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Hello there, everyone!

 

Firstly, I know this is a long post to begin with, but I just wanted to thank you all for all of the information I've gained from this site just upon reading.  You all are a huge help to everyone on here who takes the time to read about their case and sharing your valuable knowledge and past histories is incredibly helpful.  So now, I'll get to my case.  It's a very little amount, Pressler & Pressler, Midland Funding, NJ - apparently all parties are quite well known, but all details are below.  

 

Upon first receiving this, I knew not even where to begin knowing it wouldn't be worth it to hire a lawyer and assuming it's probably a debt they have little to no info on.  Upon reading this site and all of your valuable knowledge, I've been able to formulate the below answer.  From there, I'm lost, might even be lost with the below, but any and all comments, thoughts, questions, concerns, anything at all is greatly, greatly appreciated.

 

1. Who is the named plaintiff in the suit? 

Midland Funding LLC

 

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

Pressler & Pressler, LLP

 

3. How much are you being sued for? 

$2,108.17

 

4. Who is the original creditor? 

Credit One Bank credit card

 

5. How do you know you are being sued? 

Received Summons/Complaint

 

6. How were you served? 

Mail

 

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? 

May have spoken to on phone. May have received letters. They have my phone number listed incorrectly on the front page of the complaint (comes up for someone with the same last name who lived on the same street I did on a previous address but was not me - makes me think they lack any info?)

 

9. What state and county do you live in? 

NJ, USA

 

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

8/2/2011

 

11. What is the SOL on the debt?

6 years in NJ

 

12. What is the status of your case? Suit served? Motions filed? 

A summons/complaint has been filed against me.  I have 14 days remaining to answer.

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) 

I don’t trust unlisted number and thus most likely had no communication with them and this came upon me unknowingly.  No I have not disputed the debt.

 

14. Did you request debt validation before the suit was filed? 

No.

 

15. How long do you have to respond to the suit?

May 4th, 2015

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? 

They did not attach anything along with the complaint. The only pages I received were the two special civil part summons and return of service pages, and the summons/complaint page.

They provided nothing, no documentation, anything attached to the complaint.

 

RECEIVED MONDAY 3/23/2015 4:57:52 PM 13231242

 

XXXXXXXXXXXXX

Attorney for Plaintiff

File # XXXXXXXX

FILED 

 

Defendant(s) Civil Action

 

COMPLAINT

(Contract)

Plaintiff having a principal place of business at: 8875 AERO DR STE 200 SAN

DIEGO, CA 92123 says:

1. Plaintiff, MIDLAND FUNDING LLC, is the assignee and the current owner of

a CREDIT ONE BANK, N.A. account, having the last four numbers XXXX, which went into default with a balance of $2,108.17.

2. The last three digits of the social security number of the person who used the account are XXX (actual complaint does have these 3 numbers).

3. The account was assigned from the original creditor, CREDIT ONE BANK,

N.A. through it's legal selling entity CREDIT ONE BANK, N.A./FNBM, LLC to

SHERMAN ORIGINATOR III, LLC on 04/12/2012, and then to MIDLAND FUNDING LLC on 04/19/2012.

4. Plaintiff, MIDLAND FUNDING LLC, alleges that the Defendant, XXXXXXXX, is the person who opened and used the account having the last four numbers XXXX, and has a social security number with the last three digits

XXX.

5. Plaintiff is seeking from the Defendant, XXXXXXX, on the above account, the sum of $2,108.17.

 

WHEREFORE, plaintiff demands judgment for the sum of $2,108.17 plus costs.

I certify that the matter in controversy is not the subject of any other court action or arbitration proceeding, now pending or contemplated, and that no other parties should be joined in this action.

 

I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7( B).

 

 

 

My responses:

 

FORM A

 

X (6) Other – Set forth any other reasons why you believe money is not owed to the plaintiff(s). (You may attach more sheets if you need to.)

Plaintiff provided no documentation to support the charges alleged in the complaint, therefore defendant denies all allegations.

 

FORM A

(State whether you agree or disagree with each paragraph of the plaintiff’s complaint. If additional room is needed, attach a separate sheet.)

 

1. Defendant denies the allegations contained in Paragraph 1 of the Complaint as Defendant is, at this time, without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements and lacks information to form a belief as to the truth or falsity of Paragraph 1.

2. Defendant denies the allegations contained in Paragraph 2 of the Complaint as the Defendant lacks information to form a belief as to the truth or falsity of Paragraph 2.

 

3. Defendant denies the allegations contained in Paragraph 3 of the Complaint as the Defendant is, at this time, this request calls for admission of matter defendant has denied and thus it is improper.

 

4. Defendant denies the allegations contained in Paragraph 4 of the Complaint as the Defendant, at this time, lacks information to form a belief as to the truth or falsity of Paragraph 4.

 

5. Defendant denies the allegations contained in Paragraph 5 of the Complaint as the Defendant is, at this time, without knowledge or information sufficient to form a belief as to the truth and accuracy of the Plaintiff's allegations or entitlements as Plaintiff has not entered into record nor has he supplied the Defendant the alleged contract which substantiates these claims.

 

AFFIRMATIVE DEFENSES:

 

Lack of Standing. Plaintiff has failed to prove ownership of the alleged account with standing to sue.

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Below the title of your thread are a number of buttons. Click New Jersey and Pressler and you will find many threads.

 

 

 You need to see if you have any FDCPA or TCPA violations that you can file suit against.  If so,most lawyers will defend you on contingency, meaning they get their attorneys' fees paid by winning your lawsuit.  Do a google search for Philip Stern, one of NJ finest consumer lawyers.

 

Even if you don't have any FDCPA or TCPA claims, it would be well worth the money to have a lawyer represent you.  This firm will do a credit card defense starting at $350.  I would call both lawyers.  A consult is free.

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Thanks for the response!

 

I spoke to Phil actually and do not believe I have any FDCPA or TCPA claims.  

 

Even so, it would be worth it to hire a lawyer? Every single one I called said it would not be worth their time or payment to hire them.  Or, that I should handle it myself, which led me to the tons of the reading you've referred to over the past few weeks.

 

I thought I came up with a pretty good answer and affirmative defense in hopes they would drop the case, but in all honesty, have no idea what i'm doing here and learning from you guys, so would love to know if you really think hiring a lawyer would be suggested.

 

Thanks again for your help, it is greatly appreciated!

 

Best,

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  This the law firm I forgot to link to

 

http://yournjattorneys.com/

 

.  They say will do a credit card defense for $325..  Have you contacted them?  If they will defend you for that price or even $500, it would be well worth it.  Just filing an Answer and Aff. Defenses won't stop Pressler.  They will motion for discovery and eventually file a Motion for Summary Judgment and/or take it to trial.   You can go about this pro se, but you will have to work at it hard. 

 

If your credit card provides for JAMS arbitration, you may want to file Motion to Stay Proceedings and Compel Arbitration. For the relatively small amount you're being sued for, it may scare them off.

 

But first consult with that law firm.

 

 

 

 

AVE YOU BEEN SUED BY PRESSLER & PRESSLER  ?

OUR LAW FIRM Aggressively  DEFENDS YOU AGAINST PRESSLER (AND OTHER COLLECTIONS FIRMS), WITH FEES STARTING AT JUST $325. with a free initial consultation.

DON’T GO IT ALONE- CALL  908-782-5313 TO SPEAK WITH THE DEFENSE ATTORNEY .

In this recessionary economy, more and more people are “falling behind” on their bills. If you’re more than 90 days past due on a credit card or medical debt in New Jersey, chances are excellent you’ll soon be receiving a lawsuit in the mail from a collections firm, probably Pressler and Pressler of 7 Entin Road in Parsippany, NJ. We have defended and defeated this firm and others in NJ Collection Matters throughout New Jersey. Often the plaintiff in the case will NOT be the original creditor, but rather a “junk debt buyer” such asMidland Funding LLC, New Century Financial, Cavalry LLC or another such “middleman,” who likely bought your credit card or consumer debt for just pennies on the dollar !

The law firm of Pressler and Pressler are undoubtedly the biggest (and most infamous) collection law practice in New Jersey. They represent Discover Card/Discover Bank debts, as well as several large NJ hospitals. Other large debt collection outfits in NJ include Goldman & Warshaw, Sklar-Markind, and several other firms who specialize in collections lawsuits.

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Well, I called just about every debt collection lawyer in New Jersey and the consensus was that it was not worth hiring any of them for the fee for such a small amount and that it'd be worth it to just represent myself.

 

The offer you mention above was not mentioned in the phone call I had with them, however I did find them very helpful.  Another firm did offer to file my answer for $350, and that's it, in which I politely declined.

 

Almost every lawyer gave opposing advice, almost none of them agreed; some said to call Pressler and offer to settle (some said to definitely NOT call), some said to file just the one affirmative defense, some said throw the book at them (I'm going to need help finding that book!), 

 

At this point, most respected lawyers said it's worth it to just represent myself, file the answer, hope they offer to settle, if not, go thru the process with discovery; but I was told to definitely avoid a motion for summary judgement and just hope that it never goes to trial since Midland wouldn't want to fly someone in as a witness.  

 

I am just trying to avoid making a mistake here doing this on my own and that's why after hearing your advice online here, I was then hoping to find representation, but it seems almost everyone agreed and insisted I should represent myself.

 

What are your thoughts? Any would be appreciated.  If representing myself and going thru with it, I suppose my next immediate question would be for my affirmative defenses, should I include just the one (lack of standing) or throw the book at them?

 

Thanks so much for your help!

 

Best,

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@bigblue132

 

Do a search on the arbitration threads here on this site.  See if you can find a cardmember agreement dated during the time when the account was open.  Here's a thread to get you started:

 

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

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Hi bigblue, i am not a lawyer and my comments don't have any weight as legal advise. All i can tell you is my experience of going to court to try to defend myself. So ,please make your own choice on how to proceed regarding your case and educate your self a lot.

For what i recall, they are going to pursue your case till the end.

Your answer to the complaint looks decent to me, i just wouldn't use affirmative defenses because ,to my understanding, you have to prove them in court.

During discovery is when the process gets interesting.

The main thing ,in my opinion, is to avoid a summary judgment against you and make them go to court and face the judge with their affidavits and proof that you owe the money.

So file your answer and you are going to have to deal with the discovery process from them and yours to them.

Educate yourself on how to deal with discovery.

I can tell you how was mine later.

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Thank you all for your help thus far.  I'm fine-tuning my affirmative defenses and once finished, will post them up here for your review.

 

Now, a few lawyers I've spoken to have said just give P&P a call denying any knowledge of the debt and asking if they'd accept a payment?  Of course, quick payment, lump sum, etc - I would think this would need to be in writing, but many have told me to simply call them.  With the deadline to file my answer approaching, I need to act quickly.

 

Please let me know your thoughts on this to avoid a legal situation altogether and the likelihood of success or if I am better off filing my answers and then hoping for a settlement?

 

Thank you again everyone!

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Do not call them to settle.  Either file for JAMS arb or litigate the case.  Then they may approach you to settle. If the latter, Philip Stern's site has a lot of infor for pro se litigants on his site. Also, again, check the NJ and Pressler threads.  There are a lot of them.

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Hi again!

 

T-minus 6 days until my answer is due, so this draft is nearing it's final version.  I've resisted the urge to call them to try and settle and after much editing, researching and revising, I've come up with the below draft as my answer to the complaint.  

 

One of my biggest concerns is making a mistake in my answer or any legal language, so please let me know if you have any comments, feedback or any advice at all; it is greatly, greatly appreciated! 

 

XXXX XXXXX

XXXXXXXX

XXXXX, XX XXXXXX

XXX-XXX-XXX

Pro Se

 

 

 

 

 

SUPERIOR COURT OF NEW JERSEY

MIDLAND FUNDING LLC CURRENT

ASSIGNEE, [CREDIT ONE BANK, N.A.,

ORIGINAL CREDITOR]

 

LAW DIVISION, SPECIAL CIVIL PART

XXXXXXX COUNTY

 

 

DOCKET NO. XXXXXXXXXXX

                              Plaintiff,                              

 

 

 

 

 

V.

 

 

CIVIL ACTION

 

 

 

XXXXXXXXX XXXXXXXXX

 

                               Defendant.                               

 

ANSWER, SEPARATE DEFENSES

 

    

 

ANSWER TO THE COMPLAINT

 

 

Now, here comes the Defendant, XXXXXXXXX XXXXXXXXX, hereby filing my Answers and Affirmative Defenses to the Plaintiff’s Complaint and stating the following:

 

 

COUNT 1

 

   I, XXXXXXXXX XXXXXXXXX, lack sufficient knowledge as to the allegations in paragraph one and therefore deny the allegations in paragraph one of the complaint.   

 

COUNT 2

 

   I, XXXXXXXXX XXXXXXXXX, lack sufficient knowledge as to the allegations in paragraph two and therefore deny the allegations in paragraph two of the complaint.   

 

COUNT 3

 

   I, XXXXXXXXX XXXXXXXXX, lack sufficient knowledge as to the allegations in paragraph three and therefore deny the allegations in paragraph three of the complaint.   

COUNT 4

 

   I, XXXXXXXXX XXXXXXXXX, lack sufficient knowledge as to the allegations in paragraph four and therefore deny the allegations in paragraph four of the complaint.   

 

COUNT 5

 

   I, XXXXXXXXX XXXXXXXXX, lack sufficient knowledge as to the allegations in paragraph five and therefore deny the allegations in paragraph five of the complaint.   

 

 

WHEREFORE, I, the defendant, demand judgment dismissing the complaint with costs.

 

 

FIRST AFFIRMATIVE DEFENSE

 

 

Plaintiff’s Complaint fails to allege valid lack of standing to prove ownership of the alleged account with standing to sue.  Plaintiff’s Complaint has failed to show standing that the amount is a valid debt and/or account, the Defendant owns the invalidated debt and/or account and a valid assignment of debt was contracted to assign the Plaintiff as an authorized representative for any business on behalf of the Defendant. The claims cannot be assumed without creating an unfair prejudice against the Defendant. 15 U.S.C.§ 1692f

 

 

SECOND AFFIRMATIVE DEFENSE

 

 

Plaintiff’s Complaint fails to state a claim upon which relief can be granted. The defendant has no business relationship with the Plaintiff.   In addition, not only does Plaintiff’s complaint fail to provide proof of a business relationship with the defendant, Plaintiff’s complaint also fails to state the date of the last activity on the allegedly defaulted account.  This date and the Plaintiff’s claim to have a business relationship with the defendant cannot be assumed without creating an unfair prejudice against the Defendant.

 

Plaintiff’s Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Plaintiff’s Complaint fails to allege whether or not the purported assignment was partial or complete and there is not evidence that the purported assignment was bona fide.

 

Furthermore, Plaintiff's complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

 

Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

 

Plaintiff’s Complaint is based on a contract that is illusory, therefore unenforceable.

 

 

THIRD AFFIRMATIVE DEFENSE

 

 

Defendant reserves the right to amend and/or add additional Answers, Defenses, and/or Counterclaims at a later date should discovery necessitate.

 

CERTIFICATION OF NO OTHER ACTIONS

I certify that this dispute is not the subject of any other action pending in any other court or a pending arbitration proceeding to the best of my knowledge and belief. Also, to the best of my knowledge and belief, no other action or arbitration proceeding is contemplated. Further, other than the parties set forth in this complaint, I know of no other parties that should be made a part of this lawsuit. In addition, I recognize my continuing obligation to file and serve on all parties and the court an amended certification if there is a change in the facts stated in this original certification.

Dated: _________________                                           Signature: __________________

 

CERTIFICATION REGARDING FILING AND SERVICE

The undersigned hereby certifies that a copy of this pleading was served and filed within the time permitted by the court rules.

Dated: _________________                                           Signature: __________________

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I think the lawyers you consulted are giving you a hint. NJ now has case law that allows the affiant from a debt buyer to attest to the OC's records, thereby blowing up "hearsay" arguments that were key to a defense of "lack of standing." 

 

Either bone up on arbitration or try to settle - fighting in court, in my opinion, will just add to the eventual bill.

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I think the lawyers you consulted are giving you a hint. NJ now has case law that allows the affiant from a debt buyer to attest to the OC's records, thereby blowing up "hearsay" arguments that were key to a defense of "lack of standing." 

 

Either bone up on arbitration or try to settle - fighting in court, in my opinion, will just add to the eventual bill.

 

I looked into arbitration and unfortunately, Credit One has a clause in their cardmember agreement against any arbitration. 

 

I agree and the last option I want to pursue is fighting this in court.  I would love to settle this and make an immediate payment, just seeking the most effective route to get there.

 

Thanks for your reply!

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NJ now has case law that allows the affiant from a debt buyer to attest to the OC's records, thereby blowing up "hearsay" arguments that were key to a defense of "lack of standing."

 

Hi Goody. By "case law" I'm guessing that you mean precedent and not new legislation?  Are the relevant opinions published? Which case(s)?  Thanks.

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@Robespierre - I don't recall the case - I believe it was from last year and Stern was involved. It has same effect as Parker in AZ, meaning that once a trial court judge uses his discretion to allow the admission of debt buyer affidavits, and those affidavits contain language about how the OC's business records were incorporated and relied upon, then that affidavit essentially becomes a live witness.

 

I'm sure that is why no legitimate lawyer wanted to take this case.

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The reason no lawyer wants this case is because their fee is almost as much as the amount being sued for.  I know because I contacted one on Blue's behalf yesterday.

 

The case that Stern appealed were actually two appeals calendared back to back and consolidated:   New Century Financial v. Oughla and MSW Capital v. Zaidi.  The appeals court affirmed SJ on Zaidi, but not on Oughla.   It's a 20 page decision and while the court upholds the admissibility of electronic business records, the court still held that assignment and standing must be proven and that when affidavits are introduced, "the affiant must specifically identify his position, give the source of his knowledge and if the affiant attempts to autheticate a document without explaining precisely what each one is and how it came into the affiants's hands it should be rejected."  Here the court quoted from Garden State Bank v. Graef, a 2001 decision.

  

https://scholar.google.com/scholar_case?case=14171067139650815338&q=credit+card+debt&hl=en&as_sdt=4,22,31&as_ylo=2014

 

 

LVNV Funding v. Colwell (2011) is still good law and the appeals court in Oughla and Zaidi cites to it as the providing the proof necessary to prevail undeer R. 6:6-3(a).  In Colwell, the appeals court noted that even though the defendant didn't deny using the credit card, LVNV still had not met its burden of proof.

 

https://scholar.google.com/scholar_case?case=12347089951873888061&q=credit+card+debt&hl=en&as_sdt=4,22,31&as_ylo=2014

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It's all in the wording. I don't know if your NJ rules states this, but most state " lack of knowledge" is not an acceptable answer unless you precede it with " after a reasonable inquiry, and diligent search defendant lacks sufficient knowledge..........."

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It's all in the wording. I don't know if your NJ rules states this, but most state " lack of knowledge" is not an acceptable answer unless you precede it with " after a reasonable inquiry, and diligent search defendant lacks sufficient knowledge..........."

Indeed. In the cases posted above from inside arm and how the bottom feeders greeted these rulings; which were summary judgments and not trials, the judge said defendant "did not provide a responsive answer. merely stating plaintiff did not provide documentation to prove the allegations in the complaint and therefore denies".

 

As a result the bottom feeders filed for summary judgment, and the defendant didn't handle it well.

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Indeed. In the cases posted above from inside arm and how the bottom feeders greeted these rulings; which were summary judgments and not trials, the judge said defendant "did not provide a responsive answer. merely stating plaintiff did not provide documentation to prove the allegations in the complaint and therefore denies".

 

As a result the bottom feeders filed for summary judgment, and the defendant didn't handle it well.

 

Thank you all for this info, I'll post more in-depth later on today but I just wanted to respond to this post very quickly.

 

Therefore, in Form A (see link here - http://www.judiciary.state.nj.us/civil/forms/11637_appndx_xi_f.pdf),would you suggest simply stating "Other. See attached additional documents." And these additional documents are my answer and affirmative defenses as posted above?

 

Also, debtzapper is completely correct in why most lawyers suggested for me to represent myself, due to the cost of their services and the amount in the suit.  Many, many had offered and gave me quote, but none of them suggested it would be worthwhile or they would particularly recommend it.  

 

Thereby, the consensus certainly seems to answer with affirmative defenses and see what happens.  I have my interrogatories ready to go, although I thought I recalled Phil Stern telling me to wait as long as possible after filing my answer to send these in.  Assuming the cause of this is that P&P will try and stall and not provide the documentation for as long as possible?

 

And lastly, shelliah98, thank you for your response and the fact that it is indeed "all in the wording" is what has me so concerned about representing myself and why every opinion, advice and set of eyes on this revised document I wrote above and am preparing to submit is so important to me.  I can't thank you all enough!

 

Best Regards,

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The reason no lawyer wants this case is because their fee is almost as much as the amount being sued for.  I know because I contacted one on Blue's behalf yesterday.

 

 

Yes, that makes more sense. It's also a good reason a bottom feeders lawyer may not want to pursue  the case as well (assuming it is being contested). You really go the extra mile for people DZ.

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It's also a good reason a bottom feeders lawyer may not want to pursue  the case as well (assuming it is being contested). 

 

Nice concept in the era before fixed fee agreements.

 

The reality is that, if things don't work out, the OP will be paying Pressler's fee, in addition to the debt. Midland's exposure is capped, with the expectation that Pressler will follow this through appeal, if that's what it takes.

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Nice concept in the era before fixed fee agreements.

Nothing has changed. The lawyer doesn't want to go to trial, fixed fees or not.

 

The reality is that, if things don't work out, the OP will be paying Pressler's fee, in addition to the debt.

The reality is the OP needs to answer the complaint and that's the subject matter here now.

Midland's exposure is capped, with the expectation that Pressler will follow this through appeal, if that's what it takes. 

Midland dismisses cases all the time as do all the other bottom feeders. It is a business, and the cases are about economics.

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 P&P is used to quick default judgments.  For amount this small, I think P&P may be more likely to settle that to litigate, depending on how solid their case is.  But that is something only the OP can decide.

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