nnye

Served by PRA, after disputing with CRA's

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In late December 2015 I disputed some things on my credit reports. In January PRA started there process of suing me, and I was officially served yesterday, Feb 6, 2016. The packet includes:

  • The summons page
  • Form 1.997 civil cover sheet
  • The complaint
  • Exhibit A: Affidavit from PRA
  • Bill of Sale from Citibank (no information specific to me or my account)
  • An account statement from the OC
  • Process server worksheet

Since yesterday I have been lurking trying to gather info. Based off of my readings I feel confident that I can handle this in court with no lawyer. I know I need to send an answer to this within 20 days. Can anyone offer helpful info as to how I should write my response??

A few more things: I see no date for court... would that come later? The amount im being summoned for is 6k. I am in florida. What other details should I provide??

 

Thankssss

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Sorry this was not in the correct format :sad:

Who is the named plaintiff in the suit? Portfolio Recovery a$$

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

3. How much are you being sued for? 6k

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

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

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? Disputed charges on credit report through CRA

9. What state and county do you live in? Duval, Florida

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Summons shows 5-6-13

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

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or   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 court date in packet

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

Disputed PRA in late December, they signed there affidavit shortly after on jan 11

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. I did not directly send to them, I think the CRA did??

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? 20 days, will post pics of charges, no questionnaire attached.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Affidavit, Bill of Sale and Assignment, Copy of Credit Card Statement from OC

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I disputed with the credit bureau, and I believe the response I received was something like "debt verified"

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Simply me trying to be greedy and get the derogatory account off of my report. I know that I need to file a response to the complaint, any suggestions?

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Gotcha.  Unfortunate.  Since it appears that they did what they're supposed to with regard to the CRA dispute, I'll let those more experienced with the lawsuit end of things chime in.

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FL has a requirement that the assignment needs to be sent prior to a lawsuit. Was this sent?

 

Do you happen to know if the Citbank card has an arbitration clause?

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I honestly have no clue if the assignment was sent, and unfortunately I do not know if Citibank has an arbitration clause either. Im feeling very clueless now.

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@nnye

If you are feeling clueless,  it would be good idea to let a lawyer like @LawKitty  handle this.  She is a member here and a licensed FL attorney who practices statewide.  She is very pleasant to deal with and has successfully represented a number of defendants like you from this board.   From what her former clients have told me, are fees are quite affordable.   Sometimes she has even been able to get the plaintiffs to pay her attorneys' fees. I would at least send her a PM and discuss your case with her.  A consultation is free.

You may also want to click on her name and read her prior posts.  Lots of info there.

 

 

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I am looking up the card agreement, and I have also reached out to @LawKitty.

I am feeling more overwhelmed than clueless, this is totally new to me, but I feel like multiple people on this site have been through the exact same thing and succeeded for themselves!! I am very interested in seeing if filing for a motion of dismissal based off of standing is something that would be beneficial to me.

I am still looking for a Citibank card agreement for 2013 to see if pushing them to arbitration would cause them to drop it.

Any thoughts as far as the motion to dismiss based off of standing??

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If this is not in small claims court, then citi has an agreement you can use for arbitration.  The thing about Florida is though you have to ask for arbitration in your answer, and list it as an affirmative defense, or they say you waive that right.  You should also look in fl rules and see if you can file a motion to dismiss/motion to compel instead of an answer.  Then they can't go trying to sneak in a MSJ on you.

if PRA never sent you a notice before they filed a lawsuit saying they now own this debt, then they didn't show assignment.  If fl law says they needed to do that, you could use that in arbitration if they decided to bite. (I doubt they will, but prepare anyway)

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@shellieh98 it has been filed with the County Court, so Im going to assume that is not small claims. I also thought I read in another post that in Fl you have to file a motion for arbitration and not the answer, and that as soon as you file the answer you have negated your right to arbitration??

I will look for the notice from PRA, do they have to offer proof that they sent it??

And one more thing...Is the reason I push for arbitration (specifically with JAMS) because the cost they would incur to pay for arbitration??

Thanks so much @shellieh98 and  @debtzapper you all have been so helpful!!

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On ‎4‎/‎16‎/‎2015 at 1:13 AM, CCRP626 said:

@MizzMaryMack make sure you don't file an answer if you intend to do JAMS arbitration. You want to do a Motion To Compel Arbitration instead.

 

In Florida, if you want arbitration, you do not file an answer with the court - but, instead you should have filed your MTC arbitration after sending an election notice to the creditor and the attorney. If you filed an answer first, you have waived your rights to arbitration I'm afraid.

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/page-5#entry1185689

@shellieh98 have you heard of this before??

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It's like I said above.  If you file an answer, you must elect arbitration in your answer, and list it as an affirmative defense.

Or you could file a MOTION TO DISMISS/PETITION TO COMPEL ARBITRATION Instead of an answer.

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Ok perfect, i plan to file the motion to dismiss/ petition to compel arbitration. Do i need to cite my specific cc agreement, bc its from 2012 and i cannot find it. 

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While many have had success filing for arbitration and getting it out of the court system, you do need to be careful with the approach.  If you are telling the court that a certain credit agreement applies and that is the basis for filing for arbitration, then later on it is very difficult to say that the credit agreement does not apply to you.  In a roundabout way, you will be acknowledging that a certain credit agreement  is the one that governs the 'contract' or the debt, so some courts will not allow you to dispute that it's your debt afterwards.  Since you disputed with the CRA beforehand and then they filed the suit, you actually would have some basis in disputing that the debt is actually yours and asking them to prove it.  

If you're going forward with arbitration, you will be relying on the hope that PRA will not follow you into arbitration, and that they won't try to file things in court to get you to inadvertently waive your rights.  And that a Judge will grant the motion to compel arbitration.  

Nothing against people that have used it successfully as I know it has worked for many, but you just have to be careful how you tread is all.

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http://www.consumerfinance.gov/credit-cards/agreements/ to find your agreement and attach to your response.

 

You can check google scholar for caselaw showing how participants gave up their right to arbitration by doing activities such as discovery. If the other side tries to trick you into this, respond that you feel participating will give up your right to arbitration.

A party who timely asserts the right to arbitration may still waive the right by later conduct that is inconsistent with the arbitration request. See Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678, 681 (Fla.1973). Furthermore, once a party has waived the right to arbitration by active participation in a lawsuit, the party may not reclaim the arbitration right without the consent of his or her adversary. See Estate of Williams ex rel. Williams v. Manor Care of Dunedin, Inc., 923 So.2d 615, 616-17 (Fla. 2d DCA 2006); Bared & Co., 610 So.2d at 3.

Green Tree Servicing, LLC v. McLeod, 15 So. 3d 682 (Fla. Dist. Ct. App. 2009).
 
Florida Arbitration Code-

 

This Florida motion to compel arbitration has a lot of caselaw as well you can reference. Page 16 of 22 specifically cites cases regarding giving up the right to arbitrate.  http://allscriptsmywayclassaction.com/wp-content/uploads/2013/02/2013-02-05-Defendants-Motion-to-Stay-Discovery-Pending-Ruling-on-Motion-to-Compel-Arbitration.pdf

 

 

 

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16 hours ago, debtzapper said:

@nnye

@LawKitty Sometimes she has even been able to get the plaintiffs to pay her attorneys' fees. I would at least send her a PM and discuss your case with her.  A consultation is free.

You may also want to click on her name and read her prior posts.  Lots of info there.

 

 

I think this is allowed by 57.105 (7) of the Florida statutes where a one sided credit card agreement can be turned around in the consumer's favor.

(7) If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0057/Sections/0057.105.html

 

The way I read that is if you've already contacted the JDB and their attorney that this is for arbitration and they insist on it going forward in court, you getting an attorney to push the Plaintiff into arbitration or drop the case may be no cost to you.

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On 2/8/2016 at 5:37 PM, 1stStep said:

Find a credit card agreement from around the time they claim for default. They are on the CFPB site.

Beware, this did not work for me in OR. Plaintiff's attorney questioned the authenticity of my MTC arb based on my downloading from CFPB. I quoted Federal Rules of Evidence 902(5) and no one cared. The long and short of it was that simply saying I believed the contract from CFPB was authentic wasn't enough.

Citibank publishes their newer card agreements here https://www.citicards.com/cards/acq/cma.do?screenId=13461

First few I clicked on said 2013. Isn't that what you needed? Is your card type in their list?

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Thank you for that response. I actually hires @LawKitty and the same day she respondedto the suit PRA dismisd with prejudice, agreed to remove from cra's, and will not resell the debt!! @LawKitty for the win !!!

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