MatSE

Asset Acceptance trying to serve summons

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All,

 

My apologies for being away for so long.  Work got crazy, but has lightened up for me to handle business.  New status updates:

 

Just got served a summons yesterday to appear in court 3/31/14 to answer the attached complaint.  This is from Portfolio Recovery Associates, LLC for a General Electric Care Credit account.  I also received an affidavit from Portfolio.

 

I am also actively getting the summons for Asset Acceptance for the debt they are claiming.  So, going to do two at once.  Need all the help I can get.

 

What do I need to do first?  The summons for 3/31/14 for Portfolio is telling me to appear in court to answer.  So, I guess I don't get to file an answer since that option is not check marked.  So, what do I do in court?

 

Thanks!

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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.)

Blatt, Hasenmiller, Leibsker & Moore, LLC

3. How much are you being sued for?

$1249.10 + costs

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

General Electric Capital Corp/Care Credit

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

Served Summons with Complaint and Affidavit on 2/26/14

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

In person by a Process Server

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

Not Sure

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

Standard JDB form letter claiming they owned the debt, miscellanous phone calls which I didn't answer.

9. What state and county do you live in?

Champaign County, Illinois

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

2012

11. What is the SOL on the debt?

5-10 years depending on who you're talking to.

12. What is the status of your case? Suit served? Motions filed?

Suit Served. Appearance on 3/31/14 to answer the complaint.

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).

Have to Appear on 3/31/14 to answer complaint.  The option on the summons to file an answer within 30 days of receipt of summons in not check marked.

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

Addidavit of Account by JDB as follows:

 

Exhibit "1"

 

State of California

City of San Diego ss

 

Affidavit of Account

1) I am competent to testify to the matters contained herein.

 

2) I am an authorized employee of Portfolio Recovery Associates, LLC, ("Account Assignee") which is doing business at Riverside Commerce Center, 120 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the statements, representations, and averments herein, and do so based upon a review of the businees records of the Account Assignee and those records transferred to Account Assignee from General Electric Capital Corp/Care Credit ("Account Seller"), which have become a part of and have integrated into Account Assignee's business records, in the ordinary course of business.

 

3) According to the businees records, which are maintained in the ordinary course of businees, the account, and all proceeds of the account are now owned by the Account Assignee, all of the Account Seller's interest in such account having been sold, assigned and transferred by the Account Seller on 11/21/2012. Further, the Account Assignee has been assigned all of the Account Seller's power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustment of said account, and the Account Seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever.

 

4) According to the records trasferred to the Account Assignee from Account Seller, and maintained in the ordinary course of business by the Account Assignee, there was due and payable from MatSE ("Debtor and Co-Debtor") to the Account Seller the sum of $1249.10 with the respect to account number ending in 2316 as of the date of 11/6/2012 with there being no known un-credited payments, counterclaims, or offsets against the said debt as of the date of the sale.

 

5) According to the account records of said Account Assignee, after all known payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, Account Assignee claims the sum of $1249.10 as due and owing as of the date of this affidavit.

 

6) Plaintiff believes that the defendant is not a minor or an incompetent individual, and declares that the Defendant is not on active military service of the United States.

 

 

Signed by JDB Affiant

Notarized

 

The Complaint Reads as follows:

 

Portfolio Recovery Associates, LLC

vs.

MatSE

 

Complaint

 

1. Now Comes Plaintiff and sates as follows:

 

2. The Defendant is a resident of Champaign County, Illinois

 

3. The Defendant opened a charge account with General Electric Capital Corp/Care Credit, promising to make monthly payments for purchases charged to the account.

 

4. Plaintiff is the successor in interest of said account from General Electric Capital Corp/Care Credit having purchased said account in the regular course of business in good faith and for value

 

5. The Defendant did make purchases and charged same to the account, and there is a balance due and owing $1249.10. (See Client Affidavit as Plaintiff's Exhibit 1)

 

6. The Defendant has failed to make the monthly payments due on the account, whereupon the Plaintiff declared the Defendant to be in default and demands payment of the balance.

 

Wherefore, the Plaintiff prays for judgement against the Defendant in the amount of $1249.10 plus costs.

 

 

Signed by JDB Attorey

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Ok, so here are my .02.

 

MOST IMPORTANT. Don't answer the complaint (unless the summons states for you to do so).

 

I wouldn't go and waive service for Asset. You are new at this and you don't need two active cases on your lap at once. Lick one, then if you feel so inspired, go after the other.

 

As far as the complaint, it is the standard BHLM complaint. I've seen one, I've seen them all.

 

In the affidavit, it states "debtor and co-debtor." can you elaborate on this please?

 

I'll get you through this, no trouble.

 

In fact, I need my own sticky. "gwheels guide to IL small claims" sounds snappy.

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@gwheelock915, Thanks now for any assistance you can provide.

 

1. No idea what they are trying to refer to as debtor and co-debtor.  I've have never had joint credit with anyone.  All accounts in my past have always been in my name.  I am married and was married during this time period, but my wife's name has never been associated with any accounts.  So, maybe they are just trying to cover all bases just in case they don't know for sure who all the debt is for.

 

2. I'm horrible with abbreviations.  What is BHLM?

 

3. You're advise is to just let the Asset case that I haven't been summonsed on to just be until I am served.  Will do.  I'll just keep an eye out on the docket.  They keep doing an Alias Summons, but obviously with no luck.  Not sure why.  Portfolio was able to find me pretty easily.  I'm not exactly hiding out or anything.

 

4. So, if the Portfolio summons says to appear in court and answer the complaint then, then I don't want to send an answer in the mail to anyone.  So, what do I do now?  What should I expect in court on the 31st?  Do I prepare an answer to the complaint to present in court and ask to file a discovery?

 

Thanks!

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screw arbitration you loose what ever rights you may have to defend yourself when you go into arb.

Not necessarily true. For a smaller debt, enforcing the arbitration clause can lead the plaintiff to move for a dismissal, as the cost to defend against your arbitration initiation is much, much higher than the cost to deal with their case in court.

 

Even if they go the distance and win, JAMS, for example, limits the cost of the consumer to $250, and doesn't allow awarding of costs in their final decision.

 

AND, if they win, the decision has to be approved by the court, at which point, the consumer can appeal.

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As for the SOL for both of these cases, two important things to check on.

 

1) Look at your contract that you received with the card. What state is the card issuer claiming as its domicile? If it's DE, they have an SOL of 3 years, which you are beyond, based on what you said was the last payment date.

 

2) Check with your state rules for contracts. Many states have a borrowing statute, that allows their citizens to be bound by contracts written in other states. If that's the case in IL, then you can justly argue that the SOL has run, and the suit is time-barred. 

 

You have to do it, though. You have to make the legal argument. The judge won't do it for you.

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As for the SOL for both of these cases, two important things to check on.

 

1) Look at your contract that you received with the card. What state is the card issuer claiming as its domicile? If it's DE, they have an SOL of 3 years, which you are beyond, based on what you said was the last payment date.

 

2) Check with your state rules for contracts. Many states have a borrowing statute, that allows their citizens to be bound by contracts written in other states. If that's the case in IL, then you can justly argue that the SOL has run, and the suit is time-barred. 

 

You have to do it, though. You have to make the legal argument. The judge won't do it for you.

The borrowing statue for Illinois only works if both parties are from other states. If you are an IL resident the borrowing statue does not apply. SOL in IL for a credit card is 5-years BTW.

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@gwheelock915  That depends on how you want to interpret "specifically require an answer"

 

The summons begins saying I am required to appear in court and gives the address and courtroom

 

Following this are two options.

 

Option A is to appear at a date and time "to answer the complaint in this case."  If I fail to do so, a default judgment may.......

 

 

Option B states that I am "required to file an answer in this case.....within 30 days after service......"

 

 

Of the two options, only option A is check marked.  So, I'm assuming no formal answer to the complaint needs to be filed immediately.  I am to answer the complaint in court.  I have seen plenty of answers on this site that are mailed.  How am I supposed to answer in court?  Do I answer like I would if I had to mail something?

 

 

Thanks!

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The key to this is if you have to file an answer form which in small claims you DO NOT want to do unless specifically ordered to. Filing an answer removes your right to challenge the complaint via a motion to dismiss, not to mention that filing an appearance form serves as a general denial obviating the need to file an answer. I would think that the only appropriate time to file an answer in a small claims case would be if you had counter claims like FDCPA violations.

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