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I'm being sued by Portfilio Recovery Associates, LLC


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Hello,

 

I hope this is the proper forum for posting this. 

 

I am being sued for a Citibank credit debt. The suit was filed on Feb 15th and served on me February 27th. I have spoken with an attorney that is a friend of the family who wasn't much help at all. I found out she actually handles cases for the suing lawyer in her local district. She just said if I owe the debt, pay it, if not, oh well. I can't win anything other than maybe, if I ask very nicely, a settlement.

 

The lawyer representing Portfolio Recovery Associates is Hunt & Henriques in San Jose, Ca. I am in Ca, though considerably due south of them. 

 

I am quite lost as to exactly how to proceed. I've been working on researching it, and have the paperwork filled out to request a waiver of court fees- I am self employed and currently have an AGI of around $15000 for a family of 4- but from there, I'm lost. I started to fill out PLD-C-010, but I don't even know if that's what I should be filing.

 

I want to request that they prove that I owe the money. I at one time may have had a credit card with Sears that could have been served by Citibank. I do not remember the last outstanding balance, I do not remember when my last payment was, nor what the interest rate was. I do not have any proof that Portfolio Recovery Associates owns the debt, or that they retained Hunt & Henriques to collect. I have never been available to speak to anyone on the phone and I have never responded to any letters I may have received. 

 

Now, to the summons I received. 

 

The cause of action is Common Counts. Plaintiff prays for damages of $3837.47 and interest on damages at the rate of 0.0000 percent per year from March 27, 2011. 

 

Common Counts cause of action-

Plaintiff Portfolio Recovery Associates, LLC

alleges that [ME] became indebted to [X] OTHER- Plaintiff's predecessor, Citibank N.A., who sold the account to Plaintiff

[x] within the last four years

[x] on an open book account for money due.

[x] because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.

 

[x] with the last [x] 4 years

[x] for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff

[x] the sum of $3837.47

[x] for money lent by plaintiff to defendant at defendant's request.

 

CC-2 $3,837.47, which is the reasonable value, is due and unpaid despite plaintiff's demand, plus prejudgement interest [x] at the rate of 0.0000 percent per year from: March 27, 2011

 

-------------------------------------------

In the summons, I was provided with:

Summons form SUM-100 

Complaint form PLD-C-001 [2 pages]

Common Counts PLD-C-001(2)

Statement of location/venue (not court form)

Certificate of Assignment

Civil Case Coversheet CM-010 [2 pages]

Certificate of service

"You don't have to sue" information packet on arbitration, etc.

 

There is no proof, contract, anything else attached.

 

Here are my dates:

Paperwork prepared- January 23, 2013 (date on Certificate of Assignment)

Case filed- February 15, 2013

Date on Notice of Case Assignment- February 19, 2013

Summons Served on ME- February 27, 2013

OSC: Service of Summons and Complaint/ Sanctions- September 9, 2013

OSC: Status of Default Judgement/ Sanctions- March 27, 2014

 

-----------------------------------------------

 

So, here I am. I have 30 days to respond from February 15th, so Sunday March 17th. I assume because that date falls on a Sunday, I actually have until Friday, March 15th. Does this mean I have to file a response and have it served on the plaintiff by then, or just filed the paperwork with the court and have the response mailed by then? I have been working all day trying to figure out how to handle this and am really lost. I don't want to say the wrong thing or file the wrong form. I've been reading that since it is a limited civil case, it's a pretty serious thing- I have to dot my "I"s and cross my "t"s properly or else. I can't afford a real lawyer and I'm not to interested in a court appointed one- I think they would just push me to get a settlement so they could get my case out the door and move on to the next poor idiot the court throws at their feet. 

 

I really don't quite understand why they are suing me in the first place. I am self employed with an income WELL below the poverty line. My family gets WIC assistance with food, we don't own a car worth more than $1000, My business isn't worth much- I'm a custom carpenter and all my tools are either vintage tools I've bought cheap and restored or things I've made myself. We own our house, it's in my wife's name, and we barely make the payments on it. I have debt, in total, around $10K, as well as student loans for both my wife and I totaling more than $25K. I mean, I really don't have anything to go after. I'm 28 and have been working hard to provide for my family- business just hasn't been good for the last couple years, which is why I fell behind on payments in the first place. When I stopped paying on things and had my car repossessed, my debt was around $6000 in total. In the last 2 years since then, It's all nearly doubled in interest and fees since then. I'm just trying to survive long enough to get some better cash flow coming in to get this stuff paid down. This is really and truly a case of trying to get blood from a turnip. 

 

Thank you for any info you could provide!

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Your being sued, way past trying to DV. You MUST answer that summons before the time runs out. You haven't said how much your being sued for. If it's under seven to eight thousand you might try to go the arb route and possible run them off. Read up on here about arbitration, do a forum search for Linda7. She is the local expert on arb.

Sounds like your fighting the OC if so, they are harder to beat, so arb would be a better choice. Your in Calif. the SOL there is 4 years. Are you past the SOL or close to it. When did you make your last payment?

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I am NOT fighting the original creditor. I am fighting Portfolio Recovery Associates LLC, who purchased the debt from Citibank. PRA is being represented by Hunt & Henriques Law firm. The debt, as noted above, is $3837.47. I believe the last payment was late 2010 or early 2011. 

 

I am starting to read up on Arbitration. It seems to go this route I have to have an arbitration clause in the original contract. How could I go about getting a copy of my contract to see if it is there? Is arbitration a better option than keeping it in court? Can I respond to the summons without losing my right to arbitration? 

 

Thank you!

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You have 30 days from the date of service, not the date of filing.

And even if it were the date you list, which it's NOT, the file-by date becomes the next day court is open. So, if your day to file by is a weekend or a recognized court holiday, the day to file becomes the very next day that court is open.

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Now, as far as arb goes, you would need to know when you made the last payment on the card to nail down which card agreement is applicable to you. Once you have that, you find an agreement from that year (or before with a survivability clause in it) that has JAMS in it. It won't be enough to know 'around' when the last payment was 'possibly' made unfortunately. Request your PAPER credit reports to find out for sure.

I'm not sure how far south you are, but if you're in the IE or from L.A., you'll see some of us on this board fighting PRA right now. It wasn't my experience that PRA ran away with an election of arb and then having a motion to compel arb granted, but I cannot wait to see them pay their first required fee for it. (Thanks to HSBC and their kindness in listing they WILL pay the fees after the first $50)

I once beat PRA back with a very well put together discovery request, as once they received it, they dismissed. They are beatable as long as you keep researching and pushing ahead.

You're supposed to be able to file a motion to compel arb in lieu of filing an answer, but the judge in my case required I file an answer as well. So I filed an answer and then he granted the motion to stay it. I just made sure that I put incorrect venue in my answer to prevent me from inadvertently waiving my rights to arb. This is a very personal decision and nobody can make it for you. Both arenas have their pros v. cons.

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Step 1: Go to www.naca.net and locate a consumer lawyer in your area who does credit card defense and handles FDCPA claims.

 

Step 2: Because the complaint is brought on a  PLD-C-001(2) form, Portfolio is not alleging existence of a written contract. Hence, 2 year SOL may apply here. If it has in fact been more than 2 years since your last payment, contact the consumer lawyer(s) you located and let them know that you believe you've been sued by PRA on an out of statute debt.

 

Step 3: If you don't (or cannot) do 1 and 2 above, at least file your answer, disputing the amount due; that no account stated exists between you and portfolio; that they lent you no money, and; throw in a couple of affirmative defenses, failure to state a claim; statute of limitations; unjust enrichment; failure to pursue alternative dispute resolution (ADR); lack of privity, etc.

 

Along with your affirmative defenses, you need to state why that defense applies to your claim. For example, you would use the "lack of privity" defense if there was no agreement between you and the person suing you (relates to account stated and money lent claim). For unjust enrichment, you would state something like, if plaintiff were allowed to prevail, they would receive money they aren't entitled to, etc.

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phoenix02,

You're in good hands.  Welcome.

Take a deep breath.

By being on this site you have won the first battle.  You are not going to be an easy default for H&H.

H&H and PRA are beatable but you need to do your homework and don't try to reinvent the wheel.

 

This site is a good place to start and I would apply for a fee waiver right away. 

The form I used for waiver of court fees is:  FW 001 (search browseallforms)

If your income is low enough, they may grant it right away.

Or they can notify you after about five days that it was granted.

If you are denied, request an appeal.  I was denied twice and still got one.

The biggest mistake you can make is to give up.

You are not alone.  HotWheels96 has been in your shoes and I am still fighting my own battle with H&H and PRA.

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  • 2 weeks later...
phoenix02

you will be fine, your in the right place. just follow the advice you get here. My battle with H&H should be over tomorrow, they file a Request for Dismissal with Prejudice, a week before trial which is tomorow. This is what I did.

 

to file your answer you will need form (PLD-C-010)(MC025 to continue Affirmative Defenses)(POS30 proof of service) also be sure you include A (BOP; Demand for Bill of Particulars) this will get you started. 

 

Good Luck.

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Well, everyone, I did what I'm not supposed to do- waited until the last minute. I've been running around the last couple weeks looking for work and when some finally came in, I've been busy day and night to get it done and out the door to get some cash flow to pay the mortgage. 

 

Anyway, I'm back on the case. I was actually served on Feb 26th, not 27th- got my days wrong. So, I have a couple days to get this all filed. Luckily, from what I've been reading up on, it seems like the initial response isn't such a difficult thing to do, so I should be able to get it done and in on time.

 

Thanks for the assistance and encouragement! I'm really going to try to fight this a bit. I don't want to have to file a BK for my debts, but, we'll see how it goes I suppose. 

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Oh, and I did try to look up a consumer lawyer to get some info, but the nearest one is over 60 miles away. There's nobody local to me. 

 

The last payment on the account was in September 2010. It was charged off March 2011, which is why all the dates on the lawsuit are for March 27, 2011. So, I would be past 2 years. 

 

How do I formulate this properly? I'm working on the response, but it seems like if I bring up the 2 year limitation, I am tacitly admitting to the debt, right? Or, because I didn't respond when they sent to first letter to me about the debt, I've waived the possibility of denying the debt, so now I just have to find other ways to fight it other than asking for the contract, etc?

 

Also, in filling out the Response, I'm stating option 3b(2) stating I have no information or belief that the following are true and thus deny them- Is that correct? I don't have the contract, or proof of PRA purchasing my loan, etc, so I'm thinking that I'm wanting to say that I deny on the grounds of no evidence rather than firmly deny on 3b(1), stating that I outright claim false, correct? 

 

Finally, in filling out 3b(2), I'm putting the paragraphs that I don't agree with- basically everything. Should I annotate why I disagree with the paragraphs, or just put the numbers and leave it at that, expounding more on the affirmative defenses?

 

Thanks for the assistance!

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  • 2 weeks later...

Okay, I submitted my answer and a demand for bill of particulars at the same time. I just received H&H's response, which is their "Bill of Particulars"- 2 account statements, 1 from Sept 2010 with 2 small purchases on it and another from April 2011 with no purchases or charges other than accrued interest and over ballance from not receiving a payment in so long on the alleged debt.

 

So... how do I go about contesting this? I'm researching it myself, but any input is greatly appreciated. I think I need to submit a statement denying this as an acceptable BOP as it does not account for all moneys owed and product allegedly purchased. This also does not establish direct ownership of the debt by the JDB, but from what I understand the BOP is not a support or denial of this connection, just a direct accounting of the alleged debt. I want to get on this and hit it hard so they don't think they can submit this as proof of the debt.

 

Thanks!

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Also, a defense I'm working on figuring out is SOL, from what was advised upstream on this thread. The last payment on the alleged debt was over 2 years ago- if they don't provide me with a written contract, can I attempt to have the court acknowledge the debt as being based on a verbal contract? As such, the 2 year SOL would be in effect from last payment , correct?

 

Thanks!

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Thanks for the input thus far.

 

I'm wondering though- am I not doing my due diligence or something? It seems like most of the responses I'm getting are encouragement but little in the way of suggestions or answers to my questions compared to what people are responding to other's inquiries. I'm just wondering if I'm posing my questions incorrectly, coming across in the wrong way, or appearing incompetent in my own case, etc. I've been doing alot of reading but so much of this is over my head.

 

I know nobody can give me the answers/ defenses for my own case, but any ideas of sites or specific threads I should be reviewing would be apreciated. I'm currently spending alot of time on the shotgun approach- searching on the forum and reading every thread that has a title that could apply to my situation.

 

Thanks again!

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Hopefully CALawyer will be along to help you.  In the mean time,  Post anything they send you.  It is slow going, and could take months as the case moves on. Just read other threads, and if something looks like it could pertain to you, ask here, or research.  They should provide you with the contract, if they don't have it, then they cannot state it was on a written contract, and the 2 year SOL would apply if your state states it is 2 years on a verbal contract.  They will try to use that the SOL is within the 2 years due to the april 2011 statement.  I know there is a way to dispute that, but I don't know what it is lol. Sorry Im not more help, but I know there are other threads asking what to do after the BOP, I would search and start there.

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Thank you!

 

I'm just kinda getting worried about doing something wrong. So far I have their unacceptable BOP. There is a case management meeting set for May 26th, so I know I need to get this moving so that I can have things submitted before then. It seems most everyone else is going slow, months or years, but my case managment was set up for 2 months from filing my answer. It's all coming so fast!

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  • 2 weeks later...

Okay, I sent out a meet & confer to their inadequate BOP. I gave them 15 days- 10 plus 5 for mailing- to get me back the information I asked for or would file a motion to compel or prevent admission of evidence.

 

In their canned response, they also stated that more would be forthcoming as it was found- this was my response to that, citing 454-

"No reservation for amendment is provided therein, thus an accounting in full must be provided within the 10 days allotted."

 

That was sent out April 11th. I just received today an offer for settlement made April 8th. The initial sued for amount is $3837.47, the are saying the current balance is $4,136.47. They are offering to settle for $2,150.96. 

 

I'm waiting for their response to my meet & confer.

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