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Basic Court Case Advice (Have a case date)


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Background: 

Naivety and just plain foolishness brought me into a situation where I thought I was investing in my future but I really was being sold a snake oil of an idea. Because of that i'm currently around 20k in debt from a prosper loan + multiple credit cards. I'm still current on my Prosper and 3 credit cards but am in late stages of collections with the rest.

 

I finally got my act together a few months ago after reading some information on some sites and started slowly saving money to do some payoffs.

 

Unfortunately Portfolio Recovery Associates have already went ahead and sued me and I have 2 court dates with them in the next two months. I read about the answer and everything too late. Again partly negligence on my part and partly not living in my family's home anymore and not getting notified to way later (on top of confusing dates.. document being dated a whole month before finally reaching my mother's house)

 

Current

Now that all that has happened? Do I have any choices at all? I tried calling Portfolio the other week and they were offering me to settle at MORE than I initially owed and wouldn't move. All the other companies I;m beginning to get agreements with but portfolio isn't budging. They didn't even offer me a payment plan. With all the other settlements i'm dealing with there is no way I can pay them the full amount and if they take all the money from my bank account I'll have to even break my agreements with the other companies....

 

 

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Get your money out of the bank immediately. You can probably set up an account in some other state that will be hard for them to find. 

 

There are some templates on this forum on how to reverse a default judgement. Sounds like improper service if you don't reside where the papers were initially served. 

 

Also do a Google Search for Jill Sheridan and Midland Funding. She won a case big time down in Georgia and has dozens of templates posted on line. I think she is writing a book. 

 

HP

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Don't break your agreement with the other companys. Portfolio can be beaten in court.

I don't know what stage your suit is in but, if you don't have a judgment against you yet, there is no need to panic and take your money out of the bank.

Portfolio can't take the money without a court order.

 

Copy and paste these questions into this thread and answer them ......... it will give everyone a better idea of how to help.

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Need more specifics....What was the suit for,,,breech of contract account stated or money owed....How did you answer the suit....do they have a judgment? Has there been any discovery?

 

If they cannot produce a contract that states they have the right to add all the additional charges that they always add they can get those amounts. If they claim breech of contract then they have to cough up the contract.

 

They have to prove they own the debt first,,,you need the bill of sale...did you ask for it?  

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1.Tell the clerk at your courthouse that you want a copy of the entire court file for your case.

2. To vacate a judgment on the grounds of improper service (I was never served)

3.Set a hearing before the judge.

4.Make the beautiful affidavit.

5.Study the rules of civil procedure

6.If accepted you will have to defend the case.

7.The courthouse may have the forms you need to do this.

EXAMPLE

The defendant jbg83 was never served process papers by the plaintiff in this civil suit, and files this affidavit in support.

I jbg83 had never avoided service, hidden or concealed myself, attempted to alter my identity or hide my address, and have not left the state at any time. Defendant jbg83 had moved from the address with my parents on 1313 Mocking Bird lane in Decater GA in January 2011, To my current address at 2112 Birchfield Drive in Decater GA. Defendant moved to the current address in January 2011, and that since January 2011- I have lived at the present address on birchfield dr.

Further affiant saith not.

I SWEAR OR AFFIRM THAT THE ABOVE AND FOREGOING REPRESENTATIONS ARE TRUE AND CORRECT TO THE BEST OF MY INFORMATION, KNOWLEDGE, AND BELIEF.

XXXXX XXXXX June 2013

STATE OF GEORGIA COUNTY OF MACON

I the undersigned Notary Public, do hereby affirm that jbg83 personally appeared before me on the ___ day of June 2013, and signed the above Affidavit voluntary.

STAMP - XXXXX XXXXX

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So again when I tried calling to negotiate they were offering me 3200$ to settle which is more than the original amount (they said it was attorney / court fees)
 
1. Who is the named plaintiff in the suit?
Me
 
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Just says Portfolio Recovery associates LLC
 
3. How much are you being sued for?
2969.19 + 98.00
 
4. Who is the original creditor? (if not the Plaintiff)
GE Capital
 
5. How do you know you are being sued? (You were served, right?)
It was sent to my mom's house
 
6. How were you served? (Mail, In person, Notice on door)
It was sent to my mom's house
 
7. Was the service legal as required by your state? 
 
I'm not sure. I last lived there in 3/11 and my mom currently lives there.
 
To the defendant personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
Had a talk with them long time before but they wouldn't budge. 
 
9. What state and county do you live in?
Served in Gwinnett County, GA. Live in Fulton County
 
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Sometime in 2011
 
11. What is the SOL on the debt? To find out: 
Not close yet
 
12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
Going to trial
 
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
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
 
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? 
 
Had till April 5, 2013. It was notarized on March 15th. My Mom seems like she didn't get it until May 15. I replied around June 10th after I found out about this board and read more. 
 
The Defendant opened and incurred charges under a credit account with GE Capital Retail Bank / Banana Republic account number *****. All rights and title to Defendant's account were assigned to Plantiff Portfolio Recovery Associates LLC. Despite numerous and repeated request for repayment on the account, the account still remains delinquent . after any and all payments and credits, the current balance due and owing is 2969.19 of which plaintiff seeks to recover from Defendant.
 
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
 
Bill of Sale and last statement.
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So again when I tried calling to negotiate they were offering me 3200$ to settle which is more than the original amount (they said it was attorney / court fees)
 
1. Who is the named plaintiff in the suit?
Me
 
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Just says Portfolio Recovery associates LLC
 
3. How much are you being sued for?
2969.19 + 98.00
 
4. Who is the original creditor? (if not the Plaintiff)
GE Capital
 
5. How do you know you are being sued? (You were served, right?)
It was sent to my mom's house
 
6. How were you served? (Mail, In person, Notice on door)
It was sent to my mom's house
 
7. Was the service legal as required by your state? 
 
I'm not sure. I last lived there in 3/11 and my mom currently lives there.
 
To the defendant personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
Had a talk with them long time before but they wouldn't budge. 
 
9. What state and county do you live in?
Served in Gwinnett County, GA. Live in Fulton County
 
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Sometime in 2011
 
11. What is the SOL on the debt? To find out: 
Not close yet
 
12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
Going to trial
 
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
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
 
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? 
 
Had till April 5, 2013. It was notarized on March 15th. My Mom seems like she didn't get it until May 15. I replied around June 10th after I found out about this board and read more. 
 
The Defendant opened and incurred charges under a credit account with GE Capital Retail Bank / Banana Republic account number *****. All rights and title to Defendant's account were assigned to Plantiff Portfolio Recovery Associates LLC. Despite numerous and repeated request for repayment on the account, the account still remains delinquent . after any and all payments and credits, the current balance due and owing is 2969.19 of which plaintiff seeks to recover from Defendant.
 
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
 
Bill of Sale and last statement.

 

Can you post the bill of sale I bet it does not show proper ownership. Just because they have one receipt does not mean the balance is accurate. Is there another court date set?

 

Had till April 5, 2013. It was notarized on March 15th. My Mom seems like she didn't get it until May 15

If this is true then the Notary perjured him/her self......did you point this out to the court?

 

Do not call PRA any more, do everything through court filings.

 

I will get out my law books and find some case law for you. Courts have said time and again that in order for the balance to be correct the plaintiff has to show an accounting balance from zero dollars.

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A credit card statement is just a credit card statement.

Is it verified or authenticated."ACCOUNTS ARE BEING SOLD "AS IS" AND "WITH ALL FAULTS"

They always leave this stuff out.

This Bill of Sale is executed without recourse except as stated in the Credit Card Account

Purchase Agreement to which this is an Exhibit. No other representation of or warranty of

title or enforceability is expressed or implied.

Its a blank bill of sale so the purchaser of any accounts can just fill in the blanks and put your name in.

I bet they make 1000 copies.

http://www.philipstern.com/files/ 2nd one down from the top says 2008.02.15.Forward_F..> 29-Mar-2012 06:23 1.1M in this case the attorney busted them for blank bills of sale.

In any litigation which Purchaser undertakes to collect monies owed on the

Charged-off Accounts, it shall sue in its own name and shall not include the Seller's name

EXCEPT AS PROVIDED IN THIS SECTION, THE CHARGED-OFF

ACCOUNTS ARE BEING SOLD "AS IS" AND "WITH ALL FAULTS",

WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER

AS TO EITHER CONDITION, FITNESS FOR ANY PARTICULAR

PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY,

EXPRESS OR IMPLIED, AND SELLER SPECIFICALLY DISCLAIMS

ANY WARRANTY, REPRESENTATION, ORAL OR WRITTEN, PAST OR

PRESENT, EXPRESS OR IMPLIED, CONCERNING THE CHARGEDOFF

ACCOUNTS, OR THE STRATIFICATION OR PACKAGING OF THE

CHARGED-OFF ACCOUNTS.

In discovery ask them if theirs were sold as is "WITH ALL FAULTS",

WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER

and

In any litigation which Purchaser undertakes to collect monies owed on the

Charged-off Accounts, it shall sue in its own name and shall not include the Seller's name

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Thank you so much for the information!

 

I am going to google and read as much as I can before the court case tomorrow. As i'm new to this some of it's going over my head right now though but i'll see what I can read to help get my mind around it. 

 

I've never been to court before. I understand Discovery happens before the case so in the case I have trial on tomorrow it's already pass the chance of me getting that information correct? I have another case with the same company in July so i'll use my expanded info on that one but for tomorrows is there anything I can ask for to atleast get in a better position to negotiate a reasonable settlement?

 

Thanks again

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Sorry, I called my mom just to make sure I got all the documents and it seemed one was not scanned over.

 

http://tinypic.com/r/ndqzyu/5

 

Does this affidavit let them sue me for more than the original amount and prove they  own the debt?

I'm going to court in a few hours so I'll probably end up losing this one. I'll try to bring up the facts about getting the documents so late. I will continue to update this .

 

Thanks all

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Sorry, I called my mom just to make sure I got all the documents and it seemed one was not scanned over.

 

http://tinypic.com/r/ndqzyu/5

 

Does this affidavit let them sue me for more than the original amount and prove they  own the debt?

I'm going to court in a few hours so I'll probably end up losing this one. I'll try to bring up the facts about getting the documents so late. I will continue to update this .

 

Thanks all

Affidavit smavidavit,,,,the affiant cannot attest to the accuracy of the sellers records as he does not have first hand(intimate) knowledge of how the alleged account was handled while in the hands of the seller. The alleged owner cannot in no way assure the court that what they attest as the correct balance due and owing is accurate and true. Unless they can show from a zero balance the alleged owner cannot prove this amount is true and accurate, he/she can only speculate as to the authenticity and accuracy of the alleged account.

the mere statement that a person owes money does not in its self prove that a contract exists or existed between the seller and the alleged owner. With out a signed contract that governs, the alleged owner can only speculate on the terms and to whether or not a contract was entered into by the defendant.

MOTION TO QUASH AFFIDAVIT; the affidavit is hearsay and moot, it does not fall under the business records exception to the hearsay rule, a business record is produced IN THE ORDINARY COURSE OF BUSINESS AND FOR BUSINESS PURPOSES, affidavits are legal documents not produced in the ordinary course of business and for business purposes they are produce for the sole reason of litigation and are therefore legal documents not business records. A person cannot take the business records of another person, put them in a folder and say these are now MY business documents.

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50 minutes before court date. I really wish I found this site earlier and asked you all early. Already now I have gone from feeling hopeless to at least having some of my options.

 

Again I know this might be to late but in my situation

 

During trial I should bring up.

That I was improperly served (Will this just buy me some time to organize a real full defense?)

That the documents that Portfolio has given me and filed do not prove that they own the debt or the amount of debt?

 

I assume that both of these statements will just buy be time correct? If that's true then that's amazing already. Wish me luck.

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Sorry it seems like i'm having trouble editing the last post. 

 

This case is for default

My second case I did send my answer in time thanks to info I read on this board! That is a much bigger balance.

 

This case it was the same way. By the time I got the served document it was already after the date noted on the summons. + It was to my mom's house and at that time she had no idea what was going on and didn't give it to me till much later too.

 

In my first case they even gave me less information. Just the Bill of Sales and the Affidavit, not even a statement or anything.

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