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Being sued in Indiana--Portfolio Recovery Associates


daddyo74
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1. Who is the named plaintiff in the suit?

Portfolio Recovery

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
They are handling it themselves.   They have to IN licensed attorneys assigned that are in VA.  
3. How much are you being sued for?

$1500

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

FIA card services

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

Served

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

Sheriff at the door

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

I believe so, yes. 

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

None--they sent a few collection notices

9. What state and county do you live in?

Indiana, Hendricks county

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

I have three years left on the SOL

11. What is the SOL on the debt? To find out:
7 years

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).

Suite served--I have responded with a request to produce documentation

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Yes, I filed a motion to produce

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?
I did response within 5 days.   I entered a request for production including:

Credit application signed by me with the original creditor

A contract I signed with PRA (I did not) 

A copy of all statements

a copy of all alleged charges and their amounts

 

 

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

Yes, they sent an affidavit.   They attached a bill of sale from FIA card services (BOA) and two statements.    

 

They followed up with my request for production with two years of statements, but the account was opened in 1999.    They could not produce the other documents.  

 

They said in the cover sheet--

All docuements they have are attached, the additional documentation has been requested from the orginal creditor--additional documentation will be provided if/when they the information is received.    Please contact if I have questions or want to settle.  

 

How should I respond?  I do not believe they can produce this documents since they are from so long ago.    When should I file to dismiss based around this?   Now or wait?  

 
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"I entered a request for production including:

Credit application signed by me with the original creditor

A contract I signed with PRA (I did not) 

A copy of all statements

a copy of all alleged charges and their amounts"

 

They do not need to produce the application showing you opened the account to win this case.  Especially on an account opened almost 20 years ago.

 

They also do not need every statement going back to 1999.  Two years of statements up to the point of default is very critical evidence to show you used the account and stopped paying FIA.

 

They also do not have to have a copy of all alleged charges and the amounts either.  The court will know this is a smoke screen.  The consumer would have the receipts as those are given to you at the time of purchase NOT the card issuer.  They get nothing more than an electronic notification in most cases.  If you did not allege fraud in someone stealing your identity in all that time from 1999 then the court will conclude you opened and used the card then defaulted.

 

Your best bet is to attack the standing of PRA to sue you.  There is no contract between you and them for any credit.  Make them prove that they bought YOUR account and have standing.  The rest of the stuff you demanded won't help you defend this.

 

What would be your legal basis for dismissal?  With 2 years worth of statements and a bill of sale the court will deny it.  

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Thank you to both for the replies--last payment was in 2010.    

 

In terms of the defense---I am very open to suggestion here.   How would you suggest I attack the standing of PRA?   They did attach a bill of sale from FIA to them.  

 

i guess my real question is--where do I go from here?   

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In this 2013 case, the court discusses what is needed for a plaintiff to prevail in summary judgment.  The court found that Midland's evidence was inadmissible hearsay and not based on a proper foundation.

 

http://scholar.google.com/scholar_case?case=13169856357742435649&q=credit+card&hl=en&scisbd=2&as_sdt=4,15

Wow, thank you CIC--great stuff.   My fear is that I have already messed up by filing for discovery first and not refuting the claims in the first response.   I wish I found this board sooner!   

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If the below are true and this was not in the original summons sent (many are missing, including  number, 6, 7, 8 and 10)  does this mean it was not filed properly by them?   The affidavit is perfect as far as the rules go, but the summons is not.     There is no date set on the summons, only that a response must be made.   I made the response but it was not a "deny" it was a request for discovery (I really did not know if this was my account or not)    Am I lost right out of the gate?   


Again, thanks to everyone so much, I am trying very hard to learn as much as possible quickly.   


 


Rule 2. Commencement of Action


(A)   In General. An action under these rules shall be commenced by the filing of an unverified notice of claim in a court of competent jurisdiction and by payment of the prescribed filing fee or filing an order waiving the filing fee.


( B)   Form of Notice of Claim. The notice of claim shall contain:


(1)     The name, street address, and telephone number of the court;


(2)    The name, address, and telephone number of the claimant and defendant(s);


(3)    The place, date, and time when the parties are to appear on the claim, which date shall be set by the court with the objective of dispensing speedy justice between the parties according to the rules of substantive law;


(4)    A brief statement of the nature and amount of the claim; and


(a)    if the claim arises out of written contract, a copy shall be attached; however, the fact that a copy of such contract is not in the custody of the plaintiff shall not bar the filing of the claim; and


( B)    if the claim is on an account, an Affidavit of Debt, in a form substantially similar to Small Claims Appendix A  shall be attached;


(5)    A statement that the parties may appear either in person or by an attorney;


(6)    An instruction to the defendant that the defendant should bring to the trial all documents in the possession of or under the control of the defendant concerning the claim;


(7)    A statement that if the defendant does not wish to dispute the claim he may nonetheless appear for the purpose of allowing the court to establish the method by which the judgment shall be paid;


(8)    The name, street address and telephone number of the person designated by the court with whom the defendant may communicate if defendant is unable to appear at the time or place designated in the notice;


(9)    A statement that a default judgment may be entered against the defendant if he fails to appear on the date specified in the notice of the claim;


(10)  Notice of the defendant's right to a jury trial and that such right is waived unless a jury trial is requested within ten (10) days after receipt of the notice of claim; that once a jury trial request has been granted, it may not be withdrawn without the consent of the other party or parties; and within ten (10) days after the jury trial request has been granted, the party requesting a jury trial shall pay the clerk the additional amount required by statute to transfer the claim to the plenary docket or, in the Marion Small Claims Court, the filing fee necessary to file a case in the appropriate court of the county; otherwise, the party requesting a jury trial shall be deemed to have waived the request; and


(11)   Any additional information which may facilitate proper service.


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Wow, thank you CIC--great stuff.   My fear is that I have already messed up by filing for discovery first and not refuting the claims in the first response.   I wish I found this board sooner!   

 

Can anyone answer this for me?   I am a silly person, I filed for discovery (they provided it)  instead of refuting the claim.   I now want to go after standing, do I just jump right to it or am I already hosed because I did not deny in the first response?   Thanks to everyone so much in advance!

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  • 3 weeks later...

I really am of no help as I am too just getting started and messed up my answer because I hadn't found this forum when I filed it.  I did file an Answer but didn't state any defenses as I didn't realize any applied (didn't understand what they meant).  I'm in the discovery process now and struggling to understand and get things done right with a lot of help from others here.  I'm just not good with the legal jargon - don't understand it so its hard to decide what applies and what doesn't and hoping to find others in Indiana who have prevailed and can provide some state specific guidance. 

 

How long has it been since they filed the complaint?  I think they would normally file a Motion for Summary Judgement but normally you would have 30 days to oppose but not sure if that applies if you didn't file an Answer.  I thought if you didn't file an Answer, it was an automatic default judgement but maybe since you filed discovery, they accepted that as an Answer.  You might check with your court clerk to see what the status is of your case is unless you can access it on line.  I really shouldn't be saying anything.  Wait until you hear from others to decide what to do.

 

I'll be following to learn what I can so hang in there.  

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