WhatNow2013

Being sued by Portfolio Recovery Associates

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Recently got served (less than 30 days ago) and we've been trying to figure out our next steps.

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.) Emily Pierce/Jordan Cook/Lori Williams/Kristen Brinkerhoff Portfolio Recovery Associates, LLC

3. How much are you being sued for? $1500

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

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

6. How were you served? 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? Los Angeles County, CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Still trying to figure that out. According to credit report it was Oct. 2009

11. What is the SOL on the debt? To find out:4 years

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 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). Suit filed and served no motions filed. Looked it up online

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). 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 to respond. Served on June 30th at 8 at night

 

PLD-C-001 form-

Lists Plaintiff's name and defendants name and says Does 1-25 (not sure what that is)

 

Action is limited civil does not exceed $10,000

 

1. Portfolio Recovery Associates, LLC alleges causes of action against defendant (name withheld)

 

*They didn't check anything off for questions 2-6
 

7. This court is the proper court becuase c. a defendant lives here now

 

8. The following causes of action are attached and the statements above apply to each
Common Counts

 

9. Other Allegations- Before commencement of this action, plaintiff informed the defendants in writing it intended to file this action and that this action would result in a judgement abainst defendants that would include, if applicable, court costs and necessary disbursements alloweed by CCP section 1033 (B)(2)

 

10. Plaintiff prays for judgment for costs for suit; for such relief is fair, just and equitable; and for

a. damages of $1500 (approximately)

b. interest on the damages at the rate of 0 percent per year from date of 9/25/2012

*nothing on c

d. other: They note all notices payments letters and papers be mailed to plantiff's attorney address listed on the documents

 

Cause of Action- Common Courts document PLD-C-001(2)
Attachment to complaint

 

CC- 1. Plaintiff (named) alleges that defendant (named) became indebted to Plaintiff's predecessor Capitol One Bank on an account assigned, transferred, and or sold to Plaintiff. PLaintiff's predecessor can be refered to as a plaintiff

 

a. withing the last 4 years  because an account was stated in writing by and between plaintiff and defendant in which it was agree that defendant was indebted to plaintiff

 

*nothing checked off for CC-2 or CC-3

 

CC-4. Other: $1500 which is the fixed and agreed amount due and unpaid despite Plaintiff's demand plus prejudgement interest at the rate of 0% per year from 9/25/2012. The account was purchased from the original creditor Capitol One Bank.
 


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.There was nothing attached to my summons. No affidavit no statements or contracts, etc. The only thing attached was a form that gave certification for grounds for assignment to courthouse location. Nothing else.

I need help determining our next steps. Do I file an answer or general denial? What do I need to include? Any help given would be so appreciated. Thanks in advance.

 

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This must be answered according to California rules.  MANY bright forum members from your state can give you specifics.  But generally, I was amused that in the complaint they said "Plaintiff's predesessor (Captial One) can be referred to as Plaintiff."  That's FUNNY!

 

Also, "an account was stated in writing by and between plaintiff and defendant."  Since they seem to want to crowbar 'Cap One' as plaintiff as well, one has to assume they have something in writing from you.  Of course, you will want to see this!  Beyond how you answer the complaint, keep in mind the plaintiff must PROVE they own your alleged account.

 

In Cali, you send plaintiff a 'Bill of Particulars' laying out what they need to provide you.  I'll stop there.  California rules are different than my state, so I will leave it to some Cali members to respond.

 

Good luck!

 

-J

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Yes, absolutely.

I have a special bond with PRA and I thoroughly enjoyed whooping Cap1's behind. There are many other super brilliant Cali peeps here that can help as well.

First and foremost, Cap1's governing law is Virginia, which has a 3 year SOL. And California has a borrowing statute, check out:

http://www.courts.ca.gov/partners/documents/2011SRL5eResurgence.pdf

While it deals with Delaware, they have the same SOL as Cap1. So, if you'd like to utilize the SOL using our borrowing statute and the contract language of the OC's choosing, then by all means, hit 'em where it hurts. I'm with Jimmy, send your BOP now:

http://www.courts.ca.gov/partners/documents/DemandBillParticulars.doc

Change the county on the form to the county you hail from. And you can also change the items you want right on the form. The link I provided should be one you can alter. Also, you might consider Arbitration; I couldn't get PRA to follow me into Arb, even with a court order demanding that they do. So, for such a tiny amount, it's highly unlikely they will pay the fees to arbitrate. I prefer to go to court with Portfolio because the attorney they get (LRLO) is not organized AT ALL. I got sanctions against them once before and am hoping for another round here next month.

Okay we'll I have to go back to work but I'll look further into the answers you provided to racecar's questions when I get home.

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Thank you for all of that information. I'm going to send my BOP now and tomorrow morning I'll file my Answer with the court. I appreciate all of the links and information. I'll post more as my case progresses! Thank you SO MUCH for all of the help so far!! I really appreciate it!

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Someone correct me if I am wrong, but in addition to Capital One being governed by Virginia SOL, they also have an arbitration clause that lists JAMS and states that no matter who prevails, they cover their own attorney fees (obviously read your copy of the agreement).

If the debt is outside of the SOL, it's a violation of the FDCPA. They'll owe you money.

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...

First and foremost, Cap1's governing law is Virginia, which has a 3 year SOL. And California has a borrowing statute, check out:

http://www.courts.ca.gov/partners/documents/2011SRL5eResurgence.pdf

While it deals with Delaware, they have the same SOL as Cap1. So, if you'd like to utilize the SOL using our borrowing statute and the contract language of the OC's choosing, then by all means, hit 'em where it hurts. I'm with Jimmy, send your BOP now:

...

Has anyone located any case law holding that the VA legislative intent was a 3 year SOL for CC?

 

VA AG opinion 5yrs for CC SOL

http://www.oag.state.va.us/Opinions%20and%20Legal%20Resources/Opinions/2011opns/10-128-Janis.pdf

Maybe it is 3 yrs:

http://wiki.answers.com/Q/What_is_the_Statute_of_Limitations_for_debts_and_specifically_credit_cards_in_Virginia

http://apps.suzeorman.com/igsbase/igstemplate.cfm?SRC=MD012&SRCN=aoedetails&GnavID=84&SnavID=20&TnavID=&AreasofExpertiseID=24

http://www.creditcards.com/credit-card-news/credit-card-state-statute-limitations-1282.php

Or maybe it is 6 yrs:

http://www.bankrate.com/finance/credit-cards/state-statutes-of-limitations-for-old-debts-1.aspx

OK, it's 3 yrs:

http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml

 

Maybe it is just me but it would seem that identifying a CC SOL should not be similar to a game of Whack-a-Mole.

 

Although, Whack-a-PRA might be interesting. ;-)

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These are the Affirmative Defenses I have listed on my Answer to the complaint.
Am I missing anything?

1. Plaintiff has failed to state facts sufficient to state a cause of action against Defendant.
2. Plaintiff's claim is barred by the statue of limitations.
3.Plaintiff lacks standing to bring this action.
4. Plaintiff is barred by the doctrine of estoppel due to Plaintiff's acts and/or omissions.  
5. Plaintiff is barred by the doctrine of laches due to Plaintiff's acts and/or omissions.
6. Plaintiff is barred by the doctrine of unclean hands due to Plaintiff's acts and/or omissions.
7. Plaintiff has a duty to mitigate its damages, if any, and failed to do so.
8. Plaintiff's recovery would unjustly enrich Plaintiff at Defendant's expense.
9. Plaintiff's recovery is barred by the doctrine of waiver due to Plaintiff's acts and/or omissions.
10. Plaintiff's acts and/or omissions violate the Rosenthal Act and the Fair Debt Collection Practices Act.

 

Also, I'm not quite sure how to complete section 3. I know that this is a verified case, so I cannot select general denial, but I'm not sure what information I need to include in 3b and/or 3c. Do I just include the information listed on the Complaint (PLD-C-001) form or do I also need to deny the information included on the Cause of Action-Common Counts (PLD-C-001 (2)) form as well and how do I do that? How do I reference the paragraphs from that doc? CC-1, CC-2,etc?

 

Thank you in advance!!!


 

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Ok, so you're saying don't include any of those in my affirmative defenses? I looked up some of the affirmative defenses online and that's where I got that information from. What would I put there instead? I need to file an answer and a counter-complaint at the same time?

I don't mean to be a parrot, but I just want to make sure I understand everything completely before I go on and file. I have a week left before I miss the deadline.

Thanks HotWheels96

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Ok, so just another quick question. The Declaration of Mailing form is asking for someone not a party to this action. Is it ok for a spouse, not named in the suit, to be that someone? Probably a stupid question, but I thouhgt it wouldn't hurt to ask. Thanks in advance.

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I've always used my spouse.

As far as the AG goes, that is an OPINION, and it says right in it that courts are not bound by that opinion. I really don't believe that Cap1 would risk having a published decision regarding their contracts being 3 years. I will look for the civil code that points to the borrowing statute. Give me a bit.

Knowing what I know now about PRA (from personal experience mind you), and how they dismiss the case and won't follow through with arbitration even with a court order, I will always elect Arb and file a motion to compel in any future cases.

Yes, in my jurisdiction, a counter must be filed at the same time as an answer. This is how I missed my chance to file my counter complaint. A clerk at the courthouse told me I could send it after, but then I found out, to my detriment naturally, that the information provided was totally wrong. It's why I pursued my complaints in Arb.

As far as the affirmative defenses go...the only violation I would add and this is just what I would do, would be that the alleged debt is time barred and they are not allowed to file it if thats the case. Then I would add the usual ones like standing. But if you say they called me at 2200 and that they told you they'd come take your children, the judge will probably just ignore that as it doesn't mean you don't owe it. Others might disagree, so I am of course open to opposing opinions on the matter.

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Thanks for your help, Hotwheels96.

 

I was just looking through the case summary online and this is what I found. I've deleted any personal information
 

Filing Date:  05/20/2013
Case Type:  COLLECTIONS CASE (Limited Jurisdiction)
Status:  PENDING
Future Hearings

05/15/2014 at 08:30 AM in department SEY...
OSC - 3.740 COLLECTIONS-PROOF OF SERVICE
 

History Information

Parties

Plaintiff:  PORTFOLIO RECOVERY ASSOCIATESLLC
Attorney:   ATTORNEY AT LAW - LORI N. WILLIAMS

Defendant:
Attorney:  

Party Information

Histories (Dates listed in descending order)

07/05/2013 PROOF OF SERVICE OF SUMMONS AND COMPLAINT; NOTICE OF CASE
ASSIGNMENT, ADR PACKAGE FILED. SERVED AS TO... COSTS OF $55.00

06/07/2013 ORDER TO SHOW CAUSE HEARING/CASE MANAGEMENT REVIEW SIGNED
AND FILED BY HOWARD L. HALM, JUDGE TO SHOW WHY SANCTIONS
SHOULD NOT BE IMPOSED FOR FAILURE TO FILE PROOF OF
SERVICE PURSUANT TO CRC 3.740(E). MATTER SET FOR HEARING
ON 05/15/14 AT 08:30A M., IN DEPT. SEY . CERTIFICATE
OF MAILING FILED.

05/20/2013 COLLECTIONS CASE COMPLAINT FILED PURSUANT TO CRC 3.740. RN
NOR509405040.

05/20/2013 SUMMONS ISSUED.

05/20/2013 SUMMONS FILED.

05/20/2013 DECLARATION UNDER BUSINESS AND PROFESSIONS CODE 6322.1 FILED

 

The underlined information stood out to me. There appears to be an additional court hearing in May of next year. I'm not sure I understand why? The case will be updated today to show our filing of the answer to the complaint, but I'm unsure of what exactly this other court date is for. Anyone know??

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You were served though, according to the docket. It's what the last entry is. The order to show cause, should now be vacated. All of my cases (collections only) automatically schedule an order to show cause hearing. It's listed as "OSCSVC HEARING"

Example:

DEFENDANT HOTWHEELS96; Pro Per Dismissed 02/2013

02/2013 00:00 AM DEPT COURT TRIAL SET FOR COMPLAINT FILED 02/2012 OF CAPITAL ONE BANK (USA) N A

02/2013 00:00 AM DEPT COURT TRIAL SET FOR COMPLAINT FILED 02/2012 OF CAPITAL ONE BANK (USA) N A

02/2013 00:00 AM DEPT OSC RE: STATUS OF DEFAULT JUDGMENT PURSUANT TO CRC 3.740 VACATED

02/2013 PROOF OF SERVICE OF FIRST AMENDED TRIAL BRIEF BY EXPRESS MAIL ON 02/13 AS TO THEM

02/2013 DEFENDANTS FIRST AMENDED TRIAL BRIEF FILED

01/2013 PROOF OF SERVICE OF CIVIL SUBPOENA BY SUB SERVICE ON 01/13 AS TO WANDI CHAMBERLAIN, FILED.

12/2012 NOTICE OF HEARING AND ACCOMPANYING PROOF OF SERVICE FILED BY CAPITAL ONE BANK (USA) N A

12/2012 00:00PM DEPT COURT TRIAL SET FOR COMPLAINT FILED 02/2012 OF CAPITAL ONE BANK (USA) N A

12/2012 PROOF OF SERVICE OF DEFS MIL,P&AS,DECLARATIONS BY MAIL DELIVERY ON 12/12 AS TO THEM

12/2012 DECLARATION OF PLAINTIFF IN LIEU OF PERSONAL TESTIMONY AT TRIAL FILED

12/2012 DECLARATION OF DEFENDANT IN SUPPORT OF MIL FILED

12/2012 MOTION IN LIMINE RE: MEMO OF P&AS IN SUPPORT OF MOTION FILED.

12/2012 DECLARATION OF NON SERVICE OF SUBPOENA FOR PERSONAL APPEARANCE FILED

12/2012 TRIAL BRIEF FILED BY HOTWHEELS96

12/2012 TRIAL BRIEF FILED BY CAPITAL ONE BANK (USA) N A

12/2012 PROOF OF SERVICE OF TRIAL BRIEF, DOCS RE JUDGMENT ORDER BY MAIL DELIVERY ON 11/12 AS TO HOTWHEELS96, FILED

12/2012 MEMO OF COSTS FILED BY CAPITAL ONE BANK (USA) N A, FOR $400.00.

12/2012 DECLARATION RE: CCP 1033 & REQUEST FOR USE OF COPIES FILED BY CAPITAL ONE BANK (USA) N A

12/2012 POINTS & AUTHORITIES FILED BY CAPITAL ONE BANK (USA) N A.

11/2012 PROOF OF SERVICE OF RESPONSE TO INSUFFICIENT/SUPPORTING DOCS BY MAIL AS TO BOTTOM RUNG ATTORNEYS, INC., FILED

11/2012 DEFENDANTS RESPONSE TO INSUFFICIENT BILL OF PARTICULARS FROM PLAINTIFF FILED

11/2012 DEFENDANTS RESPONSE TO PLAINTIFFS CCP 96 REQUEST FILED

11/2012 DECLARATION OF PLAINTIFF IN LIEU OF PERSONAL TESTIMONY AT TRIAL FILED

11/2012 NOTICE REQUESTING AND REQUIRING PARTIES TO ATTEND TRIAL FILED BY CAPITAL ONE BANK (USA) N A.

08/2012 00:00 AM DEPT. OSC RE: DISMISSAL

08/2012 00:00 AM DEPT. OSC RE: SERVICE COMPLETION PURSUANT TO CRC3.740 VACATED

07/2012 00:00 AM DEPT. CASE MANAGEMENT CONFERENCE

07/2012 FILE SENT TO DEPT

03/2012 ANSWER FILED BY HOTWHEELS96; PARTY REPRESENTED BY PRO/PER.

03/2012 REQUEST FOR WAIVER OF COURT FEES & COSTS FILED BY HOTWHEELS96.

03/2012 VACATE OSCSVC HEARING SCHEDULED FOR 08/12 AT 00:00 IN DEPT VACATED

03/2012 PROOF OF SERVICE OF SUMMONS AND COMP/PET ON HOTWHEELS96; DEFENDANT SERVED ON 02/12

02/2012 ORIGINAL SUMMONS RETURNED AND FILED. (IMAGED)

02/2012 AFFIDAVIT OF VENUE

02/2012 COMPLAINT FILED

02/2012 CASE ASSIGNED FOR ALL PURPOSES TO DEPT

02/2012 CASE AND PARTY INFORMATION ADDED

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