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My case was dismissed WITHOUT prejudice. What is my next step? [PRA in Illinois]


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Hey guys,

 

So, I went to Trial for the case listed here

 

http://www.creditinfocenter.com/community/topic/325090-being-sued-by-pra-in-illinois-any-tips-would-be-appreciated/

 

 

It went semi-well. The representative of PRA pushed hard for me to come to an agreement right there (during the pre-trial discussion). She was very upset with me, asking if I researched this information on the internet. She said she hated when people threw around legal mumbo jumbo when they didn't know what they were talking about. 

 

But, all together, she dismissed the case without prejudice. 

 

She said that I was thinking this was a win for me, but it is not. I told her to have a great day and she told me that she will have a fantastic day, but I will NOT have a good day, then she asked me if I was going to work.

 

After I got out of court, I called PRA and told them that they should under no circumstances call my employer, ever, in case that is what she was getting at. Should I call the lawyers office as well? I want to limit any potential problems.

 

 

So - Is this a complete win for me? Since the case was dismissed WITHOUT prejudice I have a few questions

 

 

1. Does this mean I won't be able to get this off my credit report? Should I just not push it?

 

2. She said that this was an oral contract and she was not required to attach an instrument to her affidavit - how accurate is this?

 

3. Is not attaching an instrument putting them up for liability? Can I sue them if I was so inclined?

 

4. What can I expect from now? Since it is still on my credit report for another 2 years or so, should I just wait it out or will PRA have any tricks up their sleeve? 

 

5. Do they have a right to file a new lawsuit? 

 

 

 

Any other help would be appreciated!  

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First off, congrats on the win. Regardless of what the attorney for the other side says. She was just mad that she did not get the easy win in your case. As for your employer, simply send a letter to PRA and their attorney informing them that any calls to your employer are inconvenient. Send the letter CMRRR. If they ignore that, it will be you suing them and they will end up probably writing you a check and cancelling the debt.

As for the rest of your questions:

 

1 - You will probably not be successful in getting the tradeline removed because this was not a decision in your favor. If the tradeline is indeed 5 years old, then it probably is not affecting your score and just let sleeping dogs lie.

2 - What was the cause of action she was suing you under? If it was account stated, then she did not have to attach a contract but she would need to prove that there indeed was an account and you agreed to it. If she was saying that you make a oral agreement with a bank however, she needs to go back to school. Oral contracts are primarily between family and friends and banks avoid them like the plague.

3 - You could try to sue PRA saying they filed a lawsuit they were not prepared to argue under the FDCPA.

4 - Most likely, PRA will either pay the bank for more information to sue again or they will try to sell the debt. Realize that the SOL clock is now ticking again AND with the dismissal, it is as if the case never existed as far as SOL is concerned. In fact, since she was stating it was an oral contract, the SOL might now have expired as far as them filing a suit again. They could file again but you can now bring up SOL and demand a dismissal with prejudice. Make sure to check the DOFD to know when the SOL expires (or if it already has). Sounds almost like the filed in the nick of time so they got their one bit and failed and this is it.

5 - They do but again, see 4.

If it turns out the SOL has expired, then you might want to make your no employer call letter a straight up C&D no contact letter. That might be enough to get them to give up and sell the debt.

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@WhoCares1000

 

3 - You could try to sue PRA saying they filed a lawsuit they were not prepared to argue under the FDCPA.

 

 

 

We don't know where the OP is from, but, in Harvey v. Great Seneca Financial, the Sixth Circuit Court of Appeals ruled that it's not a violation of the FDCPA for the filing of a lawsuit without the immediate means of proving the debt.

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@DucoNihilum

 

I can't find any rulings on the issue in the Illinois federal courts or the 7th Circuit Court of Appeals.   Unless your courts require certain information when a lawsuit is filed, it's probably not a violation.  

 

Your court rules would tell you what is required to be attached to a complaint based upon the cause of action.

 

 

2. She said that this was an oral contract and she was not required to attach an instrument to her affidavit - how accurate is this?

 

 

 

Read your state statutes.  Some state laws specify that credit cards are considered written agreements.  Others don't make that specification.   I'll see if there's any court rulings on the issue.

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@DucoNihilum

 

Okay, I found a couple of rulings from 2 IL appellate courts.  Portfolio Acquisitions, LLC v. Feltman and Velocity Investments, LLC v. Alston.  Both courts ruled that credit cards are unwritten agreements subject to  735 ILCS 5/13-205.

 

The rulings were made to determine the SOL on a credit card.  Written agreements have a 10-year SOL, whereas unwritten agreements have a 5-year SOL. 

 

From Portfolio Acquisitions, LLC v. Feltman:

 

"Accordingly, the contract at issue is considered to be an oral contract for purposes of the statute of limitations and the five-year period of section 13-205 applies."

 

BUT, the courts did reference a breach of contract cause of action.  What was the plaintiff's cause of action against you?

 

According to another ruling, even if a contract is unwritten, if the plaintiff pleads a breach of contract, it either has to reference the terms of a contract or attach them (cardmember agreement or application).   In other words, if the plaintiff states "breach of contract" but doesn't attach the agreement, the allegations in the complaint must offer some explanation as to how a contract existed and was breached.

 

It might help us if you write, word for word, the allegations in the complaint.

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"She said she hated when people threw around legal mumbo jumbo when they didn't know what they were talking about."

 

...and I hate when Rent-A-Lawyers pretend to be a real attorney rather than the bottom feeding glorified collection agent they are.

 

 

How true!   Don't you know that Mommy and Daddy are so proud that they paid a fortune for their precious child to end up as a debt collector.   :ROFLMAO2: 

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Then something was missing that caused her to fold. What was it? I bet those statements were not authenticated and/or might be simply computer printouts that the she did not want to come under the scrutiny of a judge and defendant.

As for my answer earlier, I guess you can't sue them for filing a frivilous case. I would still send a letter to both at least telling them not to contact you at your employer. Who knows, they might do something stupid.

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@DucoNihilum

 

Maybe you won your case because PRA didn't comply with IL 5-2-606, failure to attach a copy of the written instrument to the complaint.  I think that was in a link I gave you when you originally posted here.  IL makes JDBs jump through more hoops than in other states in order to win. We have a couple of IL cases going on right now in other threads.  If you want to explore your legal options, contact Curtis Warner.  He's a fine consumer lawyer, located in Chicago, but handles cases throughout IL and in other states as well.

 

 

Experience - Warner Law Firm, LLC
www.warnerlawllc.com/Experience.html
  •  
  •  
 
155 N. Michigan Ave., Suite 9005, Chicago, Illinois 60601, (312) 238-9820 ... Curtis Warner is the firm's Principal and is an experienced litigator having ..
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@BV80

@DucoNihilum

 

Okay, I found a couple of rulings from 2 IL appellate courts.  Portfolio Acquisitions, LLC v. Feltman and Velocity Investments, LLC v. Alston.  Both courts ruled that credit cards are unwritten agreements subject to  735 ILCS 5/13-205.

 

The rulings were made to determine the SOL on a credit card.  Written agreements have a 10-year SOL, whereas unwritten agreements have a 5-year SOL. 

 

From Portfolio Acquisitions, LLC v. Feltman:

 

"Accordingly, the contract at issue is considered to be an oral contract for purposes of the statute of limitations and the five-year period of section 13-205 applies."

 

BUT, the courts did reference a breach of contract cause of action.  What was the plaintiff's cause of action against you?

 

According to another ruling, even if a contract is unwritten, if the plaintiff pleads a breach of contract, it either has to reference the terms of a contract or attach them (cardmember agreement or application).   In other words, if the plaintiff states "breach of contract" but doesn't attach the agreement, the allegations in the complaint must offer some explanation as to how a contract existed and was breached.

 

It might help us if you write, word for word, the allegations in the complaint.

 

 

Here is a copy of the complaint from the other thread 

 

 

I, the undersigned, being duly sworn upon oath  deposes and claims that defendant(s) is/are indebted to the plaintiff(s) in the sum of $958.61 as of April 18, 2014 for breach of agreement for credit opened on or dated May 1, 2 008 and that the plaintiff(s) [PRA] has/have demanded payment of said sum; that the defendant(s) [ My name] reside(s) at [ my address]; that the plaintiff(s) [PRA] reside(s) at 140 Corporate Boulevard, Norfolk, VA 23502. Plaintiff acquired on or about February 14, 2012 for a valuable consideration, all right, title and interest in the account heretofore stated originally owed by defendant(s) to [u.S. BANK]. Plaintiff seeks judgement for the amount claimed above plus costs of this action.

 

Affidavit

 

State of Virginia

City of Northfolk ss.

 

I, the undersigned, Donna Dangerfield, Custodian of Records for PRA, LLC hereby depose, affirm, and state as follows:

 

  1. I am competent to testify to the matters contained herein.

 

  1. I am an authorized employee of PRA, (“Account Assignee”) which is doing business at Riverside Commerce Center, 120 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the statements, representations and averments herein, and do so based upon a review of the business records of the account Assignee and those records transferred to the Account Assignee from US BANK (“Account Seller”), which have become a part of and have integrated into the Account Assignee’s business records, in the ordinary course of business.

 

  1. According to the business records, which are maintained in the ordinary course of business, the account, and all proceeds of the account are now owned by the Account Assignee, all of the Account Seller's interest in such account having been sold, assigned, and transferred by the Account Seller on 2/14/2012. Further, the Account Assignee has been assigned all of the Account Seller’s power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustment of said account, and the Account Seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever.

 

  1. According to the records transferred to the Account Assignee from the Account Seller, and maintained in the ordinary course of business by the Account Assignee, there was a due and payable from [MY NAME] (“Debtor and Co-Debtor”) to the Account Seller the sum of $1,000.48 with the respect to account number ending in 9009 as of the date of 5/31/2011 with there being no known un-credited payments, counterclaims, or offsets against the said debt as of the date of the sale.

 

  1. According to the accounts records of said Account Assignee, after all known payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, Account Assignee claims the sum of $1,000.48 as due and owing as of the date of this affidavit.

 

  1. Plaintiff believes that the defendant is not a minor or an incompetent individual, and declared that the Defendant is not on active military service of the United States.

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@DucoNihilum

 

Okay, I found a couple of rulings from 2 IL appellate courts.  Portfolio Acquisitions, LLC v. Feltman and Velocity Investments, LLC v. Alston.  Both courts ruled that credit cards are unwritten agreements subject to  735 ILCS 5/13-205.

 

The rulings were made to determine the SOL on a credit card.  Written agreements have a 10-year SOL, whereas unwritten agreements have a 5-year SOL. 

 

From Portfolio Acquisitions, LLC v. Feltman:

 

"Accordingly, the contract at issue is considered to be an oral contract for purposes of the statute of limitations and the five-year period of section 13-205 applies."

 

BUT, the courts did reference a breach of contract cause of action.  What was the plaintiff's cause of action against you?

 

According to another ruling, even if a contract is unwritten, if the plaintiff pleads a breach of contract, it either has to reference the terms of a contract or attach them (cardmember agreement or application).   In other words, if the plaintiff states "breach of contract" but doesn't attach the agreement, the allegations in the complaint must offer some explanation as to how a contract existed and was breached.

 

It might help us if you write, word for word, the allegations in the complaint.

 

 

The cause of action was "Breach of agreement".

 

 

@fisthardcheese

 

"She said she hated when people threw around legal mumbo jumbo when they didn't know what they were talking about."

 

...and I hate when Rent-A-Lawyers pretend to be a real attorney rather than the bottom feeding glorified collection agent they are.

 

What I don't understand is why she took it so personally. This is something you see in the business all the time - right? She said it is "Sad, really" - implying that it was 'sad' that I was trying to weasel my way out of  the debt.

 

I took the high road, though. I could have resorted to ad hominem's and say that she was a part of a company that sues 20-30 poor people at a time, without proper standing, for debt they paid pennies on the dollar - SHE should be ashamed not me.

 

She even said something I would consider vaguely threatening. I told her, non-sarcastically to have a nice day, and she told me that she was going to have a wonderful day but "YOU are not going to have a good day!" Then as I was leaving she asked if I was going back to work. I haven't even come to a conclusion as to exactly WHAT she was implying by that. How would I not have a good day? Was she threatening to call my workplace? Was she threatening further legal action? 

 

@WhoCares1000

 

Then something was missing that caused her to fold. What was it? I bet those statements were not authenticated and/or might be simply computer printouts that the she did not want to come under the scrutiny of a judge and defendant.

As for my answer earlier, I guess you can't sue them for filing a frivilous case. I would still send a letter to both at least telling them not to contact you at your employer. Who knows, they might do something stupid.

 

She showed me the statements, she had over 80 pages of credit card statements. I asked her for what consideration was the debt bought, and she was not able to provide that information, however I asked for the 'chain of assignment' and she had some account information, but I wasn't as familiar with how to examine a chain of assignment. She was also too busy guilt tripping me. She asked if the credit card itself looked familiar and I said it did, but that there was no legitimate proof that PRA was the rightful owner of the debt which made her even more upset.

 

@newbee2

 

Don't forget to file a Memorandum of Costs so they can pay your court fees.  I received my check in the mail yesterday.  Yippeee!

 

I actually filed as a poor person and had my fee waived. Yay being poor. 

 

@debtzapper

 

 

@DucoNihilum

 

Maybe you won your case because PRA didn't comply with IL 5-2-606, failure to attach a copy of the written instrument to the complaint.  I think that was in a link I gave you when you originally posted here.  IL makes JDBs jump through more hoops than in other states in order to win. We have a couple of IL cases going on right now in other threads.  If you want to explore your legal options, contact Curtis Warner.  He's a fine consumer lawyer, located in Chicago, but handles cases throughout IL and in other states as well.

 

 

Experience - Warner Law Firm, LLC
www.warnerlawllc.com/Experience.html
  •  
  •  
 
155 N. Michigan Ave., Suite 9005, Chicago, Illinois 60601, (312) 238-9820 ... Curtis Warner is the firm's Principal and is an experienced litigator having ..

 

 

 

It's possible. She might very well have been lying, but she said she is not required to attach an instrument if it is an oral contract. 

 

Also, does your lawyer do pro-bono? This is a debt of 1000 dollars and I have very low income ( a big reason why I am fighting it, getting a judgement against me would be one step to garnishing my minimal wages which, since I'm living paycheck to paycheck,  could really throw a wrench in my life. 

 

 

 

 

 

If anyone knows exactly what she might have been missing to cause her to dismiss that would ease my curiosity a bit. She acted like she had an air-tight case but then dismissed. 

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The cause of action was "Breach of agreement".

 

 

@fisthardcheese

 

 

What I don't understand is why she took it so personally. This is something you see in the business all the time - right? She said it is "Sad, really" - implying that it was 'sad' that I was trying to weasel my way out of  the debt.

 

I took the high road, though. I could have resorted to ad hominem's and say that she was a part of a company that sues 20-30 poor people at a time, without proper standing, for debt they paid pennies on the dollar - SHE should be ashamed not me.

 

She even said something I would consider vaguely threatening. I told her, non-sarcastically to have a nice day, and she told me that she was going to have a wonderful day but "YOU are not going to have a good day!" Then as I was leaving she asked if I was going back to work. I haven't even come to a conclusion as to exactly WHAT she was implying by that. How would I not have a good day? Was she threatening to call my workplace? Was she threatening further legal action? 

 

@WhoCares1000

 

 

She showed me the statements, she had over 80 pages of credit card statements. I asked her for what consideration was the debt bought, and she was not able to provide that information, however I asked for the 'chain of assignment' and she had some account information, but I wasn't as familiar with how to examine a chain of assignment. She was also too busy guilt tripping me. She asked if the credit card itself looked familiar and I said it did, but that there was no legitimate proof that PRA was the rightful owner of the debt which made her even more upset.

 

@newbee2

 

 

I actually filed as a poor person and had my fee waived. Yay being poor. 

 

@debtzapper

 

 

 

It's possible. She might very well have been lying, but she said she is not required to attach an instrument if it is an oral contract. 

 

Also, does your lawyer do pro-bono? This is a debt of 1000 dollars and I have very low income ( a big reason why I am fighting it, getting a judgement against me would be one step to garnishing my minimal wages which, since I'm living paycheck to paycheck,  could really throw a wrench in my life. 

 

 

 

 

 

If anyone knows exactly what she might have been missing to cause her to dismiss that would ease my curiosity a bit. She acted like she had an air-tight case but then dismissed. 

 

 

I don't know Curtis Warner personally, I just know of him.  If PRA violated any relevant federal or state law, it's possible he would take your case without charge.   A consultation is free.  I would just contact him.

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