oregonlover

Help asking for debt collector not to take default judgement against me.

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Hi all,

I am currently needing help for my mother who waited til the last day she has to answer a complaint made against her for a balance on an US Bank credit card.

She's still within the 30 days to file her answer but only contacted a lawyer 2 days earlier and he told her to write a very short letter to the plaintiff asking that he not take default judgement against her as she is in the process of obtaining legal counsel. Since it is too late to mail it to the plaintiff the lawyer she consulted said to email it to the plaintiff as well as file it as her answer. I've read a few of the posts regarding how to file a legal answer and this letter the lawyer asked her to write doesn't seem like it would be enough?

Also if she files this letter along with the paperwork for her legal answer does she still need to present in court? It would be the same day as when she goes to file her answer.

Any advice on what age should say in her letter asking the plaintiff not to take default judgement?

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She needs to file an answer, not send a letter. If she does not file an answer, they will get a default.

Answer the questions pinned at the top of this forum in the thread "Q's to answer when posting in this forum". It will help us help you better

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This lawyer is DEAD WRONG on this one.  Sending a letter to the opposing attorney will do absolutely NOTHING to stop a default judgment.  Your mother needs to answer the suit and then file for a continuance to hire legal counsel if that is her intent and NOT the guy who gave her this bad advice.  If she does not answer the suit timely (and the letter is NOT an answer) and show up to court then they will get a default judgment regardless of any letter she mails to the law firm.

 

You can find a lawyer at www.naca.net to assist her.  

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1. Who is the named plaintiff in the suit?

Dale R. Nordyke

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

Portfolio Recovery Associates,LLC

3. How much are you being sued for?

15,561

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)

Mail

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

Yes

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?

none

9. What state and county do you live in?

Oregon, Hood River Co.

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

Unsure, probably about a year or two.

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

I'm on my phone so I can't look this up right now

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).

On mobile, will check and update later.

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

No.

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?

30 days

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

None that I'm aware of, just the suit paperwork stating the debt.

Thank you for replying so quickly. I felt like that wouldn't be enough but because it came from a lawyer my mom feels like that advice has to be right.

Is there a sample of a correct way to file the answer? I found a WA state template where you have to list paragraph numbers where you admit or deny statements or say you lack knowledge and therefore deny the claim. I showed her that and similar examples on other posts but she's afraid she'll admit or deny something that they can later use against her.

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The SOL in Oregon is 6 years and the limit is small claims court is $10,000 so with them suing for greater than $15k this trial is going to be in Civil Court where they follow ALL the rules of civil procedure.  Portfolio Recovery is a bottom feeder that usually folds the majority of the time when confronted by opposing counsel defending the person they are suing.

 

For the amount of money they are after your mother cannot afford NOT to have a lawyer.  

 

All she needs to do is admit she is the right person and her address.  DENY the debt, owing PRA, or making payments.  Then hire a lawyer.

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If it helps.. Complaints are as follows:

1.Defendant resides in county where action has been filed.

2.Under terms of agreement, OC provided credit as agreed.

3.OC mailed statements showing charges, credits,payments, fees, and finance charges. Defendant did not dispute charges or object within the time prescribed.

4. Defendant agreed to make payments on account.

5. As part of agreement Defendant agreed to pay all court costs incurred in enforcing agreement.

6. Plaintiff acquired account from OC and under OR law plaintiff has right to collect on the account in accordance with all the terms and conditions.

Second claim for relief

7. Realleges complaints 1-6

8. By failing to object or dispute statements mailed to defendant, defendant agreed to pay the stated balance of the account and plaintiff and defendant came to an accounting.

9.Defendant became indebted to OC in total sum described herein.

10.Defendant impliedly agreed to pay OC

11.Defendant has not made payment.

12. Defendant by failing to object or dispute the account balance and becoming indebted to OC... An account has been established.

13. Plaintiff as asignee of account is entitled to be compensated.

Third claim for relief

14. Realleges 1-6,8-13

15. In the alternative Plaintiff pleads claim of quantum meruit.

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The SOL in Oregon is 6 years and the limit is small claims court is $10,000 so with them suing for greater than $15k this trial is going to be in Civil Court where they follow ALL the rules of civil procedure. Portfolio Recovery is a bottom feeder that usually folds the majority of the time when confronted by opposing counsel defending the person they are suing.

For the amount of money they are after your mother cannot afford NOT to have a lawyer.

All she needs to do is admit she is the right person and her address. DENY the debt, owing PRA, or making payments. Then hire a lawyer.

Would anyone be able to help with which of the claims to admit to? I posted them above. She should deny everything but her personal info, but should she deny the other complaints because of lack of knowledge or simply say she denies it?
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1.Defendant resides in county where action has been filed.  ADMIT.  Defendant is Jane Doe and resides at 1313 Mockingbird Lane in Humpty Dumpty County, Oregon
2.Under terms of agreement, OC provided credit as agreed.  DENIED.  Plaintiff has provided no proof by which the defendant can reasonably answer this.  Without waving objections defendant denies this.
3.OC mailed statements showing charges, credits,payments, fees, and finance charges. Defendant did not dispute charges or object within the time prescribed.

DENIED.  Plaintiff has provided no proof by which the defendant can reasonably answer this.  Without waving objections defendant denies this.
4. Defendant agreed to make payments on account.  DENIED.  Defendant denies the existence of the alleged count as stated in the complaint therefore would not have agreed to make payments to a creditor on the alleged account.
5. As part of agreement Defendant agreed to pay all court costs incurred in enforcing agreement.  DENIED.  Plaintiff has not supplied any credit card agreement or contract signed by the Defendant demonstrating that Defendant is required to pay legal fees for enforcement.
6. Plaintiff acquired account from OC and under OR law plaintiff has right to collect on the account in accordance with all the terms and conditions.

DENIED.  Plaintiff has provided no evidence of an account with (OC) or of the sale of an account for which the Defendant is personally responsible for and therefore Defendant cannot reasonably answer this.  Without waving objections defendant denies this.

Second claim for relief
7. Realleges complaints 1-6  DENIED.  Plaintiff has provided no proof by which the defendant can reasonably answer this.  Without waving objections defendant denies this.
8. By failing to object or dispute statements mailed to defendant, defendant agreed to pay the stated balance of the account and plaintiff and defendant came to an accounting. DENIED.  Plaintiff has provided no proof by which the defendant can reasonably answer this.  Without waving objections defendant denies this.
9.Defendant became indebted to OC in total sum described herein.  DENIED.  Plaintiff has provided no proof by which the defendant can reasonably answer this.  Without waving objections defendant denies this.
10.Defendant impliedly agreed to pay OC  DENIED.  Defendant has not implied expressly nor indirectly that they agreed to make payments to any creditor on the account as alleged in the complaint.
11.Defendant has not made payment.  ADMITTED.  At no time has Defendant made payments to the Plaintiff on any account or the one alleged in the complaint.
12. Defendant by failing to object or dispute the account balance and becoming indebted to OC... An account has been established.  DENIED.  Plaintiff has provided no application bearing the signature of the Defendant showing that an account was established.  
13. Plaintiff as asignee of account is entitled to be compensated.  DENIED.  Plaintiff has provided no proof of assignment, that they are entitled to compensation, or that Defendant is indebted to the Plaintiff.

Third claim for relief
14. Realleges 1-6,8-13  DENIED.  Plaintiff has provided no proof by which the defendant can reasonably answer this.  Without waving objections defendant denies this.
15. In the alternative Plaintiff pleads claim of quantum meruit. DENIED.  As a junk debt buyer, Plaintiff, Porftolio purchases debts known to be in default at a greatly discounted amount and therefore cannot be harmed by quantum meriut by consumers alleged to owe said debts in the purchase of a portfolio of defaulted accounts.  

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Thank you so much @Clydesmom. Just a question though, is she denying the claims because Portfolio Recovery didn't send any evidence along with the claim? My mother acknowledges she agreed to pay by taking the line of credit offered by the OC, but if I understand correctly, she can deny it now because she wasn't given evidence when she received the claim?

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Thank you so much @Clydesmom. Just a question though, is she denying the claims because Portfolio Recovery didn't send any evidence along with the claim? My mother acknowledges she agreed to pay by taking the line of credit offered by the OC, but if I understand correctly, she can deny it now because she wasn't given evidence when she received the claim?

 

Portfolio is a bottom feeder that cannot prove squat sufficient in a court of law.  75% of the time when a defendant hires a lawyer to defend one of these spurious suits the JDB dismisses because they do not want to prove anything.  They want the low hanging fruit. i.e. the default judgment.  Sadly most consumers just don't show and let them get it.

 

Your mother is NOT required to prove their case for them or to admit to anything beyond who she is.  She makes them jump through EVERY hoop if they hope to collect from her.  She may have owed a credit card company at one point but PRA cannot prove they bought HER account and she is obligated to pay PRA.

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That makes a lot of sense. Thank you again, you have been so so helpful.

Now one last question, here in the county my mother lives in there isn't a legal form for the answer shr can just fill out so can we just list her answers to the the complaints in the same format (cleaned up of course? Something like:

1. Defendant, Jane Doe, ADMITS to paragraph 1. Defendant is Jane Doe and resides at 1313 Mockingbird Lane in Humpty Dumpty County, Oregon.

2. Defendant, Jane Doe, denies to paragraph 2 because of xxx xxx... Etc.

And at the top should there be a header of some kind?

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I am not in Oregon but generally in Civil Court there is not a pre-made form to fill out to answer you must file a properly drafted answer for the court to accept it.  She will need to research it on the court's website and for their rules of civil procedure.  

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