EinCA

Sued and Served by PRA in California

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First post and very glad I have found this forum.  Initial plan if I understand it correctly is to file then serve General Denial CMRRR (any help with affirmative defenses would be great), send BOP CMRRR, then start strategizing from there.  I have been reviewing the stickied posts and starting to go through the older posts; I hope the information I provide is useful.  Thanks in advance for any assistance.

Exact quotes, amounts, and identifying info have been sanitized and abbreviated.

1. Who is the named plaintiff in the suit? 
PORTFOLIO RECOVERY ASSOCIATES, LLC.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) 
EMILY PIERCE/JORDAN D. COOK/LORI N. WILLIAMS /KRISTEN L. BRINKERHOFF
PRA

3. How much are you being sued for?
$1XXX

4. Who is the original creditor? (if not the Plaintiff)
Cap One

5. How do you know you are being sued? (You were served, right?)
OTHER ADULT IN HOUSEHOLD SERVED 1/3 9AM, THEN VIA MAIL POSTMARKED 1/4

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

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
NONE

9. What state and county do you live in?
ORANGE COUNTY, CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Allegedly 02/2013 per complaint

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

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or 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).
SUIT SERVED, NO MOTIONS FILED

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
NO

4. 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 CALENDAR DAYS (OR 40 SINCE SERVICE WAS NOT DIRECTLY TO ME?)

PLD-C-001 COMPLAINT-Contract

1. PRA VS EinCA
3. Plaintiff is LLC in CA
8. Causes of Action
     X Common Counts
9. Other Allegations: See Attachment One
10. a. damages of $1XXX
      d. mail everything to plaintiff's attorney until formal notice

PLD-C_001(2) FIRST CAUSE OF ACTION-Common Counts

ATTACHMENT TO Complaint
CC-1. PRA alleges that EinCA became indebted to "Plaintiff's predecessor on an account assigned, transferred and/or sold to Plaintiff.  Plaintiff is the assignee of the account.  See attachment ONE, incoorporated by reference hereto.
a. within the last four years
(2) because an account was stated in writing by and btween plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.
CC-4 Other: Plaintiff purchased, is current owner, "plaintiff" refers to plaintiff's predecessor in interest, see attachment 1 

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

ATTACHMENT ONE
Plaintiff is assignee as of xx/2014, balance was $1XXX, no post charge-off interest of fees, last payment 02/13, Cap One is creditor, bought by PR, LLC, seeking $1xxx + costs (this attachment has 10 lines, will provide on request)

Also attached were copies of 5 Cap One statements from 2013 and a Cap One "Cycle Facsimile Report" with some data on the account from 2013, a Cap One charge-off notice, a dec re reduced filing fees, and ADR info

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Yes.  File a general denial.  A BOP is improper for an accounted claim, but if they included any other charges such as money lent, breach of contract, then I would send it.

then you can start working on some discovery requests.

 

homeless in ca has a great thread with sample motions he used.  You can also get an excellent idea on what to expect going through this process.  Astmedic has a slightly different approach, so that is another thread to study.

answer with a general denial, mail everything CMRRR when conversing with the other side.  Don't forget to file your proof of service with the court when you answer.

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12 hours ago, EinCA said:

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 CALENDAR DAYS (OR 40 SINCE SERVICE WAS NOT DIRECTLY TO ME?)

They Substitute Served you (giving it to another adult in your household and then following up with a copy by first class mail). Substitute Service is considered complete on the 10th day after mailing of the 2nd copy, then the 30 day countdown begins (CCP 415.20 b ) Your suspicion is correct, you have 40 days (from the date the 2nd copy was placed in the mail) to file & serve your answer. Double-check what day they claim it was mailed (could have been the 4th, or could have been the 3rd but it didn't get postmarked until the next day).

You don't have to serve them the answer via CMRRR - first class mail with a proof of service will do. What matters (for the answer) is when it gets filed in court, you don't have to obtain proof that the plaintiff received it.Save your $ and effort on that one. Most everything else after that you will want to mail CMRRR.

 

 

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Thank you both for the quick replies!

@shellieh98 The only causes of action are the Account Stated common count and the 1788.58 attachment, so I will not send the BOP.

@RyanEX I plan to file early next week anyway so well within even a 30 day limit, but I will double check their dates--assuming a phone call will be ok for this?

I was so anxious receiving this, but after finding all of you and the success stories I feel calm and focused and ready to go to battle!  I appreciate the hard work all of you here put in.

 

 

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55 minutes ago, EinCA said:

Thank you both for the quick replies!

@RyanEX I plan to file early next week anyway so well within even a 30 day limit, but I will double check their dates--assuming a phone call will be ok for this?

I was so anxious receiving this, but after finding all of you and the success stories I feel calm and focused and ready to go to battle!  I appreciate the hard work all of you here put in.

I would look for a filing rather than place a phone call. They can say whatever they want over the phone, but what matters is what is on paper & in the court's system. If a proof of service wasn't included with the mailing you received, you might see a declaration of diligence/proof of service in your online case file.

But if you plan on filing your answer within a 30 day time frame anyway, you may not need to double-check it.

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I would encourage you to send a BOP. It may be improper and they will most likely reply with nothing but objections, but those same objections can aid you in answering some of the discovery questions they'll throw at you in the next couple of months.

 

I would love nothing more than see another win in Orange County

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Hello everyone, thanks for your help thus far and sorry for my absence.  I have filed the general denial as well as proof of service timely, but a wrinkle has popped up:  I was planning a move out of state this summer, but my significant other found a job very quickly and has already moved (thus my leave, as we were dealing with getting her situated up there while I wrap things up here and I had to spend a week out of town for work).  That said, I don't think pursuing this in court will be a viable option (particularly given the low dollar amount and the cost of travel).   I am considering making a settlement offer to make this go away, but wondering if anyone has any experience here with that.  Perhaps an offer of 25% of the total value "owed" for a dismissal with prejudice and permanent removal of all tradelines from CRs could be workable?  Please let me know any thoughts you may have--I am scheduled to move at the end of this month and have to travel again for work in a couple weeks so I would like to get rid of this matter before I leave.  Thanks again.

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2 hours ago, EinCA said:

 Perhaps an offer of 25% of the total value "owed" for a dismissal with prejudice and permanent removal of all tradelines from CRs could be workable?

Doubtful.  If you have a lazy attorney on the plaintiff's side, maybe but I doubt it.  I think it would be at this stage of the suit more like 80% of the debt, and trade lines stay.

You could always ask for private contractual arbitration.  If you win that motion, you could do arb from where ever you move to.  That is assuming cap 1 has an arbitration agreement in their agreement, I don't know that off hand.

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