Being Sued by Portfolio Recovery in FL

[InDebtinFL 0]

Hi All,

 

My wife is being sued in FL by Prortfolio Recovery Associates LLC.

 

She received a summons to appear for a pre-trial conference next week. This is in small claims court in Pinellas county, FL. We are being sued for about $1,400.

 

My wife is required to appear next Tuesday and the summons says;

The purpose of the pre-trial conference is to record your appearance, to determine the nature of the case, and to set the case for trial if the case cannot be resolved at the pre-trial conference.

 

It also states that she may be ordered to mediation at the pre-trial conference.

 

The original creditor was Orchard Bank and of course Portfolio Recovery purchased the debt from them. They have filed against us within the SOL so no luck there. Attached to the summons is the following (paraphrased);

 

--Complaint with 8 points--

1-This is an action for less than $5,000

2-Defendant obtained an Orchard Bank/Capital One credit card

3-Plaintiff is successor of account having purchased it (see exhibit A)

4-Defendant made purchases and charges on account then failed to make monthly payments and failed to object to the balance owed resulting in sum of $1,400.

5-Plaintiff has declared Defendant in default and demands payment. Defendant has refused demand.

6-Defendant is indebted to Plaintiff for $1,400.

7-All conditions precedent to this action have occurred.

8-Pursuant to rule 2.516, Plaintiff designates the following email addresses for the service of all documents and it goes on to list several lawyers email addresses.

Wherefore , Plaintiff demands judgment against Defendant for $1,400.

 

--Exhibit A--

Affidavit signed by the "custodian of records" for Portfolio Recovery

 

--Exhibit B--

Statement of Account

It states the Issuer as Orchard/Cap 1.

The assignee as Portfolio Recovery.

Thedate the account was opened, date of last payment, date of charge off.

Balance of $1,400

Purchase date and that we have made no payments to them.

 

--Exhibit 1--

Bill of Sale

This is the document that transfers ownership of the account from Cap 1 to Portfolio Recovery.

It is signed by a VP of Cap 1.

The price that Portfolio Recovery paid and the "Sale File" are blacked out!

Interestingly the card we had was an Orchard card. Not sure if that makes any difference.

 

--Exhibit 2--

Exactly the same document as Exhibit 1.

It also has two photocopied pages of an account statement from Orchard bank showing that we owe $1,400.

 

--Civil Cover Sheet--

This is just a cover sheet (why it's the last sheet in the summons I have no idea).

It basically says that they are suing us in civil court for "contracts" and that they don't demand a jury trial.

 

Our objective is to settle this for as little as possible and/or to get the case dismissed if possible. Neither one of us has ever been to small claims court before and hiring a lawyer is not really an option for such a small amount. 

 

Any help and advise is much appreciated and I would be happy to answer any more detailed questions.

 

thank you,

--InDebtinFL

 

 

[InDebtinFL 0]

I should probably add that we have had ZERO contact with Portfolio Recovery. We have not answered any of their calls or responded to any of their letters.

 

thanks,

--InDebtinFL

[debtzapper 1,271]

There are a  lot of FL threads including this one, which is on-going:

http://www.creditinfocenter.com/community/topic/322507-being-sued-by-midland-funding-llc-in-florida/

 

You can click the icon "FL" under the title of your thread, or you can just Google "Creditinfocenter Florida lawsuit."  and you will get a lot of hits.

[debtzapper 1,271]

I know you said you couldn't afford a lawyer, but I just came across this Orlando lawyer's website.  (You don't necessarily have to live in the same city  a lawyer does).

 

http://www.helpingfloridaconsumers.com/contact-us

 

 

 If you look under their cases they've won a number of them, and like most lawyers, give free consultations  They can give you a quick evaluation of your case.  Call them for one.  I hope you saved all your Portfolio letters and recorded your debt collection calls.  You may have a FDCPA violation, in which case a lawyer would probably defend you at no cost.  

 

If you happen to live in the Jacksonville area, Florida Coastal Law School has a consumer law clinic where they defend debt collection cases, either for free or for very little upfront money.  Just Google "Florida Coastal law school consumer law debtors."

[debtzapper 1,271]

Under FL Statue 559.715, Portfolio had to notify you by mail within 30 days prior to bringing suit that they had been assigned your debt by Cap 1.    Did they do that?  If not, it's something you could discuss with a lawyer

[Breezyflavor 9]

If mandatory mediation is an option... See if JAMS is one of the companies in the original credit card agreement. JAMS is expensive and Portfolio may drop it, because it'll cost them more to pay for the mediation then what they state you owe

[debtzapper 1,271]

If your income is below a certain amount and you live in certain FL counties, Community Legal Services of Florida may be able to assist you.

 

http://clsmf.org/apply-for-help/common-questions/

[InDebtinFL 0]

If mandatory mediation is an option... See if JAMS is one of the companies in the original credit card agreement. JAMS is expensive and Portfolio may drop it, because it'll cost them more to pay for the mediation then what they state you owe

 

I actually found the original card holder agreement and it says;

The parties acknowledge that they have a right to litigate claims through a court before a judge or jury, but will not have that right if either party elects arbitration. The parties hereby knowingly and voluntarily waive their rights to litigate such claims in a court before a judge or jury upon election of arbitration by either party.

 

You may contact, obtain the arbitration rules of, or file a claim with NAF, AAA, or JAMS as follows; It goes on to list addresses for the arbitrators.

 

So my question is this. Does this mean we should just bring the original agreement into court next week and the judge will dismiss the case if we tell him we want arbitration?

 

Any help is appreciated. Especially specific help on how to get this thrown out of court and/or moved to arbitration. We have a pre-trial conference on Tuesday.

 

thanks,

--InDebtinFL

[debtzapper 1,271]

Arbitration:

 

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

[InDebtinFL 0]

Arbitration:

 

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

 

Thank you debtzapper! There is some great info in that thread.

 

I mailed their attorney a "Notice of Arbitration Election" letter and a "Demand for Arbitration before JAMS" today. I overnighted it since our first court hearing is on Tuesday.

 

I also put together a "Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration". My wife is going to have it notarized tomorrow and then I will take it down to the courthouse and file it.

 

Hopefully the judge will send this to JAMS!

 

Thanks so much for the help so far everyone. I would have been lost without you guys!!

 

--InDebtinFL

[james24 26]

ook at my posts, i am helping out a friend against portfolio in california. we sent request for documents, they sent a letter asking for a reduced payment. they are just counting on people who will not answer the summons which is in thousands. if they see that you will put up a fight, they might just let go.

[HelpinFL 0]

How did this turn out ?