Berfie

Being Sued By Portfolio Recovery

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The SOL starts running upon default, when you missed a payment and never brought the account current.  Now, in some states, making a payment after default will reset the SOL, but it appears that CA is not one of those states:

 

http://www.creditinfocenter.com/community/topic/221890-does-payment-on-an-account-restart-the-sol/

 

But a new written promise to pay does.  Have you ever made a written promise to pay?

 

More discussion here:

 

http://www.creditinfocenter.com/community/topic/304301-restarting-sol-in-california/

 

It appears to be complicated.  Maybe a payment does restart, maybe not.  It depends on whether the debt was SOL when the payment was made.

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I never made a written promise to pay.  When I did pay them is was an oral agreement over the phone  They sent right before they would take out the payment they would send a notice of that they would deduct from my checking account ( which is now closed since last year) but on the written agreement there is no signature.

 

I found this on my credit report:

 

CLS (CLOSED)
C (COLLECTION)
CO (CHARGE OFF)

 

 

 

Original Creditor Chevron:
Status:  Closed / 2,858. Written Off
Comment:  Purchased by another lender
Last Report:  4/2013

 

Payment History:
2013    Jan (CO)  Feb (CO)  Mar (CO)   Apr (CLS)
2012    Jan (60)   Feb (90)   Mar (120)   Apr (150)   May (CO)  Jun (CO)   July (CO)   Aug (CO)  Sept (CO)   Oct (CO)    Nov (CO)   Dem (C0)

2011    Jan (CO)  Feb (30)   Mar (OK)    Apr (OK)    May (OK)   Jun (OK)   July (OK)   Aug (30)   Sept (OK)   Oct (OK)     Nov (30)    Dem (60)


Between June 2012 and Mar 2013 / your credit / high blance was $2300

 

 

 

PORTFOLIO RECOVERY ASSOCIATE  (The Sewer)

Status:  Collection account $2,658 past due as of May 2014

Status Detail:  This account is schedule to continue on record until July 2018.

Last Reported:  5/2014

Account History:  June 2013 to May 2014

Payment History

2014   Jan ©  Feb ©   Mar ©    Apr ©    May ©  

2013   Jun ©   July ©   Aug ©   Sept ©   Oct ©    Nov ©   Dem ©

 

 

Oct  2013    $50.00
Sep 2013     $70.00
Aug  2013    $70.00
Jul    2013    $70.00

 

 

Those were the only 4 payments until they refuse to nogiate.  (BIg Mistake In My Part)

 

 

 

Oral contracts. Contracts that you and the defendant did not write down. California Code of Civil Procedure section 339.  (Most oral contracts will have some sort of writing, e.g., a receipt, a canceled check, etc. This writing may be proof that you had an oral contract.)  - 2 Years

 

Written Contracts - 4 years

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Ok forget that you paid them anything. DONT bring it up. If you admit to paying, you admit to the debt. It does not matter at that point what your agreement WAS, judge will rule for the plaintiff.

Your biggest thing in this case is going to be challenging standing. Make them prove everything, don't even give them a hint on what to look for. They file so many cases they may not even realize you paid. If it comes up when they answer any discovery, you can deal with it then.

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They probably will state that you made payments, and yes, that will hurt you, which is why I recommend the arbitration strategy.

 

I don't see the correlation here. Wouldn't they bring up the payments in arbitration as well as in court, if they are going to bring them up at all?

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Ok forget that you paid them anything. DONT bring it up. If you admit to paying, you admit to the debt. It does not matter at that point what your agreement WAS, judge will rule for the plaintiff.

 

I definitely wouldn't bring up the payments, but if they do get them into evidence; there is still a chance to beat them if you can prove that they can't prove an assignment.

 

The plaintiff  filed as account stated between OP and OC that was then assigned to plaintiff. They should have just plead account stated between OP and plaintiff (because that is exactly what they have with proof of payment). Because of that you can challenge the assignment between the OC and plaintiff, which you normally may not have been able to. Maybe they don't have, or won't get proof of payments, or they are just used to filing complaints this way. Either way; they left you with options.

Also, just because they come up with payments doesn't automatically make it admissible. They will try to authenticate and lay a foundation for those payments with an affidavit which are not admissible in trial.

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Well all this is very intimidating for me  lol.  I'm also not an assertive person but very passive.  So I called Legal Aid since I am unemployed and I'm not getting any income.  I have an appointment on June 20 which is about 10 days before I have to answer.  I was served on June 1 and I have 30 days to answer.  I love all the info here just like I said I'm just not asssertive, and if I have to stand in front of a room of people with the Judge I will buckle and stutter out of nervous.  So hopefully they will help me or else I have no choice but to force myself which is not going to be a very good picture. 

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You should go watch some live cases, and get a feel for it. The more you see the more it will help you. Many people before you said exactly what you just said and they did it, and won.

 

Legal aid and taking your time are a good idea, and will help. You just have to step out of your comfort zone.

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Anon, your right I am going to Legal Aid and see what they can do.  From there I can watch and perhaps LEARN what is needed to do.  Believe  me I have many other medical bills in collections but I have not paid or made any calls to them.  I have about 10 some ranging from 120-2000.    Perhaps next time I will be much stronger to deal with it in the next round but right now I"m just JELLO  lol.

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I don't see the correlation here. Wouldn't they bring up the payments in arbitration as well as in court, if they are going to bring them up at all?

 

PRA will never go to arbitration, as they will not pay the exhoribant fees, especially for a small account like this.  Nobody in their right mind would pay $20K in arbitration fees to  collect less than $3K.  But, most arb clauses state "If either you or we elect arbitration, then neither party can litigate in court."  So you elect arb.  That takes court away from them as an option.  Their only option now is an expensive arbitration forum.   JDBs hate arb like vampires hate garlic and sunlight, and will just drop the case to go after the other low-hanging fruit and easier prey, namely the default judgments.

 

The main advantage of arbitration is it changes the cost-benefit calculation of debt collection.

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Nobody in their right mind would pay $20K in arbitration fees to  collect less than $3K.

wow. are arbitration fees really that high?

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wow. are arbitration fees really that high?

 

I think it's just a myth. The only actual PROOF of an arbitration fee I have ever seen was $795.

 

However, as nobk4me posted; arbitration has seemed to work for some.

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JAMS can go as high as 5k to the plaintiff, but it comes in batches.  a little here, little there, and the sooner they come to resolution, the cheaper it is. Their initial fee is around 500.00 I think, 250.00 to the consumer, but the consumer only has to have 50 bucks up front.

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JAMS can go as high as 5k to the plaintiff, but it comes in batches.  a little here, little there, and the sooner they come to resolution, the cheaper it is. Their initial fee is around 500.00 I think, 250.00 to the consumer, but the consumer only has to have 50 bucks up front.

 

That sounds like a much more realistic figure.

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Ok don't know if this is nothing, but I notice that on the summons (Cause of Action) states this:  OTHER:  PLAINTIFF'S PREDECESSOR GE CAPITAL RETAIL BANK/CHEVRON & TEXACO ON AN   ACCOUNT  ASSIGNED, TRANSFERRED AND/OR SOLD TO PLAINTIFF.  PLAINTIFF IS THE ASSIGNEE  OF THE ACCOUNT.

 

Is there a difference between Assignee and Purchaser, are they the same?

 

The reason I am asking because on the first very letter they sent me it says very clearly that they purchased the debt.  This is what is on the form:

 

PRA purchased the account reference above (acct #). (4/12/2013)

 

 

Also what I notice on one of the agreement forms it states this:

 

Debit Card Transaction Fees:  Third party vendors may charge a transaction fee

 

Of course, it does not state that they are a 3rd party, but knowing that Nationwide was the 2nd CA

 

Any thoughts on this?

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Also what I notice on one of the agreement forms it states this:

 

Debit Card Transaction Fees:  Third party vendors may charge a transaction fee

 

Of course, it does not state that they are a 3rd party, but knowing that Nationwide was the 2nd CA

 

Any thoughts on this?

 

I think this is just the fee you're charged, for example, when you use another bank's ATM.

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JAMS can go as high as 5k to the plaintiff, but it comes in batches.  a little here, little there, and the sooner they come to resolution, the cheaper it is. Their initial fee is around 500.00 I think, 250.00 to the consumer, but the consumer only has to have 50 bucks up front.

 

From what I have read from others who have actually done a JAMS arbitration, a full-blown arbitration, with a hearing in your town, can exceed $20K.

 

I know the JDB I defeated with the arbitration strategy was scared to death of the arb fees.  And I never had to actually arbitrate.  Just filing a MTC in court, and getting a stay pending arb, was enough to run them off.

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Be careful what you read or believe.

 

The JDB you defeated (congrats BTW) may have just been "scared to death" of FEES period, regardless if they come by arbitration or litigation expense. Just filing an answer may have been enough to run them off as well. They will often move on to lower hanging fruit when they are met with a fight. 

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I just spotted this.  Why would there be 2 dates of appearance in court?

 

05/07/2014   PLACED ON CLERK'S TICKLER CALENDAR FOR 11/04/14, AT 7:00 IN DEPT. 34       
05/07/2014   PLACED ON CLERK'S TICKLER CALENDAR FOR 5/04/15, AT 7:00 IN DEPT. 34

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Ok today went to Legal Aid office and was helpful.  Still confusing for this virgin of the courts here  lol.  However, They helped with the Answer form   On the Affirmative Defenses it was put:  1)  Failure to State Cause of Action   2)  Improper Proof of Assignment   3)  Lack of Privity.  I will be making my filing soon they also filled out my papers for fees waiver.  For odd reason I don't feel so worried that much.  Don't know why? 

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Ok went to file at court.  I was given a notice of a Case Managment Conference in 2 months.  What happens there?  Is it like a trial before the judge?

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No it is more of a "how would you like to pay us, as we are going to win". And you say "zero I do not owe you". And they say ok, see you at trial"

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Ok went to file at court.  I was given a notice of a Case Managment Conference in 2 months.  What happens there?  Is it like a trial before the judge?

 

Not all. The CMC is usually a quick affair, like a check-in with the judge to make sure things are moving along & to set the discovery end-date & the trial date. Takes 5 or 10 minutes. In mine, the judge took the time to explain my options (settling, fighting, etc.) and asked what I wanted to do. The only time I spoke was to give my response, and that was that.

 

There is a Case Management Statement that you need to file & serve at least 15 days prior to the CMC.

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Wow just got back from the Case Management Conference and I was nervous for nothing.  I got there and found the room almost full.  I walk up to the bailiff to fill out a form at my seat among others.  The judge then called out the case names Smith vs. Plaintiff one by one, and mostly the attorney's would show up except Defendant and they were fined for $350.00  As for the attorneys, they were some mostly on the phone.   Now the following 2 females cases were on Credit Card Debt.  The first young woman who was representing herself took out her paper and started to say "I object what the plaintiff is claiming and she continued on with some legal terms" and the judge stopped her and told her she was nervous and  it looks like she is not trained to be a lawyer.  So he suggested for her to get a lawyer even if pro bono because she defending herself she could lose.  Then another female was nervous and stated that she admitted she owed the debt (Ouch) and she wanted to settle.  So then my name came vs. PRA, I walked up and judge asked me if I was so and so, and I said yes your honor.  I stated I filed all my answer, case management statement .  He then asked if I have tried to settle this case, I told the judge "Your honor I tried but was denied". I also stated what I wanted from PRA.   So now my court is not until next year Feb 2015.  Meanwhile, I may need to get a lawyer due to my getting nervous and I could start stuttering, and may say something that could come against me.  I am very introvert person, and I do not have an aggressive personality.  So I shall see. 

 

What I found weird that the lawyer who was at the front table  with me also was at the front table with the previous females.  Once the judge told me my court date, I grab my stuff from the table and walked past the lawyer and caught a glimpse of his sheet where has all the case.  Not just PRA, but also Midland, CACHE, etc.  1 Attorney representing ALL Plaintiffs.  Is that common?   I know sometimes CA will hire a law firm to handle their case and inturn hire a nearby lawyer.  But 1 attorney for ALL different Collection Agency.  So looking back I feel like a fool for panicking for nothing...sigh.   So this is how I began my day today  LOL.

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