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being sued by JDB Portfolio Recovery, help!

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I really hope someone here can help me.  On May 2, 2014 I was served a summons at my house.  I am being sued by Hunt & Henriques, Attorneys at Law on behalf of Portfolio Recovery Associates for an old US Bank credit card debt.  The amount they are suing for is $5500.  The suit was filed on February 7, 2014. 

 

This debt is from back in 2009/early 2010- which I believe puts it outside the SOL for California.  I don't remember making payments on it since then.  I have NO way to prove that though, as I haven't banked with US Bank since 2010.  This is the first time I have heard of this debt since basically forgetting about it in '09 when I was going through a divorce from my first husband.  No phone calls, no mail, nothing.  I know it was originally for much, much less than $5000 but I don't know how much, what was paid or when.  Portfolio Recovery has my maiden name on the suit- which has changed twice since 2008.  They also have an address that hasn't been mine since 2005.  I believe they tracked me down because I pulled a credit report last month.  (not sure if the name and address discrepancies matter much or not).

Anyway, I don't know where to begin.  I feel like such an amateur in all of this.  I'm no idiot, but legal jargon makes my head spin!  On top of it all I am 6 months pregnant and my mind is foggier than ever.

I believe my first step would be to file a general denial of everything?  I am trying not to stress out too much but I want to make sure I answer on time and I do everything properly.  I live in California, in Sacramento County.  Can someone help me with the wording?

I have been trying to attach a scan of what I was served with, but the upload keeps failing.  I will keep trying...  there was no supporting documents at all regarding the debt.

 

I want to respond to this ASAP.  I need a very easy to follow step-by-step.  I'm already feeling sick over the $400+ it's going to cost to file the response.

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Responding to the suit is the 1st step, and using an SOL barred defense is important in your answer, as in california you won't be able to assert it later.  You can get copies of your bank records from a previous bank by going to the bank and requesting them.  If in their complaint they give a last payment date, or if it is on your credit report, you could start there by requesting the records for that month and the month before and after.  It will cost you to do that, but would be worth it. 

 

If you can find out your last payment before you answer, all the better, because you could then do one of 2 things.  You could look for a consumer attorney to take the case for you on a contingent basis, or you could file a counter claim when you file your answer, for an FDCPA violation, also for a Calif. Rosenthal Violation.  each violation is worth up to 1000.00 each.

 

There is alot of help here, and if you choose to fight, we will direct you how to do so.  You can learn if you listen.  All that legase will come together and make sense.

1st thing you should do is go to the thread that is pinned at the top called "how i beat midland" By AstMedic.  He gave a step by step way to fight a suit in california.  In his thread you will find a link to a thread by Homelessinca.  Read that thread also, his journey was different that astmedic, but he also prevailed.  Then our latest win member in california is "string"  He has posted some helpful info in his thread also.  Read all 3 of those threads, they have examples, and then come back with questions.  You can send a BOP now to the plaintiff even before you answer, and there is a link for one of those in one of the threads above.

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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.) Hunt & Henriques, Attorneys at Law

 

3. How much are you being sued for? almost $5500

 

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

 

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) at my house over 3 months after the suit was filed (does that matter??)

 

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? absolutely NONE

 

9. What state and county do you live in? California, Sacramento County

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) The last time I recall anything about this account was late 2009, early 2010.  I have no way of proving any payments or lackthereof, as I quit banking with US Bank in 2010.  SOL in my state is 4 years

 

11. What is the SOL on the debt? 4 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). Summons served

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I don't think so

 

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). 30 days

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  Absolutely nothing.

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@shellieh98 thank you so much for your help.  I will look at those threads now.  What does BOP stand for?  I seriously have never felt more uneducated than trying to weed through these acronyms and legal vocab! 

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One more thing to consider when determining the SOL on this debt, is when the plaintiff filed the action, not when you were served. Looks like 3+ months passed between filing and service, so you'll want to look at that closely.

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BOP is "bill of particulars"  mainly everything that has happened, charges, credits, payments to this account.  They will object, ask for it anyway.

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@shellieh98 thank you so much for your help. I will look at those threads now. What does BOP stand for? I seriously have never felt more uneducated than trying to weed through these acronyms and legal vocab!

Do a search for seadragon's famous copy of calawyer's Bill of Particulars. Its so easy and send it off before you file your answer with court.

Your filing fee should be $225 if its just one case, unless you qualify for a fee waiver or fee reduction.

Here is a step by step guide for putting your answer together: http://www.saclaw.org/pages/copy-assemble-ans.aspx

I've got 2 cases currently in Sacramento with same JDB and attorney's. PRA has also filed a 3rd case that I haven't been served on.

The Sacramento court house is roughly 30 days behind on processing answers. File a fee waiver with your paperwork if you can't pay the fee on the day you file. Even if you don't qualify for the fee waiver, it'll help buy some time if you need it to come up with the fee.

Good luck! Start studying astmedic's, homelessincalifornia's, and 1111girl's threads to start. They are in California too and very informative along with several others!

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First I want to thank you all so much for your advice.  I would be so, so lost without this wonderful forum.

I want to make sure my ducks are in a row.  Would someone calrify that these are the next steps to take?

1.  Send JDB's attorney's BOP (via certified return receipt mail) immediately.  Do I also send a copy of the POS with this?
 

2.  Before the 30 day period is up, File a General Denial with the Court.  At the same time, file my POS for the BOP (right?)

 

 

 

Regarding the BOP, I have found a couple of pretty general/basic examples here.  It seems pretty simple, and I just print that on lined court paper and sign, correct? 

 

I have also seen on @ASTMedic 's "How I Beat Midland In California" thread, he filed a Request for Production of Docs.  Is that something I could/should do in lieu of a BOP?  Please advice.

I will probably be back soon with my wording for my denial and ask for additional help.  Thank you all again so much!

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I'm not seeing what you are being sued for? (Account Stated, Breach of Contract, etc) Have you posted that?

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First I want to thank you all so much for your advice.  I would be so, so lost without this wonderful forum.

I want to make sure my ducks are in a row.  Would someone calrify that these are the next steps to take?

1.  Send JDB's attorney's BOP (via certified return receipt mail) immediately.  Do I also send a copy of the POS with this?

 

Correct. And yes, send POS with it.

 

2.  Before the 30 day period is up, File a General Denial with the Court.  At the same time, file my POS for the BOP (right?)

 

Yes, serve the General Denial with its own POS, then file with the court.  No, do not file the BOP or the POS for the BOP.

 

 

 

I have also seen on @ASTMedic 's "How I Beat Midland In California" thread, he filed a Request for Production of Docs.  Is that something I could/should do in lieu of a BOP?  Please advice.

 

Not in lieu - you'll do that later.

I will probably be back soon with my wording for my denial and ask for additional help. 

 

There's a form for the General Denial PLD-050 - makes it easy (assuming unverified complaint)

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For some reason I can't upload the file to this forum...  But the paperwork says "Common Counts"

Then goes down to list:

CC-1.  Plaintiff alleges that the Defendant became indebted to US BANK 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 the defendant was indebted to plaintiff.

b.  (X)  within the last four years
 1. (X)  for money had and received by defendant for the use and benefit of plaintiff for work, labor,
 3. (X)  for goods, wares, and merchandise sold and delivered to the defendant and for which defendant promised to pay plaintiff
           (X) the sum of $5,494.41
 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    $5,495.41, which is the reasonable value, is due and unpaid despite plaintiff's demand, plus prejudgement interest at the rate of 0.000000 percent per year from May 31, 2011

CC-4.  (X)  Other:
     PLAINTIFF PURCHASED THE ACCOUNT FROM THE ORIGINAL CREDITOR OR ITS SUCCESSOR(S) IN INTEREST.  PLAINTIFF IS THE CURRENT OWNER OF THIS ACCOUNT. 






I hope that's helpful?




 

I'm not seeing what you are being sued for? (Account Stated, Breach of Contract, etc) Have you posted that?

 

 

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I'm back with another (dumb) question... I file everything with my legal name, and not the name on the court docs, right?  The name they have named in their suit hasn't been my legal name since 2008.  

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Yes, I would file under your legal name. Make sure there was not a page included in the complaint with "verification" on the top.

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Thank you,

 

No, I don't see anything that says that on top.  They didn't include any paperwork in their summons other than the summons and their complaint.  Really hope I do all of this right!   :-)

With the BOP do I leave the brackets around the specific complaints they made against me, as is in Seadragon's example?

 

Would it be wise to just use a General Denial, or do a line by line response of "Defendant denies this allegation" as I have seen in other examples...?

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You'll get It right. Remember you have 30 days from being served to answer 

 

You can use the Gen. Denial it will be easier.

 

The general denial has a line for affirmative defenses, this is where you would list: "Time barred by the running of the statute of limitations" (if you think it may be past he SOL). Also have a friend sign a proof of service form (POS -30, found on ASTMediic's thread.) File the original general denial and the POS with the court, send a copy of both to the lawyer, make copies for yourself. Technically your friend is supposed top mail it.

 

You can remove the brackets on the BOP (or leave them), it's not going to matter.

 

If you have time before you have to answer; use it against them by learning, just don't be late answering.

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I'm back again and feeling more confused than ever.  My husband showed me the ticket he got from the Post Office when he sent my BOP earlier this week.  Despite my very clear instructions to pay for the Return Receipt Request, he did not   :(  So I don't know if that was all a waste of time or not.  Oh Well.

Tomorrow he will file the Answer.  I am still finishing it up... It's a General Denial.  I am not sure if I should cite SOL or not as I am unsure and was unable to get answers from my old bank.  Thoughts?

 

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Yes use the sol defense because if you don't, you lose that right later and won't be able to use it. You can prove it later if you have used the defense.

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Agreed. And if you can't prove it (regardless of what someone else might say) it will just have the same effect as never asserting it in the first place

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Update & Questions:

I answered on-time, did not use the SOL because I was unsure and just decided to keep it simple.  I'm so stressed out and it was making me feel sick.

 

Got a BOP back from Hunt & Henriques last week, it was pretty vague but it does have an account number on it.  Basically it shows the charge-off date and amount. 

At this point I just want to know what I should do next?  The really strange thing is Sacramento Court website has not updated the case info. on their site and the response was filed on May 30.  The last thing they show is Proof of Service of Summons & Complaint to me by the Plaintiff.  I haven't received anything in the mail from the court, either.  I'll try and give them a call and see what's up.

*** just called, looks like they're working on May 20th so that's why it's not updated yet.

 

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It looks like you did not have a claim for the SOL, so you lost nothing by not asserting it., and can get rid of that stress.

 

Their response to your BOP is insufficient; so you could send them a meet and confer letter telling them to send a complete response within 10 days or  you will motion the court for a "further BOP or in the alternative to preclude evidence from trial" You would have to learn how to draft and file the motion as well as your local rules that pertain to it. DO not tell them you will file the motion and then not do it.

 

Or, you could send them discovery; request for production of documents.

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