ScrapHappy

Being Sued in Arkansas by Portfolio Recovery Associates

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I was served this afternoon I am at a loss as to what I need to do exactly or how to do it, any help would be appreciated.I am attaching both the complaint and the affidavit.

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Looks sloppy on their part, no account number, can't find this to attach, Portfolio trying the integrated records spiel for the OC's records.

If you'd like to answer these questions that would help.

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

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1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates

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

3. How much are you being sued for? $980.84

4. Who is the original creditor? (if not the Plaintiff) GE Capital Retail Bank

5. How do you know you are being sued? (You were served, right?) SERVED County Sheriff

6. How were you served? (Mail, In person, Notice on door) PERSON

7. Was the service legal as required by your state? YES

Process Service Requirements by State - Summons Complaint

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?

Arkansas,

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) according to Equafax 6-1-12

Trans union says 6-12-12

11. What is the SOL on the debt? To find out: 3 years

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Complaint 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? 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? 30 days and day served does not count served 4-28

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? Nothing

An affidavit? Yes

Statements from the OC? On

Contract? No

List anything else they attached as exhibits. None

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2 things.

look on your credit report and see if the OC listed (assuming this is indeed your account) states if it was sold to another lender.  Note the date.  Look and see if there are any other entries for the same amount from a junk debt buyer besides portfolio.  That will tell you if they bought it from the OC or another junk buyer.

 

Look on your OC entry and see when the last payment you made was.  Sometimes the junk buyer will give you a date where they charged it off rather than when your last payment was.  I would also check my bank records and confirm the last payment since it is so close to the SOL.

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Under R.10(d), they must attach a copy of the card agreement with GE Retail Bank to the complaint.  Did they do that?

 

https://scholar.google.com/scholar_case?case=9865540368977911947&q=nardi&hl=en&as_sdt=4,4,41&as_ylo=2011

 

From the case above:

 

 

 The circuit court found that under Rule 10(d), the agreement between Nardi and Citibank had to be attached to the complaint and entered summary judgment in Nardi's favor.[1] We affirm the decision of the circuit court. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2( B)(1)(2012).

 

 

Under the rules, however, PRA might be allowed to amend its complaint. But the complaint in its present form is deficient.

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I am from Arkansas. Under Arkansas law, credit cards are considered a written contract, so the Statute of Limitations is 5 yrs., not 3. However, A & W law firm files hundreds of suits every year, and most are won by default judgments. They are looking for the low hanging fruit. When a defendant properly answers the suit and is vigilant in defending their case, they typically fold.

You are in great hands here. Lots of good, knowledgeable people to help you navigate your way through this, but equally as much work on your part.

You've come to the right place!

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@shellieh98 both credit reporting agencies report the last update as March 11,2013

Equifax reports it as sold no date or amount or even a.balance on the account only it was charged off does not say to whom sold.

Trans Union shows it was charged off and closed Dec. 14,2011 and the highest balance was $561 it doe not show it sold.

@debtzapper no they did not attach the card member agreement they said "The cardmember agreement is not available and therefore good cause exists for the Agreement to not be attached to this complaint. Plant if will amend this complaint if Cardmember agreement become available."

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it has my name then says "Debtor and Co-Debtor". Are they saying there are 2 people on this account?

@ScrapHappy I'm sure it's such boilerplate they use the same affidavit for everyone (co-signer accounts, married couples in community property states).

 

That affidavit also has the Portfolio person, using the integrated records hope someone buys it since it sounds official clause, claiming they're capable of having personal knowledge on the original creditor's documentation.

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You would follow the Ark Rules of Civ Procedure in answering the complaint.

 

 

 

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether a complaint, counterclaim, crossclaim, or third party claim, shall contain (1) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief, and (2) a demand for the relief to which the pleader considers himself entitled. In claims for unliquidated damage, a demand containing no specified amount of money shall limit recovery to an amount less than required for federal court jurisdiction in diversity of citizenship cases, unless language of the demand indicates that the recovery sought is in excess of such amount. Relief in the alternative may be demanded.
(B) Defenses: Form of Denials. A party shall state in ordinary and concise language his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the claim, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments, except such designated averments or paragraphs as he expressly admits, provided that he may admit any part thereof and deny the remainder. When the pleader intends in good faith to controvert all averments, including averments of the grounds upon which the court's jurisdiction depends, he may do so by general denial subject to the obligations set forth in Rule 11.
© Affirmative Defenses. In responding to a complaint, counterclaim, cross-claim or third party claim, a party shall set forth affirmatively accord and satisfaction, arbitration and award, comparative fault, discharge in bankruptcy, duress, estoppel, exclusiveness of remedy under workmen's compensation law, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, set-off, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
(d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied, either generally or specifically, in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
(e) Pleading to Be Concise and Direct: Consistency.
(1) Each averment of a pleading shall be direct and stated in ordinary and concise language. No technical forms of pleadings or motions are required.
(2) When permitted by Rule 18, a party may set forth two or more separate claims, provided that each claim shall be set forth in separate, numbered counts. A party shall set forth in an answer or reply as many defenses, whether legal or equitable, as he may have. All statements shall be made subject to the obligations set forth in Rule 11.
(f) Construction of Pleadings. All pleadings shall be liberally construed so as to do substantial justice

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Unfortunately, I can't read your thumbnails.  Does your card agreement provide for arbitration?  If you are being sued for just a few thousand, a Motion to Compel Arb might scare them off.  This was an Ark thread about arb. 

 

 

http://www.creditinfocenter.com/community/topic/319449-cach-mchughes-law-firm-llc-summonscomplaint/page-2

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@debtzapper Is this what I need? 

IMPORTANT INFORMATION ABOUT THIS AGREEMENT Assignment. We may sell, assign or transfer any or all of our rights or duties under this Agreement or your account, including our rights to payments. We do not have to give you prior notice of such action. You may not sell, assign or transfer any of your rights or duties under this Agreement or your account. Enforceability. If any part of this Agreement is found to be void or unenforceable, all other parts of this Agreement will still apply. Governing Law. Except as provided in the Resolving a Dispute with Arbitration section, this Agreement and your account are governed by federal law and, to the extent state law applies, the laws of Utah without regard to its conflicts of law principles. This Agreement has been accepted by us in Utah. Waiver. We may give up some of our rights under this Agreement. If we give up any of our rights in one situation, we do not give up the same right in another situation. RESOLVING A DISPUTE WITH ARBITRATION PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. • What claims are subject to arbitration 1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Gap Inc. if it relates to your account, except as noted below. 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

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Here is my answer to the comolaint si far, i am nit sure if its wrute or if i need more.

Case Number XXXXX

PRA. Plan in tiff

Me. Defendant

Defendants Answers to Complaints

Allegation 1. Admit the plaintiff is a foreign limited liability company authorized to bring action under Ark. Code Ann. 4-32-1008

Allegation 2 Admit I am a resident of said county

Allegation 3 Admit the Jurisdiction and venue are proper for the court.

Allegation 4 Admit I has an account with GE Capital Bank. Deny in part, I have been given no evidence that this is the same account as the debt alleged in this complaint.

Allegation 5 Deny, this is vague,ambiguous and unintelligible in that it speculates as to the meaning of "said accounts".

Allegation 6 Deny, no demands have been made for payments.

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Regarding your answer:

 

  • Typically, You would admit 1-3. I don't see those being up for debate.
  • 4 and 5, I would deny, as they mostly call for legal conclusions.The below would be more appropriate, if you are denying those:
  • Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in paragraph N of the Complaint, and, therefore denies the allegations.

 

PRA is one of the most sloppy JDB here in Arkansas.Chances are they have violated the FDCPA somewhere. Just from glancing at the complaint, they are asking for attorney fees, and costs, which would not be provided by the alleged original agreement.

 

If you are interested, I can recommend and attorney here in AR. Send me a pm.

 

In the meantime, make sure your answer is filed on time.

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@ScrapHappy

 

I would follow the advice of your fellow Ark resident @Trapezius.  At least consult with a lawyer.  A consultation is free.  If you have any FDCPA violations for which your lawyer can sue Portfolio, they will likely defend you without charge.  Even if you don't have any violations, a lawyer can give you a professional evaluation of your case.

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I would deny 1.  and replace it with objection, calls for an assumption.  Defendant has no idea if plaintiff is a foreign limited liability company authorized to bring action under Ark. Code Ann. 4-32-1008  Denied

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Thanks,everyone. I am going to get my response out by Friday is there anything else I need to add or send with it? I have tried to find my county's rules and procedures but they are not on the county's website. I called the clerk but I don't think she will be any help.

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ScrapHappy, I don't know what county you are in, but in Little Rock (Pulaski Co), the COOK LAW FIRM actually SUES debt collectors.  If you happen to at least be near LR, I would give them a call.  It is quite possible they would take the case for free, IF they have an angle for a countersuit.  They are REALLY GOOD!

 

When the time comes, you can ply them with your own 'discovery' -- to the point they would spend more than they are suing for.

 

Jimmy

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Ok, so Star City.  Lori Withrow is going to travel down there to argue a case that is less than $1k -- yeah, right!! ;-)

 

I would be happy to take a look at whatever Plaintiff has sent, if you want to scan and email it to me:  jimmy1967@comcast.net or (501) 352-9964.  Other people on this forum, especially Arkansans will NOT let you lose.  I, personally have enough discovery material you can send them, that they would think twice about pursuing little over $900 bucks.

 

This law firm has filed, and have ACTIVE, HUNDREDS and HUNDREDS of cases filed in most of the 75 counties in Arkansas -- with a single attorney assigned.  These scum are truly benefiting from the 99+% who will file no answer and get a default judgment against defendant.

 

If you are willing to do the needed, we will NOT let this happen to you!  I've been through this 'dance' before.  Fighting for an alleged $900+ is nothing compared to the tens of thousands in default judgments they will receive because of no response from defendant.

 

If you're 'game,' we will overwhelm them to the point they will not be able to wait to drop the case.  These bloodsuckers prey on people who are least able to afford help from an attorney, let alone, even understand what they need to do when they receive a lawsuit.  Sickening that this LR firm are the 'ambulance-chasers' of alleged debt collection.  Actually, they are even WORSE -- going after people they count on NOT understanding what to do, then draining already cash-poor people of their hard-earned money!

 

Bottom line is they alleged you owe Portfolio 'x' dollars.  NO, YOU DO NOT!

 

Let's put them in their place.  I will NEVER allow a fellow Arkansan who asks for help, to lose against these vampires!  Look forward to hearing from you.

 

Jimmy

 

 

 

 

DISCLOSURE == I am NOT an attorney, but only offer my opinion. Seek professional assistance when a lawsuit is filed against you.

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