Portfolio Recovery in CA

[Rookie]

PRA is now suing my husband. It's a bit different than my case with Cavalry, so I have some questions. 

 

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.)
Hunt & Henriquez
3. How much are you being sued for?
$2,505.00
4. Who is the original creditor? (if not the Plaintiff)
Cheveron/GE Money
5. How do you know you are being sued? (You were served, right?)
Served at home
6. How were you served? (Mail, In person, Notice on door)
In person at home
7. Was the service legal as required by your state? 
Yes
Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
Received a dunning letter. I sent DV letter, but they  stated that the request was a year late, as they had apparently sent a letter a year ago. They still sent a billing statement showing the account was charged off.
9. What state and county do you live in?
San Diego, CA
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
March 2010, however CR shows 30 days late 12/09
11. What is the SOL on the debt? To find out: 
4 years
Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or   looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
Suit Served
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.
Yes. I sent DV letter, but they  stated that the request was a year late, as they had apparently sent a letter a year ago. They still sent a billing statement showing the account was charged off.
15. How long do you have to respond to the suit? 30 days

(This should be in your paperwork). 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.

Porfolio  alleges that defendant became indebted to (x) other: GE Money Bank, FSB or a Predecessor in interest

w/in the last 4 years on 

 1) an Open Book Account for money due.

 2) because an Account was STATED in writing by and between plaintiff & defendant in which defendant promised to pay plaintiff

3) for goods, wares and merchandise sold and delivered to defendant and for what defendant promised to pay plaintiff the sum of $2505.00. 

4) for money lent by plaintiff to defendant at defendant's request

5) for money paid, laid out, and expended to or for defendant at defendant's special instance and request.

 

OTHER : Plaintiff purchased the account from the original creditor or its successor(s) in interest. PLaintiff is the current owner of the account. 

 

Did you receive an interrogatory (questionnaire) regarding the lawsuit? 
No
Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Nothing. They didn't even verify the complaint. They did attach a Statement of Location/Venue & Notice of Case Assignment.

[Rookie]

Can I file a general denial?

I'm pretty sure the summons was not verified, as nothing official is attached, except for the Statement of Location/Venue.

 

If I can't file the general denial can you suggest the good way to answer:

Porfolio  alleges that defendant became indebted to (x) other: GE Money Bank, FSB or a Predecessor in interest

 

Please correct me if I'm wrong: GE Money Bank is not the OC. Cheveron was. It looks like GE purchased a bunch of credit card companies back in 2008.

[1stStep]

File a General Denial and send a BOP - that should trip them up pretty good...

 

Also, check and see the date the suit was filed. My guess is that is was filed prior to Dec 2013. IF not, then you've got an absolute defense (SOL elapsed) and a nice Rosenthal and FDCPA violation. 

 

 

******

 

You also are indebted to Chevron - GE Money bank is the issuer of the credit card. 

[Rookie]

Looking at the 1st page of the summons it is stamped FILED Dec 5, 2013. 

The Civil Case Cover Sheet & Complaint are Stamped Dec 4, 2013.

Should I send the Answer & BOP separately or does it matter?

[1stStep]

The answer is filed with the court. The stamped copy is mailed to the plaintiff - and you can send the stamped answer and the BOP to the plaintiff at the same time - be sure they are listed on the proof of service. 

[Rookie]

The answer was filed with the court and a copy, plus BOP & POS was sent to plaintiff's attorney CMRR. 
I gather they received it yesterday, as I they just left voicemail message on our business line at 8:20 am. 

Am I correct they have to mail their response by 10 days + 5 days (so 15 days) from the date it was put in the mail by me? Or must I receive it within 15 days?

[Rookie]

Bump

[RyanEX]

Correct, they just have to place it in the mail within the 15 days.

[1stStep]

And you will not get everything that is required under CCP 454 - at the most, you will get a couple of statements and a generic bill of sale. 

[Rookie]

So, if/when I receive their inadequate response I should send a Meet & Confer and a 2nd demand for BOP?

And if they still don't send all of the items requested do I file a Motion to Compel?

[Anon Amos]

So, if/when I receive their inadequate response I should send a Meet & Confer and a 2nd demand for BOP?

And if they still don't send all of the items requested do I file a Motion to Compel?

Don't send a second BOP, you just allow them more time to object. It's not usually worth filing a MTC BOP because they are almost always lost and the judge says the reason is that you can get the information thru discovery.

 

I would send them 1 meet and confer letter and then discovery; Request for production of documents, and then a meet and confer regarding that. Then file the MTC for discovery, as that is  a motion that is usually won. 

[Rookie]

Thanks @Anon Amos!

If after I request ROGs and they continue to send only a year's worth of statements that show no charges, do I need to file a meet & confer and file a MTC? 
I'm needing more statements to document that this is out of the SOL. 

[Anon Amos]

Thanks @Anon Amos!

If after I request ROGs and they continue to send only a year's worth of statements that show no charges, do I need to file a meet & confer and file a MTC? 

I'm needing more statements to document that this is out of the SOL. 

You probably don't need any ROGs, at least not for a while. Just a short list of RFP's. One thing that you ask for would be:

 

"A complete list of statements showing all charges and payments from a zero balance to the alleged amount charged off". Then after the M&C letter you could MTC.

 

You would also ask for:

any and all documents that plaintiff alleges constitute the assignment from OC to plaintiff

 

any and all documents bearing defendant's signature

 

credit application from OC to defendant

 

The terms to the alleged debt, 

[Rookie]

My husband had his CMC last Friday and requested mediation. The plaintiff's rent-a-lawyer let out a huge sigh and said he'd have to check with the plaintiff. 

We're not looking to settle, but are just trying to make it more difficult and expensive for the plaintiff. 

[1stStep]

Have they responded to the BOP?

[Rookie]

Have they responded to the BOP?

They sent only 2 statements: One showing when it was charged off and the other just a random statement that doesn't even show a payment.  The statements weren't even in consecutive months. No Bill of Sale has ever been sent either. 

[Anon Amos]

I would send them discovery. Request for production of documents.

[Rookie]

PRA has sent my husband Interrogatories, RFAs and RFPs. I guess they were trying to save on postage. 

 

Is it advisable respond with a simple DENY or NO?

 

Here's the questions:

Did you ever submit a request for a credit account to GE Money Bank, FSB?

 

We are pretty sure we never applied to GE Money for anything in the past, but can't be 100% certain. (For this acct, tho, my husband actually applied to Chevron years before GE took over the account.)

Is this response appropriate? If not, what would you suggest?

 

The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

[shellieh98]

I don't know in your rules if you flat out deny if you have to elaborate. If not deny, you didn't apply for GE. Others that may be a trick, either object if they are asking for personal info, deny, or use the response you posted

[Rookie]

Looking through their Request for Admissions, they are asking very specific questions. Please let me know if my responses are good or need some adjustments:

 

1. YOU had a credit account number ABC..XYZ

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

2. Credit account number ABC..XYZ was issued to YOU by  GE Money

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

3. YOU received periodic statements regarding credit account ABC..XYZ issued by GE Money

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

4. As of on or about November 3, 2013, the balance owed by YOU on credit account number ABC..XYZ was $2,300

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

5. YOU have not made a payment on credit account ABC..XYZ since 12/4/13

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

6. YOU submitted a payment towards the outstanding debt on credit account ABC..XYZ w/in the 4 years prior to 12/4/13

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

7. GE Money Assigned  account number ABC..XYZ to Portfolio

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

8. YOU received though the US mail a pre-legal notification from Portfolio regarding credit account ABC..XYZ

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

[Clydesmom]

You should NEVER answer RFAs or ROGs with the same exact response.  You will piss off the court and not only can your credibility be shot but they could compel answers or approve a subpoena for bank records etc.

 

Did you ever submit a request for a credit account to GE Money Bank, FSB?

 

We are pretty sure we never applied to GE Money for anything in the past, but can't be 100% certain. (For this acct, tho, my husband actually applied to Chevron years before GE took over the account.)

 

Denied.  Defendant states with clear knowledge that they have never applied for a credit account with GE Money Bank FSB or Portfolio Recovery Associates.

 

2. Credit account number ABC..XYZ was issued to YOU by  GE Money

Response: Denied.  Defendant has never applied for nor been issued a credit account by GE Money and therefore was not issued an account number.

 

3. YOU received periodic statements regarding credit account ABC..XYZ issued by GE Money

Response:   Denied.  Defendant has denied the existence of any credit account with GE Money and therefore received no statements.

 

4. As of on or about November 3, 2013, the balance owed by YOU on credit account number ABC..XYZ was $2,300

Response: Denied. The information known or readily obtainable by the Defendant is insufficient to enable a response to the request.  Plaintiff has provided no documentation by which Defendant can reasonably answer this question.

 

5. YOU have not made a payment on credit account ABC..XYZ since 12/4/13

Response:  Denied.  Defendant has no knowledge of the existence of any credit account opened with GE Money and therefore would not have made any payments on an account that Defendant was not personally responsible for.

 

6. YOU submitted a payment towards the outstanding debt on credit account ABC..XYZ w/in the 4 years prior to 12/4/13

Response: Denied.  Plaintiff has presented no documentation in support of this question by which the Defendant could reasonably answer this interrogatory.

 

7. GE Money Assigned  account number ABC..XYZ to Portfolio

Response:  Objection.  Calls for Defendant to draw a conclusion and answer about internal business processes of both GE Money and Portfolio Recovery Associates which he has no direct knowledge.  Plaintiff has presented no verifiable reliable evidence showing that any account that Defendant is personally responsible for was assigned to PRA therefore this is denied.

 

8. YOU received though the US mail a pre-legal notification from Portfolio regarding credit account ABC..XYZ

Response:  (if you received their pre-legal letter there is no harm in admitting that)  Admitted.  Plaintiff did send correspondence dated XX-XX-2014 stating they were suing defendant on an account of which they had no knowledge or personal responsibility for.

[Rookie]

Thanks @Clydesmom

[Rookie]

We received a CCP98 a couple weeks ago. 

The affiant is w/in 150 miles and even states 'the affiant is available for service of process for a reasonable period of time, during the twenty days immediately prior to trial. 

Trial Date is 12/8/14

 

Plaintiff also included a Bill of Sale which declares GE Money Bank is a Delaware corporation. They include something that looks like it could have been taken from a ledger, but has isolated only my husband's name, acct ending in XXXX, correct home address, opening date (which was in 1984), Last Payment Date (March 2010). 

The affidavit of sale was signed & notarized Feb. 2014 in Minnesota

 

Being the OC was in Delaware (we are in CA), is the SOL 3 years?

Should we object to the CCP98? Do we need to subpoena someone?

 

In the CCP98 it state,

"Upon information and belief, and based on Plaintiff's records, Defendant has not objected to the obligation or to the amount of the obligation, thus creating an account stated."

Really? Is this true? We hadn't heard about the allege sale of the alleged account until October 2013 and we immediately sent them DV letter. Shortly, thereafter they filed the lawsuit.

[string]

You should subpoena the ccp98 affiant within the "twenty days immediately prior to trial" that s/he is supposed to be available, at the address provided.  When they (most likely) aren't available for service, you'll file an Objection to the ccp98 (and all its attachments).

 

Also, be sure to serve ccp96 30-45 days before trial.

[skippy1960]

Rookie,

 

You have had a nice break in not having to do alot on your case based on the timeline of your postings.  It is critical that you now get ready to win.  This means maiking sure you know what the process is of forcing the otherside to produce a witness via subpoena as String has mentioned.  There are a number of threads that outline all that is involved.  Read these get a calendar and meet the deadlines.

 

You do have an alternate way to victory also, go and find the following case Resurgent Capital v Chambers, it is an appeal case out of Santa Clara County.  It deals with the Delaware SOL of 3 years.  Since the affiant has confirmed that the card agreement is from a Deleware Corporation, then you will be able to argue the 3 yr SOL that comes with it.

 

The Chambers case has all the elements you need to defend if they don't fold prior to trial.  I would suspect once they see your trial brief with that case highlighted they may not want to continue....

 

Best of Luck