Jump to content

help with PRA summons answer?


Bond007
 Share

Recommended Posts

3. Citibank, N.A./ Sears (hereafter "Assignor") and Defendant entered into an agreement, whereby Assignor extended credit pursuant to the terms and conditions of a credit agreement (hereinafter "the Agreement")

 

4.In accordance with the Agreement, Assignor issued a credit card with account numbering in **********0013. (hereinafter "the Account").

 

All of the Receipts that I can find have the number *************9041 on them. The card in question is the only credit card I have ever owned. But they are saying that the number is different.

 

5.Defendant utilized the Account to procure currency, goods/andor services to the benefit of Defendant.

 

6.Defendant , in exchange for the se of the account agreed to pay Assignor for all amounts due resulting from the authorized use pursuant to the

Agreement, including any finance charges and any other charges due under the terms of the 'Agreement.

 

7. Assignor sent statements of account identifying Defendant's financial transactions related to use of the Account, to which Defendant did not object.

 

(again the statements that I can find have a different account number on them than what is on the summons. ********************9041,  NOT *****************0103.)

8.Defendant breached the Agreement by failing to make payments to Assignor pursuant to the Agreement.

 

9.Plaintiff is the holder of a valid assignment of the Account. Plaintiff has been assigned all of Assignor's power and authority to do and perform all acts necessary for  the settlement, satisfaction, compromise, collection and/or adjustment of the Account. Furthermore, the Assignor has retained no further interest in the Account.

 

(no Assignment attached to the Summons.).

 

10.Plaintiff and Assignor have full performed, pursuant to the terms of the Agreement or their performance has been excused by Defendants breach.

 

11. Plaintiff and Assignor have made demand for payment of the outstanding balance, however Defendant has failed and continues to fail to pay said balance.

 

12.The balance due and owing on the Account is $**,**.**

Link to comment
Share on other sites

They attached an Affidavit to the summons from their CoR.

I sent a motion to strike Affidavit already. I listed briefs from other states on the Motion I filed. Could not find any from Kansas I hope I filled it out right and didn't send it in too early.

They also attached a copy of an Account Statement and again with a different account number than I have on my statements and receipts.

Link to comment
Share on other sites

This may be of interest to you:

 

 

Necessity of a Trial Witness. Similar to Missouri, Kansas has enacted legislation on par with the Uniform Business Records as Evidence law, such that business records are excepted from hearsay objections solely on the grounds that they are business records (but subject to other substantive or procedural objections, such as relevancy) so long as a qualified witness testifies to the mode and preparation of the documents, and satisfies the court that the records and information therein appears to be reliable. K.S.A. § 60-460. In contrast to Missouri, Kansas has not enacted a statute providing that such evidentiary foundation be set by and through any Business Records Affidavit. As a result, a business records custodian or other qualified witness must be present at all trials in order to lay a proper foundation for the admission of relevant account documentation into evidence over a hearsay objection. The witness need not be present during the production or creation of the record, but merely familiar with the records such that he or she can testify as to the records’ general method of preparation, and that such information would have been recorded on the record at or near the time of the events or information so recorded

  • Like 1
Link to comment
Share on other sites

3. Citibank, N.A./ Sears (hereafter "Assignor") and Defendant entered into an agreement, whereby Assignor extended credit pursuant to the terms and conditions of a credit agreement (hereinafter "the Agreement")

Denied. After a reasonable inquiry, and diligent search defendant has no records for an account with Citibank NA/Sears plaintiffs alleged assigner. Plaintiff failed to attach a copy of alleged agreement to this complaint. Defendant denies credit was extended by plaintiffs alleged assignor.

 

4.In accordance with the Agreement, Assignor issued a credit card with account numbering in **********0013. (hereinafter "the Account").

Denied. Defendant denies he has ever had a credit card with the account number xxxxxxxx9041. Plaintiff as failed to attach a copy of alleged agreement referenced in his complaint.

 

All of the Receipts that I can find have the number *************9041 on them. The card in question is the only credit card I have ever owned. But they are saying that the number is different.

 

5.Defendant utilized the Account to procure currency, goods/andor services to the benefit of Defendant.

Denied. Degendant denies utilizing any account for goods or services with account number xxxxxxx9041.

 

6.Defendant , in exchange for the se of the account agreed to pay Assignor for all amounts due resulting from the authorized use pursuant to the

Agreement, including any finance charges and any other charges due under the terms of the 'Agreement.

 

Denied. Defendant denies any agreement with plaintiffs alleged assignor, and denies the account alleged in this action. Plaintiff has failed to attach agreement showing any charges that may apply from alleged account.

7. Assignor sent statements of account identifying Defendant's financial transactions related to use of the Account, to which Defendant did not object.

Denied. Defendant has never received any account statements bearing the account number xxx9041 from plaintiffs alleged assignor. Defendant denies any financial fractions using alleged account for credit.

 

(again the statements that I can find have a different account number on them than what is on the summons. ********************9041,  NOT *****************0103.)

8.Defendant breached the Agreement by failing to make payments to Assignor pursuant to the Agreement.

Denied. Plaintiff has failed to attach any agreement to complaint. Defendant denies use of alleged account named in this action.

 

9.Plaintiff is the holder of a valid assignment of the Account. Plaintiff has been assigned all of Assignor's power and authority to do and perform all acts necessary for  the settlement, satisfaction, compromise, collection and/or adjustment of the Account. Furthermore, the Assignor has retained no further interest in the Account.

Denied. Plaintiff has failed to attach anything to this complaint showing ownership on any alleged accounts.

 

(no Assignment attached to the Summons.).

 

10.Plaintiff and Assignor have full performed, pursuant to the terms of the Agreement or their performance has been excused by Defendants breach.

 

Denied. Defendant denies having alleged account bearing the number xxxx9041. Furthermore plaintiff has failed to attach any agreement of alleged account as well as anything showing plaintiff has any assignor rights to alleged account.

11. Plaintiff and Assignor have made demand for payment of the outstanding balance, however Defendant has failed and continues to fail to pay said balance.

Denied defendant has never received a demand for payment on alleged account from anyone until the filing of this action.

 

12.The balance due and owing on the Account is $**,**.*

Denied.

*

I did not read your rules for civil procedure stating weather you need to state reasons for a denial or if you can simply deny. This will cover both either way.

Link to comment
Share on other sites

If the number is wrong, you can use all those answers. Doesn't matter if your name is on the statement, it could be a stolen account for all you know. See....makes it easier to deny, you are listing facts, you don't have to lie. In reality, you may think it might be yours, but if the glove doesn't fit.....

Link to comment
Share on other sites

Yes lying to this judge may not be the smartest thing to do. She is no nonsense. Kind of between Judge Judy and Marilyn Millan.

 

Ill just have to wait now to see what they send in Discovery, Maybe I should be the first to initiate Discovery so I know just what they have in their files before I send them what little I have. They may send me every statement and receipt from the last 35 years. or they may only have the one Statement that they attached to the summons, I now understand why 99% of Defendants don't show up in court. This can be confusing to say the least and very stressful. But if they all did contest the debt, There would be a bottleneck of cases in the courts and the attorneys would be very busy. Courts would have no recourse but to send them to arbitration.

Link to comment
Share on other sites

Don't send them anything you may have. They will send you document requests, a bunch of admits, and a bunch of rods. (Questions). Post them up when you get them and we will show you how to answer.

So the copy of the one statement they sent you...is it like the one you would normally get in the mail? Is your nam and address on it? Did it show any charges or payments?

Link to comment
Share on other sites

The Account Statement they attached was a copy of a statement with my name and address on it.

 

The Affidavit states that PRA bought the debt from Citibank. But the debt was originally sold to Phillips and Cohen. Phillips and Cohen, for some reason, wanted nothing to do with it and dumped it. I cannot believe that Citibank would have bought it back from Phillips and Cohen and then sold it to PRA. It had to have been assigned to PRA from Phillips and Cohen. Right?

 

In that case their sworn statement is a lie.

 

And thank you for the help.

 

Can you clue me in on what will take place in court on the 25th?

Link to comment
Share on other sites

Looking over the summons again, it reads like they have been assigned the debt from the OC. But when I read it carefully, it does not specify who the original creditor assigned the account to. it only states the fact that the records were transferred to the plaintiff and integrated into their business records. They are very tricky in their wording. Making it sound like the account was assigned to them when in fact there is no proof in the complaint that it ever was.

 

So I stated in my answer, " There is no clear ownership of the debt. There is no chain of custody to the sale of the debt from the
OC to the Plaintiff. Plaintiff alleges "Plaintiff is the holder of a valid assignment of the account".
See paragraph(9) of the plaintiffs original complaint. There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if plaintiff purchased the account from anyone in the chain of title. And no way to determine what rights if any the plaintiff has to bring suit. A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Plaintiff has not done either. If plaintiff is the assignee and rightful owner of the debt, this should be easy for plaintiff to allege and prove. Yet plaintiff avoids the issue, when such issue cannot wait until trial. Without a pleading of an assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and this case must be dismissed. Whether plaintiff has standing to bring this lawsuit is a threshold issue that should be resolved at the onset, and the instant plea to the jurisdiction is a proper means by which to address this threshold question.

 

I found the above Affirmative Defence on this site, reread the Affidavit CAREFULLY and determined that it fit my case. I hope that it will be considered by the court as Lack of Standing. PRA has received the Motion to Strike the Affidavit that I filed with the court. Since then they have been burning up the ringer on my phone. I refuse to answer their calls and will see them in court.

Link to comment
Share on other sites

I went to the prehearing today. I don't think the judge has even looked at my answer to the summons, because she handed me an answer sheet and told me to fill it out. I told her that I have already filed my answer. So she has not seen the Motion to strike the Affidavit. or the Answer. PRA appointed a local attorney to stand in for PRA. The Judge just set a trial for the 15th of April.

 

Here is how the Affidavit reads:. I have a problem with how it reads. They manipulated the language to sound like PRA is the Assignee from Citibank when in fact Phillips and Cohen was assigned the debt first in the chain. 

 

1.I the undersigned. Tiffany Griffin, Custodian of Records, for Portfolio Recovery Associates, LLC hereby depose. affirm and state as follows:

 

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

 

2.I am an authorized employee of PRA (" Account assignee") which is doing business at Riverside Commerce Center, 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 OC CITIBANK, N.A./SEARS and those records transferred to Account Assignee from CITIBANK,N.A. ("Account Seller"), which have become a part of and have integrated into Account Ass9gnee's business records, in the ordinary course of business.

 

3. 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 3/28/2014. 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 f said account, and the Account Seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever.

 

4.According to the records transferred to the Account Assignee from account Seller, and maintained in the ordinary course of business by the Account Assignee, there was due and payable from MY NAME ("Debtor and Co-Debtor") to the Account Seller the sum of $13,843.49 with the respect to account number ending in 0103 as of the date of the sale.

 

5.According to the account records of said Account Ass9gnee, after all known payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, Account Assignee claims the sum of $13,848.49 as due and owing as of the date of this affidavit.

 

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

 

Signed Tiffany Griffin.

 

 

There is nowhere in the complaint or the Affidavit that sais Portfolio Recovery Associates LLC, (Hereafter "Account Assignee")

So any mention of  "Account Assignee"  in the complaint or the affidavit could mean any one.

The only mention of Portfolio Recovery Associates, LLC ("Account Assignee"), Is in Paragraph 2. in the Affidavit.

 

I believe they did that on purpose, because they know that the debt was not assigned to them from the OC. It was first assigned to Phillips and Cohen one year beforehand.

 

Unless Phillips and Cohen sold the debt back to Citibank, and then Citibank sold it to PRA,  PRA is lying about being assigned the account from Citibank.

 

Any way, I am now in the Discovery mode, I guess. And am in need of suggestions as to what to do next. And what to ask for in Discovery. or Request for Production.
 

Link to comment
Share on other sites

No bill of sale provided. The only things attached to the summons were an account statement and the affidavit. I don't believe that Citibank would have bought the debt back from Phillips and Cohen and then sell it to PRA. PRA must have bought it from Phillips and Cohen. PRA must be the third link in the chain.

 

Now I am wondering if I should send the Request for Production to see just exactly what they have if anything.

 

I know for sure that PRA is not the first in the chain of title as the complaint and affidavit suggests.

 

Also I have the credit card that was issued having a different account number than the account number PRA listed in their complaint. I also have one account statement that I found that has a different number than the one on the complaint.

 

Any suggestions would be helpful and appreciated. I really don't want to mess this up so early in the game. 

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.