Update, Order to ReOpen after dismiss without prejudice, Sued by Portfolio Recovery Associates

[the101dragons]

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.)
Machol & Johannes LLC

3. How much are you being sued for?
5,763.54
4. Who is the original creditor? (if not the Plaintiff)
Us Bank National Association

5. How do you know you are being sued? (You were served, right?)
yes
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?
none

9. What state and county do you live in?
CO, Weld county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
approx 5/10
11. What is the SOL on the debt? To find out:

6 yrs

Statute of Limitations on Debts

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).
served

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? (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? 

7/12/13

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

Assignment and bill of sale from HSBC receivables acquisitoins to Portfolio Recovery Associates

I guess UsBank sold to HSBC and then they sold it to portfolio recover a$$

 

 

Got the served papers, one is the Complaint under simplified civil procedure 

1. this just lists my address

 

2. and the amount of debt.  

 

3. account number and OC along with states plaintiff claims the right to recover from the defendant under one or more of the following legal theories:

Express contract, implied contract, quantum meruit, liquidtaed debt arising out of a contract, account stated, unjust enrichment, agreed interest or statuary interest.

 

4. plantiff requests interest on any judgment entered on the case to accrue at the rate of 8% per annum compounded annually from date of judgement, pursuant to c.r.s.5-12-102

 

5. the defendant is not a minor, incompetent or in the military of US but is engaged in civilian pursuits.

 

6. plantiff does not demand trial buy jury.

 

 

Then I have the Answer paper including counterclaims and crossclaims

 

1. The amount of damages claimed to be due to the plaintiff by the complaint in this action is not due and owing for the following reasons:

 If I put deny, then for what  for

 

2. IF applicable The defendant asserts the following counter claims or setoffs against the plantiff.

 

3. if applicable  The defendant ________________asserts the following cross claims against the defendants___________

(you are limited to the jurisdiction of the court.______________________

 

4. If counter claim is asserted above you must check on of the following statements.

    1. the amount of the counterlai does not exceed the jurisdiction of the court.

    2. the amount of the counterclaim exceeds the jurisdiction of the court, but I wish to limit my recovery to the jursidition of this court.

    3. the amount of the counterclaim exceeds the jurisdictio of the court, and I wish the case transferrred to the district cout.

 

5. the defendant does____/ does not____demand trial by jury.

 

 

 would love some advice and I would be going all the way thru with court.

[BTO429]

To start with the claim breech of contract, was the contract or a copy affixed to the complaint? Do not let them stray away from the contract in order to claim account stated. The contract governs

 

Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988),a plaintiff may not avoid the terms of his express contract by seeking recovery on an implied contractual theory if the damages claimed are covered by the express contract.

[texasrocker]

To start with the claim breech of contract, was the contract or a copy affixed to the complaint? Do not let them stray away from the contract in order to claim account stated. The contract governs

 

Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988),a plaintiff may not avoid the terms of his express contract by seeking recovery on an implied contractual theory if the damages claimed are covered by the express contract.

Truly v. Austin is a Texas-specific ruling.  It probably would not hold much ground in Colorado.

[BV80]

If, as here, plaintiff's status as a real party in interest depends upon an assignment from the original real party in interest, it is necessary for the plaintiff to prove, in addition to the basic elements of its case, its status as an assignee.  Alpine Associates, Inc. v. KP & R, Inc., 802 P.2d 1119, 1121 (Colo.App.1990); National Advertising Co. v. Sayers, supra.

[racecar]

Some stuff I found on google scholar

To recover under a theory of quasi-contract or unjust enrichment, a plaintiff must show (1) that a benefit was conferred on the defendant by the plaintiff, (2) that the benefit was appreciated by the defendant, 1097*1097 and (3) that the benefit was accepted by the defendant under such circumstances that it would be inequitable for it to be retained without payment of its value. Dass v. Epplen, 162 Colo. 60, 424 P.2d 779 (1967); Mountain Medical, Inc. v. City of Colorado Springs, 43 Colo.App. 391, 608 P.2d 821 (1979); Jordan v. Lone Pines, Ltd., 41 Colo.App. 152, 580 P.2d 1273 (1978); 66 Am.Jur.2d Restitution and Implied Contracts § 4 at 947 (1973). Application of the doctrine does not depend upon the existence of a contract, express or implied in fact, but on the need to avoid unjust enrichment of the defendant notwithstanding the absence of an actual agreement to pay for the benefit conferred. E.g., Valley Realty & Investment Co. v. McMillan, 160 Colo. 109, 414 P.2d 486 (1966); Wistrand v. Leach Realty Co., 147 Colo. 573, 364 P.2d 396 (1961); see generally 1 G. Palmer, The Law of Restitution § 1.2 (1978). 66 Am.Jur.2d Restitution and Implied Contracts, supra, § 2. The scope of this remedy is broad, cutting across both contract and tort law, with its application guided by the underlying principle of avoiding the unjust enrichment of one party at the expense of another. 1 G. Palmer, The Law of Restitution § 1.1 (1978); 66 Am.Jur.2d Restitution and Implied Contracts, supra, § 11.

Plaintiff's claim for goods sold and delivered and services rendered is essentially an implied contract, quantum meruit claim. If an express contract exists and an asserted implied contract is alleged to co-exist and relate to the same subject matter, there can be no implied contract between the parties because the provisions of the express contract supersede those of the implied contract; however, this rule does not apply if the implied agreement is based upon the conduct of the parties subsequent to, and not covered by, the terms of the express contract. Schuck Corp. v. Sorkowitz, 686 P.2d 1366 (Colo.App.1984); see In re Estate of Murphy, 110 Colo. 304, 134 P.2d 199 (1943).

We agree with Elliott that, under general contract law, the existence of an express contract does not preclude quantum meruit recovery and that generally, a claim for quantum meruit exists independently 46*46 from any contract claim. See Denver Ventures Inc. v. Arlington Lane Corp., 754 P.2d 785, 787 (Colo.App.1988). However, we decline the invitation to look to case law from other jurisdictions or to rely solely upon our case law prior to the adoption of chapter 23.3. Chapter 23.3, which governs here, has express provisions that should control and they provide sufficient guidance under the present facts.

The sole issue on appeal is whether the reasonableness of the stated fees is an element of an accountant's claim for account stated. Mace v. Spaulding, 110 Colo. 58, 130 P.2d 89 (1942), defines the elements necessary to establish a claim for account stated, namely: a statement for sums due presented by plaintiff to defendant and an agreement between plaintiff and defendant that the account is correct and that the agreed amount is due from defendant to plaintiff. The reasonableness of the amount agreed to by the parties is not such an element.

An account stated is an agreement that the balance and all items of an account representing the previous monetary transactions of the parties are correct, together with a promise, express or implied, to pay such balance. Mace v. Spaulding, 110 Colo. 58, 130 P.2d 89. Here there was no express agreement between the parties recognizing the sum due. Plaintiff relies on the silence of defendant Lee over a length of time concerning the amount due as creating an implied agreement as to the correctness of that amount. Plaintiff cites Wright v. Forsyth, 79 Colo. 71, 243 P. 1108, in support of that argument. This doctrine, however, cannot be applied to the 508*508 present case inasmuch as the account upon which defendant Lee was being sued included charges for treatment of her husband as well as herself. The fact that she did not object to the billing of her husband's medical service expenses with her own cannot now be asserted to preclude her from denying liability for the entire amount when she alone is being sued. In the absence of a complete agreement as to correctness of all amounts, there is no account stated. Mace v. Spaulding, supra.

Plaintiff has urged that under the authority of Larrick, Inc. v. Burt Chevrolet, 147 Colo. 133, 362 P.2d 1030, it is entitled to interest on the full amount of $9,152.04, 988*988 rather than the net amount of $7,410.99 remaining after deduction of $1,741.05. At first blush Larrick appears to support this proposition. In that case a contractor had a liquidated claim against the owner for construction work and the owner had an unliquidated claim against the contractor for breach of warranty. The trial court allowed interest on the entire amount of the liquidated claim and offset against that claim plus interest the amount of the unliquidated claim without interest thereon. The judgment was affirmed. On reading the briefs filed in that case we find that there was no issue presented to this court with respect to the amount upon which interest should accrue. The owner accepted as correct the ruling of the trial court as to interest; actually, the matter was neither before this court nor was it passed upon by it.

In the instant case the defendants have not argued the matter of the amount of interest, but simply have taken the position that the judgment of the trial court should be affirmed. However, we think the point justifies perusal and a ruling on our part.

The court of appeals narrowly construed the meaning of "liquidated debt" in this case. It held that an amount due for the defendant's breach of an implied in fact contract for hospital costs is "liquidated or determinable within the meaning of section 13-80-103.5(1)(a) only where the agreement sets forth an amount owed or a formula for calculating an amount owed." Portercare, ___ P.3d at ___. Addressing the "liquidated" portion of this holding, it appears the court of appeals will only find a "liquidated debt" where an agreement "sets forth an amount owed." Id.

A debt is "liquidated" if the amount due "is capable of ascertainment by reference to an agreement or by simple computation." Rotenberg, 899 P.2d at 367 (analyzing the meaning of "liquidated debt" in action to collect legal fees); see also Restatement (Second) of Contracts § 354 cmt. c (1981) (defining "sufficiently definite" sums due under a contract for the purposes of assessing interest as damages). Therefore, a "liquidated debt" exists if a consumer is obligated to pay either an amount stated in the agreement, or an amount capable of ascertainment by simple computation that arises out of the subject transaction.

A party who has been unjustly enriched generally must make restitution to the other party by returning that party to the position it previously occupied. Salzman v. Bachrach, 996 P.2d 1263 (Colo.2000)(quoting Restatement of Restitution § 3 (1937)).

Unjust enrichment does not depend on the existence of an express or implied-in-fact contract. Cablevision of Breckenridge, Inc. v. Tannhauser Condo. a$$'n, 649 P.2d 1093 (Colo.1982). Instead, courts may imply a contract in law, often termed a quasi-contract, and allow recovery to serve the "law of natural immutable justice and equity." See DCB Constr. Co. v. Central City Dev. Co., 965 P.2d 115, 119 (Colo.1998), aff'g 940 P.2d 958, 962 (Colo.App.1996)(quoting Valley Realty & Inv. Co. v. McMillan, 160 Colo. 109, 112, 414 P.2d 486, 488 (1966)).

In general, a party cannot recover for unjust enrichment by asserting a quasi-contract when an express contract covers the same subject matter because the express contract precludes any implied-in-law contract. Printz Servs. Corp. v. Main Elec., Ltd., 949 P.2d 77 (Colo.App.1997), aff'd in part and rev'd in part, 980 P.2d 522 (Colo. 1999); Stanford v. Ronald H. Mayer Real Estate, Inc., 849 P.2d 921 (Colo.App.1993). However, this principle recognizes two exceptions.

First, a party can recover on a quasi-contract when the implied-in-law contract covers conduct outside the express contract or matters arising subsequent to the express contract. Scott Co. v. MK-Ferguson Co., 832 P.2d 1000 (Colo.App.1991).

Second, a party can recover on a quasi-contract when the party "will have no right under an enforceable contract." Backus v. Apishapa Land & Cattle Co., 44 Colo. App. 59, 62, 615 P.2d 42, 44 (1980). For example, quasi-contractual recovery may be allowed when an express contract failed or was rescinded. See Dudding v. Norton Frickey & Assocs., 11 P.3d 441 (Colo.2000); Alien, Inc. v. Futterman, 924 P.2d 1063 (Colo.App.1995).

Resolution of this issue presents a mixed question of law and fact. The existence of an express contract is a question of fact. Beach v. Beach, 56 P.3d 1125 (Colo. App.2002). Application of the rule that an express contract supersedes a quasi-contract covering the same subject is a question of law. Scott Co. v. MK-Ferguson Co., supra.

The Interbank I division's opinion did not address the principle that an express contract precludes an implied-in-law contract on the same subject matter. The parties' briefs in the prior appeal did not raise this principle. Thus, we cannot conclude that the division's remand expressly resolved the conflict between the breach of contract and unjust enrichment claims, once both claims were resurrected on appeal.

Nor is an implicit determination that plaintiff's unjust enrichment claim survives the enforceable contracts logically necessary to the division's direction that on remand the trial court consider whether plaintiff could recover restitution for unjust enrichment. The division did not conclude that either the express contracts covered the same subject matter as the unjust enrichment claim or an award for unjust enrichment must be granted. And, the trial court had not addressed whether the contracts covered the same subject matter as the unjust enrichment claim.

E.H. Boly & Son, Inc. v. Schneider, 525 F.2d 20 (9th Cir.1975), cited by the division in explaining the remand, only holds that damages and restitution can be pleaded in the alternative. Alternative pleading, however, does not limit the principle that an express contract precludes an implied contract on the same subject matter.

In Backus v. Apishapa Land & Cattle Co., supra, the division recognized that the plaintiff could proceed alternatively on a claim for unjust enrichment, but explained, "f [the plaintiff's] assignment claim fails, he will have no right under an enforceable contract. Under such circumstances, [the plaintiff] may be able to recover for unjust enrichment." Backus v. Apishapa Land & Cattle Co., supra, 44 Colo.App. at 62, 615 P.2d at 44. These circumstances do not pertain here.

Accordingly, we conclude that the Interbank I division did not decide whether availability of nominal damages under the express contracts precludes relief for unjust enrichment.

Unjust enrichment, sometimes referred to as quasi-contract or contract implied 795*795 in law, is an equitable doctrine that permits recovery when a plaintiff shows "(1) that a benefit was conferred on the defendant by the plaintiff, (2) that the benefit was appreciated by the defendant, and (3) that the benefit was accepted by the defendant under such circumstances that it would be inequitable for it to be retained without payment...." Cablevision of Breckenridge v. Tannhauser Condominium a$$'n, 649 P.2d 1093, 1096-97 (Colo. 1982); accord Dass v. Epplen, 162 Colo. 60, 424 P.2d 779 (1967). Since the doctrine of unjust enrichment has not been displaced by the particular provisions of Article 9, the doctrine may supplement its provisions. See Producers Cotton Oil Co. v. Amstar Corp., 197 Cal.App.3d 638, 242 Cal.Rptr. 914, 927 (1988).

[the101dragons]

To start with the claim breech of contract, was the contract or a copy affixed to the complaint? Do not let them stray away from the contract in order to claim account stated. The contract governs

 

Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988),a plaintiff may not avoid the terms of his express contract by seeking recovery on an implied contractual theory if the damages claimed are covered by the express contract.

It's a copy.  You are talking about the assignment and bill of sale right.  

[the101dragons]

Ok so my answer to #1. The amount of damages claimed to be due to the plaintiff by the complaint in this action is not due and owning for the following reasons:

 

Denied, defendant denies owning any amount to plaintiff.

 

 

Should this be enough or something better.

[racecar]

I would put all that apply

1. The amount of damages claimed to be due to the plaintiff by the complaint in this action is not due and owing for the following reasons:

1.The defendant denies the lawsuit in its entirety.

2.Plaintiff is not who I entered into any Contract with and does not have standing to sue defendant.

3.The defendant owes the plaintiff nothing.

4.Plaintiff has not suffered any damages because of the defendant.

5.Plaintiff did harm to himself by buying a pool of charged off debt and trying to collect on it.

6.Plaintiff is entitled to nothing from the defendant

7.US Bank / Us banc has and Arbitration Agreement that is final and binding to all parties.I understand and acknowledge that: •Arbitration is final and binding on the parties.The parties are waiving their right to seek remedies in court, including their right to a jury trial.Defendant elects arbitration to settle this matter.

8.The Complaint is conclusionary and fails to state a claim against this Defendant upon which relief can be granted.

9.Plaintiff is not the legal holder of the alleged debt and therefore is not the real party in interest; this action should be dismissed for lack of standing.

10.Plaintiff’s complaint is not properly verified and is not grounded in fact because it does not exhibit the alleged contract the debt is based upon, a valid statement of account, nor any valid assignment that gives Plaintiff legal title to the claim.

11.Defendant is not the proper parties to the Complaint.

12.Plaintiff falsely represents the character, amount, and legal status of the alleged debt.

13.Plaintiff’s Complaint is not based on its personal knowledge of the alleged debt.

14.Plaintiff has filed a false statement of account upon which Plaintiff’s complaint is founded which provides at best an alleged “summary of unnamed records” upon Plaintiff’s opinion

15.The pool of charged off debt was sold "as is" with "all faults without any representation or warranty whatsoever", The plaintiffs information comes from an "excel spreadsheet" not from personal knowledge or the original creditor.

[the101dragons]

Thanks racecar

I will apply all that I think will apply.  Should I send the arbitration one to or wait.  My court charges a filing fee of 75 dollars and so I will be mailing this in today certified return mail.

[the101dragons]

Update today

 

Prior to my court date the attorneys office called me 3 days before my court date and asked me how he could help me out and wanted to help me out.  He was asking how much I made and how much my house payment was.  I told him I'm not answering his questions and I ask him how much he made and what his house payment was.  He then started saying I owe him 5700 dollars and so how do I want to settle this.  I told him I will settle it in court and will see him Friday.  He kept telling me how he is helping me and all this jibberish.  He then proceded to keep asking how much I pay for my house and I told him it's none of his business, well he said it is because I owe him 5700 dollars.  I told him I don't owe him anything.  I then kept asking him how much he pays for his house.  He finally hung up on me.

 

 

Just got back from court. Here's what happen.  Arrived at court and had to watch a video on what was going to happen in court.  Waited in the room until called by plantiffs attorney.  Greeted attorney, was a nice looking woman and she asked me how I wanted to settle this 5700 dollars.  I told her dismiss with prejudice and she said I would have to write it out and stuff, she then said she could do dismiss without prejudice.  I stood back and thought to myself how can this be so easy when they served me with all this court stuff.  If not for these helping people on this website then I would be settling, I would have caved in and said I'd like to make payments or settle for less.   I then signed the paperwork and asked if I needed to stay for court and she said no, it will be entered in that way.  I am thankful for racecar with helping me with my answer, I actually copied all of what racecar typed except for the last one in my answer.  I did not stay for court and left.  I did not get any paperwork so I hope I did the right thing.  Case closed I guess unless they sell it to another JDB. 

[Savoir]

Geez .......... have you been reading this forum?

These guys will do anything to get a win ......... including tricking an individual to not show up at court.

It is entirely possible that she went into the court room and asked for a default judgment when you didn't show up.

 

Hopefully this is not the case but ..............

[racecar]

BOOM!!!

[Savoir]

I don't know what racecar meant by "BOOM" unless he meant that your case just blew up in your face.

Again, hopefully this is not the case ........ if not ........ you got real lucky.

[Cobren]

With my experience so far... If I get to the hearing before the judge walks in, I would talk with the JDB and it would be very brief and have another date for continuance. Then I would leave with no worry.. But, now after reading this and to be on the safe side, I'll stay just in case.

[Savoir]

Always show for a hearing ............ always!!!

[Savoir]

With my experience so far... If I get to the hearing before the judge walks in, I would talk with the JDB and it would be very brief and have another date for continuance. Then I would leave with no worry.. But, now after reading this and to be on the safe side, I'll stay just in case.

 

I had a case against me where the plaintiff (OC) sent me a stipulated dismissal.

I signed it and sent it back but still showed for the MSD hearing. The case was dismissed but........... it could have been a ploy ..............ya just never know.

[HotWheels96]

Savoir, I was thinking the exact same thing. I've seen this happen and it's absolutely despicable that these attorneys do something so low.

 

I also hope that they didn't get screwed by leaving. Time will tell. If the worst does happen, is there any recourse for the defendant? Or would it be he said/she said?
 

[Savoir]

Don't see how it could be any other way than he said/she said. OP stated that he didn't get any paperwork.

If it's not in writing ........it didn't happen (original quote ........ unknown).

[racecar]

You guys are to paranoid.

Im sure he would have known if it said consent judgment or dismissal.

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html

[Savoir]

You guys are to paranoid.

I'm sure he would have known if it said consent judgment or dismissal.

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html

 

You're darn right I'm paranoid when dealing with attorneys from Portfolio (or any debt buyer for that matter). It keeps my instincts honed.

Even if the document was a judgment for the defendant; if it didn't get entered to the clerk and the OP didn't attend the hearing, he doesn't know what happened.

 

If I were the OP I'd be calling the court on Monday to see what did happen.

[shellieh98]

Wow, your in colorado. Hopefully it was not machos and Johannes firm, they tell you you do not have to be there, and then get a default. In colorado both parties have to agree on dismissal.....with or without, so I hope you signed paperwork that stated such at the very least! Monday get down there and make sure they filled it and there is no judgement, if there is file to vacate ASAP, then add a counter claim for fraud. Good luck, if it is, congrats! Oh there would have not been anymore paperwork to file it with, clerk could have entered it right then and there.

[Savoir]

The Op's first post states that the attorneys were Machol & Johannes LLC

[the101dragons]

Well got an letter stating Order to ReOpen.  Court granted motion to reopen.  Matter to be set for pre-trial conference.  Thought this was over but didn't realize the without prejudice part allows for re-filing of a case.  No wonder the attorney did  wouldn't take a with prejudice answer.   Looks like some more reading and studying for me.  How many times can they do this and if they dismiss again, can I sue and for what, how much.

[the101dragons]

Ok, got a letter today with witness that the plaintiff tends to call. Also got bank statements, like the lasts few months and bill of sale that does not include any information on the bill of sale other then OC assigns to Portfolio, some signed usbank guys.  They name a witness, Maria Marin and or an associate for portfolio recovery a$$. that they will call upon.  They also would like to resolve this matter without further litigation, therby saving each of us time, expense and further inconvenience.  The attorney handling my case is Mercedes Poley.

 

So what's my next step here.  My pretrial date is set for mid October so I guess I go in there and listen to what they have to offer me and use some scare tactics for me to resolve this matter and pay up.  I will fight this till the end and will need your guys help.

[shellieh98]

Good ole Mercedes.  The witch.   They named a witness or "or an associate" for portfolio.  They will claim some rule in the colorado rules of evidence that they can name just a generic custodian of records, but that is not true.  Read colorado rules of civil procedure, and rule 26 where they have to name the witness, and address/phone number.

The stack of paperwork, was it labeled their disclosure, form 9?  Once they send you the form 9, they cannot supplement it without good cause.  So if all they have are a bill of sale, some statements, and a protfolio witness, you are in a good place if you place your objections right.

 

They reopened the file so they did not have to pay new filing fees, and preserve the SOL from when they filed before. 

 

I would begin working on a Motion in Limine disputing the evidence they plan on entering.  If the disclosure they sent you was not a form 9, you need to go to the colo. court website, print out form 9 (2 copies) fill one out for your disclosure, and send them a blank one for them to fill out.  They will have to return it within 21 days with all the evidence they plan on using at trial.  You can then fine tune the MIL to that evidence.

 

If they file a motion for telephone witness (they are famous for that) post it here, and I will find the objection to telephone witness you will need to file within 5 days to oppose it.

 

I am not at home, so I can't give you the MIL I did against them, but you will need to rework it to fit your needs.