mimidebt

Sued by Portfolio Recover in California

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I got sued about 10 months ago and already filed my answer. A trial date was set immediately after I filed the answer, which is in about 75 days. From the time I filed my answer until now, plaintiff and I had not sent each other anything in the mail (discovery requests, settlement offers, etc.) nor have we talked on the phone. There has been no activity at all.

 

Plaintiff alleges for cause of action:

One - COMMON COUNTS - ACCOUNT WAS STATED IN WRITING

Two - BEFORE COMMENCEMENT OF THIS ACTION, PLAINTIFF INFORMED THE DEFENDANT IN WRITING IT INTENDED TO FILE THIS ACTION AND THAT THIS ACTION WOULD RESULT IN A JUDGMENT AGAINST DEFENDANT THAT WOULD INCLUDE, IF APPLICABLE, COURT COSTS AND NECESSARY DISBURSEMENTS ALLOWED BY CCP SECTION 1033( B)(2)

 

I included 3 affirmative defenses:

One - Plaintiff failed to state a claim upon which relief can be granted

Two - Lack of standing

Three - I reserve right to add additional answer/defense/counterclaims

 

How should I fight this? Should I be sending the plaintiff attorneys any discovery requests? CCP 96? BOP?

Is this statement a FDCPA violation, to me it looks like they are saying they are guaranteed to win against me, isn't that deceptive? "THAT THIS ACTION WOULD RESULT IN A JUDGMENT"

 

Initially I was planning on taking this to JAMS arbitration but there is a small claims court exclusion.

https://applications.usbank.com/oad/teamsite/usbank/docs/FR006213482_03_USB.pdf

 

"This does not apply to any Claim in which the relief sought is within the jurisdictional limits of, and is filed in, a small claims court."

 

If I lose and appeal, doesn't that take this case out of small claims court so this would be eligible for JAMS arbitration (the amount is within small claims limits but it's not in small claims court)?

"A small claims appeal is a "trial de novo" or "new trial." This means that the case is decided by a new judge from the beginning so you have to present your case all over again. Because this case is in the civil division of the superior court (and NOT in small claims court), you (and the other side) are allowed to bring a lawyer to represent you in the new trial."

http://www.courts.ca.gov/1072.htm

 

1. Who is the named plaintiff in the suit?
P R A

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

3. How much are you being sued for?
Between 4000 - 5000

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 in person

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?
They sent letters demanding payment

9. What state and county do you live in?
CA / Los Angeles

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
2012

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

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
Answers filed, trial date set

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?
Common counts / account stated

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
No evidence sent

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For the small claims mention, it seems doubtful that's how they're suing.

An individual or a business owned by an individual can file two cases each year for as much as $10,000. (There are limitations that apply. Contact us for more information.) All other businesses or corporations can file two cases each year for as much as $5,000.

For each additional case filed, you can only sue for $2,500 or less.

http://dcba.lacounty.gov/wps/portal/dca/main/home/page/(small claims section)

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Hi mimi.

Just thought I'd chime in because your case appears to be very similar to mine.  All the facts are exactly the same except for the amount being sued...mine was a little higher.  The bank, plaintiff, cause of action and the fact that no discovery was sent on either side... all same. So this is what happened in my case.

I was sued by PRA. I filed general denial with the same affirmative defenses as you.  No discovery or communication on either side throughout. On the 45th day before trial, I sent my ccp96 via cmrrr.  On the 30th day before trial, I received from pra, their ccp98 declaration, notice to attend trial, witness list, exhibit list, their ccp96 request, memo of costs and their proposed judgment.  On the 20th day before trial, I subpoenaed pra's ccp98 declarant (mark lozano, he works for pra in san diego and i think he's assigned to the us bank cases).  I did use the San Diego Sheriff to serve the subpoena because I had a fee waiver.  If you don't have a fee wavier, you will have to hire a process server to do this.  PRA's declarant was served and the sheriff sent me the proof of service.  At this point I did freak out a little because as others were having a hard time serving these subpoenas, I had no problem getting him served.

Throughout all this, I was preparing my trial brief and objection to ccp98.  And once I got word that the ccp98 declarant was served, I nixed my objection to ccp98 and had to prepare to cross-examine him at trial.  Then about 5 days before trial, i received a request for dismissal from pra.

I do believe I got somewhat lucky in that pra, for some reason, didn't want to send their witness to testify.  Hopefully the same will happen for you.  I don't know why they didn't want to send their declarant.  Maybe they expect to win only by default or with a ccp98 declaration...and if you actually subpoena their witness, they don't want to send them.  Or it definitely could've been complete luck, that maybe their witness just wasn't available for trial on that specific date.

So i think you can hope for the best but be prepared for anything and everything.

I didn't initally send a bop because I was advised that a bop was not appropriate for an account stated only cause of action. And I wouldn't send any discovery at this point only because of the timing.  There probably won't be enough time to enforce their responses, if necessary. (ie, motion to compel)  And anyway, you should get what you need (or what you would've received through discovery) from their response to your ccp96 request.

My advice would be to make sure to follow all rules and procedures. Send your ccp96 between 30-45 days before trial. And once they send you their ccp98 declaration (pra must serve this at least 30 days prior to trial), make sure to subpoena the declarant 20 days before trial.  And then prepare, prepare, prepare!  Everything you need to prepare can be found here on the forums...you just may need to tweak the documents, notes, questions a little to fit your case.  And if there's something you can't find or don't know, just ask.  The members here are some of the nicest, most helpful, and encouraging people I've had the pleasure of chatting with.

And I'm not too familiar with going through arbitration. But I do remember reading somewhere on this forum that in california, its better to litigate and let the court decide rather than go through arbitration, as we've had many successful pro per defendants here, including me! =)
 

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It seems to me this wouldn't be a small claims case - you're being sued by a junk debt buyer, and as a 3rd party they are not allowed to bring this suit in small claims. Or so I understand. You sure this isn't a limited civil case?

 

Anyhow, California has strong laws that consumers can take advantage of to fight these cases, you might want to consider fighting this out instead of trying to go thru JAMS.

 

In my case, Midland waited until the last few days that they could make a discovery request to send me requests for Docs, Interrogatories & Admissions. They were also completely silent until that deadline - you may still get those requests from PRA.
 

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@xmasbaby420 - You're wondering why, in your case, PRA didn't want to send a witness. IMHO: the CCP 98 is a bluff to begin with. They know it's a bs document, but they hope that it'll intimidate/scare people into settling. Most JDBs never have the CCP 98 declarant available for service because they never intend on having that person testify. They know that person and their testimony wouldn't stand up under scrutiny (unless of course it's in the court of a pro-JDB judge). Some JDBs do see it all the way thru, and win, but many have dismissed once we've called their bluff, subpoenaed their witness, and sent them Trial Briefs and Objections ripping their CCP 98s.

 

PRA (and I've noticed this only in PRA cases so far) has been making their CCP 98 declarant available for service - perhaps they are catching on - and having that person available is only meant to serve as another layer of intimidation. Defendants follow the playbook, expect that the declarant will not be there and "whoa, he/she was there - maybe I should settle after all..."  Just my opinion anyway. One or two posters have caved and settled after successfully serving the declarant. Again, I believe it's a part of the bluff. You didn't cave, showed them you were ready to proceed and cross examine their witness, so they dismissed. IMO.

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@RyanEX - I've been curious as to why they just didn't send the witness to testify.  It makes complete sense that those scumbags would use the ccp98 as their 1st level of intimidation and then successful service of the witness as the 2nd level of trying to intimidate.  You are probably so right in thinking that and I completely agree!

 

I wonder if one of these days, they'll actually start to send the subpoenaed witnesses to testify.  That might not be good for defendants who get stuck w/ pro plaintiff judges.

 

Like in my case, I think they would have had a chance if they just sent their witness. And for an 8k case, I would think it would've been worth it for them.  Go figure.

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Is there a way I can find out for sure if this is in small claims or not?

 

This is what it lists in the case summary:

Case Type:  COLLECTIONS CASE (Limited Jurisdiction)

 

If this is not in small claims, I am wondering if I should immediately compel arbitration right now in JAMS?

 

Would the judge agree to it nearly 10 months after I filed my answer? There's been no activity whatsoever in the past 10 months.

 

And if this is not small claims, I don't have the option of appealing and getting a new trial correct?

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Do you have a copy of your summons? It should tell you pretty clearly what court it's in. IMO it would be limited civil, not small claims.

 

You can appeal civil cases, should you lose the civil case. However, I'm not sure whether you'd have the opportunity to appeal if you go thru arbitration.

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The papers states: "Action is a limited civil" so this confirms it, it's not in small claims court right?

 

What I am aiming for is 2 chances to make this go away.

 

1st, I try to fight them in court and if I lose, I appeal and go for arbitration. But could I still compel arbitration after I lose in court the first time?

 

If the likelihood to do that is low, I'd probably go for arbitration right away. I don't think P R A will spend so much money on a debt under $4500.

 

I am also collection proof, I have no income at all. The only asset I have is a car worth no more than $500.

 

A majority of my other debts will be SOL in less than 1 year, I fear those creditors will sue me if they found out I lost this case so this first case is very important. Ideally, if I beat this case or drag it out for around a year, that would help tremendously in fighting off the other creditors.

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Correct, you are in civil court.

 

I don't know much about arbitration, when you would have to ask for it, how to go about it, whether you can compel it after an appeal, etc.

 

One of the other members who is familiar with arb will hopefully chime on that.

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you don't want to arb.  I would send them a BOP now though, just to let them know you are not going down without a fight. ;)  

You could send out discovery still, you have time.

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Hi Mimi, I won my case with PRA. Was sued by Hunt & Henriques for PRA. I WON THE JUDGEMENT!! They

had to pay ME. I was amazed I won. We went all the way to Trial for 3500.00. I questioned witness and I was put

on the stand also, BUT I WON. If I won SO can YOU!!! So fight the JDB all the way!!

They have to have a witness with personal knowledge of the creation of records from the Original Creditor

 

Here is the courts ruling in my case for you to view and maybe help you (i'll make it short, with key points).

 

-Plaintiff sought to establish the debtor-creditor relationship between defendant and plaintiff's assignor by way of billing statements allegedly mailed to defendant. Plaintiff's witness testified on behalf of Portfolio as the Custodian of records. He testified he had NO personal knowledge of the mode of preparation of records created by GE Capital. He was handed copies to review one month b4 trail to review.

-Evidence Code 1271 requires: testimony by "the custodian or other qualified witness" as to the identity and mode of preparation; the sources of information and method and time of preparation; the timing of the creation of the record relative to act, condition, or event it memorializes; as well as testimony that it was mad in the regular course of business (OC)

-Defendant objected to the admissibility of the records on hearsay grounds.

-Plaintiff failed to lay a proper foundation under Evidence code1271. Therefore, the statements purporting to reflect a credit card debt of defendant do not come into evidence. Plainfiff concede they have no documentation of the original agreement, no writing subscribe by the party charge.

-Defendant testified she has no recollection of ever seeing the statements at issue other than in the context of this lawsuit. She also testified she had no recollection of ever having a GE credit card.

 

-Defendant if the prevailing party.

-Judgment against PRA

-Judgment for Defendant

-Judgment after trial/Dismissal

 

So, to my shock that I won a Judgment . I went to trial and I beat these Lawyers. I still just smile with amazement.

 

Also, I had no communication with plaintiff until I received the CCP98 30 days before trial. No discover, nothing.

I learned by coming across this site and learned about the CCP98 Bull crap, lies and I objected to it at trial. so they

withdrew the ccp98 , asked for continuance to bring in another witness and they did (I did not know at the time I could have objected to the continuance request or I would have). Another trial date was set. They did not expect me to object to the ccp98.

The judge said; oh, we did not expect this, so she allowed the continuance. I guess they expected me to pay or a judgment for them was suppose to happen for plaintiff.

 

So, please fight, YOU can do this. It is stressful, but you can win for sure. Learn all you can , read, read, read, do, do, object, object, object.....

 

Good luck to you!!

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Send BOP, Discovery. you still have time. Then CCP96 before trial, that is if it goes that far.

The PRA is suing you not a Lawyer, so maybe they will dismiss it.

Send them proof of judgment proof, it could maybe work for you, who knows.

I told the Law firm I was on S.S. disability and they did not care in my case. I gave them proof , that did not work for me.

 

Best to you

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OK so we got a couple votes for not going through arbitration.

What's the reasoning for going to court vs arbitration for this particular case?

I remember from my previous research last year that this JDB only did JAMS arbitration 2 times in the entire 2013, both times they settled or abandoned the case, so they never went all the way.

Based on this, I think the likelihood of them following me to arbitration is extremely low. OTOH, what's the likelihood of me prevailing if I use the BOP, CCP96, etc. method?

I have a fee waiver with the court and I would qualify for fee waiver with JAMS, so costs would be about the same for me. I still have some time left before choosing a strategy so I would like to pick carefully before proceeding.

SOL on this is in less than 6 months so if I could scare them into abandoning my case even temporarily, the SOL will run out?

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Send the BOP now, simple form, then discovery. The purpose is to let them know you are going to fight back. They want

a easy win. So let them know you are not as ignorant to litigation, as they think we are going in Pro Per.

 

And if they have nothing to send to you that will hold up in court, they may just dismiss the case.

Make it harder for them to prove up evidence, that they may not have.

 

I believe beings they have sued you , that puts a hold on the SOL. If they dismiss the case and resue you

they have to do it before the SOL. in 6 months.

 

I don't know anything about arbitration, sorry, but other do and have advised you some already.

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I don't like arbitration because it doesn't use the rules of evidence or require much evidence to be entered, you can't force them to have to produce a witness, you may not be able to appeal, no real judge, and in my case CACH tried hard to force me to arbitrate so I had no reason to believe they would run, and also because it doesn't cost the plaintiff any where near the amount some people here claim.

It's just not for me. Others have reported success with it.

Also, the SOL has been tolled and will not start running again until the case is dismissed.

I would also do some research on your judge.

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It will be very hard to get arb 10 months into the suit, that is something the judge may say you should have asked for when you were served. You already submitted to the courts juristriction.

California rules are pretty strict, and in my opinion if you play by the rules, most of the time you prevail. But you can't just sit and wait, hope it goes away like you have been doing. It takes work and study.

Now if you were in az, I would fight like hell to go to arb.

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As you can see, arb recommendations can vary depending on the state. From what I've read some states (like AZ mentioned by shellieh) have laws & courts that tilt the playing field towards debt buyers. In those states, arb is a good idea because maybe the JDB decides it's not worth it to pursue it in arb.

 

In CA, the laws & courts have favorable laws for consumers. If you follow the playbook & don't do anything foolish, you'll have the law on your side. Typically the only thing that derails a prepared CA defendant is a rogue judge who ignores the code; but even in that case, so long as a defendant does what they should and gets their objections on the record, they stand a good chance of getting those bad decisions reversed on appeal. easy619 did just that and the JDB didn't even put up a fight - zero effort - in the appeal.

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From what I've read some states (like AZ mentioned by shellieh) have laws & courts that tilt the playing field towards debt buyers. In those states, arb is a good idea because maybe the JDB decides it's not worth it to pursue it in arb.

 
How can I learn about the ways that AZ has "laws & courts that tilt the playing field towards debt buyers". I've recently been served a complaint (PRA) in AZ. Are the AZ courts filled with hangin' judges for these sorts of cases? Is the probability for success for pro-se defendants exceedingly low in AZ? I've reviewed the court docket for hundreds of cases in AZ. All I ever see (as line items in the docket) are complaints and either default judgments (more common) or withdraw of the case (I'm assuming because it was settled). I never see line items in the docket with verdicts or even process served notice, or even court calendar items. All the dockets seem to be one or two items long.

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As you can see, arb recommendations can vary depending on the state. From what I've read some states (like AZ mentioned by shellieh) have laws & courts that tilt the playing field towards debt buyers. In those states, arb is a good idea because maybe the JDB decides it's not worth it to pursue it in arb.

 

In CA, the laws & courts have favorable laws for consumers. If you follow the playbook & don't do anything foolish, you'll have the law on your side. Typically the only thing that derails a prepared CA defendant is a rogue judge who ignores the code; but even in that case, so long as a defendant does what they should and gets their objections on the record, they stand a good chance of getting those bad decisions reversed on appeal. easy619 did just that and the JDB didn't even put up a fight - zero effort - in the appeal.

Now I am a bit worried.

 

It turns out my case is in the same courthouse as this person who got this very creditor friendly judge:

http://www.creditinfocenter.com/community/topic/325598-lost-case-today-want-to-appeal/

 

How do I find out which judge my case assigned to?

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How can I learn about the ways that AZ has "laws & courts that tilt the playing field towards debt buyers". I've recently been served a complaint (PRA) in AZ. Are the AZ courts filled with hangin' judges for these sorts of cases? Is the probability for success for pro-se defendants exceedingly low in AZ? I've reviewed the court docket for hundreds of cases in AZ. All I ever see (as line items in the docket) are complaints and either default judgments (more common) or withdraw of the case (I'm assuming because it was settled). I never see line items in the docket with verdicts or even process served notice, or even court calendar items. All the dockets seem to be one or two items long.

 

 

There are a few posters here from AZ who have gone thru the process and you can read their threads. If you click the 'Members' tab at the upper left of the page, you'll be given an alphabetical list of members. From there if you click the 'More Search Options' button on the right side of the page, you can filter by state and you can get a list of AZ members and look at their content and threads.

 

I just saw you started a thread, you should get some of them to comment on your thread and help you out. Btw, that line I typed was a bit anecdotal, more for mimidebt's benefit than a AZ poster, my bad - I have read a few AZ threads and know it's tougher on a defendant than in CA, the AZ members would be in a far better position to characterize what you are dealing with than I.

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Now I am a bit worried.

 

It turns out my case is in the same courthouse as this person who got this very creditor friendly judge:

http://www.creditinfocenter.com/community/topic/325598-lost-case-today-want-to-appeal/

 

How do I find out which judge my case assigned to?

 

That's good that you are thinking about your judge. I think on average most posters are so busy with the process they don't get to that. You may be able to get your judge's name from your online case file, or hopefully on the notice the court sent you by mail to inform you of your trial date. Some counties work differently than others, so I'm not sure how yours is done. I knew my judge's name early, but some counties may not assign a judge til a bit later in the process. You should drop a post in that thread you linked and ask @cbincali when they got their judge assigned.

 

Obviously you need the name first, but in case you do have that same judge, there may be options for you:

If you have a case in superior court, and you believe you cannot get a fair and impartial hearing or trial from the judge, commissioner,or referee assigned to your case, California Code of Civil Procedure §170.6 gives you the right to disqualify him or her without having to show a reason. This is called a peremptory challenge.

 

http://www.saclaw.org/Uploads/files/Step-by-Step/SBS-Peremptory-Challenge.pdf

 

CCP 170-170.9

 

Now, I haven't read of someone executing this maneuver yet, it's only been discussed in some of the CA threads (have no idea which ones at the moment) - so I don't know just how it works or if there are conditions or time frames to work with, etc.  - but it's there. Once you figure out who your judge is, we can go from there.

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