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Sued by Portfolio Recovery Associates for CC debt


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I received a summons and formal complaint in person at my home last Thursday, the 10th. I have 20 days to answer and I live in Putnam County, NY. The court is the Supreme Court of NY, Putnam County.  The plaintiff is Portfolio Recovery Associates and the original creditor is US Bank. The law firm is Forster and Garbus of Commack, NY.

 

I have been receiving collections notices from them for a while now about my credit card debt. This is my first summons. I never requested debt validation. The debt is over $5000. The debt is valid in the sense I did make these charges.  I’m unemployed and couldn't pay the debt. The last payment was Q1 2012.

 

Here most of the complaint:

1.            THAT THE DEFENDANT (S) RESIDES IN THE COUNTY IN WHICH THIS ACTION IS BROUGHT; OR THAT THE DEFENDANT (S) TRANSACTED BUSINESS WITHIN THE COUNTY IN WHICH THIS ACTION IS BROUGHT IN PERSON OR THROUGH HIS AGENT AND THAT THE INSTANT CAUSE OF ACTION AROSE OUT OF SAID TRANSACTION

2.            ON INFORMATION AND BELIEF THE DEFENDANT IN PERSON OR THROUGH AN AGENT MADE CREDIT CARD PURCHASES OR TOOK MONEY ADVANCES UNDER A CREDIT CARD OR LINE OF CREDIT ACCOUNT OR PROMISSORY NOTE/LOAN- A COPY OF WHICH WAS FURNISHED TO DEFENDANT. PLAINTIFF, AS PURCHASER OF (A/P/O) THIS ACCOUNT, WHICH WAS ORIGINALLY OWNED BY THE ABOVE CREDITOR, PURCHASED IT FOR VALUE. THE DEFENDANT WAS NOTIFIED OF SAME.

3.            THERE REMAINS AN AGREED BALANCE ON SAID ACCOUNT OF $---------, DUE AND

OWING ON PLAINTIFF’S CAUSE OF ACTION. NO PART OF SAID SUM HAS BEEN PAID ALTHOUGH DULY DEMANDED.

4.            DEFENDANT (S) IS IN DEFAULT AND DEMAND FOR PAYMENT HAS BEEN MADE.

5.            PLAINTIFF, AS OWNER, IS AUTHORIZED TO PROCEED WITH THIS ACTION.

 

I found a form letter on nycourts.gov for answering a complaint for consumer credit transactions.  I appreciate any advice on how to deal with this matter.

 

 

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Forster & Garbus and Portfolio; what a pair.

 

1. Admit you live in the county (if you do); you probably don't have enough knowledge to admit or deny the balance of the allegation.

 

2. I seriously doubt they provided you with what they claim; they never do. I bet you can deny that one.

 

3. Did you strike an agreement with anyone regarding the final balance? . . .  Didn't think so. Deny

 

4. You don't owe Portfolio anything until the court says you do. Deny.

 

5. One of your arguments is that Plaintiff is NOT authorized to proceed with the action. DENY.

 

What, if any, affirmative defenses to you have?

 

"Even if I owe the debt, Portfolio is not entitled to judgment because [insert reason(s) here]."

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Thanks for your help. I read the section on Affirmative defenses on this site but I'm not sure what to go with. I'm guessing lack of standing to be one since the debt was sold to a collector. From what I'm reading, the plaintiff most likely doesn't have documentation on the sale of debt. Nothing was sent to me other than the collections notices, the summons and the complaints. Do I just go to court hoping that can't proof this? Also, should I go digging through my files for those collection notices? Do they matter?

 

Another one would be failure to state a claim. I don't see any law or statute listed on the summons or complaint. 

 

Are these defenses good enough? Should I investigate and look for more?

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  • 6 months later...

Since answering the summons, I have received documents from Forster and Garbus. In February, I received copies of old credit card statements, an affidavit of sale of accounts by original creditor, certificate of conformity and a bill of sale and assignment of assets.

 

Recently, I received a request for a preliminary conference. This was sent from the firm. There is no court date listed on the request. I searched my name on eCourts and there is an appearance date set for the near future. I haven't received an official request or any info about this date directly from the courts. 

 

I goggled "request for a preliminary conference" and receive conflicting information on how to handle this matter from this point on. Any advice on this matter would be greatly appreciated. 

 

Am I expected to appear on this date? Who should I contact to confirm this court date?

 

What questions will I be asked and what information should I provide?

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I plan on contacting the clerk for help. I also applied for legal services from a local non profit legal firm. They said they'll get back to me within a week with their decision. 

 

I just recently received another notice from Forster and Garbus requesting that I call them to fill out a Preliminary Conference Stipulation Order. Any advice on this matter and the day of the conference will be greatly appreciated.

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I plan on contacting the clerk for help. I also applied for legal services from a local non profit legal firm. They said they'll get back to me within a week with their decision. 

 

I just recently received another notice from Forster and Garbus requesting that I call them to fill out a Preliminary Conference Stipulation Order. Any advice on this matter and the day of the conference will be greatly appreciated.

 

That is a consent judgment and DO NOT sign it.  Basically you are agreeing to the debt and to make payments to them.  If for ANY reason you are one second late or do not make a payment they do not have to sue you again they only need to file the judgment with the court.

 

Tell F&G that you are retaining legal counsel and will not stipulate to ANYTHING until you speak to a lawyer.

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  • 2 months later...

I had my first court date at the end of June and it didn't go well. I was able speak to a legal aid lawyer and he told me that they have not provided enough documentation to prove that they can sue. The missing documents were a copy of the signed credit card agreement, Purchase and Sale contract and Bill of Sale with an asset schedule proving they purchased my account from US Bank. The bill of sale they sent me has no asset schedule attached and no information about me or my account.

 

So I went to court. The lawyer handing the case was not there but a substitute attorney was taking their place. The lawyer of the plaintiff said i owed them money. I told the judge I don't have a business relationship with the plaintiff and they lack the legal standing to sue. The judge got confused about the arguments we were making. It was like he never presided over a case before where a debt collector bought debt from a bank and then sued a debtor. He got upset and assumed that the plaintiff had proper documentation and threatened to hit with me a judgment plus court fees. He told me to go settle. He was very intimidating and real blow hard. I thought he was auditioning to be TV court judge.

 

During the break, I told the plaintiff I would call the law office and discuss a settlement. The plaintiff told the judge this and the case has been adjourned to a week and half from now. I just wanted to get the hell out of that court room. I was very upset. 

 

So that's where I am now. Before the court date, the legal aid lawyer told me to motion for the missing documents. Another lawyer at the Supreme court help center left message for me that I needed to file a subpoena Dues Tecum or subpoena for production of evidence or a notice of discovery and inspection. I won't be able to hear from him again until Monday. I'm looking for these forms on the nycourts.gov website and I'm not finding anything. Maybe the forms are listed under another name?

 

I left a message with an assistant at the law firm requesting documents but guess that going to get me nothing. Should I try to get the lawyer in charge of the case on the phone and request documents?  Should I demand they drop they case if they can't provide me these documents? Should I send a request by certified mail? Or should I just file this motion and not contact the attorney yet?

 

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The fact that the legal-aid lawyer said they have to provide a signed copy of the original contract indicates he has no clue what he is talking about. If it is at the trial stage and the judge clearly has already determined your guilt I would think that you are already doomed. Is bankruptcy still an option?

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The fact that the legal-aid lawyer said they have to provide a signed copy of the original contract indicates he has no clue what he is talking about. If it is at the trial stage and the judge clearly has already determined your guilt I would think that you are already doomed. Is bankruptcy still an option?

 

We just had the preliminary conference and the next court date is Monday. Bankruptcy is an option but I have not really looked into it. Can you explain more about this issue with the contract?

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So I went to court. The lawyer handing the case was not there but a substitute attorney was taking their place. The lawyer of the plaintiff said i owed them money. I told the judge I don't have a business relationship with the plaintiff and they lack the legal standing to sue. The judge got confused about the arguments we were making. It was like he never presided over a case before where a debt collector bought debt from a bank and then sued a debtor. He got upset and assumed that the plaintiff had proper documentation and threatened to hit with me a judgment plus court fees. He told me to go settle. He was very intimidating and real blow hard. I thought he was auditioning to be TV court judge.

Ok so any argument you make, you need supporting case law to back it up. You can't go in and say They lack standing, and leave it at that. You need to break it down.

"Judge the bill of sale provided just show a bunch of accounts were sold by xxxx to xxxx. No where on it does it reference me or the alleged account. The bill of sale states on its face it is without warranty, except for what is provided by the purchase agreement. They failed to attach this agreement, they failed to attach any asset schedule, therefore it is incomplete. (Google scholar ny appeal cases and find some case law to support that argument). Also, if they didn't include an affidavit with it, it is a heresay document and should not be admitted into evidence.

Now about the contract.......they don't need a signed contract in a credit card case. Acceptance of the card, and use of the card IS the contract. But any statements they gave should show a charge to prove you used the card. You can object that they did not include a credit card agreement that governs the account, you have no way of knowing interest rates, late charges on the alleged account, etc.

Your biggest concentration should be on the affidavit that they provided to say the records are correct. Probably made by someone from cach. Tear that apart with supporting case law from ny, and the records should not be allowed in.

Look at the motions in limine posted around this site, especially the parts where they object to the affidavit. Then look up the case law for ny for the parts they have case law in there state.

It sounds confusing, but as you go it will make more sense.

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Thank you @Yawon, I know a couple of years ago when I started out it was hard to wrap my brain around all the legal talk. That is why most people don't understand, it muddies the water. I try to explain it in terms of the lay person. It is the same in my field of medicine, they don't understand all the medical jargon Dr.s tend to use, so I have to break it down for my patients so they understand.

Some think I don't know what I am talking about because I don't use big words, but I don't care, the important thing is the poster needs to understand what all the legal words really mean. :)

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Shellieh98, thank you for your help. Its much appreciated.

 

They failed to attach this agreement, they failed to attach any asset schedule, therefore it is incomplete. (Google scholar ny appeal cases and find some case law to support that argument). Also, if they didn't include an affidavit with it, it is a heresay document and should not be admitted into evidence.

 

 

Can you tell me more about the importance of the affidavit? They gave me a Affidavit of Sale of Accounts by Original Creditor and it's signed by a work coordinator at US bank. Is this the affidavit you mentioned?

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There are no signed contracts anymore. Use of the card is considered acceptance of the terms and conditions. Demanding one will just make you look uninformed. 

 

I admitted I had an account with US Bank and made the charges. I think the legal aid lawyer's argument was that a copy of the credit card agreement would be necessary to prove that Portfolio Recovery Associates purchased and owned my account and had legal standing to sue. If that's not the case, what are the legal documents required for the plaintiff to win a judgment?

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All of the stuff they already gave you is typically all they need. At your first hearing it was clearly enough for the judge. As my lawyer told me, sometimes a judge will look at everyone and go "we all know it's your account and you owe the money..." It sounds like that's what happened in your case.

 

The last case I saw up here where someone actually won was where they claimed they already paid the account. It was probably a lie, but that's where a JDB's "evidence" falls apart.

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