IN_Girl

Portfolio Recovery - Letter

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Hello everyone, 

Let me first say that I am not being sued... yet.  I noticed in April that I had a new item on my credit report from Portfolio Recovery and an old Capital One account was gone.

 

I disputed online with the credit bureau and they replied that it was a valid claim... I then wrote a letter to Portfolio Recovery asking them to validate the debt, prove they had the right to collect, prove the statute of limitations had not expired, etc.  Their Dispute Dept wrote me back and said the matter was closed and that they were sending the case back to the Collection Dept.  I RECEIVED NOTHING!  

They have not contacted me anymore, but I want this off my credit report.

 

So I have drafted the following and would like some feedback if you don't mind.

 

To Whom It May Concern:

 

As a follow up to my letter dated May 9, 2013, I am writing today in response to you claim that the debt has been validated.  I have NOT received any of the items requested to properly validate the claimed debt.  I do not believe that I owe you this debt and after further investigation, believe you are in violation of my Consumer Rights.

1.        You claim that you own the debt from Capital One.

a.       I have seen no paperwork to prove this. 

b.      You have not complied with my request for the following:

   i.      What the money you say I owe is for;

   ii.      Explain and show me how you calculated what you say I owe;

   iii.      Provide me with copies of any papers that show I agreed to pay what you say I owe;

   iv.      Prove the Statute of Limitations has not expired on this account;

   v.      Show me that you are licensed to collect in my state; and

   vi.      Provide me with your license numbers and Registered Agent.

2.       You claim I defaulted on the debt in 2009.

a.       I have seen no paperwork to prove this.  Furthermore, I have looked up the credit card agreement for the timeframe and, if this was my debt, it would be beyond the Statute of Limitations governed by the state of Virginia (according to the Capital One agreement, Virginia laws shall be used), which is 3 years.

3.       I have given you additional time to remove this false line from my credit report and feel that this must now move to arbitration.  According to the credit card agreement, I/We can elect to pursue this in arbitration.  We shall both be responsible for our own attorney fees, no matter the prevailing party.  I am choosing to elect arbitration through JAMS.

a.       If these items are not removed immediately, I will proceed with filing JAMS paperwork.

b.      Pursuant to the terms of the agreement, I am requesting the advance of the arbitration filing fee.

 

 

Best Regards,

 

 

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Here is something else I noticed.  I pulled my 3 credit reports.  They are now saying this account is closed (Transunion says open)... so apparently it's closed, but how do i now get it off my CR?

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I would not send that letter.  They are not suing you, and inorder for you to go to JAMS, they would have needed to serve you with a lawsuit.  I would dispute the debt again with the CRA's, and if the CA said the matter was closed, I would send them a copy of their own letter, and ask them to remove any negative tradelines from your credit report.

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On my credit report the account says closed.  Portfolio did not say that.  I really want them off my credit report.  This is for a Cap 1 card, defaulted in 2009, so according to the credit agreement it is governed by VA.  Therefore, the statute of limitations is up.  I told them that per the agreement I elected arbitration via JAMS in a letter that i sent them since they were ignoring my dispute from my credit report.  Now what?  Should i fill out paperwork and send it to them, then if they do not respond send an ITS letter?  They would be in breach of contract if they ignore the arbitration request, correct?

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This is for a Cap 1 card, defaulted in 2009, so according to the credit agreement it is governed by VA.  Therefore, the statute of limitations is up. 

 

The SOL for a lawsuit may be up depending on what state you are in.  Not all states have a borrowing statute and if your state has a longer SOL then you could still possibly be sued.  

 

Second:  the SOL that counts for reporting has not expired.  If the DOFD (date of first default) is in 2009 then they can report this debt until 2016 at the earliest LEGALLY.

 

I told them that per the agreement I elected arbitration via JAMS in a letter that i sent them since they were ignoring my dispute from my credit report.  They would be in breach of contract if they ignore the arbitration request, correct?

 

If they are not suing you for the debt then the clause on arbitration does not apply.  They are not required to arbitrate because you want the debt off your credit report.  They are also not required to go to arbitration because you disputed the debt.

 

 I really want them off my credit report.  Now what?  Should i fill out paperwork and send it to them, then if they do not respond send an ITS letter?  

 

The ONLY thing PRA is required to do is report accurately.  If they are not reporting the debt accurately despite the dispute, then you have a FCRA violation to sue for.  However, you may be a LONG way away from that point.  

 

I am no fan of them and am currently suing them but before it got to that point I had DVd them, disputed with the CRAs, then filed a CFPB complaint.  Finally hired a lawyer and they got my affidavits and disputed AGAIN via the firm.  Despite all this PRA is STILL reporting as an open account that is 120 days past due and that I am making payments to them.  NOW we can sue them and make it stick and I have already been forewarned by the lawyer that PRA drags this stuff out hoping you will get frustrated and go away.

 

The first thing you need to do is find out what the SOL for lawsuit is in your state.  If you can still be sued then you may be waking a sleeping bear.  The second thing to realize is that despite how odious they are, outside of a PFD (which PRA does not do) a JDB or CA can accurately report the debt for 7.6 years after the DOFD and no matter how much you want it off your credit report, if the entry is accurate it can stay.  The best you (and I) might be able to do is force accurate reporting for the duration.  Absent leverage you cannot force them to delete and so far it does not appear that you have much leverage against them and by electing arbitration when it isn't appropriate may have weakened your defenses.

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But if I have disputed the validity of the debt along with the amount with them and said that for this and any further disputes I elect arbitration, doesn't that take it out of the court?  According to the agreement it does.  So if they try to sue me now, it will be a violation.  I can simply say "Judge, I tried on XX date to work this out with them via arbitration and they never responded, here's proof of my letter to them."  

 

Am I wrong on this?

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Am I wrong on this?

 

I think so but talk to a consumer lawyer to be certain.

 

But if I have disputed the validity of the debt along with the amount with them and said that for this and any further disputes I elect arbitration, doesn't that take it out of the court?  

 

Not automatically.  Typically how it goes is they sue you.  You elect arbitration and if they don't agree you have to file a motion to compel arbitration and get the court to order them to arbitration.  

 

According to the agreement it does.  

 

If THEY sue you.  Even then it doesn't stop them from suing it gives you a defense to fight them in the court with stating you elected arbitration.  

 

I can simply say "Judge, I tried on XX date to work this out with them via arbitration and they never responded, here's proof of my letter to them."  

 

If they sue you then you can raise the issue that you elected arbitration but that is not the subject of your thread.  You are attempting to get them to arbitrate your dispute of their ability to report the collection account.  They are NOT required to arbitrate that.  

 

The threshold of evidence a CA/JDB needs to provide to validate a debt for a consumer dispute is so low you can trip over it.  If they are not reporting correctly you have to start disputing that.  Then if they do not accurately report the account you have a FCRA violation for reporting false information AND not responding to the valid dispute of the inaccuracies.  

 

NONE of that will necessarily get a valid debt removed from your credit report.  Yes, sometimes a settlement includes removal of the TL.  However, it isn't a guarantee and you are fighting one of the top 5 JDBs in this country.  They rake in 100s of millions a year in debt collections so losing a case or two is nothing to them.

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Sending that letter may open yourself up to a lawsuit. They don't really care what you have to say and all the letter tells them is that you are alive and easily located. I agree with what most of the others said also. 

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That's what I was trying to say by do not send that, you are putting the spotlight on yourself for a lawsuit.  You may or may not get it into arbitration, and if they file with another arbitrator after filing before you, they have picked the forum.  It will stay on your report as clydesmom says until 2016, no way to get it off unless you do go to court and win with prejudice.

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I am very thankful for all of the insight.  However, I still do not think that pre-emptive election of arbitration was the wrong move.  In it I stated that I elected arbitration via Jams to resolve all conflict/disputes.

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Sending that letter may open yourself up to a lawsuit. They don't really care what you have to say and all the letter tells them is that you are alive and easily located. I agree with what most of the others said also. 

From the forum posts here it seems PRA seems to sue everyone but me. Don't know why. I doubt it was my amazing letter writing skills and the letters they received from me. Maybe I am on a litigious consumer database somewhere.

Ditto: "they don't really care what you have to say". Other than to use it against you and/or to their advantage.

 

That's what I was trying to say by do not send that, you are putting the spotlight on yourself for a lawsuit.  You may or may not get it into arbitration, and if they file with another arbitrator after filing before you, they have picked the forum.  It will stay on your report as clydesmom says until 2016, no way to get it off unless you do go to court and win with prejudice.

Forum selection by opposing is a serious consideration. Arbitration is a a serious consideration in and of itself. The more cards your adversary lays on the table and the fewer you show them the better positioned you are IMO.

 

I am more confident in my ability to get a favorable judgment or dismissal with prejudice against an OC than to be able to clear a derogatory by a JDB on my credit report. Everyone wants the derogs off their credit but I just don't see it as a simple task without a judgment, "no liability" dismissal, or a workable TL cleanup settlement in hand.

 

Even winning litigation against or settling with a TL cleanup against a JDB it would seem possible that the OC could have previously furnished or could update pre-sale derogatory information to a CRA. Lacking a judgment or settlement with the OC it would seem that they could furnish FCRA acceptable derog information to the CRAs.

 

On the flip side some situations might permit a party with a stack of derrogs on their credit report to benefit from the same as it could be a discouragement to would-be litigious predators that allege that the consumer might owe something to someone.

 

AFAIK there is no benefit to be gained from threatening a JDB. Letting them know you are "needy" regarding a derog removal is information they will likely use to their advantage. The JDB may be a horrible corporate citizen breaking laws wholesale and hurting people in large numbers but it is not likely that this is their first rodeo.

 

..

  Absent leverage you cannot force them to delete and so far it does not appear that you have much leverage against them and by electing arbitration when it isn't appropriate may have weakened your defenses.

I agree the OP has possibly weakened their defenses. I am always looking for good leverage when dealing with financial terrorists and their ilk.

 

The main reason I would send a non-attorney signed ITS is because I am gathering free information from my adversary. I have spoken to an in house attorney for a sizable CA that explained that they routinely ignore ITS letters from consumers. They did respond to an arbitration file number regarding my claim that was sent to them from an arbitration forum. My ITS letter might occasionally end up in a court record and could show that I made a reasonable effort to settle and avoid litigation.

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