HockeyFan

About to be sued by Portfolio Recovery - Fulton County, Ga

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So as you may have noticed the title says "About to be" which is correct because I started getting attorney spam in the mail today with a case number regarding my case in Fulton County.   It really sucks because I just bought a car from a credit union and I am getting things back on track. Live and learn right?

 

I have done my research on this forum and on the internet and have a pretty good idea as what to do as far as my answer goes (admit, deny, defenses, etc) but I want to make sure that it is top notch and there are no holes. I guess this is just a "pre-post" to the upcoming service.  I will give what information I can until I get the documents in the mail.  The balance as shown of my credit report is from Portfolio RC at ~$1k in collections purchased from Citibank NA.

 

Once I get the documents I will fill out the info in the sticky post from above and attach it. 

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If the suit is in GA Magistrate Court you do not need a fancy answer.  You can simply go to the court and fill out the form checking off the answer that you deny their claim and wish to defend.  That is it.  There is no discovery in Magistrate Court everything happens at trial.

 

The most important items on that list:

 

When did you last pay on the card?

 

If the service was legal?  They haven't done that yet so too early to tell.

 

What law firm is suing you?  Some in GA are way more beatable than others.  Chances are it is one of 3:  Fred Hanna, Lazega and Johanson;  or Greene and Cooper.  All can be beat down you just have to know the strategy.

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@HockeyFan some helpful atty written blog posts here if you haven't ran across them yet.

http://georgiacreditlawsuits.com/about-the-georgia-credit-lawsuits-blog/magistrate-court-trial-guide-contested-hearings-credit-card-lawsuits/

 

http://georgiacreditlawsuits.com/the-burden-of-proof-in-a-georgia-credit-card-lawsuit/

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Finally served today.

 

1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates assignee of CITIBANK, N.A.

 

2. What is the name of the law firm handling the suit?

Tracy H Reese, Tamara D Starks, Bryan D. Thompson (Tracy H Reese is circled)

 

3. How much are you being sued for?

~$1k

 

4. Who is the original creditor?

Citibank NA

 

5. How do you know you are being sued?

Served at home

 

6. How were you served?

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?

None

 

9. What state and county do you live in?

Fulton County, Georgia

 

10. When is the last time you paid on this account?

November 29, 2012

 

11. What is the SOL on the debt?

6 years

 

12. What is the status of your case?

Suit served.

 

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?  

30 days

 

We need to know what the "charges" are. Please post what they are claiming.

(Paraphrasing)

1. Defendant is a resident of Fulton County

2. Defendant opened and incurred charges with card. All rights and title to Defendants account were assigned to PRA. Despite numerous and repeated requests the account still remains delinquent. 

3. Bill of sale (A) and charge off ( B )  is attached.

4. Said claim is in amount of ~1k + 100 costs to date and all future costs.

 

Did you receive an interrogatory (questionnaire) regarding the lawsuit?

No

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Affidavit

Two exhibits, A – Bill of sale and assignment (which just looks like an Excel sheet). B – "Charge off statement." Which just looks like an old statement form 2013. 

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@HockeyFan The written assignment must identify the assignor as well as the assignee. In Wirth v. Cach, LLC, 300 Ga. App. 488, 490-91, 685 S.E.2d 433, 435 (2009), the Court of Appeals of Georgia held that a written assignment evidencing the transfer must be present in the record for the debt buyer to succeed in its suit. An affidavit attesting to the assignment is not sufficient. Nor is a bill of sale without an attachment that identifies the transferred account number.

 

In Nyankojo v. N. Star Capital Acquisition, 298 Ga. App. 6, 10, 679 S.E.2d 57, 61 (2009), the Court of Appeals of Georgia refused to uphold an assignment where the documents produced in the case did not affirmatively link the assigned account to the same account number as the original account. The Court noted that computer-generated information, showing certain information tending to show an assignment for which no foundation was laid by a witness, was inadmissible hearsay.

 

In a recent ruling, the Georgia Court of Appeals held that summarized statements of accounts submitted to support the amount of indebtedness owed by the defendant were inadmissible under the business records exception to the hearsay rule. Capital City Developers, LLC v. Bank of N. Georgia, 316 Ga. App. 624, 730 S.E.2d 99, 101 (2012). As a result, we are now seeing trial courts denying routine requests for default judgments to be entered, when the only documents submitted to support the account indebtedness is a statement of account. In these cases, the courts are mandating that each and every invoice that is listed on the statement of account be attached to the pleading.

http://www.nationallist.com/image/cache/White_Paper_Georgia_Debt_Collection.pdf

 

 

you can also check the final statement total amount and compare that with all the other documents as well as the complaint to see if they match.

Cardholder agreements with OC should be provided as well.

 

Do they state what they're suing for, like breach of contract, account stated and so-on?

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Do they state what they're suing for, like breach of contract, account stated and so-on?

 

All it says is "Plaintiff claims the Defendant  is indebted to the Plaintiff as follows" "The Defendant opened and incurred charges under a credit account CITIBANK N.A. THE HOME DEPOT account number **********************. All rights and title to Defendant's account were assigned to Portfolio Recovery Associates, LLC. Despite numerous and repeated  requests for repayment on the account, the account still remains delinquent. After any and all payments and credits, the current balance due and owing is [exact amount on Exhibit B] of which Plaintiff seeks to recover from Defendant."

 

It is a statement of claim and suit on account if that helps any.

 

I wish my scanner was working so I could scan this to here. I will scan it on Monday when I get to work. 

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Also, no cardholder agreement.  Just an old 4 page statement.  The assignment has the last 4 of account number (the beginning part is blacked out), charge-off amount and date, current balance, all my personal info (full SSN included and wrong phone number), last payment and purchase, and at the bottom is says "Data printed by Portfolio Recovery Associates, LLC from electronic records provided by CITIBANK, N.A. pursuant to the sale of accounts from CITIBANK, N.A. to Portfolio Recovery Associates, LLC.

 

Sorry for all the text descriptions, like I said, scanner is toast. 

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@HockeyFan like @debtzapper mentioned earlier, read up on some recent threads like this @NormInGeorgia one to get up to speed on the evidence rule changes.

http://www.creditinfocenter.com/community/topic/319863-i-got-destroyed-by-the-new-georgia-evidence-rules-did-anyone-else/

http://www.creditinfocenter.com/community/topic/324372-how-i-lost-against-midland-funding-in-georgia-and-then-won/

 

I'd study the GA evidence rules. If their affidavit is not describing any specific records reviewed, that would be a flaw in it. Does it meet 803 6 and 902 11/12?

http://ga.elaws.us/law/24

 

 

Not being from Georgia or familiar with debt cases there, I'm not seeing what the big shocker is exactly with the rule change from a few years back. The business records exception pretty much matches many other states evidence rules from what I can see. I guess one change is integrated records admission but I'm not seeing how a JDB could meet all of these, especially item 3-

The basic requirements for the admission of integrated records are

1) a business relationship between the business that initially made the record and the one who received it,

2) the recipient business routinely relies upon the accuracy of the record andintegrates it into its own files,

3) the recipient business has a witness who is sufficiently familiar with how the originating business routinely prepares the record to lay foundation under the business record exception, and

4) circumstances support the trustworthiness of the record.

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So I read up on the rules but TBH I cannot for the life of me make much of it. I kind of have an idea, but at the same time...no.  The amount is really low for this but at the same time I don't want a judgement against me. Like I said I will upload the docs tomorrow. 

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@HockeyFan look on the affidavit for a statement that comes close to matching this-

The affiant swears the documents (are the ones attached listed or is this generic boilerplate?):

  (A Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of such matters;

  (B  Was kept in the course of the regularly conducted activity; and

  (C Was made by the regularly conducted activity as a regular practice.

 

 

That's just to get them entered. If they have flaws in them, that's another area to go after.

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@HockeyFan look on the affidavit for a statement that comes close to matching this-

The affiant swears the documents (are the ones attached listed or is this generic boilerplate?):

  (A Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of such matters;

  (B  Was kept in the course of the regularly conducted activity; and

  (C Was made by the regularly conducted activity as a regular practice.

 

 

That's just to get them entered. If they have flaws in them, that's another area to go after.

 

 

Here is exactly what it says. Please disregard any crazy tomfoolery...used my TTS for this. (BTW they need to work on their grammar, it's awful.)

 

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

2.       I’m an authorized employee of portfolio recovery Associates, LLC, (“account assignee”) which is doing the business at Riverside commerce Center, 120 Corporate Blvd., Norfork, VA, and I am authorized to make the statements, representations and advertisements here in, and do so based upon a review of the business records of the account assignee in those records transferred to the account signing from Citibank/the Home Depot, which have become part of and have integrated into account assignee’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 the account sellers interest in such account having been sold, assigned and transferred by the account seller on #/##/####. Further, the account assignee has been assigned all of the account sellers 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.

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 HockeyFan (“debtor and co-debtor”) to the account seller in the sum of $$$$ with the respect to account number ending in #### as of the date of ##/##/#### with there being no uncredited payments, counterclaims or offsets against the said debt as of the date of the sale.

5.       According to the account records of said account assignee, after all known payments, counterclaims, and/or set offs occurring sub sequent to the date of sale, account assignee claims the sum of $$$$ 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.

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There's a lot there about now but nothing about when the OC's records were made. Back to post #10, doesn't look like they meet the checklist for integrated records. Doesn't look like they meet the business records exception under 24-8-803-6

http://ga.elaws.us/law/section24-8-803

or 24-9-902 11 and 12

http://ga.elaws.us/law/section24-9-902

 

 

I'd also hold them to summary judgment standards on the affidavit even if you're not yet at that point-

http://law.justia.com/codes/georgia/2010/title-9/chapter-11/article-7/9-11-56

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

 

 

 

and the account seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever.

aka the sales paperwork says as-is, no guarantees, you bought it, don't come back to us for support.

 

Okay, just keeping the thread warm for someone from Georgia to hopefully post.

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There is nothing in there about the testimony is made on personal knowledge, or at or near the time of event by a person with personal knowledge. Nothing about how the records were maintained in the ordinary coarse of business, only that they were maintained. How were they maintained? Seldom do the jdb's get it right, that is why we tear the affidavits apart. Requires the affiant to appear personally so you can ask them these questions, and rarely do they have a witness that can do that.

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@HockeyFan  :

 

The documents they sent you are complete garbage that do not prove an assignment of a specific debt was made by Citibank to Portfolio.  They have no actual legal basis to sue you.

 

 

What I did in these type of cases is the following:

 

Submit your Answer denying each of their claims other than the one that you are are resident of the county.

 

Submit a Counterclaim for violations of FDCPA at the same time you submit your Answer.  (This gives the plaintiff an incentive to agree to dismiss WITH prejudice because BOTH of you will have to dismiss your cases.)

 

 

Make 3 copies of your Answer and Counterclaim.  Carry it to the courthouse magistrate clerk and have all 3 copies stamped by the clerk.  One is for the court, one is for you, and the other you mail to the plaintiff attorney.

 

The county sends you a notice for the court date.  Show up for that court date!!

 

The plaintiff attorney will call your name and you will meet in the hallway most likely.  (I think I met Tracy or Tamara at my Magistrate case with Portofolio)  The attorney will use this meeting to intimidate you, talk you into admitting you owe the debt, and try to coerce you into a payment plan.   Your job is to DENY, DENY, DENY.  Do NOT give in.  The law is on your side.  Deny that you owe Portfolio or Citbank anything.  She will wave the billing statement in your face.  You've never see it before and tell her you understand the game and that NONE of the documents she has show that a specific credit card account was sold to Portfolio.  

 

AND don't hold back.  Tell her you do not appreciate her client HARASSING you and your family day and night for a debt you do not owe!  You are sick of it and it ends today.

 

When she says she will dismiss WITHOUT prejudice, tell her NO, it has to be dismissal WITH prejudice or you will just let the judge decide after you explain to the judge the claim is not supported by any admissible evidence under the laws of Georgia and ask the judge to award you money for the violations listed in your countersuit.  She is not going to take a risk of going in front of a judge with zero evidence over a tiny $1,000 credit card bill.  (The judge could actually end up awarding you $1,000 if the judge agrees with your counterclaim,  if the lawyer is dumb enough to let it get that far.)  

 

The lawyer will give up and fill out a piece of paper for both of you to sign saying you both dismiss WITH prejudice.  You wait your turn in front of the judge and she gives it to the judge.  The judge will ask you to acknowledge that this is what you want to do.

 

This whole process is just a big game for the JDBs designed to get default judgements from people who do not show up for court.  If you show up and put up any fight they will give in.   

 

Notice one thing in that document that is a list of instructions from the Fulton county magistrate court.  It actually says in the Magistrate court instructions that affidavits are not admissible in magistrate court !!!  Her whole case is based on a bogus robo-signed affidavit and a bunch of unrelated documents that do not show any specific debt was sold to Portfolio !!  

 

Anyway, that is what I have done before for claimed debts up to $13,000. Only you can decide what's best for you.  Please look up my other posts for more details on examples and Georgia law and the reasons all of their documentation is flawed and not admissible.

 

Just looking a little closer now I see that affidavit is even more worthless than I thought at first.  As far as I can see, it does not even mention that any of the "business records" are attached or identify any of the "business records" it claims prove a debt exists.    This pitiful stack of documentation has more holes in it than swiss cheese.    None of them can ever be introduced in the first place because the attorney will have no custodian of records in the courtroom as a witness to introduce them and you can object immediately if she were to try such a thing.

 

 

Please do me a favor...  When you are at the courthouse submitting your Answer, please ask the clerk a question about one of the instructions on the form.  Ask the clerk to confirm that one of the sentences means the neither the defendant or plaintiff can submit affidavits as evidence at magistrate court and instead must have live witnesses if they are giving testimony.   I want to make sure the instructions they are giving out are correct.

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Wow, that makes complete sense. Few questions. On another forum I am being told to do an MTC for arb with JAMS, should I do that or no?  What exactly are my counterclaims? That they are annoying me? Ha

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@HockeyFan  :

 

Please do me a favor...  When you are at the courthouse submitting your Answer, please ask the clerk a question about one of the instructions on the form.  Ask the clerk to confirm that one of the sentences means the neither the defendant or plaintiff can submit affidavits as evidence at magistrate court and instead must have live witnesses if they are giving testimony.   I want to make sure the instructions they are giving out are correct.

 

@NormInGeorgia Which form are you referring to?

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@HockeyFan

 

Well, I would follow @NormInGeorgia's advice instead.  Many OPs have had success by going to court and arguing their case.  The "other board," in my opinion, often advocates arb too much.  Moreover, not all of its advice is well-founded in law.  But you alone have to decide what course you will pursue.

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@HockeyFan

 

Well, I would follow @NormInGeorgia's advice instead.  Many OPs have had success by going to court and arguing their case.  The "other board," in my opinion, often advocates arb too much.  Moreover, not all of its advice is well-founded in law.  But you alone have to decide what course you will pursue.

 

I am going to go with @NormInGeorgia's advice, it seems to make more sense and is easier to follow.  But I am still unsure about the counterclaims.

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@HockeyFan

http://magistrate.cobbcountyga.gov/v6/smallclaims.htm

Can I bring letters or affidavits from witnesses to the court?

No. Live witnesses who have direct knowledge of the facts to which they testify must present all testimony. If the witness is not physically present in court, under oath, and subject to cross examination, their statements may not be presented to the Court. To do otherwise would violate the Georgia law against "hearsay" evidence.

 

There's also this you could use-

O.C.G.A. § 9-11-43

(a)  Evidence on trials. In all trials the testimony of witnesses shall be taken orally in open court unless otherwise provided by this chapter or by statute.

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