bureabe

Being Sued by Portfolio Recovery in Michigan

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1. Who is suing you? Portfolio Recovery Associates

2. For how much? $1300

3. Who is the original creditor? Citibank

4. How do you know you are being sued? Summons and Complaint served 10/7/13

5. How were you served? Served at residence.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? None

7. Where do you live? Michigan

8. When is the last time you paid on this account? 2yrs ago

 

 9. What is the status of your case (if anything has been opened)? Received Summons and Complaint on Oct 7th 2013. Looking to file answer or Motion to Dismiss

 

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? No

12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. 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.

Yes

 

 

I recieved the summons and complaint with a statement of account form portfolio and an affidavit. 

 

 

I would like some help to file an answer or a motion to dismiss.  I have been reading BMC's guide but i am just confused as to what i should do next and how to do it.

 

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Are you familiar with arbitration?  If not read the first post in this thread to see why it may work for you in a case like yours with a JDB (Junk Debt Buyer) like Portfolio.

 

http://www.creditinfocenter.com/community/topic/309878-the-cost-strategy-of-arbitration-and-why-it-works-for-the-consumer/?hl=+steps

 

 

 

The 2010 Citibank cardmember agreement has JAMS in it.  That is good.  For you anyway not so much for Portfolio  :-)

2010-Citibank.pdf

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 @Public Enemy   Thank you for replying i am a little familar with arbitration. And i did read the post you provided the link form and i think i should do it. But do i file an answer and then file a motion for arbitration?

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What county are you in? 

 

Post the complaint, redact identifying information. 

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I am in Macomb County.

 

Complaint

 

1. Jusrisdiction and venue are proper in this court

 

2. Plaintiffs, Portfolio Recovery Associates, LLC, predecessor in interest is Citibank,N.A/Sears

 

3. Plaintiff's assignor allowed defendant to charge goods and or services on open account, and upon Defendant's promise to pay for same.

 

4. Upon information and belief, Defendant has possesion of the agreement upon which this claim is based.

 

5. Plaintiff's assignor sent statements on account number ************ to the defendant who did not dispute the charges or object within reasonable time.

 

6. Plaintiff and its predecessors in interest have performed its obligations under the terms of agreement.

 

7. Defendant has not paid the balance owing on the account despite plaintiff and plaintiff's assignor demands for payment; Defendant's failure to pay has resulted in default on the account.

 

8. Defendant is now justly indebted to plaintiff over and above all legal counterclaims, in the amount of 1300.00. See attached documents which evidence plaintiffs's assignment and the amount due and owing on this account, "Exhibit A"

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Did they attach a bill of sale to the complaint? They stated Exhibit A shows assignment. A made up account statement is not evidence of assignment. My initial thoughts are that they do not have the goods to prove their sole cause of action "Account Stated". 

 

There was no affidavit either I take it. They did not comply with MCL 600.2145. I would not file a MTD/MSJ and just file an answer. They already screwed up and filing a motion will only get this case dismissed w/o prejudice the vast majority of the time. They did plead the assignment even though you do not know if they bought the account from another JDB.

 

With the answer file your own affidavit and deny every allegation they made in their complaint. Let this get into discovery and pound them hard. 

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There was no affidavit either I take it. They did not comply with MCL 600.2145.

 

With the answer file your own affidavit and deny every allegation they made in their complaint. Let this get into discovery and pound them hard. 

 

OP did make mention of an affidavit but didn't state what it testified to.

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@bmc100   there was no bill of sale included. And they did provide an affidavit however it is dated 30 days before they filed the complaint.

 

where can get an affidavit from?

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the affidavit they supplied was from custodian of records for portfolio  and says that they are the account assignee. They say the now own all porceeds of the account and that everything was assigned and transferred by the account seller. 

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SO you have an affidavit from the JDB stating they are now the assignee. That does not mean squat. You could make up an affidavit saying you are the assignee of something. 

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 @bmc100 so when i write the answer i should deny everything except for the jurisdiction and venue. Can i add any defenses to there complaint or just deny. i wan to get started on it quick.

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read my thread on how to defend against a JDB. There are three ways you can answer an allegation. Then you have to state why you deny the allegation as well. 

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@bmc100  I read your thread defending aganist a JDB and it was very helpful.  i have just finished my answer to the summons. I would greatly appreciate if anyone can let me know if it is good enough or if i need to make changes. I need to finish it by Thursday or Friday

 

 

 

 

 

ANSWER

 

 

COMES NOW the Defendant     , in answering the allegations of the Complaint on file herein

 

 

1.The Defendant admits this allegation in its entirety

 

 

2. The defendant denies this allegation in its entirety. The plaintiff has not provided any evidence in support of this allegation. The Plaintiff has not provided the original bill of sale from the original creditor proving plaintiff is the assignee.

 

 

3. The defendant denies this allegation in its entirety. The plaintiff has not provided any evidence in support of this allegation.

 

 

4. The defendant denies this allegation in its entirety. The plaintiff has not provided any evidence in support of this allegation.

 

 

5. The defendant denies this allegation in its entirety. The plaintiff has not provided any evidence in support of this allegation.

 

 

6. The defendant denies this allegation in its entirety. The plaintiff has not provided any evidence in support of this allegation.

 

7. The defendant denies this allegation in its entirety. The plaintiff has not provided any evidence in support of this allegation.

 

 

8. The defendant denies this allegation in its entirety. The plaintiff has not provided any evidence in support of this allegation. . The Plaintiff has not provided the original bill of sale from the original creditor. Untimely affidavit, Per Michigan law MCL 600.2145 states that if the affidavit is made prior to a 10 day period, the affidavit does not serve as a Prima Facie evidence and the court cannot put weight of evidence towards that affidavit. Plaintiff’s affidavit dated August 5th 2013 and alleged summons and complaint filed September 5th 2013

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the judge will set discovery at pre-trial. As soon as your pre-trial is over, you can send them your discovery requests.

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@bmc100  update: I just recieved the pre trial notice. Is there anything i do now or do i just wait for the pre trial. What can i expect from the pre trial.

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anyone know how i can view past cases regarding portfolio at the court. I called the court and they told me they cant because there is too many cases. I know that most courts you can look up the cases yourself. 

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Macomb County case lookup

 

Pre-trial is just to let the judge know that the case is progressing along the expected course. He / She will probably set the time lines and parameters for the discovery period. If the judge doesn't bring it up ........ ask for discovery.

 

Get to work on your discovery requests and send them ASAP after pre-trial.

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 @savior  Thank you for the info. i know i saw a post about what to ask in discovery i hope i can find it again, is there any guidelines i should follow. Like you said i want to start working on it quick.

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AntiqueDave (also a Michigan CIC member) posted some ideas that he used in this thread.

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