Portfolio Suing me in Florida.

[Delray Dude]

Hi there and thanks to everyone that has posted in the past and those that might be of help to me in the future.  I have read a bunch of topics and have started researching for my defense.  The particulars so far:

 

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.)

 

LUCOFF , ESQ, JOEL D

 

3. How much are you being sued for?

 

       APROX 2000.00

 

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

 

       GE CAPITAL RETAIL BANK

 

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

 

RECEIVED ADVERTISMENT LETTR FROM ATTORNEY STATING I WAS BEING SUED.  RESEARCHED ONLINE IN MY COUNTY CLERK OF COURTS AND VERIFIED THEY FILED. HAVE NOT BEEN SERVED YET.

 

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

 

    EVENT HAS NOT HAPPENED YET

 

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

 

     EVENT HAS NOT HAPPENED YET

 

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

 

  NO CORRESPONDENCE

 

9. What state and county do you live in?

 

PALM BEACH COUNTY, FLORIDA

 

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

 

MARCH 2012

 

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

4 YEARS – STILL IN SOL

 

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).

 

STILL WAITING TO BE SERVED

 

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

 

RECENTLY DISPUTED ON EXPERIAN

 

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?

 

EVENT HAS NOT HAPPENED YET

 

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

 

EVENT NOT HAPPENED YET

 

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I have looked through the docket search for the Palm Beach Clerk of Courts and it appears the law firm has in the past filed tons of lawsuits for not only PRA but others as well.  It appears that most of the time they get a default judgement which supports the normal model for these types of lawyers as discussed on these forums.  As I was going through all the cases by the lawyer, mostly ones he represented  Portfolio, I found one that apparently tried to fight the charges, Portfolio V. Newell (Margot Newell) with a filing date of June 20, 2012.  

 

I am obviously not a lawyer and I don't have the documents of the case, but the free search has general listings of the events. I found it interesting that PRA produced a witness via phone.

 

I know I am in a holding pattern until I get served, but I would like to get a jump on available defenses ready.  I'm fairly sure my main defense will be lack of standing, but I can't respond to anything until I see what they have on me. Has anyone else dealt with these guys and what would be the best way to handle a possible phone witness?

 

Thanks again for your advice

[shellieh98]

The best way to handle a phone witness is not to allow them in the first place. We have a great objection for that should the time com. Just remember they have to motion and ask permission of the court for a phone witness, it is up to you to object to it.

If they do allow one anyway, it will be from pra, and we have questions that will help impeach the witness should that occur.

You can get a head start by reading fl. Rules of civil procedure. Start at the part of being served and how to answer. Post your questions here, and check the online docket freq. so they don't try to slip in sewer service on you.

[racecar]

http://webcache.googleusercontent.com/search?q=cache:SU3M-yL2QUoJ:www.floridabar.org/tfb/TFBLegalRes.nsf/+&cd=2&hl=en&ct=clnk&gl=us Florida Rules of Procedure

RESOLVING A DISPUTE WITH ARBITRATION

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL

BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO

PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.

• What claims are subject to arbitration

1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/

or dealers/merchants/retailers that accept the card or program sponsors if it relates to your account, except as noted below.

2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case

we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part

thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the

Agreement as a whole is for the arbitrator, not a court, to decide.

• No Class Actions

YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU

MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT A ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY

ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.

If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s determination shall be

subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking

relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.

• How to start an arbitration, and the arbitration process

1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice

must be sent to GE Capital Retail Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select

an arbitration administrator, which can be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, (800) 778-7879, or

JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, (800) 352-5267. If neither administrator is able or willing to handle the dispute, then the court will

appoint an arbitrator.

2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the

responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once

appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s

rules conflict with this Agreement, this Agreement will control.

4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe

you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration

proceeding which you have commenced.

• Governing Law for Arbitration

This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision

will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.

• How to reject this section.

You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To reject this section, you must send us

a notice within 60 days after you open your account or we first provided you with your right to reject this section. The notice must include your name, address and account

number, and must be mailed to GE Capital Retail Bank, P.O. Box 965034, Orlando, FL 32896-5034. This is the only way you can reject this section.

[Delray Dude]

Thanks for the quick replies and links.  I have been reading up as much as I can and have ran across something interesting below:

 

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RULE 7.020. APPLICABILITY OF RULES OF CIVIL PROCEDURE

(a) Generally. Florida Rules of Civil Procedure 1.090(a), ( b ), and ©; 1.190(e); 1.210(f ); 1.260; 1.410; and 1.560 are applicable in all actions covered by these rules.

( b ) Discovery. Any party represented by an attorney is subject to discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380 directed at said party, without order of court. If a party proceeding without an attorney directs discovery to a party represented by an attorney, the represented party may also use discovery pursuant to the above-mentioned rules without leave of court. When a party is unrepresented and has not initiated discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380, the opposing party shall not be entitled to initiate such discovery without leave of court. However, the time for such discovery procedures may be prescribed by the court.

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I was wondering if it would be best that I do not start any form of Discovery between the time served and the pre-trial, as this might give them an opportunity to come up with additional things to support their claim especially since I believe my strongest defense will be lack of standing. I am thinking that a quick and simple answer to the complaint would be best and let it along until the pre-trial and then try to have them produce the records then, which I'm fairly confident they wont have them other than the usual statement from OC. 

[Spikey]

What generally happens is that they have what documents they have and they'll claim that they'll get more from the OC but it's just a ploy. Every so often they do come up with more documents but that's pretty rare. Florida has some pretty lenient time frames as far as setting of trial dates. So, waiting to initiate discovery isn't a big advantage for you.

[shellieh98]

There are 2 other threads in here from fl. Currently. Both of them did not do anything. The JDB waited almost a year in both cases, and the posters thought they just went away. Now they are basically to late for their discovery requests, and the JDB in both cases filed a motion for summary judgement against them.

If it were me, I would ask for everything but the kitchen sink, so I could plan my defense and know exactly what I was up against.

[Delray Dude]

Anyone make sense of this. 

I was checking the online Docket of my case today and found some potentially disturbing things.

 

It looks like they list Dockets in order, starting with #1 and so on as they are added. It includes the Docket number and has a brief heading, then under it has filing date and filing party and a few other things.

 

Docket 1  - SCLM Statement of claim  9-xx-2013 - filing party - CA Attorney

Docket 2  - NOED Notice of Email Designation - same date as #1 - filing party CA attorney

Docket 3  - NOTCF Notice of confidential filing - same date as #1 - filing party CA attorney

Docket 4  - ESUM-summons received (E-file) - same date as #1 - filing party  is listed as me

Docket 5  - CCS Civil Cover Sheet- same day as #1 - filing party CA attorney

 

 

 

What bothers me is  #4 - I didn't receive anything and I sure as heck didn't respond to anything, yet it is listing me as the filing party. Are they trying to sneak through that I received a summons via e-mail?

 

Most of the Dockets have a text on the bottom that read  E FILED, F/B PLT ATTY.  I would assume E Filed is filed on via computer and PLT ATTY is plantiff attorney but what is F/B mean?

[Delray Dude]

Reading another thread I encountered this snippet from debtzapper

 

debtzapper, on 01 Oct 2013 - 12:13 AM, said:

 

Did Asset notify you per statute that it had been assigned your debt by Wachovia at least 30 days prior to suing you?

 

[5] Effective October 1, 2010, Section 559.715 was amended to require that the assignee give notice "as soon as practical after theassignment is made, but at least 30 days before any action to collect the debt." Fla. Stat. 559.715 (2012).

 

The four cases cited by Plaintiff stand for the proposition that an assignee is forever precluded from bringing an action to collect an assigned debt if the assignee provided no notice to the debtor within thirty days. See Cent. Ohio Credit Corp. v. Jones, 17 Fla. L. Weekly Supp. 190a (Fla. Duval County Ct. 2008); Midland Funding, LLC v. Hill, 15 Fla. L. Weekly Supp. 365b (Fla. Gadsden County Ct. 2008); UMLIC-VP, LLC v. Levine, 10 Fla. L. Weekly Supp. 336a (Fla. 15th Cir. Ct. 2003).

 

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If I am reading this correctly, when I do get served, I would think this would be a great affirmative defense in my answer because I received no letters from PRA before the lawsuit, or atleast ones they could prove. I would think if they responded to the argument that letters were sent out without CMRR proof, I assume it could it be argued as a hearsay fairly easy?   What would be considered adequate notice?  I would assume any action to collect would also include their normal initial letter stating you owe them.  

 

Either way, I didn't send any debt validation letter to them, or any correspondence so far before they filed suit so they don't have any concrete proof that i was aware of them acquiring the debt. I'm not saying I should hang my hat on this defense, but I would think that this coupled up with the standing defense should make a strong case for them to bail on me and go for the easy defaults they usually get.

 

[shellieh98]

Did they send you a letter? Even if they didn't they may argue they did. They don't have to prove you actually received the letter as long as they can show the court they have specific procedures in their policy's that indicate it is part of their everyday business to do so. So during discovery, those policies would be part of your document requests if they claim they sent you notice.

[Delray Dude]

Did they send you a letter? Even if they didn't they may argue they did. They don't have to prove you actually received the letter as long as they can show the court they have specific procedures in their policy's that indicate it is part of their everyday business to do so. So during discovery, those policies would be part of your document requests if they claim they sent you notice.

 

If they did, I did not receive it.  I see what you are saying about saying they sent it.   I looked up the law and this is what i found:

 

559.715 Assignment of consumer debts.—This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.

 

I was wondering, if they produce a letter, and its a normal standard one where they say we own the debt now and this is an attempt to collect, i could argue that the 1st letter is an "action to collect" and therefore a violation of the  559.715. 

[shellieh98]

Yes but more likely they will do what they have done in other cases and provide one that states we own this debt now. I have seen a few cases where they have done that but the person being sued never got one. They are tricksters. But they may bank on you not knowing the rule also, and never produce it, it is worth pursuing.. If the do, hit them with a policy and procedure request.

[Delray Dude]

I was researching other cases in my county and ran across one that is fighting the attorney and PRA currently.  One of the things that stand out on this case is they apparently had to post a non resident cost bond referencing Florida Statute 57.011

 

57.011 Costs; security by nonresidents.—When a nonresident plaintiff begins an action or when a plaintiff after beginning an action removes himself or herself or his or her effects from the state, he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought. On failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney.

History.—s. 8, Nov. 23, 1828; s. 4, Nov. 21, 1829; RS 1301; GS 1733; RGS 2948; CGL 4672; s. 13, ch. 67-254; s. 310, ch. 95-147.

Note.—Former s. 58.01.

 

 

They also filed a motion under 57.105 

 

57.105 Attorney’s fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation.—

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

( Would not be supported by the application of then-existing law to those material facts.

(2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay.

(3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:

(a) Under paragraph (1)( if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.

( Under paragraph (1)(a) or paragraph (1)( against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.

© Under paragraph (1)( against a represented party.

(d) On the court’s initiative under subsections (1) and (2) unless sanctions are awarded before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

(5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney’s fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party’s attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection.

(6) The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.

(7) If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.

History.—s. 1, ch. 78-275; s. 61, ch. 86-160; ss. 1, 2, ch. 88-160; s. 1, ch. 90-300; s. 316, ch. 95-147; s. 4, ch. 99-225; s. 1, ch. 2002-77; s. 9, ch. 2003-94; s. 1, ch. 2010-129.

 

 

Sounds like this person is throwing alot at the attorney.  The 1st one is interesting - looks like it's something to throw back at JDB that are out of state. 

[Spikey]

The non-resident cost bond is worth perusing but don't expect it to get the case dismissed. I've researched this before and the plaintiff can file the cost bond as late as minutes before the hearing of the motion.

[Delray Dude]

The non-resident cost bond is worth perusing but don't expect it to get the case dismissed. I've researched this before and the plaintiff can file the cost bond as late as minutes before the hearing of the motion.

 

 

Yes, I agree,  I think it's something one can use to make their life collecting as difficult as possible.

 

 So far I have not been served and the court records has now shown the summons issued yet, so I know I still have time to investigate, I plan on following the current case and see how it progresses, but apparently this lawyer isn't dropping things quickly

[Spikey]

The other thread to look over would be FSUGirl's. Long thread but there's lots of good information in there.