veesmith626

I'm being sued by Patenaude & Felix but Capital One says Portfolio Recovery Associates owns the account

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Hello,

I was served a Complaint by Patenaude & Felix (in January) suing me for an account on a credit card debt with Capital One and I have already answered with a general denial. I was already skeptical about Patenaude & Felix's validity, but now my hunch has gotten even greater. I just got a letter in the mail from Capital One stating , "Thank you for contacting us.. (which I have not contacted them) ...and "Your credit card account was acquired by Portfolio Recovery Associates, LLC ." "Portfolio Recovery Associates, LLC now owns your account and may contact you either directly or through an affiliate or third party."

Now I'm not sure what to do?? Can Patenaude & Felix sue me on an account owned by Portfolio Recovery Associates, LLC? Who contacted Capital One in the first place and should I contact Capital One??

I intend on fighting this in court thanks to the help of many of you on this board.

Any help on this would be greatly appreciated! I have a court date set for next year (February 2017).

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Keep every letter, call, envelope, etc. 

The law firm is probably hired by PRA. 

When was the last date of payment? (Approximately) 

 

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Howdy,

Who is the actual named plaintiff in the lawsuit?  If it is Capital One, you might consider informing the court that fraud upon the court has taken place.  The letter that you have from Capital One is vital, do not lose it. 

Can they sue you over a PRA-owned debt?  Yes.  But they must correctly name the plaintiff in their case against you.  You now have the instant defense of "lack of standing", and you should invoke it ASAP.  If Cap One tells you in writing that they do not even own the debt, they cannot be the proper plaintiff, and they therefore lack standing to be the plaintiff against you in this case.  There are other possibilities here as well, the law firm itself could own the debt and be suing you under the OC's name to try to get around not being able to prove the assignments properly.  PRA could be doing the same thing.  I would strongly recommend that you check your state's rules of procedure, and find out what you need to do to amend your answer.  Some places might require that you ask the court for leave to amend, while others might not.  Find out, then follow that procedure and amend your answer.  You would now wish to include an affirmative defense of "Plaintiff lacks standing to bring this lawsuit", and that Cap One letter is evidence to that.  If it were me, I would also add a counter claim against this debt collection lawyer for violating the FDCPA, because they cannot misrepresent anything about the debt and they have done just that, it would seem. 

The only issue I could see is if Cap One did own it but sold it after the lawsuit was filed.

Wheels up,

Stick

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Thanks Cliff2009 and stick&rudder!!! I haven't been on this forum in months and thought no one had answered my post because I didn't know how to use the forum. I'm back now with a vengeance because I've been sitting on this lawsuit doing nothing and recently received Requests for production, admissions and interrogatories from the plaintiff.

I hope you guys are still here to help!!

@Cliff2009: I have the Cap One letters stating acquired ownership to PRA. I don't answer Patenaude & Felix's calls because I don't have a reason to speak to them as of yet. When you say the law firm is probably hired by PRA, do you mean Patenaude & Felix was hired by PRA? Because now Hunt & Henriquez is representing PRA threatening to sue me over the same Cap One account. I haven't received a summons and complaint yet but I feel it's coming soon :(  How would you suggest I go at Patenaude & Felix (Cap One) now?  

@stick&rudder: The actual plaintiff is named as Capital One and as far as I know Capital One owned the account when I was served in Jan 2016.  I received the letter in Feb 2016 that PRA acquired the account (after I was served). The thing is, Patenaude & Felix are still pursuing the case. Maybe they don't know that Cap One no longer owns the account. I haven't responded to the plaintiffs requests, admissions and interrogatories yet I have another 19 days or so. Should I still amend my answer to an affirmative defense for "Plaintiff lacks standing to bring this lawsuit"? And how would I add the letter from Cap One? As an attachment? Probably can not counterclaim since Cap One probably owned the account when they served me but I have a hunch that they didn't. I mean why would Cap One file suit and then turn around the next month and sell the account to someone else?

 

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What are the conditions to compel arbitration? I heard they changed the arbitration rules after 2010. If this is my account (there are some discrepancies as far as the account number they have etc), it was opened before 2010 but my last payment was after 2010. I was in good standing when I made the last payment. I stopped paying because I lost a job and didn't have any income.

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10 hours ago, veesmith626 said:

What are the conditions to compel arbitration? I heard they changed the arbitration rules after 2010. If this is my account (there are some discrepancies as far as the account number they have etc), it was opened before 2010 but my last payment was after 2010. I was in good standing when I made the last payment. I stopped paying because I lost a job and didn't have any income.

If it was open prior to 2010 you should be able to use the survival clause in the agreement.  How large is the alleged debt? (ball park is fine) 

If you have a good motion to compel, show the survivability clause, even see if you can find other examples of how it has been used, you may be ok. It can't hurt to try and get it knocked out before the court date.  This has a lot of good info. Linda helped me, she started off thinking arbitration was dead with Cap one but as you will see, she has a good strategy. 

 

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Thanks @Cliff2009

50 minutes ago, Cliff2009 said:

If it was open prior to 2010 you should be able to use the survival clause in the agreement.  How large is the alleged debt? (ball park is fine) 

If you have a good motion to compel, show the survivability clause, even see if you can find other examples of how it has been used, you may be ok. It can't hurt to try and get it knocked out before the court date.  This has a lot of good info. Linda helped me, she started off thinking arbitration was dead with Cap one but as you will see, she has a good strategy. 

 

Thanks @Cliff2009 Patenaude & Felix lawsuit  has only 1 alleged account  (that they only include the last 4 digits of and doesn't match the account # of my account) totaling over $3,000  . . However, Cap One's letters have 2 alleged accounts totaling about the same amount (the amounts differ by a few dollars).

My issue is that according to the letters, Cap One can no longer be suing me because they no longer own the alleged accounts. I need to know who owns the accounts...Cap One or PRA!! So I believe Discovery will help me with this and I can hopefully get this case dismissed before trial!!

If Cap One no longer owns the account like the letter states than they have no standing in the lawsuit!!

Maybe Cap One hired Patenaude & Felix as well as PRA to collect on their account? I'm so confused right now.

I'd love to get this dismissed before the trial date. It's taking too much of my time to research how to respond and fight this myself as I don't have any money to help me fight this.

 

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How do I inform Cap One "Patenaude & Felix" of the correspondence letters naming PRA as the owner of the alleged accounts? Or should I  just let Patenaude & Felix prove that they have standing (which it looks like they don't)?

Somewhere in their request for admissions, request for documents and/or interrogatories they may have asked those questions. Is that where I should let them know about the letter stating ownership of the account?

Thanks for your help.....

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1 hour ago, veesmith626 said:

Thanks @Cliff2009

Thanks @Cliff2009 Patenaude & Felix lawsuit  has only 1 alleged account  (that they only include the last 4 digits of and doesn't match the account # of my account) totaling over $3,000  . . However, Cap One's letters have 2 alleged accounts totaling about the same amount (the amounts differ by a few dollars).

My issue is that according to the letters, Cap One can no longer be suing me because they no longer own the alleged accounts. I need to know who owns the accounts...Cap One or PRA!! So I believe Discovery will help me with this and I can hopefully get this case dismissed before trial!!

If Cap One no longer owns the account like the letter states than they have no standing in the lawsuit!!

Maybe Cap One hired Patenaude & Felix as well as PRA to collect on their account? I'm so confused right now.

I'd love to get this dismissed before the trial date. It's taking too much of my time to research how to respond and fight this myself as I don't have any money to help me fight this.

 

It sounds like PRA owns both accounts and the number you see is their internal account number. Who is listed as the plaintiff, cap one or PRA? 

If it is PRA even better, they probably won't bother with arbitration. 

 

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2 hours ago, Cliff2009 said:

It sounds like PRA owns both accounts and the number you see is their internal account number. Who is listed as the plaintiff, cap one or PRA? 


 

Yes. I found out PRA owned the alleged accounts AFTER I was served a summons and complaint! The Plaintiff is Cap One on the lawsuit.

Now I'm dealing with this law suit where Cap One has no standing to sue.

What is the best course of action that will quickly end this without going to trial?

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Sounds like you believe Portfolio bought this account while the litigation was pending.  Plaintiff will have to amend caption, to substitute in PRA.  Arb. strategy against PRA will work easily.

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I would send a document request to CAP! seeking all documents relating to the account at issue in the complaint.  Then, ask H&H to validate both accounts by sending account statements.

 

Personally, I am a bit confused about there being 3 accounts.

 

Lastly, be aware that if you go the arbitration route, and they call your bluff, you may not be entitled to discovery depending on the rules of the arbitration tribunal.

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Thanks so much for chiming  in @usctrojanalum and @calawyer

5 minutes ago, calawyer said:

I would send a document request to CAP! seeking all documents relating to the account at issue in the complaint.  

 

I will be sending a document request to P& F tomorrow.  

I really believe P&F is doing something unethical because it's very suspicious that Cap One says I contacted them although I didnt.  

How do I go about contesting lack of standing with Cap One? Is that through discovery?  Should I be asking Cap One if they sold the account and if they still own the account?

1 hour ago, calawyer said:
1 hour ago, calawyer said:

 

 

Personally, I am a bit confused about there being 3 accounts.

 

The summons and complaint mentions only one account with one balance. However, the letter from Cap One mentions 2 accounts with 2 balances.

 

1 hour ago, calawyer said:

 

Lastly, be aware that if you go the arbitration route, and they call your bluff, you may not be entitled to discovery depending on the rules of the arbitration tribunal.

I dont know yet, I think discovery is best right now but I still have to take a look at arbitration. What do you mean by "call your bluff? Forgive me I'm still learning about arbitration. Do you mean if they accept and show up for arbitration?

 

On Wednesday, December 07, 2016 at 6:32 PM, usctrojanalum said:

Plaintiff will have to amend caption, to substitute in PRA.  Arb. strategy against PRA will work easily.

@usctrojanalum If they amend to PRA as plaintiff then they have to change lawyers to H&H because that is who is pursuing this on behalf of PRA. So then why is P&F still pursuing this with plaintiff as Cap One? And it's been already 10 months since transfer of ownership. They should have amended it by now.

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On ‎12‎/‎8‎/‎2016 at 7:56 PM, veesmith626 said:

 

 

I dont know yet, I think discovery is best right now but I still have to take a look at arbitration. What do you mean by "call your bluff? Forgive me I'm still learning about arbitration. Do you mean if they accept and show up for arbitration?

 

 

I do not advocate arbitration.  But, as I understand the strategy, you seek arbitration hoping that it will be too expensive for plaintiff and the case will just go away.  When I say "call your bluff", I mean if plaintiff actually follows through, pays the fee, and files an arbitration demand.  Then you must follow the rules of the arbitration tribunal which may or may not permit discovery.

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Thanks to to you all, I am still fighting: 

Update: So, I'm fighting this case against the OC because that's who the plaintiff is on the summons. They have responded to my RFP of Documents with: a Capone card agreement from 2010,  billing statements for 2 years 2012 - 2014 and a "30 day notice of debt" letter from collections law office P&F.

I have sent a CCP 96 request which Plaintiff is due to respond by Feb 1 (that would be 20 days from service). I'm waiting to see if they will respond and provide witnesses to their CCP98 that I can subpoena and I doubt if they will provide anymore statements or evidence.

Question:

1.    I have gotten mixed information about "account stated" lawsuits and how billing statements and payments are implied as an agreement to pay. Does that mean that Cap One doesn't need to provide me with ALL of the records of billing statements on the account NOR a signed contract from me to say that this is my account and that I owe the amount they say?

2.   I have 32 days until trial. Is it too late for Interrogatories? Maybe I should be asking for more discovery information.

3.   What is my strategy now? Attacking the billing statements and the card agreement and the lack of a witness ( if they don't provide one). And is the strategy by means of how the records are kept?

@Anon Amos, @calawyer, @Cliff2009, and anyone else with great advice: Please chime in..... maybe some threads I can get help from fighting an OC in California. Much THANKS! Oh yeah, court is in Los Angeles...if that helps.

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25 minutes ago, veesmith626 said:

Does that mean that Cap One doesn't need to provide me with ALL of the records of billing statements on the account NOR a signed contract from me to say that this is my account and that I owe the amount they say?

I can't say definitively about ALL the billing statements but when it comes to a "signed contract" the courts all know there is not one in a credit card debt case.  All Cap1 needs to show is that you opened the account, used it, made payments, and stopped paying.  If they can do that then they have met the burden the court will not be looking for a signed contract like a loan agreement.

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If you have sent the CCP 96 request, that is about all you can do right now.  You need to see how they respond and whether they intend to use a CCP 98 declaration.  And if they want to proceed by way of declaration, whether the witness is actually in California or in another state.

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17 minutes ago, Clydesmom said:

All Cap1 needs to show is that you opened the account, used it, made payments, and stopped paying.  If they can do that then they have met the burden the court will not be looking for a signed contract like a loan agreement.

They have a few statements from the last couple of years but how would they show that I opened the account?

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24 minutes ago, veesmith626 said:

They have a few statements from the last couple of years but how would they show that I opened the account?

There are several ways but one is they can produce the application for the account.  Another is through questioning you.  

Do you live at [address]?  Is this where you receive mail?  Did you open the account?  Did you make this charge(s)?  Did you make payments from bank account [bank, account #]?  

If they start that line of questioning you either tell the truth as you swore to do or commit perjury.  Then what?  Unless you can honestly state that the account is the result of ID theft you are kind of in a corner on whether or not the account is yours when an original creditor is suing you.

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@ClydesmomThe "Then what?" is that I want Cap One to prove to me that this is indeed my debt and that I still owe Cap One  not someone else they sold the debt to. I had 2 credit card accounts with Cap One. I am being sued by Cap One for an alleged account which the amount is closed to the total of those 2 accounts but I am also being sued for 2 accounts by PRA which claims they own the accounts that Cap One was the OC. So "Now What?"

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