JoshS

Portfolio Recovery in AR

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Hey guys, thanks for all the great information available here. I am at the end(?) of discovery, they have responded to my Rogs, RFA and RFP, however I believe the responses to be incomplete, and/or flat out lies, and I need to know precisely how to respond.I had hopes that I might be able to finish the case out without having to take up too much of your time, but I am kind of at a loss what to do at this point.

 

Quick timeline, my first RFP was filed/mailed July 14th, my RFA was filed/mailed September 4th. I sent a meet and confer on September 9th in regard to the RFP filed in July, and then filed a MTC on September 26th. They responded to my RFA on October 9th and my RFP on October 10th without any intervention from the court. This is apparently going to trial, so I also need some advice in that arena as well.  All of these are attached. If you need further information don't hesitate to ask. According to the clerk I have a hearing October 28th on my MTD and MTS, I have also attached these and Plaintiff's responses and my further responses.

 

Defendant's Rogs & RFP.pdf

 

Plaintiff's Response to Defendant's RFA.pdf

 

Plaintiff's Responser to Rogs & RFP.pdf

 

MTD, MTS and responses.pdf

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@JoshS

 

Personally, they denied what I would expect them to deny.  They're not going to admit that the signer of the affidavit (Braswell) has no personal knowledge of the account. 

 

The GE affidavit (Peterson) shows nothing more than GE sold some accounts to PRA.  That's it.  No reference is made to the identity of any cardholders of any of the individual Accounts.

 

The final payment statement shows a phone payment of $40.00.  Did you make that payment?

 

I'm confused about the charge-off statement.  It indicates that a minimum payment of $50.00 is due on 4/26 and includes the disclosure that if payment is not received by that date, you could be charged a late fee.  But then, it shows that the account was charged-off on 4/23.  That makes no sense to me.

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@BV80

 

The admissions were as I expected as well, but if they're not admitting it here, how do I convince the judge of it at trial?

 

As for the Bill of Sale, apparently the page which looks like a database row printed out does contain the name, alleged account number that matches the statements, etc, and is referred to by plaintiff as 'Schedule A of the Sale File' in their response. This 'Scherdule A' is not referenced in any of the other documents provided, including the Bill of Sale.

 

The charge-off statement looked odd to me as well, and I don't remember making that payment.

 

So at this point should I amend my MTC to be specific about what they did not provide, and why it is relevant? For example they balked at providing the affiant's information, employment history, etc. - should I press for this, or lean more towards the unauthenticated documents, or wait to object to them as hearsay at trial, or...? I've read a lot on the forum here, but I'm still not an attorney, guidance seems needed here. Thanks.

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@JoshS

 

The admissions were as I expected as well, but if they're not admitting it here, how do I convince the judge of it at trial?

 

 

You have to depend on the evidence.  Your arguments would be based upon what they have provided, as well as what they have NOT provided.   What have they NOT provided that is necessary to prove their claims? 

 

You also argue the inadmissibility of what they have provided.   OBJECT to the records.   So far, they haven't filed an MSJ, but they probably will.  In your opposition to that motion, you have to object to the records and indicate what's wrong with them and why they're inadmissible.

 

Include applicable case law that supports your arguments.

 

I doubt your motion to strike the affidavit will be granted.  Rule of Evidence 803(6) does not require an affiant to have personal knowledge of the records being submitted.  It only requires that the affiant aver that the records were transmitted or created by someone with knowledge of the account.  It doesn't require any of the elements you stated in your motion.  Also, you had no supporting case law. 

 

For instance, you claimed that the affiant didn't explain how the records came into her possession.   You're right that no mention of that is made in the affidavit, but in order for it to be an issue, you needed court precedent to support your claim.

 

Did the plaintiff respond to your Motion to Dismiss?

 

 

The charge-off statement looked odd to me as well, and I don't remember making that payment.

 

 

 

Check your bank records.  Don't go by their word that you made the payment.  You also can't just say, "I don't remember making the payment."   If you could possibly have evidence that you did NOT make the payment, it works in your favor.

 

 

So at this point should I amend my MTC to be specific about what they did not provide, and why it is relevant?

 

 

If you file a MTC, you most definitely have to show why their responses are inadequate.

 

 

For example they balked at providing the affiant's information, employment history, etc

 

 

The affiant's personal information, such as her address, is irrelevant.   Her employment "history" is also irrelevant.   I think that what you're getting at is whether or not she's actually employed by the plaintiff.   In her affidavit, she states under oath that she's an employee.  You might would have to give the judge a reason to doubt her claim.

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 @BV80

 

 

You have to depend on the evidence.  Your arguments would be based upon what they have provided, as well as what they have NOT provided.   What have they NOT provided that is necessary to prove their claims?

 

A proper chain of title has yet to be provided, and they have also failed to meet the hearsay exception for business records, I think. You can't just take unauthenticated records from one entity and place it into the files of another and meet the business records exception, or have I gotten this all wrong? If I'm right, then the statements, etc are all hearsay and therefore any testimony/affidavit based upon them also becomes hearsay, right?

 

 

Did the plaintiff respond to your Motion to Dismiss?

 

Yes, basically cited Gemini Capital Group, LLC v. Kenneth Dean McFarland, 2014 Ark. App. 83 (2014), what they're saying is that they are allowed to wait and file an amended complaint and attach the contract, which they have not yet done, therefore they remain in violation of ARCP 10(d) until such time as they file an amended complaint, as far as I can tell.

 

 

The affiant's personal information, such as her address, is irrelevant.   Her employment "history" is also irrelevant.   I think that what you're getting at is whether or not she's actually employed by the plaintiff.   In her affidavit, she states under oath that she's an employee.  You might would have to give the judge a reason to doubt her claim.

 

My attempt was to show that the affiant, and therefore plaintiff have no personal knowledge of the debt, making the 'records' they possess hearsay. From what I understand, the agreements to purchase these bulk accounts specifically state that no warranty is provided as to the accuracy of the accounts sold. If this is true, then even the OC is not authenticating what they provide, so how can the JDB?

 

Of course, I could be way off, but this all makes sense to me. Help?

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 @BV80

 

 

A proper chain of title has yet to be provided, and they have also failed to meet the hearsay exception for business records, I think. You can't just take unauthenticated records from one entity and place it into the files of another and meet the business records exception, or have I gotten this all wrong? If I'm right, then the statements, etc are all hearsay and therefore any testimony/affidavit based upon them also becomes hearsay, right?

 

Correct, but the Plaintiff has not moved for summary judgment, and a trial hasn't happened.   The rules of evidence don't come into play until a party moves the court to do something, and supports(or attempts to) it with those documents. You could attack them on that issue with a MSJ, but I would not advise that unless you are very comfortable and knowledgeable of the rules of evidence and have some experience with oral arguments, due to the fact that the JDB could move for a cross motion.

 

 

Yes, basically cited Gemini Capital Group, LLC v. Kenneth Dean McFarland, 2014 Ark. App. 83 (2014), what they're saying is that they are allowed to wait and file an amended complaint and attach the contract, which they have not yet done, therefore they remain in violation of ARCP 10(d) until such time as they file an amended complaint, as far as I can tell.

 

That is what you would argue at the hearing. If they do not file an amended complain, then you SHOULD win the MTD. The case you cited in your is very clear on that matter.

 

 

My attempt was to show that the affiant, and therefore plaintiff have no personal knowledge of the debt, making the 'records' they possess hearsay. From what I understand, the agreements to purchase these bulk accounts specifically state that no warranty is provided as to the accuracy of the accounts sold. If this is true, then even the OC is not authenticating what they provide, so how can the JDB?

 

Of course, I could be way off, but this all makes sense to me. Help?

 

It makes sense. Regarding your MTS the affidavit; It should be based upon ARCP 12(f), which states that the court may stricken  any "redundant, immaterial, impertinent or scandalous matter." from a pleading. Your goal would be to show that the affidavit is worthless, because it is not based upon personal knowledge, and is clearly based upon records of other entities(hearsay within hearsay). You would also argue that notwithstanding the fact that the affidavit is based upon hearsay, even the records themselves come with no warranty. Have you entered an affidavit deny the debt? If so that puts even more pressure on them.

 

Some judges will entertain MTS affadvits, others will not simply because the affidavit hasn't been used in support of any motion for summary judgment.

 

Your best course of action at the moment would be to prepare for the MTD and MTS hearing.  If those don't go in your favor,  you should prepare a more damaging set of discovery 

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Correct, but the Plaintiff has not moved for summary judgment, and a trial hasn't happened.   The rules of evidence don't come into play until a party moves the court to do something, and supports(or attempts to) it with those documents. You could attack them on that issue with a MSJ, but I would not advise that unless you are very comfortable and knowledgeable of the rules of evidence and have some experience with oral arguments, due to the fact that the JDB could move for a cross motion.

 

 

I have zero experience with oral arguments in a legal setting. However they filed the affidavit in question with the court with the original complaint, so they have asked the court to do something based on this affidavit. What they probably expected was a default judgement, but they still asked for something based on this, and ONLY this in the original complaint. Sigh. It works the way it works, I guess it doesn't have to make sense all the time.

 

 

 

That is what you would argue at the hearing. If they do not file an amended complain, then you SHOULD win the MTD. The case you cited in your is very clear on that matter.

 

 

My expectation is that they will do this, but wait until the last possible moment to so do.

 

 

 

Have you entered an affidavit deny the debt? If so that puts even more pressure on them.

 

 

Not yet. How would I 'enter an affidavit' of such? Simply write one and file it with the court?

 

 

 

Your best course of action at the moment would be to prepare for the MTD and MTS hearing.  If those don't go in your favor,  you should prepare a more damaging set of discovery

 

 

Forgive me, but I've never prepared for a hearing before. What I have done thus far is print all of my referenced opinions and highlighted the relevant points, same for ARCP. Is there something more I should do? Obviously I'm not a trained legal expert, but what can I do to 'even the playing field', so to speak?

 

@BV80 @Trapezius ,

Thank you for your help, it is much appreciated.

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Josh,

 

Find out if 'Portfolio' is a member of the Arkansas State Board of Collectors:

 

http://www.asbca.org/collect_search/

 

I could not find them.  Maybe I spelled it wrong.  Either way, if you find they are NOT, your case is over and you win.  The Arkansas Supreme Court just ruled that Junk Debt Buyers ARE debt collectors too -- even though they hire Arkansas law firms to file suits.  That means they must have a license to collect in the state.

 

See the recent decision:  https://contexte.aoc...LTYQ6QB5VF5L3UL

 

Again, make sure Portfolio has not, at least at the time of filing against you, been registered with the state board.  You would need to write up a dismissal, and attach the AR Supreme Court decision as an exhibit.

 

They can't sue unless they are registered, period.  End of story.  If the links above do not work, let me know and I will forward you the PDFs.

Good luck!

 

-J

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@Jimmy E

 

Again, make sure Portfolio has not, at least at the time of filing against you, been registered with the state board.  You would need to write up a dismissal, and attach the AR Supreme Court decision as an exhibit.

 

I could not find them with the search either, however if you leave the fields blank and press search, it will dump the entire list. They are on the list several times, a seperate entry for several different locations. I do not know when they registered, however.

 

@BV80 , @Trapezius , and really anyone:

 

Let me be sure I have my facts straight here. After reviewing Plaintiff's responses to my RFP, they have failed to provide complete answers to any of them, and per ARCP 37 (a)(3), 'Evasive or Incomplete Answer or Response. For purposes of this subdivision, an evasive or incomplete answer or response is to be treated as a failure to answer or respond.', they have not answered any of them, so I should be granted an order to compel at the hearing, correct?

 

I have no experience with court other than traffic violations. What can I expect as far as questioning, etc? Next Tuesday is supposed to be just a hearing, however I expect Plaintiff may try and push for trial, or possibly the judge may just ask if all parties are ready for trial now. How likely is this? Of course my answer would be no at this time.

 

Also, Trapezius stated:

 

Your best course of action at the moment would be to prepare for the MTD and MTS hearing.  If those don't go in your favor,  you should prepare a more damaging set of discovery

 

What would more damaging discovery entail? I'm going to argue at the hearing that the Bill of Sale is not a complete document, specifically lacking the "Agreement". and the "Notification Files". Without these referenced documents this Bill of Sale could refer to virtually anything that is a Receivable, and certainly cannot be construed to be specific at all. Not to mention it has no mention at all of a "Sales File".

 

Also, in which document would I find the clause which refers to the warranty regarding the accuracy of the accounts transferred? From what I understand this should be contained in the "Forward Flow Agreement", correct?

 

Do I just file my Affidavit of Denial with the court? What would be the format for such a document?

 

Thanks again for all your help. You guys rock.

 

Edit: Also, they remain in noncompliance with ARCP 10(d) not having amended their complaint to include the document on which the complaint is based. If this was fatal I would assume they would have done it by now, right?

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@JoshS

 

Let me be sure I have my facts straight here. After reviewing Plaintiff's responses to my RFP, they have failed to provide complete answers to any of them, and per ARCP 37 (a)(3), 'Evasive or Incomplete Answer or Response. For purposes of this subdivision, an evasive or incomplete answer or response is to be treated as a failure to answer or respond.', they have not answered any of them, so I should be granted an order to compel at the hearing, correct?

 

 

 

You're correct to a point.  It depends upon the request.   For instance, in your Admission requests, you requested that they admit that they never entered into a contract directly with you.  They responded that your request was overly broad and not likely to lead to the discovery of admissible evidence.

 

Their response may have been based upon the term "directly".  That term was not defined.  That may be what they meant by "overly broad".

 

If your courts have ruled that assignees/purchasers of accounts step into the shoes of the original creditor, it wouldn't matter that you didn't have a contract "directly" with the JDB.  If they can prove they purchased the account, then by the court's standards, you had a contract with the JDB.   As a result, it doesn't matter that they didn't have a "direct" contract with you.  That's where "not reasonably to lead to the discovery of admissible evidence comes in."

 

My point is to carefully review each request and response before accusing them of evasive or incomplete responses.   Perhaps @Clydesmom, @shellie98, @debtzapper, and @Harry_Seaward will chime in along with @Trapezius.

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I know it won't help your current set of discovery, see below for example interrogatories.

 

 

The key to interrogatories, and admissions, is to make each one as specific and concise as possible. The more precise the request is, the harder it is to not provide the truthful response.  I would also plan out interrogatories knowing I would have to file a motion to compel.

 

REQUEST #1: State whether or not you have any documents to support the allegations contained within your complaint.

 

 

REQUEST #2: If the answer to the above request was "Yes", provide each and every such document that supports the allegations contained within Plaintiff's complaint.

 

 

REQUEST #3: State the full account number of the alleged account referenced in Plaintiff's complaint.

 

 

REQUEST #4: Do you contend that Plaintiff is the lawful assignee of the alleged account?

 

 

REQUEST #5:  If the answer to the above request was "Yes", provide all documents evidencing that Plaintiff has been assigned the alleged account.

 

 

REQUEST #6: Do you contend that Defendant entered into an agreement with [ORIGINAL CREDITOR]?

 

REQUEST #7: If the above request was "Yes", provide all documents evidencing that Defendant entered into an agreement with [ORIGINAL CREDITOR]

 

 

ADMISSIONS:

 

RFA #1: Admit, Plaintiff is not the lawful assignee of the alleged account

 

RFA #2: Admit, Plaintiff has no documents or evidence in support of the allegations contained within Plaintiff's complaint.

 

RFA #3: Admit, Plaintiff has no documents or evidence to prove that the Defendant authorized any of the charges placed upon the alleged account

 

RFA #4: Admit, Plaintiff has no documents or evidence showing that Defendant entered into an agreement with [ORIGINAL CREDITOR]

 

The Plaintiff would have to admit it doesn't have the necessary documents to prove it's case, or provide them. If the Plaintiff refuses to provide documents it is has explicitly stated it has, then you have an easy case for a motion to compel.

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Here is a Blog by an Attorney and gives an example of a sworn denial. You really should submit one to the court to counter the one by the JDB. You have personal knowledge about yourself and doings, the JDB's employee does not.

 

http://debtcollectionlawyer.blogspot.com/2006/08/how-to-not-pay-your-debt-or-beat_03.html

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Great replies guys, thanks.

 

@BV80 , @Trapezius @Credithis @JimmyE

 

My point is to carefully review each request and response before accusing them of evasive or incomplete responses.

 

At the time I filed my MTC, I had received no response at all to my discovery, and it had been two months since I submitted them. I still contend that the 'Bill of Sale' provided is incomplete, as it references other documents which were not included that should contain the terms and warranties of the sale. Should I push for those? The 'Forward Flow Receivables Purchase Agreement' and the 'Notification Files' specifically. There is also the fact that NOTHING references the 'Schedule A of the Sale File' whatsoever.

 

Am I going in the right direction here or not? If they cannot prove they own the account the suit is moot, correct? I am also planning on filing a sworn denial, depending upon how the MTD, MTS and MTC hearing goes tomorrow.

 

Thanks again everyone.

 

 

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@JoshS

 

You should have a good shot at your MTC, keep your argument on that point simple and concise:

 

The Plaintiff has alleged that it purchased the account

You requested a copy of the bill of sale

The Plaintiff provided an irrelevant document, that does not mention you, your social security #,or  the account number.

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@BV80 @Trapezius @JimmyE

 

The moment I had been waiting for came this morning...and they asked for a continuance and apparently received it - this all came from the clerk when I was checking in. However, when I got home, there was a Motion for Voluntary Dismissal in my mailbox. I count this as a win - and I never even saw the inside of a courtroom, or spoke to a judge. I have some questions, though,

 

They are asking for a dismissal without prejudice, which as I understand it means they reserve the right to jack me around again at their leisure. How likely are they to do so, and is there any way I can ask for a dismissal with prejudice? I don't want this popping up in the future, and besides, I'm sure this is on my credit report, right? They should remove it if they're not going to pursue this.

 

No matter what happens though, you guys are awesome, this forum is great. It's a wonderful service you're providing here.

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@JoshS

 

Congrats!

 

 

Generally, the Plaintiff has the absolute right to dismiss a case without prejudice anytime before trial. I believe that would be a Rule 41 dismissal. Since that right is absolute, there is not a way to get it dismissed without prejudice since a trial has not occurred. Whether they decide to refile is hard to predict. If the amount is not very significant I doubt they would though.

 

I could be wrong, but in order for this to appear as a judgment(or negative) on your credit report, that would need a judgment from the court.

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@JoshS

 

Congratulations!   :yahoo: 

 

They could place a negative entry on your CR for the account, but there will be no reference to a court action.

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They have crawled back under the rock from which they came -- congratulations.  This is a WIN.  You could only hope they re-file so you can countersue.  A WIN is a WIN though!

 

-J

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