we know how scary it is. Yes, there's an enormous amount of information to research. But nothing, and I do mean nothing, feels better than making them file for a dismissal because they decided to pick on the wrong person. Be that person. Heck, you might eventually even find you relish getting that fresh new dunning letter from the newest sucker in line.

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Thanks. I don't really feel like I have my head together on this though. I seem to have misplaced a bit of the tenacity I used to have.

 

This is why these people are so successful. They scare, bluff and try to overwhelm people and they are very good at it. They have been making millions of dollars for years and the small group of fighters here are like a flies on white sandy beach to them. Of course some flies are more irritating than others, but that is why they swat us away. In other words when someone fights they are more likely to give in because so many others are easy game.

 

It is true you have to make the decision that works best for you. The hardest, but most rewarding, will be to fight them in court. Although I'm not experienced with arbitration this may work better for you. According to many here they will go away because of the cost involved to them. I would at the least look at this option.

 

Of course you can give them some money. Just make sure everything is set in stone legally. I have read a lot of horror stories about people paying and then getting sued for the remaining debt by some other JDB. If you do pay remember they probably paid $20. or $30. for your account plus some postage stamps. 

 

All that being said I would at least call the court clerk and get some information on what is going on. At this point you don't even have a court date or know if you need to respond.

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Spoke with the Clerk of Court. As I assumed, I have 30 days from the date of service to submit an Answer and then they will actually schedule the case for court. I guess since most people never bother answering they keep the docket free and expect a default judgment that doesnt require courtroom time. Interesting that they have filed it in District rather than Small Claims. I guess they expect an award far above the $1K balance they are claiming.

 

I'm curious as to the effect a demand for arbitration would have on SOL, since they squeaked this case in by a hair before SOL would have expired. If they were to withdraw, does the clock start ticking again. Could I demand arbitration, let the remainder of SOL run out, and then drop the arbitration leaving them in the wind, or would they still be able to come back and re-file?

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I'm curious as to the effect a demand for arbitration would have on SOL, since they squeaked this case in by a hair before SOL would have expired. 

 

The SOL was frozen when they filed the suit. 

 

They withdrew my case the morning of the trial, so its like the case never happened concerning SOL.  At least that is how it works in TN. 

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It's official: I don't know what the hell I'm doing.

 

So after leaning heavily toward the arbitration/JAMS strategy, and after further reading, I can almost rule that idea out. There's just not enough documented evidence offered that going that route even works. Lots of claims, lots of theories, very few verifiabe examples.

 

So what now? I guess I send the blanket denial Answer and hope they decide it's not worth it to proceed with District Court over $1K (plus whatever). And if they decide it IS worth it? Then what? This is being handled by a local law firm with plenty of DC experience. Even with the recent, more stringent NC requirements for bringing a case, the only possible element I can see to challenge is the legitimacy of the Bill of Sale. But I've been Googling till I'm blue in the face and can't find word one on any actual legal requirements for what constitutes an admissable Bill of Sale.

 

This is feeling an awful lot like a complete crapshoot. Combined with the possibility of several other potential suits in the next few months, a visit to the bankruptcy attorney is looking more attractive than anything.

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The only other possible challenge I can think of concerns the 30 day notice of intent to bring suit requirement. I never received such a notice. Certainly not by certified mail. They can claim they sent one, but without a certification receipt they certainly cannot prove they did. But are they even required to sent such a notice by certified mail? Google isn't helpful there either.

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So after leaning heavily toward the arbitration/JAMS strategy, and after further reading, I can almost rule that idea out. There's just not enough documented evidence offered that going that route even works.

 

You won't find any examples because arbitration takes the case out of court. This costs $500 per hour, and guess who has to pay for it.....the JDB who paid about $30 for the "maybe" chance to collect a grand. Arb is not a tool you use to win a case, it's one you use to make sure there isn't any. They almost always dismiss when faced with this.

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