Spencerlynn

6/6 Got 60 day continuance on PRA lawsuit

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I'm very new to the board and would appreciate any and all help. Thank you so very much!

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.)

Portfolio Recovery Associates, LLC, attorney listed at same address as PRA, however, the attorney is located here in Kent, WA.

3. How much are you being sued for?

 

$3,003.87 plus interest at 12% from April 30, 2012

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

 

GE Capital Retail bank/Paypal

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

 

Served Summons & Complain Saturday April 20, 2013

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

 

Process Server at my front door

7. Was the service legal as required by your state? 

 

Yes, to the best of my knowledge.

 

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?

 

Spokane, WA

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

 

October 2011

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

 

To the best of my knowledge it is 6 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).

 

States a lawsuit has been started in the entitled court. District Court of Spokane County, WA

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

 

No, not yet

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, didnt know I was being sued, sent DV letter today via certified mail.

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? 

 

20 days
 

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

 

No afffidavit, no statements, or exhibits. However, in Section III "Factual Allegations" they listed  they are the assignee and owner of the account described herein, having heretofore purchased the same. They state GE Capital Retail Bank/ Paypal sold all of its rights and interest it had in the account and all monies owed under said account to Plaintiff. They further state the approx date the account was opened, that defendant agreed to terms  ....when card associated with account was used. Defendant defaulted and account was charged off for delinquency on XXXXX.

 

Just looked at my credit report, states PRA opened/posted to it 04/01/2012 stating balance of 3,331.00 owed to them.
 

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GE Money bank got binding arbitration on their card holder agreement, you might want to file a motion to compel arbitration (MTC), as the cost of arbitration are way higher than the amount they can collect they will most likely dismiss, check the arbitration Forum as I'm not familiar with arbitration myself, I prefer to go to court, cause sometimes arbitration might be one sided (they know who is paying), so it's your option.

 

If it was me I would study your state case laws with JDB's and then respond the complaint or do a motion to dismiss depending. As it is for sure study how to respond a complaint the affirmative defenses (if any) and VERY important demand jury trial. There's not a lot of people out there that like debt collectors.

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Definetly explore the arbitraiton idea.  But also, if you decide to fight this in court, make sure your answer includes an affirmative defense challenging their standing.   In Washington, you must include affirmative defenses in your answer to use them.

 

Pickles

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 Pickles do you think this would suffice for my answer thus far?? Since I was served Saturday and found this site, I have been trying like crazy to read and learn what I can do to help/protect myself. The only thing I have admitted to is living in the state of WA.

 

 

ANSWER OF THE PLAINTIFF
Defendant, appearing pro se, for its reply to the Complaint naming PRC, LLC. Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.
 

 

JURISDICTION

1. The above captioned court has jurisdiction over the case as the claim arises out of a cause for damages up to $75,000.00
 

Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

II PARTIES & VENUE

2. Plaintiff, PRA is a Delaware LLC andis duly licensed to conduct business in the state of WA.

 

 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

3. Defendant is an individual who at all times material hereto, resided in the state of WA.

.

Admit

 

III FACTUAL ALLEGATIONS

4. Plaintiff is the assignee and owner of the account descibed herein, having hereto purchased the same. GE Captial Retail Bank/Paypal

sold all of its rights and interest it had in the account and all amounts owed under said account to Plaintiff.


. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

5. On or about XXXXXX defendant entered into an agreement with GE Captial Retail Bank/Paypal ("Agreement hereafter) whereby defendant applied for and was issued an account with GE..........ending in XXXXXXXXXX ("Account" hereafter). The defendant agreed to the terms and conditions of the account when defendant use the card associated with the account and /or made purchases on same.

 

. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

6. Defendant defaulted on the Agreement when defendant failed to make payment on the account. The account was charged off for deliquency on  April8, 2012


 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

7. There is currently an outstanding balance on the account owed by defendant to Plaintiff in the sum of $3,003.87, plus interest at te rate of 12% per annum from April 30, 2012.
 

. Defendant is without knowledge or information sufficient to form a belief as to the truth of the

       averment.

 

IV CAUSES OF ACTION

1. BREACH OF CONTRACT

8. PLAINTIFF RE=ALLEGES, AS IF RESTATED, PARAGRAPHS 1-7, ABOVE

.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

9. GR Capital ........ performed its obligations under the terms of the agreement.

 

. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

10. Defendant failed to fulfill its obligations under the terms of the agreement when defendant defaulted on the account by discontinuing payment.

 

 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

11. Due to default, the full indebtedness under the agreement is immediately due and owing. and the same remains unpaid.

 

 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

12. By virtue of defendants breach of the agreement, defendant is indebted to Plaintiff, as assignee of the account, in the amount of XXXXX plus XXXXXx

 

 Defendant is without knowledge or information sufficient to form a belief as to the truth of the

averment.

 

2. ACCOUNT STATED

 

13. Plaintiff realleges, as if restated, paragraphs 1-12, above

 

 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment

 

14. GE Capital..........furnished regular statement of account to defendant, which included the amount(s) due..

 

 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

 15. Upon information and belief, defendant never disputed the amount due, as stated in the regular statements furnished to defendant.

 

 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment

 

16 Despite numerous demands for payment, defendant has failed to pay the balance due and owing on the account.

.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

17 Defendant is indebted to Plaintiff, as assignee of the account, in the principal sum of .......

 

. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

V RELIEF REQUESTED


 

ANSWER TO COMPLAINT

DEFENSES

 

1. Portfolio Recovery Associates, LLC has not proven that they are authorized and licensed to collect claims for others in the State of Washington, or solicit the right to collect or receive payment of a claim of another.
2.   Portfolio Recovery Associates, LLC has not proven that they were retained by GE CAPITAL RETAIL BANK/PAYPAL as its representative in this matter.
3.  Portfolio Recovery Associates, LLC has not proven that GE CAPITAL RETAIL BANK/PAYPAL sold or assigned this account to them. Defense demands proof of ownership specifically that the alleged account is still the legal property of GE CAPITAL RETAIL BANK/PAYPAL with all of the original creditor’s rights and privileges intact.
4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.
5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.
6. Portfolio Recovery Associates, LLC, has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.
7. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

      8. Defendant claims Lack of Privity as Defendant has never entered into any contractual or     

      Debtor/creditor arrangements with the Plaintiff.
      9. Defendant reserves the right to submit counterclaims that may become applicable and/or available  

      at a later time, (for example, if a real party in interest is established for alleged account) including,  

      but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices

      Act and the Fair Credit Reporting Act.


Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

By the Defendant acting pro se.
Dated: 04/23/13

 

Thank You all for your help and assistance. I'm doing my best and learning as I go. I am an older disabled lady who is not sure of really what she is doing most of the time. Bless you all!

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You need to read your state Rules of Civil Procedure, as the are all affirmative defenses at least in Florida all basically crap, those are not valid affirmative defenses.

 

1 Most states do not require this, that's what discovery is about (in Florida you could motion to dismiss cause of this but is not an affirmative defense regardless)

 

2 Same thing.

 

3 Same.

 

4 Just plain BS, credit card don't need signed contracts, that's why they are regarded as oral contracts.

 

5 Probably not, if you post the complaint word by word, we can see it but 99.99% of chances is no.

 

6 Same as 1.

 

7 Denied

 

8 Really? I have read cases with these and they lost.

 

9 Read your Rules of civil procedure, if it allows these or not, Florida does not, regardless of what you put there.

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Thank You Kutuzov, I'm going to our courts site now and will print  the Rules of civil procedures out. Thank You again and again for taking the time to help me.

I printed out our court rules and  am reading now, if I wasn't totally confused before, lol I sure am now..

 

OK I have read through the rules for WA court and seriously now have no idea what to list for my Affirmative Defenses. It's no wonder attorneys make so much $$ or I'm just dumber than I look. Gosh feeling very overwhelmed right now.  Going back to read some more forums for hopefully clarification.

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Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.   I would add "therefore, denied.  Except for .17, I would just say Deny.

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as far as affirmative defenses, I would read the thread "lets talk about affirmative defenses"  You may not want to use a bunch as then the burden of proof shifts to you, except if you are going to challenge standing, then you can list your affirmative defense as "plaintiff lacks standing"  then the burden of proof is still on them.

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Thank You Shellieh98, I'm still going through the WA rules of Court, not having much luck understanding them. Also I don't want to just roll over and give in, but the more I read the scarier it gets for me. I have problems with memory (medical problem) , so I already know that when the time comes to get up and talk in court, it will more than likely be all jibberish,(not to mention I no doubt will look like a total idiot lol) but keeping my fingers crossed that if I can get the right stuff in my answer to the complaint maybe, just maybe they will drop the case in advance. One can only hope!! Thank You again for your posts!! Love this site, so much to read and really great people trying to help others!!

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so a forum search on trial briefs.  You can use their formats, and change it to fit your needs.  Put in it all the important points you want to make in your case with case law to back it up from your state.  Then when it comes to trial you will have it all right there, and not have to rely on your memory.  

The rules can be daunting, but read them enough, and they start to make sense. (or sometimes confuse you more, but then you post your confusion here)

gl

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Ok I'm still trying to figure out what I'm going to send as my definitive defenses?? Help any more ideas??

 

Also in their Court Summons, they have stated that they are duly licensed to conduct business in the state of Washington. 

 

Well,... I called the Division of Licensing and they said they are NOT licensed yet, they did apply about 2 weeks ago. The DOL had me put my request in writing via

 

email so that they could give/send me all the particulars concerning their request for a WA business license. Trying now also to find where that is a violation.

 

So sorry to be such a pain in the hinne, but I really am not the brightest person and trying my best to get a hold on all the wonderful information on this site. My

 

poor printer is about dead today! lol

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Do a regular Google search of "Debt Collection Lawsuit Guide Public Law Library King County." It contains links to how to defend against a debt collection lawsuit in Washington.

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Read "Discover Bank v. Bridges," (Wash. Crt, of App. 2010) to see the elements of proof required to prove a debt collection case.  Defendant Bridges won.

 

Read "MRC Receivables Corp v. Zion," (Wash. Crt of App. 2009) to see how a debt collector must prove assignment.  Defendant Zion won.

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Spencerlynn

 

This is a sample of what  I may have used: 

By way of further answer, Defendant alleges the following affirmative defenses:

1. Lack of Legal Standing. Plaintiff has not proven they are real party in interest. A purported assignee of a credit card account must show by competent evidence the existence of the account, the charges and payments under the account that resulted in the
account balance claimed by the assignee, and a valid assignment. No proof of assignment was attached to the Complaint. 

2. Lack of Privity. Plaintiff has not produced a copy of any proof of agreement establishing an obligation by the defendant to the Plaintiff.

Defendant intends to rely upon such other and further defenses as may become available during discovery, and hereby reserves her right to amend the Answer and assert such defenses

 

Now mind you, I don't know if that's sufficient, but it's been over a year since I was served and the Plaintiff has still not actually filed with the courts.  So either they're really lazy, or it was enough to disarm them. 

 

I know many come on here and say not to use affirmative defenses and that if you do the proof shifts to you.  That, however, is not the case in Washington.  You must use the lack of standing affirmative defense in your answer and Washington Courts have ruled that by doing so, the burden of proof remains with the plaintiff.  I just read that the other day, so I'll try to find the reference for you.  Hope this helps.

 

Pickles

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@Pickles

 

They still haven't filed the complaint with the court?   Read your rules about service and the commencement of an action.  A plaintiff usually has a certain amount of time after serving the complaint to file it.  If they don't file within that allotted time, there's no case.  I don't know if they could somehow extend that time, but if they can, they'd probably have to have a very good reason for being allowed to do so.

 

If your rules show that they didn't file within the allotted time, it's possible you might have an FDCPA complaint against for threatening to file suit when they didn't follow through.

 

Sorry to hijack the thread with this post.

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BV80,

 

Thanks.  In Washington we have what some call pocket docket.  They can serve a summons and complaint without filing it with the courts and you answer back to the lawyer within 20 days.  A defendant can demand it be filed and the plaintiff must do so within 14 days.  I made no such demand.  Not sure what happens if they wait this long.  I believe after a year they have to reissue the summons and complaint before they can file it.  This is with Midland as the plaintiff, so I'm sure they've turned their attention to the low-hanging fruit.

 

Pickles.

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OK, so I have sent my Request for Validation,(even after the fact of being served, this was my 1st notice of an accusation and or action against me) Notice of Appearance, Answer & Affirmative Defenses and Declaration of Income and Asset from Garnishment docs to PRA via CMRRR and filed the same docs with the court on Friday. Request for DV was sent earlier last week, got the green slip back for receipt they received it.

 

I initially called our state DOL and asked about PRA, they told me over the phone that they were not currently licensed and asked me to send an email. I  got an email back from our state DOL stating  again that PRA is NOT currently licensed in our state, but they have applied.

PRA stated in their Summons & Complaint dated in Jan 2013 that they were duly licensed  (I wasn't served till this April) I sent an email back to the DOL asking what I need to do to get an Affidavit  attesting to this Friday night so hopefully I will hear back on Monday what I will need to do to get one.

 

Anyways, I have filed a  written complaint as well with the DOL and looking where else I can file one against them for falsification of a court document. 

Here is my question as I'm not sure I fully understand the FDCPA rules. Can someone plz advise me which reg to look at??

 

Also now what is my next step. I am reading and trying very hard to understand, but so much good communications, advise etc on this site and just over whelmed at this point.

Thank you again for any help to this matter.

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If they got no license doesn't matter if they are in violation, just keep all docs, including the mailing envelop and when they sue either get a lawyer and countersue for an FDCPA violation, or do it yourself!

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Sorry it's taken so long for me to get back to my initial post, but all this stuff has taken a toll on my health. I did get a sworn affidavit from WA states DOL office stating that PRA is not currently licensed in WA state.

 

Also, PRA sent me 2 more collection/demand letters for two other supposed accounts. I sent DV's and got answers back today. One they closed and the other gave me a bunch of info that I have no idea what they are talking about. (See my post in collections)

 

I need now to go and get acclaimated with the FDCPA violations so I can see if I can sue them without an attorney. Fingers crossed!! Thank you all for answering my posts!! I really do appreciate all your help!!

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What luck for you they are not licenced!!  Do a google search on Maryland state vs LVNV FUNDING LLC.  They got fined BIG time, 12 mil I think for suing when they had no licence in the state.  They had to dismiss a bunch of cases, and were not allowed to collect on anyone in maryland, had to vacate any judgments they got, and a bunch of other stuff.  You might be able to turn this into a payday. ;)

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oh demand they file, they are probably waiting to get their licence before they actually file it.

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@Spencerlynn - You might not want to answer every defense with, "Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment."  

Mix it up a bit. 

 

You could say, especially on those concerning business procedures of the legal firm/collection agency, "Defendant is not privy to inner workings of PRA.  Calls for guesswork on behalf of defendant. Denied."

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I'm so sick over this whole ordeal and just got my court date for a Civil non jury trial June 6, 2013.

 

I'm still very confused at this very moment. I sent the DV after receiving the Summons & Complaint and of course got no answer.

I also sent my Notice to Appear, Answer & Affirmative Defenses and Income and Assets (I have nothing and my income is exempt SS) paperwork via CMRRR and served the court with the same paperwork. PRA got all three and I have proof of services.

 

Now I don't have the slightest idea of what is next to do. I have read and reread and am still so darn confused, I can't afford an attorney, unfortunately!

 

I did get the Affidavit from our state DOL stating that they are not currently licensed in my state to conduct business Also on the trial paperwork, the copy went to their attorney who is located on the West of my state and will have to travel all the way East to attend this trial. Originally all correspondence was to be addressed to him at their VA address.

 

Help??? I'm headed back to the boards in an attempt to understand again. I have read and reread the Court Rules for my state but it is just a blur to me.  

Please if anyone has the time to converse with me via private messages or emails, please let me know. I really do need more help that I want to admit. Thank You!!

 

Please if someone has the time to read my courts general provisions Governing Discovery, could you please read and give it to me in laymans terms.....http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr26

 

I am assuming that this is my next immediate step to take.   TY!

 

Also does any of the following information make a difference one way or another??

 

When the CA filed against my CRA's 4/1/12, 4/1/12 & 4/30/12  they stated past due amount of  $3331.00.

They also stated in their S & C to the court  that the alleged account was charged off for delinquency on 4/8/12 and I owe them $3003.87. Why the difference in the alleged amount owed?? And are they allowed to file with CRA before the OC supposedly charged off??  They also show that my account is closed on 2 CRA's and Open on the other one.

 

The OC  shows 0 balance owed, with high limit of $2790  & no high balance listed on 1 CRA and on the other 2 CRA's blank balance & high limit 2790.00 & high balance of 2407.00

 

I also don't see where the DC has advised the CRA's that this alleged account is disputed!!

This is all so darned confusing to me. Sorry!

 

5/15 update~~ I still haven't received a thing from them other than the original Summons and Complaint.  I did go to the court yesterday and asked if I could file for a continuance, they said I had to call the attorney and discuss it with him. Well....... the number listed for him is in fact PRA and they said sorry can't talk to him, they can't forward a message and I would have to wait till court. So I looked the attorney up for my state and attempted to get a hold of him that way....well that law firm says he is longer associated with them. No forwarding information other than an email address, so I sent an email today. Thought I'd wait to see if he calls me back and if he doesn't or refuses to delay it, then the clerk said I can file for an extension in the court case. 

 

5/22 update-- still have not received a return email, or phone call that I requested etc. and or any documents etc from the attorney for PRA.

 

I'm still trying to find the court rules numbers for "filing a motion to dismiss"  and court rules for "Request for a continuance". I want to have the documents ready when I go to court on the 6th of June. I want to ask for a dismissal under RCW 19.16.260. since they weren't licensed when they filed the law suit.

 

If anyone from WA state knows or can help me find the court rule numbers, please I would appreciate any help. I keep researching but  still am not sure and don't understand all the legal jargon. TY!!

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I went to court this morning and got a 60 day continuance for the lawsuit. The attorney agreed and stated he wanted to wait and see what was going to happen with the Consumer Protection claims as well as neither of us have finished our discovery paperwork. Good for me. Also I posted this separately about a letter my Attorney general received from PRA. very interesting.....

 

I find this very interesting, please give me your thoughts on this.

I received an answer today from my state's Attorney General, I filed a complaint with them that PRA was not duly licensed when they filed civil lawsuit against me this past Jan. 2013.

 

This is from PRA's letter to the Attorney general.

 

Dear XXXX,

 

I am writing in response to your May 28,2013 letter forwarding the above-named consumer's complaint in regard to PRA account ending in XXXX.

 

PRA purchased this Paypal credit account ending in XXX from GE Capital Retail Bank (GE) on XXX. According to business records provided to us by GE in connection with our purchase, this account was opened in XXX of 2008 for XXXX and whose SSN is XXX. According to records, the date of last payment was Aug of 2011, the account became delinquent in Oct 2011, and the sum of XXX was charged off in April 2012. The statue of limitations has not expired for this account.

 

 Thank you for bringing this matter to the attention of our office. PRA is a Delaware Limited Liability Company headquartered in Norfolk, VA, which manages the collection of its own defaulted consumer debt, which has been purchased without recourse. PRA is not a "collection agency" as that term is defined and used in Title 19, Chapter 16, section 100, revised Washington Code (RCW 19.16.100). The debt we collect is not "owed or due or asserted to be owed or due another person" and PRA does not use any name other than his or her own which would indicate to the debtor that a third person is collecting or attempting to collect such claim" as described in RCW 19.16.100. Although PRA does not meet the definition of a collection agency under the current Washington statue and therefore is not required to be licensed at this time, PRA does have a valid license in the state of WA. A Collection Agency License was issued to PRA on May 15, 2013.

 

I appreciate any feedback and am very thankful for all your help.

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