Spundizzy1969

Going to trial with Portfolio Recovery Associates in FL at the end of Sept, can I get assistance with my case?

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Hi All, I'm very new to this forum, however I will say I've been reading like a madman all the information here over the last two days. The knowledge is incredible and it's give me hope. 

I have already been to a hearing, to determine if we were going to settle or got to trial, I knew to deny everything and I did. I told the judge they hadn't provided any proof I own the debt other than the assignment document and two statements with my name and address on them. The judge basically told me requesting proof of the debt won't help me, which kind of made me feel  like there was no chance. As I left after they set the trial date, it made me angry and determined, as everyone else in there was making payment arrangements. I will say their attorney appeared a little taken aback that I denied it all. 

I have posted all the documents I have after taking out all personal identifying info. Would anyone take a look and offer me guidance please? I would reall appreciate any assistance or advice I can get.

 

Thanks so much for all you do.

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@LawKitty. She is an attorney in FL.

i didn't pull up all the docs, my I pad is acting wonky. Is this a summary judgement?

I do believe they need to give you the name and addy of the witness, not just " custodian of records"

I'll get on my computer tomorrow and try pulling up the other stuff

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1. Who is the named plaintiff in the suit?  Me

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

3. How much are you being sued for? $785.28

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

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

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

7. Was the service legal as required by your state?  Not according to the rules in FL I was in work at the time.Unless I am wrong and they can leave it.

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? FL

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

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

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).

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?  I received a summons to appear, I did so and denied everything, I now have a trial date for the end of Sept. They are saying I owe  785.28 to PRA after they bought the debt from GE Capital Bank

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? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. I uploaded everything I have received from them in my initial  post.

 

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Ok, so this is a small claims case and you went to pretrial. The Judges are more accustomed to seeing people either work out a stipulation or consent to judgment so they try to steer pro se parties from trial. Also, settlements at pretrial make the judge's job easier as well, so the judges and mediators often try to push pro se defendants into settling. Unfortunately many judges are creditor friendly and tend to view credit card defendants as deadbeats too. I don't know about judges in your county specifically. Because of the comment the judge made, I'd believe they might be more creditor friendly. Only way to know is to observe their trials and other pretrials to get a sense of how they rule. Also check out their bio and procedures they prefer followed in their courtroom on the web.

You have some work to do. Being that it's small claims, things are a bit more informal. You probably didn't file an answer, no discovery has been sent or asked for, or any other motions filed. You have two credit card statements (with differing amounts even) and a generic form affidavit from one of their records custodians. By the way, did they file a motion for their witness to appear by telephone? If not, they probably will. You need to object right away if they do, by filing an objection to any witness appearing at trial by phone.

It's such a small amount they are suing you for too. If I was handling the case, I'd file a Motion to Invoke Civil Rules of Procedure, Notice to File Cost Bond, Notice of Disputing Plaintiff's Claim, Answer with Affirmative Defenses, Motion for Summary Judgment, a Sworn Affidavit (stating you did not receive any notice of assignment prior to the lawsuit), Motion to Strike their affidavit, and discovery (Request to Produce. Requests for Admissions, and Interrogatories). You have to give them 30 days to respond to the discovery so you really would need to file all these things fairly quickly. You could also file for a continuance on the trial, but it's more likely it would be granted if you had filed discovery already and were waiting on their responses to prepare your case.

If you file all of this stuff, one of two things will probably happen. The first is that Portfolio will be overwhelmed having to respond to discovery, and being made to provide more proof; having to respond to affirmative defenses; and having to respond to a summary judgment motion, that they will dismiss the case because it is such a low amount. This case would be one that might have been perfect for arbitration because it would cost them too much to arbitrate. The other thing that could happen is that Portfolio basically ignores everything you filed, figuring you don't have a clue what you're doing so you won't know enough procedure to compel them to answer discovery, motion to dismiss if they don't file a cost bond 20 days after notice, or set a hearing and argue a summary judgment motion. Filing these documents is one thing. Many people can copy an example and file it. But most don't know how to argue in court or how to follow through if Portfolio ignores much of what you file. And if you can't argue it in court, then Portfolio can present their case on trial date with their flimsy proof and testimony of their records custodian and you won't know how to assert the issues you've brought up in your filings or cross-examine their witness. Or you will freeze up in court when the time comes.

I'm not saying these things to scare you, but to make you realize that you will need to be more prepared than the attorney for Portfolio if you file these documents and they think that you're a clueless pro se who copied some documents and can run roughshod over you because you don't know how to force them to prove their case. And some judges will think the same thing. As I said you have some serious work cut out for you to not only draft and file some documents, but to read up on Florida Civil Procedure and Florida Evidence, especially business records exception to hearsay. It can be done because there are plenty on this forum that have beaten a JDB lawsuit on their own. You might also read Florida Small Claims rules if you decide not to file a motion to invoke the rules of civil procedure. Either way, if you're going to trial, you will need to know the rules and the law and be more prepared than Portfolio's attorney, who will think you will be easy to beat because you are pro se. Hopefully that will be their mistake. :)

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Thanks all for the help.I really appreciate it.

With regards to filing an objection to the telephonic witness. I didnt see there was a motion filed. Would I not have received a copy in the mail? At the pre trial hearing. The judge asked us both about witnesses appearing. Their attorney stated their witness would appear by phone. I guess my question is do I just file my objection? I'm going to be reading the rules of civil procedure. I really want to beat this.I feel more confident with the help I've already received. I want to ask Lawkitty, the things you have suggested I start with, is there a template link to them? I'm more than willing to read up on each item. And am going to burn them in my mind as to what I need to do to argue my points.

Thanks again everyone. It's really appreciated

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Thanks all for the help.I really appreciate it.

With regards to filing an objection to the telephonic witness. I didnt see there was a motion filed. Would I not have received a copy in the mail? At the pre trial hearing. The judge asked us both about witnesses appearing. Their attorney stated their witness would appear by phone. I guess my question is do I just file my objection? I'm going to be reading the rules of civil procedure. I really want to beat this.I feel more confident with the help I've already received. I want to ask Lawkitty, the things you have suggested I start with, is there a template link to them? I'm more than willing to read up on each item. And am going to burn them in my mind as to what I need to do to argue my points.

Thanks again everyone. It's really appreciated

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Ok, so this is a small claims case and you went to pretrial. The Judges are more accustomed to seeing people either work out a stipulation or consent to judgment so they try to steer pro se parties from trial. Also, settlements at pretrial make the judge's job easier as well, so the judges and mediators often try to push pro se defendants into settling. Unfortunately many judges are creditor friendly and tend to view credit card defendants as deadbeats too. I don't know about judges in your county specifically. Because of the comment the judge made, I'd believe they might be more creditor friendly. Only way to know is to observe their trials and other pretrials to get a sense of how they rule. Also check out their bio and procedures they prefer followed in their courtroom on the web.

You have some work to do. Being that it's small claims, things are a bit more informal. You probably didn't file an answer, no discovery has been sent or asked for, or any other motions filed. You have two credit card statements (with differing amounts even) and a generic form affidavit from one of their records custodians. By the way, did they file a motion for their witness to appear by telephone? If not, they probably will. You need to object right away if they do, by filing an objection to any witness appearing at trial by phone.

It's such a small amount they are suing you for too. If I was handling the case, I'd file a Motion to Invoke Civil Rules of Procedure, Notice to File Cost Bond, Notice of Disputing Plaintiff's Claim, Answer with Affirmative Defenses, Motion for Summary Judgment, a Sworn Affidavit (stating you did not receive any notice of assignment prior to the lawsuit), Motion to Strike their affidavit, and discovery (Request to Produce. Requests for Admissions, and Interrogatories). You have to give them 30 days to respond to the discovery so you really would need to file all these things fairly quickly. You could also file for a continuance on the trial, but it's more likely it would be granted if you had filed discovery already and were waiting on their responses to prepare your case.

If you file all of this stuff, one of two things will probably happen. The first is that Portfolio will be overwhelmed having to respond to discovery, and being made to provide more proof; having to respond to affirmative defenses; and having to respond to a summary judgment motion, that they will dismiss the case because it is such a low amount. This case would be one that might have been perfect for arbitration because it would cost them too much to arbitrate. The other thing that could happen is that Portfolio basically ignores everything you filed, figuring you don't have a clue what you're doing so you won't know enough procedure to compel them to answer discovery, motion to dismiss if they don't file a cost bond 20 days after notice, or set a hearing and argue a summary judgment motion. Filing these documents is one thing. Many people can copy an example and file it. But most don't know how to argue in court or how to follow through if Portfolio ignores much of what you file. And if you can't argue it in court, then Portfolio can present their case on trial date with their flimsy proof and testimony of their records custodian and you won't know how to assert the issues you've brought up in your filings or cross-examine their witness. Or you will freeze up in court when the time comes.

I'm not saying these things to scare you, but to make you realize that you will need to be more prepared than the attorney for Portfolio if you file these documents and they think that you're a clueless pro se who copied some documents and can run roughshod over you because you don't know how to force them to prove their case. And some judges will think the same thing. As I said you have some serious work cut out for you to not only draft and file some documents, but to read up on Florida Civil Procedure and Florida Evidence, especially business records exception to hearsay. It can be done because there are plenty on this forum that have beaten a JDB lawsuit on their own. You might also read Florida Small Claims rules if you decide not to file a motion to invoke the rules of civil procedure. Either way, if you're going to trial, you will need to know the rules and the law and be more prepared than Portfolio's attorney, who will think you will be easy to beat because you are pro se. Hopefully that will be their mistake. :-)

 

 

@LawKitty   Thank you for that detailed explanation of how to respond to  a FL debt collection lawsuit.

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@Spundizzy1969

 

To understand more about the motions Lawkitty suggested, you may want to go to a law school library and ask the law librarian for information about FL Civil Procedure.  There are practice manuals (I think Matthew Bender puts out a number of them as does Thomsen) that summarize and explain legal motions.

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On objecting to their witness appearing by telephone, you would need to invoke the Rules of Civil Procedure.  Here is what the Small Claims Rules say:

 

The trial may be conducted informally but with decorum befitting a court of justice. The rules of evidence applicable to trial of civil actions apply but are to be liberally construed. At the discretion of the court, testimony of any party or witness may be presented over the telephone. Additionally, at the discretion of the court an attorney may represent a party or witness over the telephone without being physically present before the court. Any witness utilizing the privilege of testimony by telephone as permitted in this rule shall be treated for all purposes as a live witness, and shall not receive any relaxation of evidentiary rules or other special allowance. A witness may not testify over the telephone in order to avoid either the application of Florida’s perjury laws or the rules of evidence

 

So you need to file a Motion to Invoke the Rules or talk to the opposing attorney and ask if you can stipulate to the Rules of Civil Procedure.  If they agree, then a joint stipulation would be filed that says the two of you agree to Invoke the Rules of Civil Procedure.

 

Here is what the Rules of Civil Procedure say about telephonic appearance of witnesses.

 

RULE 1.451. TAKING TESTIMONY

 

(a) Testimony at Hearing or Trial. When testifying at a hearing or trial, a witness must be physically present unless otherwise provided by law or rule of procedure.

(B) Communication Equipment. The court may permit a witness to testify at a hearing or trial by contemporaneous audio or video communication equipment (1) by agreement of the parties or (2) for good cause shown upon written request of a party upon reasonable notice to all other parties. The request and notice must contain the substance of the proposed testimony and an estimate of the length of the proposed testimony. In considering sufficient good cause, the court shall weigh and address in its order the reasons stated for testimony by communication equipment against the potential for prejudice to the objecting party.

© Required Equipment. Communication equipment as used in this rule means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other simultaneously and permits all conversations of all parties to be audible to all persons present. Contemporaneous video communications equipment must make the witness visible to all participants during the testimony. For testimony by any of the foregoing means, there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objection or prevent prejudice.

(d) Oath. Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.

(e) Burden of Expense. The cost for the use of the communication equipment is the responsibility of the requesting party unless otherwise ordered by the court.

Committee Note

2013 Adoption. This rule allows the parties to agree, or one or more parties to request, that the court authorize presentation of witness testimony by contemporaneous video or audio communications equipment. A party seeking to present such testimony over the objection of another party must still satisfy the good-cause standard. In determining whether good cause exists, the trial court may consider such factors as the type and stage of proceeding, the presence or absence of constitutionally protected rights, the importance of the testimony to the resolution of the case, the amount in controversy in the case, the relative cost or inconvenience of requiring the presence of the witness in court, the ability of counsel to use necessary exhibits or demonstrative aids, the limitations (if any) placed on the opportunity for opposing counsel and the finder of fact to observe the witness’s demeanor, the potential for unfair surprise, the witness’s affiliation with one or more parties, and any other factors the court reasonably deems material to weighing the justification the requesting party has offered in support of the request to allow a witness to testify by communications equipment against the potential for prejudice to the objecting party. With the advance of technology, the cost and availability of contemporaneous video testimony may be considered by the court in determining whether good cause is established for audio testimony

 

The reason you object is because you want to be able to gauge the witness's demeanor and you don't want them able to access notes, the Internet, manuals or other people near them, to answer your questions.  If they are there in person then they have to get on the stand and won't be able to access a lot of these things when you start asking them questions regarding how the business records are kept, logged, checked, and what procedures the original creditor used to verify accuracy of records that were "boarded" from the original creditor into the records of the JDB.  You want to show that they do not have the personal knowledge to testify to how these records were kept and entered into the system.  Most of these records custodians only look at computerized records, check that it matches what's on a list, and then say they are actual records custodians yet have no knowledge of how or when these records were entered, who made the record, what the customary procedure for the original creditor was on making the record, what the original creditor's practice was as far as verifying accuracy, when statements were sent out, procedures of the original creditor when a dispute was made, or even what systems or software that the original creditor used.  Not to mention that JDBs use a lot of form affidavits which also makes them fairly untrustworthy after all the robo-signing and robo-stamping scandals in Florida.  I think a good many of these 'records custodians' actually spend more of their time signing affidavits and testifying in cases than actually being someone in charge of keeping and verifying records from original creditors and making sure they are boarded into the JDB system with all payments being credited, notes, disputes, charges, etc.  That's why you want them in person if possible, so you can ask questions that they won't know the answer to (but should, if they truly were the custodian of records) and keep the business records from getting introduced as evidence.  Those records are the JDB's entire case.  It's all based on the statements they sent out and you supposedly didn't object to, that makes their case for an implied agreement on account stated.  

 

An alternative to telephonic appearance would be a video-chat appearance so that you can see their actions as you ask questions.  Some courts will allow that.  Or you can notice their witness for a deposition, but that will cost you some money to hire a court reporter to do it.  Sometimes a JDB will dismiss rather than have their witness have to be deposed.  

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On objecting to their witness appearing by telephone, you would need to invoke the Rules of Civil Procedure.  Here is what the Small Claims Rules say:

 

The trial may be conducted informally but with decorum befitting a court of justice. The rules of evidence applicable to trial of civil actions apply but are to be liberally construed. At the discretion of the court, testimony of any party or witness may be presented over the telephone. Additionally, at the discretion of the court an attorney may represent a party or witness over the telephone without being physically present before the court. Any witness utilizing the privilege of testimony by telephone as permitted in this rule shall be treated for all purposes as a live witness, and shall not receive any relaxation of evidentiary rules or other special allowance. A witness may not testify over the telephone in order to avoid either the application of Florida’s perjury laws or the rules of evidence

 

So you need to file a Motion to Invoke the Rules or talk to the opposing attorney and ask if you can stipulate to the Rules of Civil Procedure.  If they agree, then a joint stipulation would be filed that says the two of you agree to Invoke the Rules of Civil Procedure.

 

Here is what the Rules of Civil Procedure say about telephonic appearance of witnesses.

 

RULE 1.451. TAKING TESTIMONY

 

(a) Testimony at Hearing or Trial. When testifying at a hearing or trial, a witness must be physically present unless otherwise provided by law or rule of procedure.

( B) Communication Equipment. The court may permit a witness to testify at a hearing or trial by contemporaneous audio or video communication equipment (1) by agreement of the parties or (2) for good cause shown upon written request of a party upon reasonable notice to all other parties. The request and notice must contain the substance of the proposed testimony and an estimate of the length of the proposed testimony. In considering sufficient good cause, the court shall weigh and address in its order the reasons stated for testimony by communication equipment against the potential for prejudice to the objecting party.

© Required Equipment. Communication equipment as used in this rule means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other simultaneously and permits all conversations of all parties to be audible to all persons present. Contemporaneous video communications equipment must make the witness visible to all participants during the testimony. For testimony by any of the foregoing means, there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objection or prevent prejudice.

(d) Oath. Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.

(e) Burden of Expense. The cost for the use of the communication equipment is the responsibility of the requesting party unless otherwise ordered by the court.

Committee Note

2013 Adoption. This rule allows the parties to agree, or one or more parties to request, that the court authorize presentation of witness testimony by contemporaneous video or audio communications equipment. A party seeking to present such testimony over the objection of another party must still satisfy the good-cause standard. In determining whether good cause exists, the trial court may consider such factors as the type and stage of proceeding, the presence or absence of constitutionally protected rights, the importance of the testimony to the resolution of the case, the amount in controversy in the case, the relative cost or inconvenience of requiring the presence of the witness in court, the ability of counsel to use necessary exhibits or demonstrative aids, the limitations (if any) placed on the opportunity for opposing counsel and the finder of fact to observe the witness’s demeanor, the potential for unfair surprise, the witness’s affiliation with one or more parties, and any other factors the court reasonably deems material to weighing the justification the requesting party has offered in support of the request to allow a witness to testify by communications equipment against the potential for prejudice to the objecting party. With the advance of technology, the cost and availability of contemporaneous video testimony may be considered by the court in determining whether good cause is established for audio testimony

 

The reason you object is because you want to be able to gauge the witness's demeanor and you don't want them able to access notes, the Internet, manuals or other people near them, to answer your questions.  If they are there in person then they have to get on the stand and won't be able to access a lot of these things when you start asking them questions regarding how the business records are kept, logged, checked, and what procedures the original creditor used to verify accuracy of records that were "boarded" from the original creditor into the records of the JDB.  You want to show that they do not have the personal knowledge to testify to how these records were kept and entered into the system.  Most of these records custodians only look at computerized records, check that it matches what's on a list, and then say they are actual records custodians yet have no knowledge of how or when these records were entered, who made the record, what the customary procedure for the original creditor was on making the record, what the original creditor's practice was as far as verifying accuracy, when statements were sent out, procedures of the original creditor when a dispute was made, or even what systems or software that the original creditor used.  Not to mention that JDBs use a lot of form affidavits which also makes them fairly untrustworthy after all the robo-signing and robo-stamping scandals in Florida.  I think a good many of these 'records custodians' actually spend more of their time signing affidavits and testifying in cases than actually being someone in charge of keeping and verifying records from original creditors and making sure they are boarded into the JDB system with all payments being credited, notes, disputes, charges, etc.  That's why you want them in person if possible, so you can ask questions that they won't know the answer to (but should, if they truly were the custodian of records) and keep the business records from getting introduced as evidence.  Those records are the JDB's entire case.  It's all based on the statements they sent out and you supposedly didn't object to, that makes their case for an implied agreement on account stated.  

 

An alternative to telephonic appearance would be a video-chat appearance so that you can see their actions as you ask questions.  Some courts will allow that.  Or you can notice their witness for a deposition, but that will cost you some money to hire a court reporter to do it.  Sometimes a JDB will dismiss rather than have their witness have to be deposed.  

 

 

@LawKitty  Excellent analysis. There are many defendants from other states who have also wanted to know the basis for objecting to telephonic witness testimony.

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