JohnDeer

Sued by PRA in Illinois. What's the next step? Some questions.

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Hi everyone,

A summons was left for me today sticking out of my apartment mailbox. There is a space that says "Date of service (To be inserted by officer on copy left with defendant or other person)" which is blank (since it wasn't left with a person at all). Is that an appropriate way to be served? There are also two copies of the top sheet (the YOU ARE SUMMONED one).

The lawsuit is from PRA and is regarding a credit card account that they apparently bought from GE Capital Bank/Gap. The complaint has my name and the county I'm a resident of, a statement saying that I opened a charge account with ge capital bank agreeing to make monthly payments, a statement saying PRA is "the successor in interest of said account... having purchased said account... in good faith and for value", a statement saying I did make purchases and charge the account but failed to make payments and the balance (>2500) "(See Client affidavit as Plaintiff's Exhibit No. 1)" and lastly a statement that the plaintiff declares me to be in default and demands payment of balance.

Then there is "Exhibit 1" an affidavit from Virginia (I'm in IL?) signed by a notary public that "affirms" 6 points: 1 she is competent to testify, 2 she's an authorized employee of PRA and authorized to make statements on behalf of PRA about the records transferred to them from GE Capital Retail Bank/Gap which have become integrated into PRA's business records. 3 according to the records the account and all proceeds are owned by PRA, all of the banks interest in the account having been sold, assigned and transferred in 2012 and saying PRA has been assigned all of the banks original authority to do and perform all necessary acts for settlement. 4 that according to the records there was >2500 (edited exact amount) due (with the last 4 digits of the original account number) and owed as of 2011 and the last two aren't really relevant info to this post.

There's no other information or proof, no DV or anything like that. I'm thinking my next step would be to call their lawyer and talk to them about a payment plan to avoid the suit going forward. Would this be a proper next step? I have very, very limited income and no consistent paycheck, I don't own any assets (house, car etc.) or have any money in the bank. We (family of 4) just live on the money we get, pay the rent and the bills and that's all we have. There's an appearance fee of $186 that I'd have to pay just for showing up to respond to the suit, even that is going to be a struggle to pay.

I also read this: http://ficoforums.myfico.com/t5/General-Credit-Topics/Sued-by-a-Junk-Debt-Buyer-Portfolio-Recovery-Associates/td-p/2296511 about a woman who had argued that she never signed a contract with PRA and so owes them nothing (or something more polite to that affect), does that hold any water? Would that be an option should we end up in court?

Advice would be more than appreciated.
Thanks!

Edited to add: If calling them tomorrow is the right thing to do, how should I talk to them, what should I say and not say?

Edited again for the questionnaire:

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.)
BHLM

3. How much are you being sued for?
See original post above.


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


5. How do you know you are being sued? (You were served, right?)
Kind of served, summons was shoved half into mailbox and half sticking out.


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

7. Was the service legal as required by your state? 
Process Service Requirements by State - Summons Complaint
As understood (for IL) they are meant to leave it with a person, I'm not sure what point 3 means. They left it shoved into the side of the mailbox, which doesn't seem appropriate to me, but I may be wrong.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
None. Possibly phone calls which were blocked.

9. What state and county do you live in?
IL, USA.


10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
I believe it was 2010


11. What is the SOL on the debt? To find out: 
Statute of Limitations on Debts
5 or 10 I'm not sure.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
-

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). 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. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 
No questionnaire, no answer requested because of amount, but appearance required in 16 days (2/20) with fee of $186. 

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


17. Read this article: 
Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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DO not call PRA to discuss a settlement (never very productive) until all other options have been exhausted.

It is my understanding that Illinois has some very favorable consumer law regarding JDB collection efforts.

Not being from your state I'll let @Spikey chime in here and enlighten you.

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@JohnDeer That's not proper service, they're supposed to serve you in person. Of course they may try to pass it off as proper service in an effort to get a default. You'll want to get on your county court website and see if they've claimed proper service, assuming your county has case tracking.  Most of the time, service in my county is done by the sheriff's department and they take their job very seriously. Just so you're aware they have to serve you no later than 3 business days prior to the court date. In my county, "cattle call" day is on Tuesday which means they need to serve you no later than the Thursday before or they have to bump the court date back and keep trying to complete service.

 

The amount they claim you own puts you in small claims court, which essentially means a much looser set of rules will be in play. Putting up a very basic fight may be enough to scare PRA off, assuming you want to fight this. PRA is what we call around here a Junk Debt Buyer (JDB). They buy pools of debts from original creditors (OC) for pennies on the dollar, quite often with next to no documentation. Sure you may owe a debt to some lender but that doesn't necessarily mean that PRA actually owns your account or that you own them any money. It's obviously up to you to decide your best option, but with a little effort on your part you could defeat this lawsuit.

 

One interesting fact, SOL in Illinois on credit debt is 5-years. The case the set this precedent was an appeal against PRA and the attorneys that are suing you, Blatt, Hasenmiller, Leibsker & Moore LLC.

 

First thing to look into is your county court website and look into if you're eligible for a fee waiver. I know Cook County allows it.

 

Since you're in small claims, the only thing you want to fill when you answer the lawsuit is an appearance form. The document should also be on your county court website. Do NOT file an answer, the appearance form serves as a general denial.

 

Based on the complaint you posted, it appears that they're going for a breach of contract claim by stating that you defaulted.. Their lack of evidence along with their incompetent affidavit would be ripe for a motion to dismiss based on ILCS 735 2-619. In small claims you need leave of the court (judge's permission) to file that motion. There are some good samples that are readily available.

 

There's obviously a little more to it than just filing some paperwork but with a little effort and learning on your part, there's a very good chance you could defeat this lawsuit.

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@Spikey First, thank you so much for the advice.

About service: I found the cook county (where I live) docket search and there's nothing under "Date of Service". Does that mean it's not proper service or is there something else I need to be looking for? Last activity is 1/23 which looks like the date it was filed. I noticed there's no signature or anything filled out under "Witness" on the summons either, is that irregular? If the summons isn't properly served, do I still have to respond as if it is? Or should I wait until I've been properly served?

I am interested in fighting the suit if it's a fairly easy process, would I need a lawyer to do that or could I just as easily do it myself? I'm not a confident speaker, but if I know what to say beforehand and how to properly address the judge, could I do it without a lawyer? I'm concerned about the costs.

That's definitely interesting about the SOL case!

I'll fill out the fee waiver questions later tonight when I have time to sit down and do it, and will look for the appearance information as well.

I'll also do some googling about filing the motion for dismissal.

Thanks again, really appreciate the help.

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@JohnDeer Unless the website didn't get update yet, I don't think that you haven't been served yet. Whomever they've hired to serve you did you a favor by leaving the summons. This gives you two options. You can either wait to get properly served and they will eventually track you down. There's no lawful way to avoid service. Or you can go to the court house and waive service. The one positive of waiving service is that you can be granted up to 60-days to answer the complaint per 735 ILCS 5/2-213. More time is a good thing as there's a bit for you to learn to get up to speed on the process and rules. The rules of civil procedure can be found here by the way: http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2017&ChapterID=56

 

Fighting a lawsuit yourself isn't necessarily easy and I should warn you that as a Pro-Se (a non-represented, non-lawyer) defendant, you're expected to know the rules as if you're an attorney. That said, most lawyers you'd consult with would just tell you to settle anyway. There is a really good NACA attorney in you county, Daniel Edelman. He wrote this great collection defense guide: http://www.edcombs.com/wp-content/uploads/2013/05/collection-defense-debt-buyer.pdf Obviously if costs are an issue, you're probably better off diving in and trying to defend this yourself. Although it may be worth your while to see if Edelman's office would be willing to give you a free consultation. 

 

I can point you in the right direction with the motion, no need to rush on that quite yet. First things first, if you're going to try and fight this yourself without representation, you'll need to either get served or waive service. Then file an appearance form, along with either the fee or a fee waiver. After that you need to get the judge's permission to file a 2-619 motion to dismiss. The judge should give you some time to prepare and file the motion.

 

I have more resource information I can pass your way, but I don't want to overload you with too much too quickly. You're jumping into a very deep pool here and I want to give you a chance to digest the basics. It took me months to get up to speed.

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One of the reasons I caution you slightly about defending this yourself, I can tell you all the forms to file and help you get the Motion to Dismiss ready but until it goes before a judge there's no telling what's going to happen. Myself and others have had success going this route. That doesn't mean that your judge will see things the same way or that PRA doesn't have the proper evidence and just didn't bother to supply it. The legal process can be frustrating at times and rather unpredictable for even those that know the rules and practice the law every day. That said there is solid legal precedent that backs up the methods that have been successful for myself and others in Illinois and the law is on your side. If PRA doesn't provide the proper evidence they have no case against you.

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@Spikey I appreciate the advice and caution, thanks. I understand, I've got some careful homework to do and it's 50/50 whether they'll have proof or not but worth attempting to win the case.

So, since I don't have any assets or money in the bank, what's the worst case scenario should I lose the case? If I go to court and defend myself, I don't do well or they end up having the necessary proof and the judge rules in their favor, what's the worst case scenario?

I'm about half way through the guide you posted and then moving on to the Civil Procedure document. I'll go through them again and make notes about what applies another day. I think I can do this without a lawyer with your generous help, it's a risk, but hopefully worth it.

The docket search info hasn't updated yet so I'm assuming for now that I'm still waiting for proper service but I'll continue checking. Is there a risk of the court considering the service valid even without the docket updating online?

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It's probably less than 50/50 that they have proof. If they really wanted to scare you they would have attached the bill of sale between them and GE Capitol along with account statements. What these JDBs generally try to do is attach the bare minimum to the complaint to try and get a default judgement. Most people don't fight, they either settle or they put their head in the sand and ignore the whole thing. People that fight are pretty rare, generally less than 5% of the cases.

 

Worst case scenario is that they get a judgement against you, which will be higher than the claim amount since they will tack on legal fees. A judgement is good for 7-years in Illinois and can be extended up to 27-years. They will try a variety of tactics to collect with a judgement which can include garnishing your wages and/or attaching your bank accounts. You can still work out payment arrangements after a judgement and sometimes they will accept lump sum discounts to settle but you do lose a lot of leverage once they have a judgement. There's no such thing as debtor's prison anymore, so you don't have to worry about that at least.

 

Fighting is definitely worth your while if you're willing to read and learn. I'm certainly willing to help you any way I can.

 

There is a risk that they may claim they served you. I don't know if they show service on the website or not. If I were you, I'd be leaning towards waiving service. Although being defaulted on and not being properly served would allow you to vacate that judgement. It's just one more step in the process.

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@Spikey good to know!

I don't want to deal with default judgement and what not so I'll look at the service waiver option. Thanks for that advice.

So if I wanted to consider a lawyer (a friend has offered to help pay for it), would I need them right away or could I sort out the appearance first and then hire a lawyer? What sorts of costs would I be looking at for the whole case? Any advice on looking for an affordable lawyer and any risk of lawyers trying to stretch things out to increase fees? You said most would want me to settle, but in the end they're working for me so I can insist we fight them right?

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I know that some lawyers don't want to mess with a case that they didn't handle from the start, especially if a Pro Se handled it first. That doesn't mean that you'll run into that problem. I have no idea how much it would cost. Every lawyer I've dealt with works on an hourly basis and they'll charge almost by the minute. An "affordable" lawyer isn't necessarily your best option. You just want a good solid consumer attorney that has experience fighting debt collection cases. When you go to a lawyer and they tell you to settle, they don't know enough about debt collection and how to defend those kinds of cases which is why I mentioned Edelman, since his office has extensive experience in these cases. 

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@JohnDeer If you are being sued by BHLM, then you (guessing) most likely live around the Chicago area. BHLM doesn't worry about the details like proof. They file so many lawsuits they don't have time to chase down documentation. The firm has like 8 lawyers filing about 40,000 cases a year. Do the math.

 

I have dealt with BHLM in both Will and Cook county personally in small claims. Let me know what county you are in so I can point you in the right direction to apply for a fee waiver, then win.

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@Spikey So I'll probably give Edelman a call and see if they'd be willing to do a free consultation, but I've gone back and forth and I'm more than likely going to end up representing myself. I'm also going to do the Service Waiver but I want to assume that I only have the 14 days that the summons says and so I want to learn what I need to know in the mean time. Are you able to give me a run down of the steps I need to take and what I need to know for my appearance (things I need should/shouldn't say and any particular way I need to say/avoid them, if that applies), don't worry about overloading me, I'm just going to study everything I need to know now and make notes and what not so I'm well prepared should I end up at the court on the 20th.

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I hear Cook county is the worst.  If you decide to file a motion to dismiss, here is something I dug up that may help you.  I don't know if it is any good but it sounds right but this isn't legal advice.  Use at your own risk.

 

735 ILCS 5/2-606 (West 2006) requires that if a claim “is founded on a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her.”  Sherman v. Ryan, 392 Ill. App. 3d 712, 733, 331 Ill. Dec. 557, 911 N.E. 2d 378 (2009).  However, Plaintiff neither attached a copy of the contract, nor asserted in the affidavit attached to his original complaint that the contract was not accessible.

 

In Velocity Investments LLC v. Alston the court ruled that “Plaintiff’s failure to attach a copy of the credit card contract to the Complaint, recite the terms of the contract within the Complaint, or attach an affidavit showing that the document is inaccessible is grounds for dismissal.”  Velocity Investments LLC v. Alston, 397 Ill. App. 3d 296, 922 N.E.2d 538 (2d Dist. 2010). 

 

In his Complaint Plaintiff failed to attach a copy of the credit card contract, nor did he recite the terms of the contract within the complaint, nor assert that the document is inaccessible in the Affidavit attached to the original Complaint.  As such, Defendant asserts that the Complaint should be dismissed.

 

WHEREFORE, Defendant moves this court to dismiss him from this action.

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@awry Those are good case law cites which I used in my own case, but I think it's prudent to attack more areas of the complaint than just the lack of a contract. Credit cards are a little tricky since every time the card is swiped a contract is formed between the parties. Credit card statements with purchases and payments can imply the existence of a contract. Other things to attack are standing to sue under ILCS 735 5/2-403 using llinois Midland R. Co. v. Farmers State Bank of Newark, 200 Ill.App. 591 (1917), Ray v. Moll, 336 Ill.App.360, 84 N.E.2d 163 (1949) and  Unifund CCR Partners v. Shah, 2013 IL App (1st). Along with attacking the incompetent affidavit.

 

 

@Spikey So I'll probably give Edelman a call and see if they'd be willing to do a free consultation, but I've gone back and forth and I'm more than likely going to end up representing myself. I'm also going to do the Service Waiver but I want to assume that I only have the 14 days that the summons says and so I want to learn what I need to know in the mean time. Are you able to give me a run down of the steps I need to take and what I need to know for my appearance (things I need should/shouldn't say and any particular way I need to say/avoid them, if that applies), don't worry about overloading me, I'm just going to study everything I need to know now and make notes and what not so I'm well prepared should I end up at the court on the 20th.

 

Steps are:

 

1) Waive service, and ask for 60-days to respond to the lawsuit.

2) Complete the fee waiver and compete an appearance form.

3) Go to your next court date and ask the court for leave to file a 2-619 motion to dismiss. If the judge asks why, lack of a contract, failure to prove standing, incompetent affidavit.

4) Prepare and file the motion to dismiss, I will supply you with a sample and assist you in editing it. These things always need to be tailor to suit your specific case.

5) Wait for opposition from PRA, file a response if necessary.

6) Go to the hearing you've set for your motion and present the motion to the judge.

7) Hopefully win the motion, if not you go to trial.

 

What not to say? Never admit it's your debt. Many judges have the opinion that if you admit it's your debt then you owe it, regardless of proof of ownership, which is the lack of standing argument. Beyond that, it's all about respect for the judge and letting him/her run the court room their way. You also want to avoid getting steam rolled by the opposition. They'll likely try to take you out in the hall and try to convince you to settle. If it's a really sweet deal, you may want to consider it, of course if it's really sweet then you know you have them. They wouldn't be offering it if they thought they could beat you.

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I think the OP's best course of action is this:

 

File the appearance at the Daley Center on or before the return date (most obviously). At that time, the OP would file an application for a fee waiver (in forma pauperis 'IFP') or as the clerk gently puts it "to sue or defend as a poor person."

 

You will have to fill out several sheets of paper. The clerk will then direct you to a office on a different floor. You will then be seen by a judge who will review and sign off on your application. DO NOT look for the forms on Cook County's website. They are not the correct forms needed to file your application.

 

Once granted by the judge, you will go back downstairs and give the completed and signed application to the clerk. You will then have your appearance on file. At that time the clerk will give you your return date, to actually have your day in front of the judge. I would file the motion to dismiss at this time, and set the hearing date for the return date the clerk just provided you.

 

That way you can handle this case in 2 visits. Going downtown is a PITA and can be unduly stressful.

 

The laziness of these attorney's is appalling. They will just hand you a voluntary dismissal order. 99% sure case will be dismissed on that return date.

 

Edelman charges about $1K for JDB cases.

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@gwheelock915 I forgot about the Daley Center. The sad part is that we had this same conversation before on another case. Less trips to the court house are better regardless of county though.

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@gwheelock915 @Spikey thank you both for the advice and info, it is enormously appreciated.

So as I understand it, as long as I don't want the service waiver, I don't do anything until the date/time of the appearance (or before? So I can do it at my convenience any time before that?) and when I go in I take the summons to the clerk and tell them I'd like to fill out the appearance and the fee waiver forms. Is this correct?

Spikey was saying that I'd need to ask for the leave of the court to file the motion to dismiss and then I'd need help to prepare the forms for the motion, but it sounds like gwheelock is saying I can do that by asking the clerk for the necessary paperwork without requesting a leave of the court, on the same day as I do the appearance? Is this correct? If that's the case, is there going to be any jargon or such that might trip me up on the motion for dismissal forms? Or will it be fairly straight forward? Are there examples of what to expect on these forms online (just to familiarize myself)?

I'm definitely feeling more confident after reading all this, thanks a lot guys!

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Just checked the mail and got a letter from Blatt etc. law firm saying quote: "This law firm represents the above referenced client in that lawsuit regarding your outstanding obligation with them. We are offering you the opportunity to discuss your proposal for resolving the lawsuit. Please contact us at 1-866 (etc.) to discuss the resolution of this matter."

@Spikey @gwheelock915

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