Jump to content

Served in ILL - Saw it coming still overwhelmed


Recommended Posts

1. Who is the named plaintiff in the suit?

 

Portfolio Recovery Associates

 

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

 

FREEDMAN ANSELMO LINDBERG

 

3. How much are you being sued for?

 

$1,000

 

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

 

Capital One

 

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

 

I FIRST learned 2 weeks prior to being served because some law firm emailed me about wanting to represent me to help settle. I looked it up on the county website, and saw it was true.

 

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

 

In person at my house

 

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?

 

Got a letter from them like 2 months ago and ignored it.

 

9. What state and county do you live in?

 

Illinois

 

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

 

Dec. 2008 

 

11. What is the SOL on the debt? 

 

5 Years 

 

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

 

The only activity my case shows is "Contract Complaint Filed"

 

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?

 

4/19/13

 

What they are CLAIMING:

 

1. That I am a resident of Cook County

2. The defendant opened a charge account with Capitol One agreeing to make monthly payments for purchases charged to this account.

3. Plaintiff is the successor in interest of said account from Capital One Band having purchased said account in the regular course of business in good faith and for value.

4. The Defendant (s) did make purchases and charged same to the account but failed to make monthly payments called for on the account. There is a balance due and owing 1,000.

5. Plaintiff declared Defendant (s) to be in default and demands payment of balance.

 

Wherefor, the Plaintiff, Portfolio Recovery Associates LLC, prays for judgment against the Defendant (s) XXXXXX in the amount of 1,000 + costs.

 

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

 

They attached TWO pieces of paper:

 

ONE an affidavit from someone from the custodian of records for Portfolio Recovery affirming:

(please note these are LONG I am short-handing what they read)

 

1. He is competent to testify

2. He is authorized to make these statements about the record on file that were transferred from Capitol One.

3. That Portfolio now owns the account and they have the power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection, or adjustment of said account. And the account seller retained no further interest in said account or the proceeds thereof, for any purpose whatsoever.

4. According to records there was due and payable from xxxx to the account seller in the sum of 1,000 with the respect to the account number ending in xxxx as the date of the sale.

5. According to the account of records of said account asignee, after all known payments, counterclaims, and or setoffs occurring subsequent to the date of sale. Account assignee claims the sum of 1,000 as due and owing as the date of this affidavit.

6. Not a minor / military.

 

SECOND sheet of paper is just one claiming I am not in the military.

 

So, I saw this coming 2 weeks ago when I got that paper from some lawyer wanting to represent me. I am going to try and do this on my own because I have read A LOT of helpful things on this website. I looked up all of the filings that happened on the day they filed against me, and there is like around 100 from same law firm. 

 

I thought I WAS prepared to write my responses to their questions, BUT on the first page I got confused. 

 

On the NOTICE TO PLAINTIFF Page (aren't I defendant?!):

 

This case may be heard on the day for appearance specified in the summons.

If the complaint is notarized, your answer must be notarized.

If you file an appearance and are present on Return Day, trial may be held that day or may be set for another day certain.

 

I was ready to file a response (saying deny to all but my name and address) and going to court, saying deny, and having a court date set. 

 

So the case can be heard the day of appearance? They gave me NO evidence. No bank statements, no contract with the Credit Card company. 

 

The complaint is notarized, so I have to get mine notarized? How do I do that? (I've never gotten anything notarized before). 

 

I ALSO have to pay $176 to file my responses but I am going to look into getting that fee waived because I am veryyyyy low income. 

 

My most important question:

 

Do I just type up my responses on a piece of paper and take it to the court when I file my written appearance (is that the same thing - filing an appearance and filing my answers)? Or does my response have to get sent to the lawyer?

 

I am less than a year away from the SOL running out so I am hoping for it to be dismissed.
Link to comment
Share on other sites

I would start by doing a quick consult with either legal aid or a consumer law attorney.  While there are regulars here that have been successful defeating junk debt buyers and collection agencies that percentage is likely a very small number compared to the actual numbers of lawsuits filed by these entities in court each year.  If the debt is yours and you owe it the odds are pretty good that they will get a default judgment.

 

As time passes the firms filing suit on behalf of these agencies are learning the defense tactics that are being used and how to combat them.  Think of it like this:  decades ago speeders used to be able to defeat a traffic ticket by having their speedometer calibrated and using the defense they had no idea it was wrong at court.  Judges and DAs are now wise to that and that argument no longer defends a ticket because they have heard it THOUSANDS of times.  Same with demanding arbitration or the custodian of records argument.  Soon that won't work as easily as it has so far either.

 

Even if they do get the judgment, there are ways to make yourself COLLECTION proof and you should read up on those.  Closing bank accounts and moving to strictly cash is a good way to start.  

 

Most banks keep a notary on file and it is either free or a few bucks to get something notarized.  You don't sign your documents until in front of the notary.  You have to file according to court procedure which typically means your answer in court format and a copy to the lawyer and the court.  Check with the clerk for their specific procedure.

Link to comment
Share on other sites

1. That I am a resident of Cook County  TRUE

2. The defendant opened a charge account with Capitol One agreeing to make monthly payments for purchases charged to this account. DENY

3. Plaintiff is the successor in interest of said account from Capital One Band having purchased said account in the regular course of business in good faith and for value. DENY

4. The Defendant (s) did make purchases and charged same to the account but failed to make monthly payments called for on the account. There is a balance due and owing 1,000. DENY

5. Plaintiff declared Defendant (s) to be in default and demands payment of balance. DENY

 

File that, then file a motion to strike the affidavit, there are alot of good examples around this site.  go here http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2017&ChapAct=735%26nbsp%3BILCS%26nbsp%3B5%2F&ChapterID=56&ChapterName=CIVIL+PROCEDURE&ActName=Code+of+Civil+Procedure. and read your rules for civil prodedure, especially the ones regarding discovery.  My state does not allow discovery, but only disclosure.  if they have a formal disclosure form, fill one out (even if you have nothing to disclose) and send it, asking for theirs.  That should compel the court to set this for trial at a later date.  At this point it doesn't matter if they continue the case all the way to july 2014, your SOL stops now because they filed, so that would not be a defense. It would be from the date of last activity, to date they filed.  Others may be able to help you better, but you need to answer, and motion to get the affidavit tossed because it is not from the original creditor on how they kept and maintained their records prior to sale.  go read the post by coltfan72 on standing. this is what they need to prove.

 

when you file your answer, that is your appearance, you file it, and send a copy cmcrr to the lawyer. then it is up to the court to tell you when the trial is. (In most states, read your rules of civil procedure).

 

I don't know, but in your state you may need to file a affidavit counteracting theirs, or "dueling affidavits"  do a search on it here, I remember reading a good example.

Link to comment
Share on other sites

I read one post on a girl in ILL who when they reached the judge at the initial hearing she asked for 90 days for 'discovery' and the judge granted it because all they sent her was a sheet of paper like mine. I was hoping to go that route but I am going to try and read up on ILL cases. I would like to see a clear cut rundown of the charges and fees to how they got to that number. It was over 4 years ago I had the account, and I honestly don't think I owe that amount, even with interest being added on, it should not be that high. 

 

I already filled out my paper work to get my fees waived. I just have to bring it to the judge prior to the 19th. I live really far (about 45 minutes-hour) from the downtown Chicago courthouse listed on the summons. It would take me less than half that time to get to the courthouse in Bridgeview. Anyone have tips to getting the courthouse moved? 

 

Question: I am going to ask for discovery in which I want the contract or a copy of the contract I signed and statements. Do the lawyers usually bring that with them the first day of court or are they more banking on getting defaults and not bringing that type of paperwork for all the cases they have that day. (There was between 150-200 cases filed by same law firm the day mine was filed)

Link to comment
Share on other sites

Since this is small claims, in Cook County, do this by the 19th. Go to the Daley Center, (8th floor, I believe) and ask for an application to defend or sue as a poor person and appearance form. Do not print the forms off the Clerks website as they will not accept the application that is actually posted on the clerks site.

 

You will have to go upstairs and meet with a judge, who will sign off on the fee waiver. Take that form and appearance form back downstairs and give to the clerk. They will then give you a "return date" where you will appear before the judge, and a trial date will then be set. I went with a family member to complete this process, it was probably 20 minutes to do it all, so not overwhelming, relax.

 

On the return date, PRAs lawyers will call you out in the hall, in an attempt to shake the loose change or jewelry off your person. Its pretty funny, actually. Deny the debt and demand trial, ask for a date 90+/- days out. Ask the judge to grant leave to file any dispotive motion. Its ok if you forget that part, we'll get you through it.

 

There is no need to answer the complaint, as appearing at the return date serves as a 'general denial.' 

 

I would be much more helpful, but I am leaving out of town for over a week and wont be back until the 17th. I can offer some additional assistance after I get back, but for now do the above. Where do you live in CC?

Link to comment
Share on other sites

#3 I would answer "I do not have sufficent knowledge to answer the question." How would you know as to whether or not Portfolio owns the alleged debt? You can't deny it unless you know for sure they do not own the alleged debt. They haven't even proved yet there is a debt, that they own the debt, and that the debt is yours. This would be something for Discovery where you will demand proof of these things.

 

Also, be careful how you talk about the ALLEGED debt. You state you do not believe you owe $1,000, that you believe the amount is less. HINT: You owe Portfolio NOTHING! You may or may not owe Capital One something, but unless you signed a contract with Portfolio, you owe them nothing.

 

If you are planning on fighting this, the only correct calculation is $0 until/if a judge says differently. 

Link to comment
Share on other sites

Tomorrow, call the clerks office and see if you can get the fee waiver done at Bridgeview. You can definitely file your appearance and motions there. As far as relocating the case there, it probably wont happen, without a motion downtown anyway. So file a motion to dismiss and be done with this case.

 

It may be time consuming to go downtown, but at least you're not putting out your money. If you put up the money, they will weasel their way out of paying you back.

 

Again, do not file an answer for this complaint.

 

PLEASE read supreme court rules 281-290. This should give you a start.

 

Also read 2-606, 2-403, and notably section 8b of the illinois collection agency act. Once you do that, read velocity v alston, razor capital v antaal, and unifund v shah.

 

We can pick up in 10 days or so. Oak Lawn-ish? My in laws are Cicero and 83rd.

Link to comment
Share on other sites

  • 2 weeks later...

Friday I went and filed my appearance (I did NOT file an answer just an appearance), and now I have to mail them the other copy of the paper saying when my court date is / that I filed an appearance. At the bottom it says: 

"I certify that a copy of the within instrument was served on all parties who have appeared and have not wheretofore been found by the court to be in default for failure to plead" then there is a line for a signature and underneath it says "pro se".

 

Do I sign that line before sending it to the plaintiff's lawyers? At the court house they only had me sign the line that says 'signature'.

 

Also, can I just send this to them certified mail return receipt? 

 

To file a motion to dismiss can I do that now? I did not see gwheelock915's post for some reason about filing to dismiss. 

Link to comment
Share on other sites

Friday I went and filed my appearance (I did NOT file an answer just an appearance), and now I have to mail them the other copy of the paper saying when my court date is / that I filed an appearance. At the bottom it says: 

"I certify that a copy of the within instrument was served on all parties who have appeared and have not wheretofore been found by the court to be in default for failure to plead" then there is a line for a signature and underneath it says "pro se".

 

Do I sign that line before sending it to the plaintiff's lawyers? At the court house they only had me sign the line that says 'signature'.

 

I'm not familiar with that form. I'm trying and failing to get to the Cook County website to look at it. It seems to be down.

 

 

Also, can I just send this to them certified mail return receipt? 

 

You should always do that with any documentation you send to the other side's attorney so you have proof of sending it and proof they received it.

 

 

To file a motion to dismiss can I do that now? I did not see gwheelock915's post for some reason about filing to dismiss. 

 

You need to check the local rules, another small claims case on this forum in a different County in IL required getting leave of the court to file the motion. I'd check for you, but the website is down. Gwheelock will know better than I since he's been to Small Claims in Cook County.

Link to comment
Share on other sites

Friday I went and filed my appearance (I did NOT file an answer just an appearance), and now I have to mail them the other copy of the paper saying when my court date is / that I filed an appearance. At the bottom it says: 

"I certify that a copy of the within instrument was served on all parties who have appeared and have not wheretofore been found by the court to be in default for failure to plead" then there is a line for a signature and underneath it says "pro se".

 

Do I sign that line before sending it to the plaintiff's lawyers? At the court house they only had me sign the line that says 'signature'.

 

Also, can I just send this to them certified mail return receipt? 

 

To file a motion to dismiss can I do that now? I did not see gwheelock915's post for some reason about filing to dismiss. 

Sign the certificate of service too.

You can send the appearence by regular mail and  fax  (two forms for security), but anything important like MTC or arbitration paperwork I would always send via CMRR to ensure of getting a signature back to show to court.

Link to comment
Share on other sites

  • 2 weeks later...

I went to initial appearance yesterday and it was as I expected. I was in and out within 10 minutes. The lawyer was actually nice, and she did not in any way try to intimidate me me into settling (Down the hall I could hear a different lawyer intimidating someone, and they did settle). She just asked if I wanted a trial or to pay a settlement  I said trial, and we agreed on a date. 

 

What is my next move as far as discovery goes? All they sent me was something stating from an employee of the debt collection agency that they own the debt. 

 

I saw in another post someone went the route of "Request for production of documents" and that got them to dismiss it because they couldn't produce anything. I copied and stored all of her questions she sent. 

 

Question: Is "Request for production of documents" the same thing as "filing a motion for discovery"?

 

I read up on the sections I was pointed out to read, and saw I do need to request a leave of court in order to file any type of motion, so I will make sure not to make the mistake of not filing that because I have read on here how motions get tossed out because people forget to do that. 

Link to comment
Share on other sites

Yes, small claims requires the judge's permission to conduct discovery. After that discovery is just between the parties, Cook county has a few additional rules as well, like needing to file admissions and answers to the admissions with the clerk. 

Link to comment
Share on other sites

  • 1 month later...
  • 3 weeks later...

My case was dismissed by the plaintiff lawyer. I highly doubt they will ever re-file because you could tell this law firm was only banking on people not showing up for default judgments. 

Now, since they clearly had NOTHING to take me to court on, will it be easy for me to get this off my credit report? It will come off in early 2015 but I was hoping to get it off now if I could. 

And, is there any way to get my fees back? ($176) My boyfriend paid them for me, but the paper dismissing the case said "we pay our own fees, etc). I think it is crappy they make people pay 176.00 for them to never have any intention of it actually going to trial. I never ONCE saw a judge. When I checked in with the clerk, the lawyer came up to me really fast to let me know they were dropping it. 

Link to comment
Share on other sites

Since the Plaintiff dropped the case, it's likely without prejudice, meaning that they or someone else can continue collection efforts. There's no recourse as far as removing it from your credit report. Check whatever documentation that you got back of course.

 

As far as fees, unless you signed something that states your pay your own fees. Per 735 ILCS 5/5-109 you are owed costs from the Plaintiff:

 

(735 ILCS 5/5-109) (from Ch. 110, par. 5-109)

   Sec. 5-109. Defendant to recover costs. If any person sues in any court of this state, in any action, wherein the plaintiff may have costs in case judgment is entered in favor of the plaintiff and the action is voluntarily dismissed by the plaintiff or is dismissed for want of prosecution or judgment is entered against the plaintiff, then judgment shall be entered in favor of defendant to recover defendant's costs against the plaintiff (except against executors or administrators prosecuting in the right of their testator or intestate), to be taxed, and the costs shall be recovered of the plaintiff, by like process as the plaintiff may have had against the defendant, in case judgment had been entered for such plaintiff.

(Source: P.A. 82-280.)

Link to comment
Share on other sites

This whole being served / time to get to the trial was only 3 months, so even with that additional 3 months tacked on to the SOL, I am still less than a year away from the SOL running out. 

 

I did not SIGN anything but the lawyer just said "we are dismissing the case" and handed me a piece of paper with the box checked off that says "Case dismissed by agreement of parties / no costs without prejudice"

 

How do I go about getting my money back? 

 

 

Link to comment
Share on other sites

@wishfuldaze By the way, I failed to congratulate you on your win. Nice work.

 

You'll have to peruse them. Voluntary dismissal don't not get them out of paying your costs. I'm in the same boat in my case. Will be sending them a letter in the next week and if they continue to ignore me, I'll have to take it up with the court.

Link to comment
Share on other sites

My paperwork did the job?

 

As far as costs are concerned, you could try writing PRA as well as Blatt and tell them that you never agreed to bear your own costs. Advise them that if you do not hear from them within 14 days, they will be hearing from your lawyer, as the fees you paid were to defend a frivilous lawsuit. You did not appear in court to refrain from being made whole (financially).

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.