TNjohn

Need help with PRA trial in August in TN

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Was sued by HSBC-Nevada (OC) by Portfolio Recovery Associates in Tennessee.

Filed by Sworn Denial. Already had my first hearing. All that was attached to my summons was an Affidavit signed by Evita Rodriguez, the PRA custodian of records.I did okay in court, but feel I could have done better. I am hoping for some guidance from the board to win this case.

Any help would be appreciated. Ask for anything you need to know to be able to help. Thank you all in advance!

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Was sued by HSBC-Nevada (OC) by Portfolio Recovery Associates in Tennessee.

Filed by Sworn Denial. Already had my first hearing. All that was attached to my summons was an Affidavit signed by Evita Rodriguez, the PRA custodian of records.I did okay in court, but feel I could have done better. I am hoping for some guidance from the board to win this case.

Any help would be appreciated. Ask for anything you need to know to be able to help. Thank you all in advance!

 

The easiest way is to contact this attorney who posts here as @TNConsumerLawyer  he defends these cases for fun and profit.  You can contact him at his firm here:  http://www.barnettelawoffices.com/

 

Call him first thing tomorrow.  The first consultation is free.

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Answer these questions and it will help others help you. Just leave out any personal info and round off all numbers.

 

1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

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

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

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

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

Process Service Requirements by State - Summons Complaint

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

9. What state and county do you live in?

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

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

Statute of Limitations on Debts

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?)

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.

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? 

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

 

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Art,

1. PRA

2.McLemore & Eddington

3. $2700

4. HSBC-Nevada

5.Served

6. Left with stepson at residence

7. Yes but not in accordance with 4.04 of TN Rules of a Civil Procedure

8. None

9. TN-Monroe

10. 11/2009

11. 6 years (but 4 in NV)

12. Status =Went to preliminary. Given continuance for trial. August 6th is scheduled date.

13.No

14. No

15. I responded with a Sworn Denial before preliminary. It was accepted and entered.

16. Affidavit was all that accompanied the summons.

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Explanation of numbers 7 and 11.

Rules allow for summons to be left at residence with a person of age at said residence, BUT, that persons name is to be filled in on the summons (4.04). Not only was his name not included, but the server checked off that it was served to me personally. I was at work. Summons left at my home.

Number 11 is probably me being stupid. Reading hundreds of posts on here and elsewhere, I decided to find an online copy of the HSBC NV card agreement. One for the year stated that the account was allegedly opened, and one in effect when the alleged account went into default.

Upon reading, I found an interesting passage that stated, in so many words, that the credit given on the account along with all records on the account were from the state of Nevada and will be governed by the laws of the state of Nevada.

Now, if this is true and can actually be used (especially if plaintiff brings the agreement into play to show their "right" to now own the debt), the statute of limitations for credit card debt in Nevada is 4 years, making my case "time barred".

Anyone ever tried this??

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LOT of people have argued #11 on the basis of their state's borrowing statute.  A borrowing statute basically states that when a contract specifies the state laws under which the contract is governed will apply in the state the case is heard in.  Not all states have one.

 

The easy thing to do is turf this to @TNConsumerLawyer he has a record of dealing with these guys and they tend to fold when he gets involved.  If I had a choice of paying them or him he would get my money before Portfolio EVER did.

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I do hpe you can get consumer lawyer Jason Barnette to represent you, but if for whatever reason that doesn't happen, study this case carefully.  The appeals court said LVNV did not prove its case with the evidence it presented.  Use that as a guide for what PRA will be required to show to win its case against you.

 

http://scholar.google.com/scholar_case?case=16828161617734240995&q=assignment+of+debt&hl=en&scisbd=2&as_sdt=4,43

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You are not going to get anywhere with the choice of law argument in General Sessions Court. I'm not familiar with the service requirements since most of these notices are just delivered using first class postage. The FDCPA doesn't cover process servers, so I'm not sure you will get a lot of traction out of that either.

 

Tennessee General Sessions Courts vary from county to county. Some judges will help them run over you to clear the docket. For example I have witnessed a judge ask defendants if they ever had a credit card with XXXX bank. When the person says yes then they automatically lose even though the JDB had no clear documentation that they actually legally owned the account. Its sad but some of these judges are more interested making a 1:00 tee off then doing their jobs.

 

Occasionally you will run into a judge that is tired of the courts getting clogged with these type of cases. Then you might run into a judge that is concerned with the law. With either of these two types you will need to make them prove they legally own the account.  If you decide to go pro se then you will need to start reading up on standing. In other words you will need to make them prove they legally own the account. All most of these affidavits state is that this person has knowledge of PRAs records. 

 

One strategy is to subpoena the custodian of records. http://www.tncourts.gov/sites/default/files/docs/subpoena-1.pdf

Even though GS courts do not allow for discovery you can request any documents or other information under the section Duces Tecum:

I believe you have to serve these at least 45 days in advance so you will need to do it ASAP. You will need to take it to the courthouse and have a notary witness you sign it. Then take it to the court clerk and have them send it out. You will need to include a cashier's check made out to the Secretary of State for 20.00. (double check that) You will also need to give the court clerk 5.00 - 10.00 in cash. 

 

The downside of sending a subpoena is that you could be responsible for the witnesses travel cost if they appear. The upside is that it is very doubtful they will want to put one of these employees on the stand. These employees just sit in cubicles all day and print out these forms and sign them. Some of the companies pay bonuses based on how many they sign. A qualified professional might be able to complete a dozen of these per day, but the people they hire are known to sign hundreds per week. A few years ago PRA got busted for a lady who had been caught signing these from beyond the grave. http://online.wsj.com/news/articles/SB10001424052970204204004576049902142690400

 

If you do go pro se you will need to read up on your local court rules which is sounds like you have already started.

http://www.tncourts.gov/sites/default/files/2010_local_court_rules_for_10th_judicial_district-090110.pdf

 

Since you have already attended your hearing you have probably already witnessed the circus. Most of the cases are no shows and end in default. A few will have an attorney and get dismissed and others will show up and get run over. Occasionally you will see a prepared pro se defendant win, but this doesn't happen every day. If you didn't stay for the entire session I strongly suggest that you go watch a couple of days in your judge's court room. Stay the entire time because the actual trials will be at the end. 

 

You probably already know to dress professionally and act polite. Just doing these two things will be a huge advantage for you. Address the judge as your honor and the attorneys as Mr. X. They are used to running over unprepared defendants and it really disrupts their game plan when they have to actually work for their commission check. Since I'm sure you have already had a "hall meeting" with opposing attorneys you can decline any more of these "opportunities" in the future.

 

If you can afford an attorney this is always a preferable option. Others have already mentioned one of our members here that has a good track record. You can beat them on your own but as I stated above some of these judges are less than fair. 

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ArtVandelay gave you some excellent advice.  Follow what he says and read the case I cited dealing with Tenn. Rule 803(6).  If you push PRA hard on the evidence AND as Art said, if you have a fair judge, you will do all right.

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Other things you might consider. 

 

First take a look at your credit reports and find out the last amount listed by HSBC. Then take amount from your first PRA letter and calculate how much interest they charged. They might get away with charging statutory interest which is is capped at 10%. If they are charging more than 10% then it is considered contract interest. In order to charge contract interest they will need to prove they have the legal right to do so. If they can't then this might be a possible FDCPA violation.

 

Then take all the letters that PRA has sent and calculate the amount from letter to letter. If this is not a consistent amount then this might also be an FDCPA violation. 

 

The above may not hold much weight in GS court, but it does in federal court under the FDCPA. It might not be a bad idea just to have an attorney with FDCPA experience like @TNConsumerLawyer look over these just to double check. I would do this even if you decide to go pro se in GS court. All it will cost you is a little time. 

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TNConsumerLawyer,

Is it possible to successfully argue this case to dismiss based on the section of the CC agreement stating the account would be governed by Nevada law? The SOL has expired if so (4 yrs NV vs 6 in TN). I understand this is a reach but I'm about a month away from trial and need to exhaust every possible defense until then. Thanks.

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@TNjohn

 

You need to check your state's statutes to see if there is a borrowing or choice of law statute.  The statute would state that if the cause of action is barred in another state, it would be barred in TN.

 

Not all states have such statutes.

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Choice of law is going to be a long shot at best in TN. I have never heard of anyone successfully using it in a general sessions credit card case. It would be dangerous to even bring it up in my opinion. The plaintiff's attorney will say since Mr. TNjohn is bringing up this argument he is admitting that this account is his. Then before you know it the Judge says judgement against the defendant and the gavel goes down. 

 

I know this is not what you want to hear, but I am trying to make sure you understand what you might be getting into. Even those that file a sworn denial and argue pro se usually lose when they start bringing up untested issues like this. 

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If you want to get into a situation where you will be admitting the credit card was yours then you need to be prepared to argue why the JDB doesn't have the standing to sue you for it. 

http://www.creditinfocenter.com/community/topic/312714-standing-when-dealing-with-jdb/

 

This can be done, but you have to know exactly what to do and what to say. I prefer to take the easier route and force to them to have a witness present to testify.

 

Of course the easiest and most proven route is to have someone like @TNConsumerLawyer contact them and tell them they need to drop the case or else.

http://dockets.justia.com/docket/tennessee/tnmdce/3:2013cv00791/56455

http://dockets.justia.com/docket/tennessee/tnmdce/3:2013cv00717/56328

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Art said it well.  It is often the case that once a JDB knows that a debtor has legal counsel (and this is especially true if they know the  lawyer's reputation)  they will just motion to dismiss and move on to easier prey.

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TNConsumerLawyer

Sorry, not sure what OP means....I have been trying to learn from others about chain of title on here. Still trying to find an effective way to argue. Also hoping the only "evidence " will be their affidavit as that is all they attached to original summons. The attorney told the judge twice his witness was in Virginia Beach but according to her Facebook and LinkedIn, she's in California. So case continued until August 6th.

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TNConsumerLawyer

Sorry, not sure what OP means....I have been trying to learn from others about chain of title on here. Still trying to find an effective way to argue. Also hoping the only "evidence " will be their affidavit as that is all they attached to original summons. The attorney told the judge twice his witness was in Virginia Beach but according to her Facebook and LinkedIn, she's in California. So case continued until August 6th.

 

OP is you.. Did you send a subpoena to the witness?

 

It sounds like you have a fair judge, but you can't "hope" for anything. Did you read up on the standing to sue link I posted earlier? 

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