FasterThanUr

need some help, sued by Hunt & Henriques PRA,LLC

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Need a little help. I've done a lot of reading and searching on this forum and found a lot of helpful information just need some clarification and want to make sure I do everything properly.

    I was served at my home on 10/23/13 by Hunt & Henriques. I plan on filling my answer with the court on 11/18/13. 

The complaint is not verified so Im gonna use the General Denial forum http://www.courts.ca.gov/documents/pld050.pdf

(would  this be the correct forum to use? And do I need to fill out line 2?) 

After I file I need to send H&H one of the copies via cmrrr . Do I also send it with POS-030 and do I have to file a copy of the pos with the court after I have the answer sent to H&H?

 

After I send H&H a copy of the answer would I send for a request of BOP?DemandBillParticulars copy.doc or do I also file this with the court when filing my answer than send a copy along with my answer or just send a copy to H&H cmrrr "send it together? Separately? If separately do I also need a POS and again have to file a copy of that with the court.

Ok Im gonna leave it at this for now hope I make sense just want to make sure I make the right moves. I dont make a lot of money and only work for a temp agencey right now and can be unemployed again any time . If theres any more info any of you need let me know..

Thanks  

 

 

 

LAWSUIT INFO

1. Who is suing you? Portfolio Recovery Associates, LLC. using Hunt & Henriques
2. For how much? $4,734.94
3. Who is the original creditor? US Bank National
4. How do you know you are being sued? Served summons
5. How were you served? Were you served? In Person at home
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? California County of San Bernardino

8. When is the last time you paid on this account? Dec, 2011
9. What is the status of your case ? Summons issued, summons filed. Hearing date is set.
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? YES it requires a written response. 

Cause of Action

CC-1 Plaintiff Name: Portfolio Recovery Assoc
Alleges the the defendant name: mc – 
became indebted to [ ] plaintiff [X ] other (name): US BANK NATIONAL OR A PREDECESSOR IN INTEREST
a. [X ] within the last four years
(1) [X ] on an open book account for money due.
(2) [X ] because an account was stated in writing by and between plaintiff and defendant in which 
it was agreed that defendant was indebted to plaintiff.

b. [ X ] within the last [ ] two years [ X ] four years
(1)for money had and revived by defendant for the use and benefit of plaintiff for work ,labor

(3) [X ] for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff
[X ] the sum of$ $4,734.94
(4) [X] for money lent by plaintiff to defendant at defendant's request.
(5) [X] for money paid,laid out,and expended to or for defendant at defendant's special instance and request 

 

 

CC-2. $4,734.94, which is the reasonable value, is due and unpaid despite plaintiff's demand, plus prejudgment interest

[ ] according to proof [X ] at the rate of o . o o o o percent per year from (date): December 30,2011

 

CC-4- [x] Other:PLAINTIFF PURCHASED THE ORIGINAL ACCOUNT FROM THE ORIGINAL CREDITOR OR IT'S SUCCESSOR(S) IN INTEREST .PLAINTIFF IS THE CURRENT OWNER OF THE ACCOUNT.

 

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Nothing
14. What is the SOL on the debt? 4 years.

 

 

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You can use that form for a  general denial.  You don't have to list any affirmative defenses under paragraph 2.  Denying everything forces plaintiff to prove its case.  Here are some instructions for filing an answer that contains a list of affirmative defenses for you to consider:  http://www.courts.ca.gov/partners/documents/civ-contractaction.pdf

 

You should also consider sending the BOP now (before you file the answer).  Some JDBs claim (improperly in my opinion) that A BOP's purpose is to help you file an answer and, once you have done so, the BOP is unnecessary.

 

Good luck.

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Don't worry, faster. Get the BOP out on Monday, then file your general denial later in the week. If you were served Oct 23, then your 30 days are up at the end of next week. Get the BOP out and start making them work. i know you may feel like you are on the defensive here, but you can turn it around and put the pressure on them. The thing about the BOP is that they have 10 days to respond - when they don't respond, you can take steps to make them respond. We'll help you out.

 

These JDBs operate like an assembly line, churning out  lawsuits left & right, stuffing papers in envelopes, etc. They depend on people not making them work. The minute you start sending them BOPs & discovery requests, etc., you start messing with their world and throwing them off their game.

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My mistake it was 10\21 not the 23rd so I think that makes Wednesday 30 days. I will get the BOP out on Monday and as long as I get my answer filed by   Wednesday I will be within the deadline. Do I need to send the BOP with the POS-030 and also have copies of  those filed when I file my answer ?

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Just got the return receipt for the BOP. Dose there 10+5 days start today or on 11/22 when they received it? 

The day you had it placed in the mail is the day it is considered 'served'. They have the 10 days (+5) from then to serve the response > same rule applies, they need to get it in the mail by the end of that 15th day.

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Defendants answer to complaint and motion to dismiss

Comes now the defendant,(name), in propria persona, on a special appearance as opposed to a general appearance, for jurisdictional challenges. The defendant state under the penalties of perjury that the following is true.

Plaintiff has presented no facts that can support their claim. Defendant denies any and all the allegations contained in plaintiffs complaint. Plaintiff has provided no affidavits that identify any witnesses that are competent to even testify to any of the facts in the complaint. Under common law, until plaintiff can identify a competent witness that can attest to the facts in the complaint or provides a sworn affidavit of an injured party the plaintiff has not even begun to establish that a claim even exists where there may be a remedy by law. Plaintiffs complaint fails prima facie. Plaintiff  has placed no facts on record. No fact appears on recordby affidavit to suggest or to support the averment of plaintiffs pleadings. Plaintiffs attorney cannot testify as to any facts, only a competent witness can testify as to facts.

Plaintiffs attorney has a strict duty under oath to document and verify all the allegations set forth in the complaint. Documents proffered by Plaintiff’s attorney are unverified, out of date, irrelevant and inadmissible. Plaintiff has not even proven that they own the alleged debt, nor have they proffered any evidence that even comes close to proving the amount alleged is correct.

 

Courts of general, limited or inferior jurisdiction obtain jurisdiction by the sufficiency of the pleadings. Jurisdiction of a court can be challenged at any time. Plaintiff's pleadings in the complaint lack sufficient evidence to invoke this courts jurisdiction, pertaining to the fact that Plaintiff has not set forth any creditable witnesses to establish subject matter jurisdiction.  

 

Plaintiff has offered no such proof that they have a valid right to collect or sue over the alleged debt, plaintiff has offered no valid rights of assignment; In cases involving a party attempting to recover on an account owed to some other party, proof of assignment of the account is essential to recovery, Cach LLC v Askew stating from Walker 208, S.W. 3d, at 298. Although this case is from the Supreme court of Missouri the United States Supreme Court has determined that Supreme Court cases apply to all States; Howlett v Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court cases apply to State court cases.

 

Wherefore the defendant prays upon this horable court to dismiss this spurious and frivolous suit

 

Being adjudicated in the honorable court of_________________, on this ___day of, 20__ by the honorable Judge______________________ this court declares that this cause of action be

___dismissed __with prejudice __without prejudice

___ denied

 

Defendants costs

List any costs you want the court to award you be reasonable do not get greedy or they judge will not award you anything
 

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The day you had it placed in the mail is the day it is considered 'served'. They have the 10 days (+5) from then to serve the response > same rule applies, they need to get it in the mail by the end of that 15th day.

Ryan is likly right on his answer, I have not reviewed the Rules of Court in quite awhile.  I will say that in my Motions to Compel in the past I used the green card from CMRR as evidence of service.  Thus I mention the date recieved.

 

Certainly you always want to monitor time for replies and when they are due.  But in a BOP you will have to send a meet and confer prior to any MTC.  My experience with the courts on these types of matters, unless the responding side is weeks late or just ignoring your requests, judges tend to be a bit lienient on time.  Example you are not likely to get a preclsuion of evidence if the otherside misses this deadline by a few days.

 

In my experiences time deadlines are really cruical on Answer, Request for Admissions, Motion for Summary Judgement, CCP 96 Requests and CCP98 responses.

 

I want to thank Ryan for giving a better response than I.  We need to all work together....

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Thanks for all the help. I think with what I've done so far there starting to scramble . I received a letter yesterday telling me PRA,LLC has authorized them to settle for $2,819.01 .

 

The way I see it there trying to get me to admit the debt because they have little to nothing on me. By doing so my General Denial would be useless. Any way 2 G's off sounds nice and all but I live check to check and theres no way I could come up With almost 3 thousand in 20 days so im gonna continue to push forward and hope I can get them to fold.. 

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^ You'll find that they will run this bluff the whole way. In my case the MIL I filed days before trial gutted their case, and they knew it. The morning of trial they offered to settle, as they do with everyone; 15 minutes later they dismissed before trial commenced.

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Hmm, I think the response the BOP needs to be thorough. Look around and find a thread that details the proper response to the BOP. IIRC, Calawyer has outlined it in a few threads. If they didn't fulfill the request properly, you're next move would be send them a Meet & Confer, giving them 10 days to comply.

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Ok well I was working alot and missed the deadline for a Meet & Confer. Had my first court date. It went vary quickly. H&H's lawyer tried to push for settlement which I declined so they had a trial date pushed to August. He asked the judge that he would like to talk to me privately after the hearing which once again I proudly declined. I thought the lawyers head was gonna fall off, he was like "umm uhh well thats fine" I could tell he was pissed.

Any way where do I go from here. I received another settlement offer in the mail today which there is no way I can afford. If they win this judgment against me theres no way I can survive with a wage garnishment and will be pretty much be forced to file bankruptcy.

So anything I can do now? Anything else I can send"request from them" to try to get them to drop the case?   

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Should this case eventually lead to a dismissal by H&H, it is unlikely they would do so until just before trial. Even if the JDB knows it's beat, you can count on them to try and ride out their bluff all the way to the end or even take their chances in the courtroom. I don't think there's any magic bullet that would force their hand any sooner. You just have to stay the course, continue with discovery (depending on your strategy) & prepare like they will not be dismissing and will push this into trial.

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