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is there a effective way to pull case law ....I feel like finding a pin in the ocean...


browniebrownie141
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This does not make sense to me, capitol one is HSBC, they acquired them in 2011. Maybe you are reading your report wrong? Cap 1 does not buy junk debt, they sell it. I have heard about some companies buying back their own debt, but I have never seen it.

I believe Capital One does buy junk debt.  At least they hang on to their own junk debt.  

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@Torden

 

What it an account that was already in default and did they acquire it as the result of a merger?

 

Credit card companies will acquire the accounts of another credit card company through a purchase or merger, but at least some of the accounts are current.   I've never heard of a credit company purchasing defaulted accounts from a JDB.

 

@browniebrownie141

 

I'd call Cap1.  If the account has been sold, Portfolio can no longer be the plaintiff.  If Portfolio is claiming to own the account, that claim would no longer be valid.

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I am sorting this out,....& need to find out, how it is going to affect the lawsuit?

 

I mean, Portfolio Recovery Asso, LLC, filed an lawsuit Vs. Me, then they realised I chose to fight, now, they sold the account to Capital One, what are the possible outcome? Would this lawsuit dismissed by plaintiff and then Capital One later file a new lawsuit, ...DeJaVu all over again ????

 

These JDBs only file lawsuits waiting to collect when most people do not response to Summon, then, ie, default-judgment/ wages garnishment + more...

 

But I still can't believe it..... 

 

I will send a letter to Equifax, sending them with copies of the lawsuit summon, and "case summaries" from lasuperiorcourt.org, so that they know....

 

What else can I do ?

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Perhaps Cap1 performed a repurchase because the contingency lawyer is not having all the fun they were hoping to be paid for in dealing with the OP.

http://www.reuters.com/finance/stocks/companyProfile?symbol=PRAA.O
"The Company’s legal recovery department oversees its internal legal collections and coordinates a nationwide collections attorney network, which is responsible for the preparation and filing of judicial collection proceedings in multiple jurisdictions, determining the suit criteria, and instituting wage garnishments to satisfy judgments. This network consists of approximately 50 law firms who work on a contingent fee basis. Legal cash collections generated by both its in house attorneys and outside independent contingent fee attorneys constituted approximately 24% of its total cash collections during 2011."

 

I have not read or heard of repurchase agreements with PRA and it doesn't smell right to me. They purchased from a JDB so any "repurchase agreement" execution should send it back to the selling JDB.

 

Of course we know that PRA does NOT resell debt so it all seems a bit odd...

 

Bottom of 5th paragraph on http://www.portfoliorecovery.com/customers/index.html
"We don't sell our customer accounts to any other collector."

Last paragraph on the page: http://www.portfoliorecovery.com/docs/debt_buying_091312.pdf
"And because we don’t resell your debt, you can rest
assured that your customers will not be frustrated by
multiple owners of their accounts."


And on CIC: http://www.creditinfocenter.com/community/topic/314568-portfolio-recovery-associates-llc-does-not-resell-accounts/#entry1174259

 

I would consider disputing with Equifax and see if the reported owner changed to Cap1 due to a mistake/error or if Cap1 "verifies" the account as theirs.

 

I would probably look into CA's equivalent to FRCP 17 (a) Real Party in Interest.

 

http://scholar.google.com/scholar_case?case=14619514275298619566

(1) There is a difference between the capacity to sue, which is the right to come into court, and the standing to sue, which is the right to relief in court. (Parker v. Bowron (1953) 40 Cal.2d 344, 351 [254 P.2d 6]; Klopstock v. Superior Court (1941) 17 Cal.2d 13, 18-19 [108 P.2d 906, 135 A.L.R. 318].) Thus, although a plaintiff may have "capacity" to sue, if the complaint shows that he is not a real party in interest and therefore lacks "standing" to sue, a "general" demurrer will be sustained. (Parker v. Bowron, supra, 40 Cal.2d at p. 351; Klopstock v. Superior Court, supra, 17 Cal.2d at p. 19; Dixon v. Cardozo (1895) 106 Cal. 506, 507 [39 P. 857]; People v. Haggin (1881) 57 Cal. 579, 587; Oakland Municipal Improvement League v. City of Oakland (1972) 23 Cal. App.3d 165, 170 [100 Cal. Rptr. 29]; Hart v. County of Los Angeles (1968) 260 Cal. App.2d 512, 516, 517 [67 Cal. Rptr. 242].)

 

Cap1, if they have an actual interest in the account, might be permitted by the court to join PRA or be substituted for PRA as the plaintiff to meet the requirement of being a RPII. The court likes finality so having the case prosecuted by the RPII is critical.

 

Scribblings on an Equifax report won't necessarily derail the case but it is important to pursue it and find out the truth. Opposing always seems to hate it when I expend effort looking for the truth. So, I always look for the truth.

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I filed the MSJ Vs. the plaintiff.

 

I also sent a letter to Equifax, with copies of summon from portfolio recovery associates, llc, & copies of my MSJ, asking equifax to help me sorting the capital one out.

 

Listening to many you, i understand the whole thing is really strange, and I need to sort it all out.

 

Meanwhile, i start reading on court rules on msj, and deadline dates to response to opposition and how to response, etc.

 

If anyone has experience in MSJ, please free feel to jump in and share you experience, especially the "Do's and Don't " and any other "things to watch out for" ??

 

I will keep you all inform, thanks for all of your support, I mean it.

 

Million thanks

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Well normally when an MSJ filed by either side it is because there are no issues of material fact, and an MSJ should be granted by a matter of law. I see a lot of issues in your case, but the main one being I honestly don't think you understand the rules of your state. but I wish you the best on this.

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@shellieh98:

 

Gettting back to the "Bill of Sale" concern, can I subpoena/ ask for document(s) directly to HSBC ? From plaintiff's discovery response, they said any subpoena/ request would need to go thru plaintiff's attorney-- is that non-sense? Can I send the subpoena directly to HSBC? --providing I case file the subpoena with the court and proof of service to plaintiff's attorney.

 

When I obtain the response from HSBC that indicating HSBC did not sell directly to plaintiff, and plaintiff can't show complete chain of custody of documentation, privity no longer in place.

 

Million thanks

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Also, 1 more question: the HSBC person who signed the Bill of Sale/ assignment, seems to be located outside of california, so, can anyone just confirm for me, which form should I use:

 

SUB-045: http://www.courts.ca.gov/documents/subp045.pdf

 

OR SUBP-002: http://www.courts.ca.gov/documents/subp045.pdf

 

 

Million thanks

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browniebrownie.  I don't know that you are understanding the court procedure.  You have filied a MSJ.  That means there is no issue of material fact for your case.  I don't know that you can file a subpoena for the bill of sale, , I may be wrong but if there was no issue of material fact, then you wouldn't need to subpoena them.  You can read your rules on subpoena's, and they will tell you what you need to do concerning that.   You would be very wise to listen and read what is posted to you in this thread.  

 

Lets assume you can.  You do not need to "go through" the Plaintiff, but only have to fill out a subpoena, and have the clerk issue it. (stamp)  Then you need to hire someone (I am assuming it is out of state) like the sheriff or a process server that is in that town to deliver it.  But read your rules.  You may be required to furnish their transportation to the court if you do so, I don't know about Cali rules, I know if they list a witness, they need to be within 150 miles of your court,  Then you only need to include like 35 bucks for travel for them, but this is not a witness, this is a person that signed the bill of sale, so you may be required to pay for their travel up front with the subpoena. (air fair, hotel, et all)

 

You are under the impression that because the plaintiff stated he did not have a signed contract, that you can file an MSJ and win.  My opinion is use of the card is the contract, they don't need one signed.  That is an triable issue of material fact, and you could lose your MSJ on that. (in my opinion).  Then it is on to trial.

 

I am not saying you don't have a case, I think there are many things in your case that would allow you to come out a winner, I just think you are going about it the wrong way.  Others, feel free to correct me if I am wrong.

 

If you want to challenge the bill of sale, and don't want to end up paying for the signer of the affidavit to come to court, challenge the affidavit.  Challenge the fact that your name is not on the bill of sale, challenge that the bill of sale is incomplete because they did not include the "purchase agreement" that the bill of sale references.  Challenge the data sheet they probably included with the bill of sale.

 

Where you are at now, since you filed an MSJ, I don't have alot of direction to give you, I think you may need to see how it plays out.  Others may have better advice, especially someone from your state.  I know how I would have done it, and you went where I would not have gone, so I can't say, It will be interesting though to see where this leads to.

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Oh and HSBC is out of it, you would not request any documents from them, they wouldn't give them to you--you request the documents from the plaintiff.  If they don't have them, then you challenge that fact.  They need to prove their case, you don't need to prove they don't have one.

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@shellieh98:

 

First of all, I truly appreciate your input, and I mean it.

 

I know the path I picked is not the conventional way, or perhaps, not in the right order. But I do want to cut it short. The plaintiff's " don't have this & that".....throughtout their response to my discovery, and I pointed out the exact pages and lines written in my undisputed statement that went along with MSJ.

 

The reason I ask about subpoena--can I.....because, I want to close "loose end". The hearing date for the MSJ is two and half month away, the plaintiff can throw some meaningful / non-sense material(s)/ affidavit(s), right ! And, it is because I also listened to you and others, and why I am thinking and asking about the subpoena issue.

 

Yes, I mentioned that the Bill of Sale/ assignment does not referenced to my name and account #, and I will use these to attack, and I had also put that down on undisputed statement, that went along with MSJ.

 

When you mentioned that I could "request" the document from plaintiff, since I used up all 35 questions maximum allowed in discovery, how do I request it from plaintiff in your opinion ? Or once again, back to sending the subpoena to plaintiff, using the SUBP-045 ( out of state ) ?

 

Tell me, if it were you, what steps and how would you do it, in conventional way ?

 

Million thanks

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ok, I hope I didn't sound crass, it was not my intention.  To answer your question about subpoena's, I do not know exactly how you would do it.  I can tell you that getting an out of state witness for a civil trial would be next to impossible.

You would need to fill out an affidavit, along with the subpoena and application to your court, who in turn would sign it.  Then you must pay the filing fees and send it to the court closest to the person you want to subpoena, where they would issue one through their court.  Then you would need to find someone to serve it on them.

 

Most of what I can find states that they only have to travel to their local court for a deposition, not travel to you.  Who would give that depo? I do not know the answer to that.  It also states you would have to pay filing fees to both courts, and pay per mile for the to appear.  That is per mile x the number of miles they are from you, even though they would be appearing in their local court.  I am not the one to ask about out of state subpoena's other than it takes an act of congress to do one. ;-)  It would be form SUBP-045.

 

You asked what the conventional way would have been?  It is really hard to say because we really don't know all the facts in your case.  You said you served all the discovery your were allowed to, and did they answer all of it?  What exactly did you request?  If they did not send you what you asked for, did you send them a meet and confer letter telling them their responses were deficient? And if you did, did you file a motion to compel the requested discovery?  Did you ask the for a bill of particulars?  BTW if you did not, and if the suit is based on breach of contract/common counts you should.  It is not considered part of discovery, and you could ask for that now.

 

So I would have done all the things in the above paragraph, and then only then if they stated they didn't have it, maybe file for a MSJ, but more likely I would have asked for their CCP96 which when recieved would have outlined all the evidence they planned to introduce at trial, then I would have gone over each piece in that ccp96 and challenged them one at a time.  I would have tried to subpoena the witness that they included in their ccp96 (which is called a ccp98) and under your rules they must be able to be served within 150 miles of your court. (they are never there)  No witness to serve, most of the time if you object correctly, no case.  Homelessinca's case is how they play out from beginning to end, he even went to trial, and won.  I would study that thread.

 

I understand you want this to go away quickly, we all do.  But jumping from "they said they don't have a contract to send me" straight to filing a MSJ is not how I would have done it, there is to much left undone.  My advice now would be to really study some of the other threads on how to beat a MSJ, as I think you are going to get an opposition to yours, and they may file one of their own.  Study the ways to challenge any evidence they may have.  Billing statements, any records that showed you paid on the account, how to object to the affidavit they will have by someone swearing your account is true and correct based on personal knowledge. Bill of sale et all.

 

exactly what have they sent you as their evidence besides a bill of sale?  And what is the chain in the bill of sale? HSBC to who and then to who? 

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@shellieh98:

 

They responsed to my discovery after I sent them “meet & confer” letter. And through-out their response, in their own writing , they do not & did not have credit application, user agreement, billing statement, could not accounted for the account balance, do not / did not have any contract signed between plaintiff & defendant.

 

Only ½ page titled “ Bill of Sale/assignment” stating HSBC sold / transfer to plaintiff, but so brief that it does not reference any account name / #s. And another computer print page- 1 column only (1 inch wide) printed my name & address, but separated from Bill of sale/ assignment, bottom says data prepared by plaintiff.

 

Original creditor sold to 2nd JDB, and 2nd JDB sold to Portfolio Recovery Asso, LLC (=plaintiff). Yet, the bill of sale they came up with, surprised me. I originally expected them to come up with many funny affidavit(s), they did not. Or should I say, not yet.

 

Looking at some case law(s), suggesting that kind of “partial bill of sale” have been used by many JDBs, and often got thrown out, because once again did not reference to name & account #s,  I know I need to “attack” it this way. I put 11 reference case law(s) on my MSJ, all focusing on lack of evidence, standing, privity,…I even had 2 on exactly partial bill of sale like that.

 

I heard or read somewhere about CCP96, once submitted, the other party would have to disclosed all evidence and witness will be used, those are not on the listed would not be used during trial, right ? Is it advisable for me to do it NOW for the MSJ or it is only for trial? If it is only the the trial, I would for sure remember this and if my MSJ get rejected, will sure use it ! Can you also touch on “counting the dates- not too early / not too late” relating to CCP96?

 

I think I also need to find out the actual form for CCP 96 and CCP98.  

 

I totally agreed with you, I am sure the plaintiff would file opposition, and perhaps it’s own MSJ- but they would need to come up with reason(s) for such MSJ. In most cases, defendant made serious mistakes in discovery, admitting something they should not have, thus, plaintiff hit them with MSJ. But once again, this is something out of my control, what I can do, like you suggest, is to learn and to prepare for it.

 

I turned in my discovery response to them, almost 3 before they sent theirs to me, although we shot at each other almost the same time. Like I said, they would need to come up with reason(s) for MSJ to me. I did not fall for the “hole” in answering their discovery. But who knows, they want to file MSJ, they will file it, right !

 

Million thanks

 

When the whole thing is over, I will send you some flowers, or buy you a bottle of wine, ...

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Gentlemen and Ladies,

 

I have 2 questions while reading some material getting prepared for MSJ:

 

1. What is Peremptory Writ ?

I saw this while reading California CCP 437c & 438 :http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=437c-438

under section m.

 

2. If and when the other side party files a "opposition" to my MSJ, while the article says, the very last day to reply is 5 days before hearing, but,...is there a "practice" as to how soon or how late to reply their opposition? I mean, although as stated, but would'nt it gives the excuse to the other side that they need further time & thus, the court may grant additional time and delay the schedule hearing date ?

 

Million thanks,

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