Jump to content

PRA Suing in wrong county - NC Updated 8/2014


Recommended Posts

I believe I originally posted this in the wrong place...so I am asking here :-)

 

I am being sued by PRA in the wrong county...the first summons was returned stating " address not in county" . They reserved me by certified mail.

 

My question is a strategy question....should I file a  pre- answer motion to dismiss ( improper venue) and risk being moved to the correct county. If that happened, does that cancel out a counter claim for the wrong county violation?

 

Or should I just answer in the wrong county and file a counter suit?

 

Thanks for your help!

Link to comment
Share on other sites

Hi,

 

I would definitely bring up improper venue.  Portfolio has a well known history of tricks, and suing in the wrong jurisdiction is one of them.  With JDBs like PRA, the more you show them that you know the laws and your rights, the better chance you have of them backing down when they have no case.  Often, they will sue in the wrong county on purpose, so that you are further discouraged from answering or defending.  They try to make it more inconvenient for the consumer--better chance for them to get a default judgment. 

 

I would file a motion to dismiss based upon improper venue.  They may file in your county.  They might not.  But you do not have anything to lose by filing improper venue if it is in fact the wrong county.  I would prepare yourself to defend anyways--since they could just file the case in your county next.  I would consider filing your answer, denying their claims, and then include a motion to dismiss for improper venue.  Before you file, though, could you share more details?  There may be other affirmative defenses that you could use now to put a stop to this once and for all. 

Link to comment
Share on other sites

I'm going to respectfully disagree with 1ststep on this one.  You do not know enough about what has taken place to "run to the courthouse".  The last thing you want to do is file a frivolous suit against anyone at this point.  Your first order of business needs to be to address the suit you are already facing, not to file your own suit against them.  You have a one-year SOL to file against them, but you have to address their suit against you sooner than that. 

 

I would keep good records of everything.  It could have been a simple error, in which case your lawsuit would end up being dismissed due to "bona fide error", and you would lose the money you have to pay to file a lawsuit for no good reason.  It would seem that they have your correct address, so they should have been able to figure out your correct county, but you dont want to jump ahead of yourself on this. 

 

You also do not have enough info, from what you have posted, to sue their attorney over FDCPA.  You first need to establish that this attorney fits the definition of "debt collector" within the FDCPA.  Then you need to make sure that there was a violation, and that it cannot be explained by bona fide error.  I would suggest that you keep the bulk of your focus on the case youre already facing.  You do not want to give PRA a free shot at a judgment against you for more than what you would sue them for, plus interest, plus court costs, plus attorney's fees....all so you can sue them for $1000 plus costs.  You would come out on the short end of that stick. 

 

Could you post up their complaint?  There is usually a portion of the complaint, in the beginning, that sets up their explanation as to why this is proper venue.  If you post it up it will help us to provide better answers on how you can respond.  A counterclaim is not a bad idea, but lets make sure you have an actionable one first.

  • Like 1
Link to comment
Share on other sites

"You do not want to give PRA a free shot at a judgment against you for more than what you would sue them for, plus interest, plus court costs, plus attorney's fees....all so you can sue them for $1000 plus costs. You would come out on the short end of that stick."

Please cite case law that gives PRA a free shot at a judgment for one case because a defendant filed for a violation as another suit.

It's ridiculous to assume the OP cannot do both, and must do one before the other. We don't want to assume members here are incapable of such things because we simply do not know what others are capable of.

1stStep has offered sage information that points out a possibility for the incorrect location. Going by the OP, the JDB seems to have sent them something by mail. If they did, then they knew their correct address. If they knew the correct address, and the debt was NOT incurred in another county, then it is a violation. They cannot use the old bona ride excuse on that one.

Plus, the law looks at it from a "least informed consumer" standpoint, and suing a collector for improper antics is not frivolous when your not very informed.

Link to comment
Share on other sites

I received the the summons by certified mail last week. The complaint was filed in September.  On the summons, it listed the original summons was issued in Sept. I went to the court house and got a copy of the original summons, which was attempted to be served by the sheriff's department but was returned  in Sept as "address in not in county" So they learned before I was served that my address is not in the county that they brought the suit but chose to continue the suit any way.

 

1. Who is the named plaintiff in the suit?

PRA

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Sessoms & Rogers

3. How much are you being sued for?

$1,1xx

4. Who is the original creditor?

GE Care Credit

5. How do you know you are being sued?

Served a Summons

6. How were you served?

certified mail

 

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

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

None. 

9. What state and county do you live in?

North Carolina, Cleveland


10. When is the last time you paid on this account?

4/29/2011

 

11. What is the SOL on the debt?
3 years


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

About a week in to my 30 days. Researching my answer/motions/options

 

 

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?

No


15. How long do you have to respond to the suit?

30 days

 

 

  1. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

No

16. What evidence did they send with the summons?

 

Copy of GE statement showing my last payment

Copy of GE statement showing charge off

"Bill of Sale" no account numbers no proof it was my account....(Interesting tidbit I found...PRA reported on my credit report before the date of the alleged Bill of Sale.)

Computer print out of information about me and the debt from PRA files

 

 

 

 

 

 

I do feel that the following NC statute was not followed (#1): 

 

 

 

 

 

 

§ 58-70-150.  Complaint of a debt buyer plaintiff must be accompanied by certain materials.

In addition to the requirements of G.S. 58-70-145, in any cause of action initiated by a debt buyer, as that term is defined in G.S. 58-70-15, all of the following materials shall be attached to the complaint or claim:

(1)        A copy of the contract or other writing evidencing the original debt, which must contain a signature of the defendant. If a claim is based on credit card debt and no such signed writing evidencing the original debt ever existed, then copies of documents generated when the credit card was actually used must be attached.

(2)        A copy of the assignment or other writing establishing that the plaintiff is the owner of the debt. If the debt has been assigned more than once, then each assignment or other writing evidencing transfer of ownership must be attached to establish an unbroken chain of ownership. Each assignment or other writing evidencing transfer of ownership must contain the original account number of the debt purchased and must clearly show the debtor's name associated with that account number.  (2009-573, s. 8.)

 

 

 

 

 

 

I appreciated all the help :-)

Link to comment
Share on other sites

@justprettynpink

 

Did you ever live in the county where the lawsuit was filed?  Was the account opened there?  Or is that where the account went into default?

I have never lived in that county. The account was not opened there nor was it ever used there. I have lived in the same house since the account was opened :-)

Link to comment
Share on other sites

@justprettynpink

 

In my opinion, you have a violation of 1692i(a). 

 

(a) Venue
Any debt collector who brings any legal action on a debt against any consumer shall—
(1) in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity—
(A) in which such consumer signed the contract sued upon; or
(
B) in which such consumer resides at the commencement of the action.

 

 

Contact NACA to see if there's a NACA attorney in your area.  It might be worth it to set up a consultation.

 

http://www.naca.net

  • Like 2
Link to comment
Share on other sites

"You do not want to give PRA a free shot at a judgment against you for more than what you would sue them for, plus interest, plus court costs, plus attorney's fees....all so you can sue them for $1000 plus costs. You would come out on the short end of that stick."

Please cite case law that gives PRA a free shot at a judgment for one case because a defendant filed for a violation as another suit.

It's ridiculous to assume the OP cannot do both, and must do one before the other. We don't want to assume members here are incapable of such things because we simply do not know what others are capable of.

1stStep has offered sage information that points out a possibility for the incorrect location. Going by the OP, the JDB seems to have sent them something by mail. If they did, then they knew their correct address. If they knew the correct address, and the debt was NOT incurred in another county, then it is a violation. They cannot use the old bona ride excuse on that one.

Plus, the law looks at it from a "least informed consumer" standpoint, and suing a collector for improper antics is not frivolous when your not very informed.

 

 

whoa, slow down there!  There's no need to jump on me. 

 

I simply pointed out the same exact advice that was given to me by others here on this same forum, in my recent thread.  I never said that there was case law, or anything else of the sort!  I simply suggested focusing on the more immediate need, nothing more and nothing less.  If you read my post, you will see that I even said that a countersuit might be a good idea, and asked him to post the complaint they served him with. 

 

There's no need to give someone a hard time like that.  We are all here to help each other.  You do not have to agree with my thoughts, of course, but there is no good to be had by jumping on someone like this.  At least I was respectful when I disagreed with someone, jeez...

 

And yes, they CAN use the "old bona fide rule" on that one.  Suppose the town this guy lives in is on the line between two counties?  Things like this have happened before.  And remember now, the standard that must be met to use "bona fide error" is NOT whether or not you agree with it.  It refers to whether or not the plaintiff has a reasonable system in place to prevent such errors.  They could know his address, the size of his lawn, how many windows his house has, and what color siding is on it...at the end of the day, "bona fide error" exists because people sometimes do make honest mistakes. 

 

Think about this--any action or counterclaim will cause the OP to spend money.  What harm could possibly come from following the advice I posted?  I recommended:

 

1--focusing on the more immediate issue first

2--let's check to make sure there was even a violation

3--let's check to see if there are more violations

 

I don't see one thing wrong with those recommendations.  Please enlighten us as to why any of them is inappropriate.  The other poster, on the other hand, said "RUN, dont walk, to the federal courthouse".  There is nothing appropriate about "Run, don't walk" in this case, when all of the facts are not even known...

Link to comment
Share on other sites

The Complaint:

 

 

1. Plaintiff is a limited liability company in DE.

 

2. I reside in the wrong county

 

3. P is a duly licensed as a collection agency

 

4. P's predecessor GE opened an account and extended credit

 

5. P's predecessor extended credit pursuant to the terms and conditions set forth in the account agreement

 

6. D accepted and used the credit

 

7. D's used of credit ratified the Agreement binding to the terms and conditions

 

8. Account statements reflecting the original acct # were mailed to the defendant Exhibit "A"

 

9. The original balance was $0. The statements  reflect an itemization of the charges and fees owed

 

10 D defaulted owing money to GE

 

11. Account was charged off

 

12. Account was sold to PRA 

 

13. Chain of ownership exhibit b

 

14 Pursuant to the terms & conditions of the agreement, D is lawfully indebted to the P.

 

 

Wherefore P Prays the Court as follows

 

1 P recover from D $11XX

2. P recover interest from judgement date

 

3 P recover court costs

 

4 Any other relief deemed just and proper

 

 

 

 

Suggestions about what I should do first?

Link to comment
Share on other sites

Here are two lawyers from a Google search:

 

FDCPA - Suzanne Begnoche, Attorney at Law

 

  1. www.begnochelaw.com/practice-areas/fdcpa/‎
    •  
    •  
     
    FDCPA. Unfair Debt Collection Cases: Federal and state laws, including the Fair Debt... In North Carolina, debt collectors cannot do any of the following:.
    You visited this page on 11/17/13.
  2. Raleigh FDCPA/Unfair Debt Collection Attorney : Raleigh – Wake ...
    www.maginnislaw.com/raleigh-fdcpaunfair-debt-collection-attorney/‎
    •  
    •  
     
    North Carolina has some of the strongest protections in the country for ... MaginnisLaw, PLLC is a Raleigh, NC law firm accepting FDCPA and NCDCA cases ...
    You visited this page on 11/17/13.
  3.  
Link to comment
Share on other sites

So I called an attorney and was told that since it was filed in district court, it does not have to be filed in the county that I live in.....????

 

So I guess I just answer the complaint....

 

I am planning on getting a loan to take care of my debt. When would be a good time to try and settle? 

 

I don't understand the first sentence.  Either you were sued in the wrong county (technically, the FDCPA uses the term "judicial district," or you were not.   I would contact another lawyer and get another opinion.  Contact one of those I linked above.

Link to comment
Share on other sites

Here is a case that discusses the NC statute you cited. Defendant filed a Motion for Summary Judgment (which is unusual in a credit card case) and won because Unifund (the credit card company) did not prove its case.

http://scholar.google.com/scholar_case?case=779580468457525075&q=credit+card&hl=en&as_sdt=4,34&as_ylo=2009

Link to comment
Share on other sites

  • 2 weeks later...

UPDATE:

 

I will have an attorney helping me....I will either be included in a class action or I will have my case "stayed" until the class action is over. (whatever that means)

 

I need to file a motion and order for a time extension. I have found that online through the bar association but I have a question about the Certification of service.....when does that get done? prior to me filing the motion? or after the order is signed or both? What to I send to them?

 

Thank you everyone for your help so far!

Link to comment
Share on other sites

  • 1 month later...

So I am back....there are several attorneys in NC trying to get a class action suit approved but at this time can not help individuals nor get anyone included in the class action.

 

So I am on my own again and 4 days out from the deadline to file an answer.

 

I have looked through all my old paper work and have found an intent to file legal actions dated 09/12. I was served 11/13.  I noticed that the bill of sale changed appearances between the notice and the suit documents. Also the Notice had a higher amount than what I was sued for. (they added interest)

 

I am thinking of filing a motion to dismiss or change of venue since it is in the wrong county. Will that extend having to file an answer?

 

I am preparing my answer anyway...

 

 

I want to deny all the paragraphs.

 

I also want to file counterclaims since PRA does not have an itemized statement showing the charges and interest nor did they follow proper procedure and attach a copy of a contract with my signature or copies of when the card was actually used.

 

I do not quite understand what affirmative defenses are....

 

I appreciate all your help...I have mixed feeling about this attorney waiting until the last minute to say they couldn't help...

Link to comment
Share on other sites

Debtzapper...thanks for all your help...I will call them tomorrow...I have started working on my answer..

 

 

STATE OF NORTH CAROLINA               IN THE GENERAL COURT OF JUSTICE

COUNTY OF  XXXXXXXXX                             DISTRICT COURT DIVISION

                                                                                        FILE NO.: 13 CVD 

 

PORTFOLIO RECOVERY                                    )

 ASSOCIATES, LLC,                                  )

            Plaintiff,                                 )                      

                                                            )                       ANSWER,

vs.                                            )                       AFFIRMATIVE DEFENSE,

                                                )                       AND COUNTERCLAIM

                            )          

                                                                        )                          

                        Defendant.                             )                                  

____________________________________)

 

 

                                                            ANSWER

                            

NOW COMES the Defendant, in the above-entitled action, answering Plaintiff Complaint, by alleging and saying:

 

 

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

  1.  DENIES       

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

6.  Not Sure what to put here... (D accepted and used credit extended by XXXX during the period that the account was active)

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

  1. Defendant is without sufficient knowledge or information of the truth of this averment and therefore DENIES it.

 

                                 AFFIRMATIVE   DEFENSES

 

  1. Plaintiff failed to state a claim upon which relief can be granted.

 

(a)    Pursuant to the provisions of G.S. § 58-70-150, the Plaintiff failed to attach to the Complaint a copy of the contract or other writing evidencing the original debt, which must contain a signature of the defendant. The Plaintiff failed to attach copies of documents generated when the credit card was actually used.

(B)   Pursuant to the provisions of .G.S. § 58-70-115(5), the Plaintiff failed to attach the Complaint an itemized accounting of the amount of being owed, including all fees and charges.

 

  1. Improper Venue.

(a)    Defendant has never lived in XXXXXX County.

(B)   Pursuant to the provisions of G.S. § 176.1, action must be brought in the county where the debtor resides.

 

 

COUNTERCLAIMS

 

  1. The Plaintiff violated The State unfair debt collection statute G.S. § 58-70-150. Pursuant to the provisions of G.S. § 58-70-130, the remedy is not less than $500 but no more than $4000 in statutory damages.

 

  1. The Plaintiff violated The State unfair debt collection statute G.S. § 58-70-115(5). Pursuant to the provisions of G.S. § 58-70-130, the remedy is not less than $500 but no more than $4000 in statutory damages.
  2. The Plaintiff violated the Fair Debt Collection Practice Act, 15 U.S.C. § 1692 et seq, by filing a suit in the improper venue. Pursuant to 15 U.S.C. § 1692k(a)(2)(A), the remedy is up to $1000 in statutory damages.

 

WHEREFORE, the Defendant moves the Court as follows:

 

Suggestions and comments gladly taken :-)

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.