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Civil action commencement from Portfolio Recovery Associates


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Hello,

 

On April 1, 2013, I received a summons to small claims court from PORTFOLIO RECOVERY ASSOCIATES, LLC. with an address of Durham, NC 27709. As this is the first time I've ever received something like this, I wasn't sure how to take the presence of a sheriff at my house. Scared me a little, to be honest. On further inspect of the summons, it turns out to actually be an intent to pursue civil action as the yellow paper plainly states "A Civil action has commenced against you!"

 

 

I'll try to provide as much information as I'm able to hopefully better outline my concern/question, and possibly aid someone else looking for similar information online (that is, if I'm given an answer or am helped) in the future. I'm not a litigious person so I really don't know how to separate the helpful from the worthless concerning necessary information, so I'm going to type out anything I can think of.

 

All of this is in reference to a credit card from GE Money Bank for which last payment was made on August 31, 2010.

 

All SOL's listed below are based on Open Accounts length found here: http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml

+- Plaintiff states they are an LLC under law of Delaware; their principal office and place of business is listed as Norfolk, VA. (SOL: 3)

+- Plaintiff's business from which debt was purchased, GE Money Bank, is a subsidiary of GE Capital Corp, listed in Norwalk, CT. (SOL: 6)

+- The card in question was initially opened in Columbus, OH. (SOL: 6)

+- Summons served to current and permanent residence in High Point, NC, on April 1, 2013. (SOL: 3)

 

Possible avenues of exploration or additional information possibly relevant:

+- The summons has my full first and last name. However, as required by NC law, my driver's license and all documents formally submitted in this state are based on the name listed on your social security card.

This summons does not match that name; it is missing my middle name and original last name (last name changed pre-adolescence following adoption).

+- If the SOL is effective to my state of residence whose length on open accounts is 3 years, is it possible (or worth it) to attempt to file a continuance?

+- Civil action commencement paper – not all information filled out; the only handwritten information is the file # and issued date/signature.

+- Bill of sale listed as having agreement date of 10/19/10, signature date of 3/25/11  – Account was not charged off until 3/7/11.

+- Only information filled out on Bill of Sale is signature and date; financial references are absent.

+- Sold FF Fresh – what is that?

+- Interest owed from 3/7/11, but they purchased it months prior?

+- Plaintiff claims $810.31 + 8% per annum after 3/7/11 + court costs + whatever else they deem necessary.

 

I realize this is being posted way later than I should have dealt with it. I don't have any excuses for the delay, though I am able to priority overnight any necessary documents to the locations needed.

 

I very much appreciate any and all help any of you can provide me with this issue.

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Not sure about the laws in NC but I dealt with two lawsuits from PRA - a Junk Debt buyer in California as foll goow:

 

1.  Filed General Denial

2.  Served Bill of Particulars

3.  Responded to their Discovery Questions --- followed the thread of ASTMedic for guidance

4.  Served CCP96

 

Both lawsuits got dismissed so I thought I'd share the strategy  --- but then again, this is CA..hopefully you will get more feedback from so many wonderful people in this forum..

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Since this is a commencement of civil action does that mean it's too late to file a DV, or am I still able to do so? The summons declared intent to begin an action, not the notice of an action having commenced already.

 

Anyone else have an idea of where I should start with this?

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Unless you received their first debt collection letter less than 30 days ago, it's too late to DV.  A summons and complaint is not considered an initial communication for purposes of validation.

 

Start by reading your rules of civil procedure.  I'm thinking their service was in compliance.  Call your court to see if a case has been filed against you.  Or you might be able to find that out online if the court posts civil cases.   If it hasn't been filed yet, see how much time your rules allow between service and the filing of the complaint.

 

If the case commences (is started) by simply serving the complaint, follow your rules for answering.  It would also help if you'd copy and answer the questions in the following link.

 

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

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Answer these questions in this format so more people will be able to help you. Just don't list any personal information or exact figures. 

Also take the time to scan or write out your complaint/affidavit or whatever they sent you. (black out personal information) You are very pressed for time and the more information you list here the easier it will be to get advice. 

1. Who is the named plaintiff in the suit? 

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

3. How much are you being sued for? 

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

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

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

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? 

9. What state and county do you live in? 

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

11. What is the SOL on the debt? 

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). 

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

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. 

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? 


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 
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Answer these questions in this format so more people will be able to help you. Just don't list any personal information or exact figures. 

Also take the time to scan or write out your complaint/affidavit or whatever they sent you. (black out personal information) You are very pressed for time and the more information you list here the easier it will be to get advice. 

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.)  Sessoms & Rogers, P.A.

3. How much are you being sued for? Approximately but not exceeding $800 + "interest on said amount at the legal rate of 8% per annum from and after March, 2011 until paid in full."

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

5. How do you know you are being sued? (You were served, right?) Served with a civil summons by a sheriff

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

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? They sent me a letter or two

9. What state and county do you live in? Guilford count, North Carolina

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  "on or about August 31, 2010"

11. What is the SOL on the debt? 3 years if considered a debt of this state and not the original state the credit card was activated in. That state was Ohio

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). I looked it up online by my last name and also the File number listed on top of the first sheet. Nothing shows up for either.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  I have not; until I received this summons I didn't know anything was proceeding. I'm so close to the SOL in this state I didn't think they'd bother trying something.

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. I've never had formal communication with these guys outside of them sending me a bill.

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 the date served, so, May 1st.

 
The plaintiff, complaining of the defendant, alleges and says as follows:
1. plaintiff is an llc organized under Delaware state laws with principal place of business in Norfolk, VA.
2. defendant is resident of Guilford Count, NC
3. plaintiff duly licensed as a collection agency in NC by the dept. of insurance issued permit # 4132
4 - 8 are more statements of original card ownership, statements being mailed to me by GE when they owned the account
9. last payment on defendants account was on or about Aug 31, 2010. Pursuant to provisions of G.S. 24-5 (a), the plaintiff is entitled to interest on the past due balance accruing @ legal rate of 8% per annum.
10. defendant defaulted under terms of the agreement because defendant failed to make payments to GE Money Bank
11. subsequent to defendant's default, account was charged off for non-payment
12. thereafter, defendant's account was sold to and acquired by the plaintiff herein, Portfolio Recovery Associates, LLC.
13. chain of ownership of defendant's account attached hereto as Exhibit "B"
14. pursuant to the terms and conditions of the agreement, defendant is lawfully indebted to the plaintiff in the amount of $810.31, together with interest on said amount of 8% interest per annum from March 7, 2011. Said amount includes any offsets and credits to which the defendant is lawfully entitled.
WHEREFORE, the plaintiff prays the Court as follows:
1. that plaintiff have and recover from defendant amount of $810.31
2. plaintiff further have and recover interest on said amount @ 8% from and after March 7, 2011 until paid in full.
3. plaintiff further recover from said defendant all costs of this action
4. for such other and further relief as the court may deem just and proper
 
Following that is a scanned copy of a statement which shows the last date of submitted payment as Exhibit "A" as well as the statement showing charge off date and fees / credits.
 
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Here's what Exhibit "B" looks like:
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I don't know why the page is entitled Exhibit A but further defined as Exhibit B at the bottom of the page.
 
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16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 

 
That's all that I received with the summons. Again, I did check the site's court calendar and neither my name, file number, or any other information I tried using returned any results of my name and/or case.
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Call the court to see if the complaint has been filed.  If not, read your rules to see how much time they to file after serving you.  I don't know if the following rule applies to all NC courts, but I found this in the NC statutes:

 

Rule 3. Commencement of action.

(a)        A civil action is commenced by filing a complaint with the court. The clerk shall enter the date of filing on the original complaint, and such entry shall be prima facie evidence of the date of filing.

A civil action may also be commenced by the issuance of a summons when

(1)        A person makes application to the court stating the nature  and purpose of his action and requesting permission to file his complaint within 20 days and

(2)        The court makes an order stating the nature and purpose of the action and granting the requested permission.

The summons and the court's order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects. If the complaint is not filed within the period specified in the clerk's order, the action shall abate.  (b)  The clerk shall maintain as prescribed by the Administrative Office of the Courts a separate index of all medical malpractice actions, as defined in G.S. 90‑21.11.

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The date of your last payment was 8/2010. Even with a 3 year SOL they are within the SOL for suit so that won' t work.

Hire a lawyer. They cannot collect interest prior to getting a judgment. They are trying to tack on post judgment interest from the date they got the account.

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They cannot collect interest prior to getting a judgment. They are trying to tack on post judgment interest from the date they got the account.

Really ?

Tell that to a judge and see how he/she will look you crossed eyed !

Who said they can't ? Read any credit card agreement and you'll see how they can.

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I just got off the phone with the district court and they have no calendar postings for my name. She said they're typically filed less than 14 days from the date served, but it's not appearing on her records anywhere.

 

Now what? I don't think any of this sounds normal, but I have never received a summons and have never called a court before so all of this is new information and experience.

 

Edit: I just checked my credit report and see that Portfolio Recovery Associates, LLC. is listed as a negative mark on my account. I don't know if that information is of use.

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Upon further investigation of this debt, I see a different history of payments than shown on the summons.

 

Original card was from GE Money Bank and named Care Credit with a limit of $1,000. Details of posted account history as follows:

Date Opened: 09/2008

Date of Status: 05/2011

Reported Since: 10/2008

Last Reported Date: 05/2011

Creditor's Statement: Purchased by another lender

Account History: Charge Off as of Mar 2011

 

Payment History: August 2009 - Current/Terms of agreement met

                                September 2009 - Closed

                                October 2009 - Account 30 days past due

 

 

Looking at the negative impact posted from Portfolio Recovery Associates, LLC. shows the following:

 

Date Opened: 03/2011

Date of Status: 09/2011

Reported Since: 09/2011

Last Reported Date: 04/2013

 

Account History: Collection as of Sep 2011 to Apr 2013

 

Payment History: None. All of the data shown from SEP 2011 to APR 2013 displays as Collection

 

 

Does this mean:

They are trying to state that my last payment was to them in August 2011, and not to the original creditor at the end of August 2009? Is that how collections debt works? I ask because the statement they sent along with the summons shows a payment in 2011... but that sure wasn't me.

 

If the original date of last payment is the one that actually matters, this debt is past the SOL in my state. I doubt that's actually the case here since I really don't believe I've just discovered a clandestine attempt at forcing me to pay them money for something they're no longer entitled to.

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Exhibit B looks like your last payment is listed as 08/31/2010 and the charge off was on 03/07/2011. That sound about right because they usually charge off the account after six months of no payments. 

 

The data on you CR from PRA is just since they "purchased" the account.

 

Normally I would suggest fighting the affidavit and the person who signs it, but for some reason they don't include them in N.C. Since you can't do that I would go for arbitration. You need to speak with someone familiar with N.C. Law that knows how to do this. You are pressed for time so I would spend every moment between now and your answer deadline to figure it out. 

 

Linda7 and others here are very knowledgeable in this area here. 

You need to find some of the agreements that go with this card and figure out which one you can use. Some are posted here and on other sites if you can't find them. If you qualify arbitration should be a good strategy considering the small amount of $$$$ it involves.

 

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

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Found a list. Hope the one you need in on it. JAMS is preferable since it cost them the most $$$$.

 

http://www.cardmemberagreements.org/ge/

 

Hah, funny that you found that... I was looking at an agreement from 2010 as well, just not from the same source.

 

So, reading that, I came to this section on arbitration:

wlaZIMf.jpg

 

Coupling that with this post: http://www.creditinfocenter.com/community/topic/319175-i-asked-for-validation-and-right-to-arbitrate-they-validated-with-affidavit-of-creditor/?p=1228561

 

leads me to believe I may be able to use this contract as a means of forcing the JDB to front any and all court costs covered under arbitration which could quickly exceed the amount to which I am being accused of owing.

 

Is the suggested letter in the above quoted post sufficient for my needs? Obviously I would replace all necessary information with my own provisions, but if that template is good enough to use then I'd like to set that in motion ASAP.

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