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Being sued ... no idea what to do


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Long story short, I'm being sued over a credit card debt and I have no idea what to do. I don't think I can possibly win at this point. Does it make sense to try to negotiate with the plaintiff's attorney at the court house before seeing the judge? Should I accept defeat and try to work out a payment plan in court? I've never been through this before so I really have no clue how to approach this. I provided some information below.

 

 

1. Who is the named plaintiff in the suit? Portfolio Recovery Associates

2. What is the name of the law firm handling the suit? Law Offices of Howard Lee Schiff

3. How much are you being sued for? $4000

4. Who is the original creditor? GE Money Bank

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

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

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? collection letters, last being about a year ago

9. What state and county do you live in? Maine, Penobscot County

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 7/2010

11. What is the SOL on the debt? 6

12. What is the status of your case? Suit served? Motions filed? Served complaint (which didn't ask for an answer, just said my court date would be sent to me in the mail, which it since has)

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? no

15. How long do you have to respond to the suit? court date in a few days

16. What evidence did they send with the summons?  First was an affidavit from an employee of Portfolio Recovery stating that my account (acct number ending in xxxx) was purchased and owned by Portfolio for the sum of $4000. Next a bill of sale, which shows they bought accounts from GE Money Bank (but nothing specific about my account in it), and then a credit card statement from the OC showing total balance and charge-off finance charges (I'm guess my final statement).

 

 

I'm pretty stressed out at this point, the documents all look good to my untrained eye and I don't think I have any chance to get this dismissed. The only thing I noticed was the affidavit says "...having been sold, assigned and transferred by the Account Seller on 7/29/2011". But the bill of sale says "delivered by Seller to Buyer on July 19, 2011". I don't suppose this inconsistency in the date my account was supposedly purchased is enough to have the affidavit invalidated? Probably wishful thinking.

 

Any suggestions or guidance is greratly appreciated.

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What happens if I’m sued in regular District Court, instead of Small Claims Court?


The second way you can be sued on a debt is through a standard complaint and summons. This is a written statement by the creditor explaining why and how much you owe.


When you are sued by this method, you must file a written answer within 20 days of the day the Complaint and Summons are delivered to you (most often by deputy sheriff). If you do not file a written answer within 20 days, you will likely lose the case by default.


Again, if you dispute all or part of the debt, you must file a written answer with the Court and mail a copy to the Plaintiff or his lawyer within 20 days of the date you received the Complaint and Summons.


Try to get a lawyer’s advice if you are sued in this way and believe that you don’t owe some or all of the money that is being demanded or have other legal defenses.


You may be eligible for free legal services through the Volunteer Lawyers Project: 1-800-442-4293 or 774-4348 (within Portland calling area).


If your case reaches a court hearing, the procedures will be similar to those described above under Small Claims. However the hearing is more formal. The court will follow the standard rules of procedure and evidence.



How do I draft and file court papers?


If you are being sued on a debt, we recommend that you get a lawyer to help you in court. But if you have tried and cannot get one, these Sample Answer and Discovery pleadings may help you.



Step 1

Read all of the information in this guide. This will help you to understand what happens in a debt collection case.



Step 2

If you are being sued in District Court you must file an Answer to the Complaint within 20 days. (Small Claims Court does not require an Answer, but you can file one if you choose.)


First, copy the information at the top of the page (court location, case number, Plaintiff and Defendant) from the Complaint you received.


Second, answer each numbered paragraph in the complaint with one of these responses:


  • I admit that the statement is true,
  • I deny the statement, or
  • I do not have enough information to know whether the statement is true or false.


Third, add “Affirmative Defenses,” if you have any. These are legal reasons that you think might bar the Plaintiff from getting a court judgment against you. Two common Affirmative Defenses are:


  • The Plaintiff does not have “legal standing.” This issue comes up when the person or company suing you is not the same party that you made the agreement with. (Read aboutcreditors and debt buyers). By raising this defense, you are asking the court to examine whether the Plaintiff is the party who has the legal right to collect on the debt. The Plaintiff has the burden of proving this.
  • Statute of Limitations. The Plaintiff/Creditor has a deadline for suing you on the debt. In a typical consumer debt case, this is usually 6 years from the time you stopped making regular payments. If the creditor does not sue you within that time, then he is too late. 

You may have other legal arguments. Include any legal arguments you have as "Affirmative Defenses" or "Counterclaims" (your legal claims against the Plaintiff/Creditor).  The Maine Attorney General posts information about the Maine and federal Unfair Trade Practices Acts here(link is external).  More about the federal Fair Debt Collection Practices Act here(link is external) and Maine's Fair Debt Collection Practices Act here(link is external)


Fourth, date and sign your Answer, list your contact information and certify that you sent a copy to the Plaintiff's lawyer (or to the Plaintiff, if he doesn't have a lawyer). See more about filing court papers.


Or you can use this Sample Answer as a model form. Follow the outline above. At steps two and three, check the boxes that apply to your case - or that you think may apply to your case. Add any additional affirmative defenses or counterclaims that apply.



Step 3

You may want to include with your Answer a Notification of Discovery Service. This is a legal procedure for getting answers to the questions you have, such as:


  • Do I really owe the amount they say I owe?
  • How did the Plaintiff become the owner of my debt? Does he have “standing” to sue me?

You may refer to our Sample Discovery Request. The Plaintiff must respond to your requests in writing before the court hears the case. This may help you to better understand the details and your possible legal defenses.




How to File and Serve court documents.

To "file" your Answer and Discovery Request, or letter, mail it to the Court or hand it to the Court Clerk. You must also "serve," or send a copy to, the lawyer for the investor at the same time. Usually that lawyer's name and address is in the bottom left corner of the Summons or on the last page of the Complaint. Keep copies for your own file.



What happens next in District Court?


Again, it will be difficult for most people to do this without a lawyer.  But the most important thing is to read everything you get from the Court and from the Plaintiff's lawyer.  If it says you must do something by a certain date, you need to do that before the deadline. Otherwise, the Court will probably "default" you and you will lose.  Most likely, you will go through several court procedures leading up to a trial. This includes drafting and filing papers and attending court meetings. Again, do the best you can to respond to every notice and document you receive.  And show up when the court schedules a meeting or hearing. 


If at some point, the Plaintiff's lawyer indicates that they are giving up on pursuing the case, be sure to ask the judge to issue an order saying "dismissed with prejudice."  If you get a simple dismissal - which means you win - it will not prevent this creditor, or another creditor who "buys your debt," from suing you again on the same debt.  To put the matter to rest forever, the dismissal must be "dismissal with prejudice." 


 


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Regarding assigned debts, the Maine Supreme Judicial Court issued a decision in 2011 regarding the 

documentation required to prove an assigned debt case. In the case of CACH, LLC v. Kulas, 2011 ME 
70, 21 A.3d 1015, the court held that an affidavit from the original credit grantor on a credit card debt 
stating that the credit card account had been sold and assigned to CACH, LLC was insufficient to 
establish CACH’s ownership of the account. The affidavit in question failed to have attached to it sworn or 
certified copies of the actual assignment documents. In addition, the CACH court also held that a 
separate affidavit executed by a CACH, LLC employee that alleged the amount due on the account was 
defective, because the original credit card agreement was destroyed, and therefore there was no 
evidence of the terms, conditions, and interest rates associated with debtor's account. 2011 ME 70, 21 
A.3d 1015, 1019.
In another assigned credit card debt case, the Maine Supreme Judicial Court further elaborated on the 
documentation required to prove an assigned debt case. In the case of Arrow Financial Services, LLC v. 
Guiliani, 2011 ME 135, 32 A.3d 1055, the court held that a bill of sale attached to an affidavit of an 
employee of the plaintiff was insufficient to prove ownership of the account, because the bill of sale 
referenced an account schedule that was not attached. In addition, as in the CACH case, the plaintiff did 
not submit the original contract between the original creditor and the debtor. Lastly, the Arrow Financialcourt held that the plaintiff did not properly prove the amount due on the account, because it provided no 
records showing a breakdown of the principal, interest and other charges due on the account, and it did 
not provide a schedule of payments made on the account.
In a case involving the sufficiency of a business records affidavit to prove default by the borrower on an 
assigned promissory note and mortgage, the Maine Supreme Judicial Court ruled that the affidavit of the 
current holder of the note and mortgage was inherently untrustworthy and therefore did not meet the 
requirements of the business records exception to the hearsay rule. HSBC Mortg. Services, Inc. v. 
Murphy, 2011 ME 59, 19 A.3d 815. The HSBC case has a detailed discussion of the sufficiency of the 
contents of an affidavit by the current holder of a debt to prove transactions that occurred prior to the 
assignment of the debt.
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Very interesting. All of this stuff is new to me, so am I able to provide these decisions as evidence when I go to court? I've never set foot in a court room in my life so the whole idea is sort of intimidating and I'm trying to understand the procedures of what I can and can't do in small claims court. The information is greatly appreciated.

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Very interesting. All of this stuff is new to me, so am I able to provide these decisions as evidence when I go to court? I've never set foot in a court room in my life so the whole idea is sort of intimidating and I'm trying to understand the procedures of what I can and can't do in small claims court. The information is greatly appreciated.

 

Small claims court tends to be less formal.  One thing I recommend to ANYONE who is going to defend themselves is that they go down to the court for a morning or afternoon and watch how it goes.  You can learn what does and does not fly with the judge in order to craft your own defense and how to present it in the best light.

 

Personally I would be checking out that attorney that supposedly filed.  Howard Schiff is also the name of the District Attorney in the Law and Order TV series.  It seems fishy to me that he has the exact same name as a fictional lawyer.

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Don't accept defeat!  It ain't over till it's over.  The first link should provide a guide on how to proceed in answering the complaint.

The second link has relevant case law showing the kind of proof debt collectors need to win in court.

 

Now, if you want to get a free evaluation of your case by a Maine consumer lawyer, you might try this person.  It might not cost as much as you think to hire a lawyer.  Or you can proceed own your own, but you will need to study and work at it.

 

http://spanglawoffice.com/

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Appreciate the reference, problem is I just got the letter with the court date in the mail yesterday, and the date is Monday so I really had no time to prepare since I found out when I have to show up. I'll do my best to educate myself the next couple days and will have to fight it on my own unfortunately. 

 

The more I look at the documents they provided, the thinner it seems though. The affidavit is not from the original creditor but from Portfolio. The Bill of Sale attached has no mention of any specific account information in it, and the signatures on it are from GE Money Bank (CFO and President) and Retailer Credit Services (President)... but no signature from anybody from Portfolio. I'm just hoping the credit card statement attached isn't damning. It does show the total amount stated in affidavit and is a summary of account balance and the transaction summary shows charge off account principals and charge off account finance charges. 

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Appreciate the reference, problem is I just got the letter with the court date in the mail yesterday, and the date is Monday so I really had no time to prepare since I found out when I have to show up. I'll do my best to educate myself the next couple days and will have to fight it on my own unfortunately. 

 

Then it would be more than appropriate to ask the court for a continuance to consult legal counsel and for adequate trial preparation.  You should get at least 30 days.  Then you will be able to consult a lawyer, most consumer attorneys do the first one for free, and study up if you are not going to hire a lawyer.

 

Personally for that amount of money I would hire a lawyer to defend it.  I would much rather pay my attorney a couple grand to defend than give one dime to PRA.  Statistics show that consumers who hire a lawyer get a dismissal without ever having to go to court 75-80% of the time because the JDB knows it cannot stand up to the scrutiny opposing counsel will bring.

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You can verbally. If they don't grant one, wing it. If there is no affidavit from portfolilo that says they are familiar with the records of original creditor, they have reviewed the records (the records need to be attached and referenced) and they are kept and maintained in the regular coarse of business, and the person making the affidavit must say they are a person with knowledge, and the records are correct. If they didn't include something to that effect, you object, as they have not laid any foundation for the business exception to the heresay rule.

If they did include it, you still object on the same grounds, but also that xxxxx cannot lay foundation for another businesses records, there is no affidavit from the original creditor showing they are correct. Also it must say they are correct, not "believed to be correct" you would also object if they used that language.

Object to the bill of sale, it doesn't reference your account, if they include a data sheet, that is a print out by the plaintiff, not the original creditor, you would have no way of knowing if the information is authenticate.

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I'll take that all into consideration, unfortunately I can't find any of the issues  you mentioned with the affidavit, aside from the fact that it is from JDB and not the original creditor. I'm guessing the fact that the affidavit says it was transferred by the account seller on 7/29/2011 despite the attached Bill of Sale saying it was "delivered by Seller to Buyer" on 7/19/2011 doesn't help my case any?

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That's good advice, I'm not as well educated on the law as I wish I were. I haven't been able to determine whether I can even request continuation in small claims on the day of the hearing.

 

You most certainly can.  My statement to the court would be "your honor I need a 30 day continuance to consult and/or hire legal counsel.  I was served on August 15, 2014 and it was too late on Friday to hire a lawyer and be prepared for trial on August 18th."  If the Plaintiff argues against it my answer would be 2 days is no where near enough for trial preparation for a skilled attorney let alone a pro-se defendant.  

 

If the court denies the continuance you have a gold plated reason for appeal.  

 

Maine puts out this guide to small claims court:  ME Small Claims Court Guide with the excellent advice to read it and read it AGAIN!

 

ME does allow a request for a continuance in writing but they recommend you do it at least 7 days prior to the hearing.  Since you were not even served until last Friday you don't have that option but can do so before the hearing even starts.  

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http://www.courts.maine.gov/rules_adminorders/rules/MRSmClaims6-07.pdf

 

Look at Rule 5.  You may be ask to see if the dispute can be mediated or settled.  Don't let them push you into a mediated settlement.

 

Look at Rule 7.  Continuances may be granted "at any time for good cause."  In your case, there just wasn't time to prepare your case or seek counsel.

 

Consult with that lawyer I referenced or find another at www.naca.net.  Hiring a lawyer will indeed often cause a JDB to dismiss a case without prejudice.  They want easy prey.

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