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Can anyone guide me with answering this summons and copy of complaint.
I got a credit card with my son as a co signer for him to use to purchases a medical device. He hasn't been able to pay it and i'm getting sued. I have 20 days to answer. 

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Please answer this

Post your documents received with personal detail blocked out if you'd like. Did you ever get an assignment notification? Portfolio buys debt, they weren't the original creditor.

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2016-03-28 17.52.45.png1. 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.)

3. How much are you being sued for?
$8,260.49

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

5. How do you know you are being sued? (You were served, right?)
I was served at home.

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

9. What state and county do you live in?
FLORIDA, Marion County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 5/30/16

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

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 clip_html_html_image1.png 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. Did not

15. How long do you have to respond to the suit? 20 days from today
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 
AFFIDAVIT that they got the records from U.S. BANK NATIONAL ASSOCIATION. ALSO  Exhibit B &Bill of Sale and Assignment of Assets& and also the Statement from the Bank that has my name and my sons name.

I never used the credit card, my son did and he was going to pay the balance by the way the my name is spelled incorrect!

 

 

 

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It's their usual slop. If you don't want to fight it yourself, you may want to contact @LawKitty or another Fl consumer attorney.

Here's a recent thread-http://www.creditinfocenter.com/community/topic/327364-palm-beach-notice-to-appear-care-of-portfolio-recovery-associates/

Also read through the consent order Portfolio has with CFPB. They should have an account statement showing use of the account, not just a chargeoff balance according to page 33 of 60, paragraph 119d. Although no matter what they provide, if documents from the original creditor a Portfolio affidavit doesn't meet the business records exception to the hearsay rule. That "AS-IS" sales document is another thing they got hit on you can use. Notice your account is not mentioned in it either? That Exhibit B is not notarized. The Exhibit A it references is not what Portfolio stamped as Exhibit A.

http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf

 

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Yep, it's the usual stuff from PRA.  You would need to file an Answer with Affirmative Defenses.  I'm sure they also didn't file a Non-resident Cost Bond, because they never do unless forced to.  They have a hard time proving the case because they don't always have the documentation to back it up.  So they didn't sue your son at all, just you?

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@LawKitty

Where's the evidence of $8, 260.49?   The June, 2014 credit card statement shows a balance of $7,850.23.

Look at #4 in the affidavit:

According to the records transferred to the Account Assignee from Account Seller, and maintained in the ordinary court of business by the Account Assignee, there was due and payable from _________ (Debtor and Co-Debtor) to the Account Seller the sum of $8,260.49 with respect to account number ending in 8727 as of the date of 5/30/2014 with there being no known un-credited payments, counterclaims or offsets against the said debt as of the date of the sale.

The affiant's statement is contradicted by the credit card statement.

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2 hours ago, LawKitty said:

 I'm sure they also didn't file a Non-resident Cost Bond, because they never do unless forced to.

I've seen this tossed around now and again, but never thought much about it. Does Florida define  "corporate resident" for purposes of 57.011? As you are no doubt aware, in federal court, a corporation resides in any district where it is subject to personal jurisdiction at the time the action commenced. 28 U.S.C. 1391(c). I would expect Portfolio to argue that, if there's an equivalent definition.

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@nascar I think the only exemption might be for a national bank- Fl Statutes  665.1011.

The corporation has to do the bond filing. If the Plaintiff's attorney does it, that not allowed under Rule 2.505c of Fl Rules of Judicial Administration and 454.20 of Fl Statutes.

You can check at sunbiz.org (Fl Secy of State). It will state Foreign Corp and the state.

Detail by Entity Name

Foreign Limited Liability Company PORTFOLIO RECOVERY ASSOCIATES, LLC
Filing Information
 State DE Status ACTIVE
Principal Address
120 CORPORATE BLVD.
NORFOLK, VA 23502
Mailing Address
120 CORPORATE BLVD.
NORFOLK, VA 23502
Registered Agent Name & Address CORPORATION SERVICE COMPANY
1201 HAYS STREET
TALLAHASSEE, FL 32301-2525

Name Changed: 05/30/2013

Address Changed: 05/30/2013
Authorized Person(s) Detail Name & Address

Title MGRM

PRA Group, Inc.
120 CORPORATE BLVD.
NORFOLK, VA 23502

 

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BTW, seems like they need to increase that bond from $100-

We recognize that Section 57.011, Florida Statutes (1987), affords prevailing defendants little secured protection as to costs in lawsuits brought by nonresident plaintiffs. The statute was originally enacted in 1828 by the Florida territorial legislature when a $100 cost bond was more than sufficient to cover all of the defendant's costs in a typical lawsuit. Act of Nov. 23, 1828 § 8, Fla.Laws (Duval 1840); see § 1301, Fla.Rev.Stat. (1892). The Florida legislature, however, has not seen fit to increase the amount of this bondable protection notwithstanding the ravages of inflation since 1828. Nonetheless, we do not think that this court by judicial fiat should stand the statute on its head and give the defendants greater secured protection than that which the statute plainly affords. Any changes in this respect should be accomplished by the legislature and not by this court.

-Lady Cyana Divers, Inc. v. Carvalho

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4 hours ago, BV80 said:

 

4 hours ago, LawKitty said:

Yep, it's the usual stuff from PRA.  You would need to file an Answer with Affirmative Defenses.  I'm sure they also didn't file a Non-resident Cost Bond, because they never do unless forced to.  They have a hard time proving the case because they don't always have the documentation to back it up.  So they didn't sue your son at all, just you?

@LawKitty I want to Answer back plus I need to get some info on Affirmative Defenses, but to be honest this is very new to me. By the way they only sue me, not my son.

 

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4 hours ago, BV80 said:

@LawKitty

Where's the evidence of $8, 260.49?   The June, 2014 credit card statement shows a balance of $7,850.23.

Look at #4 in the affidavit:

According to the records transferred to the Account Assignee from Account Seller, and maintained in the ordinary court of business by the Account Assignee, there was due and payable from _________ (Debtor and Co-Debtor) to the Account Seller the sum of $8,260.49 with respect to account number ending in 8727 as of the date of 5/30/2014 with there being no known un-credited payments, counterclaims or offsets against the said debt as of the date of the sale.

The affiant's statement is contradicted by the credit card statement.

@BV80 They it shows on the credit card statement the interest is $405.26

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@JoseRodriguez

The 2nd page of the statement says "interest reversal".  I took that to mean that the interest was not charged.  Note that the amount charged off was $7,850.23.

 

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Jose,

Lawkitty has been very successful in getting cases dismissed by PRA.  Last  month, she got a case dismissed within a few hours of filing an answer for her client.   No lawyer can guarantee a win, of course, but she is an excellent lawyer who really cares about helping others.  She has helped many FL defendants on this board.  From what others have said, she is quite affordable and she takes payments.   I would send her a PM and discuss your case with her.   There is no charge or obligation for that.

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@BV80 Minimum payment due is $0.00 as well. Is there an expiration for that deal? I would like to continue paying the minimum.

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@BV80 the way there can be an FDCPA violation for charging pre-judgment interest it seems like there is something there for the JDB changing the OC's payment terms from $0.00. Apparently the account never had a late payment either, since that's a $35.00 charge and there doesn't appear to be any crediting that back or any indication it was there.

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@CCRP626

28 minutes ago, CCRP626 said:

Apparently the account never had a late payment either, since that's a $35.00 charge and there doesn't appear to be any crediting that back or any indication it was there.

A current account is not charged off.   No more payments were being made.  If you look at the "Activity Summary" on the first page, it shows a previous balance but no payments.

 

32 minutes ago, CCRP626 said:

the way there can be an FDCPA violation for charging pre-judgment interest it seems like there is something there for the JDB changing the OC's payment terms from $0.00.

What do you mean "changing the OC's payment terms from $0.00."?

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1 hour ago, JoseRodriguez said:

 

If you look around on the forum, there are discussions on affirmative defenses. The reason I say that you need to include them is because if you file only an Answer, PRA will immediately move for Summary Judgment.  If you file the Answer with Affirmative Defenses then they will need to respond to or strike the affirmative defenses before they can get a summary judgment.  I would also file discovery such as requests for admissions, requests to produce and interrogatories.  Sometimes it's also helpful to take the deposition of their 'records custodian', although they often object to that.  The JDB does not like to go to trial and if they can't get a default judgment, they will try to win by getting you to admit it's your debt and agreeing to make payments or by summary judgment.  I actually get retained more often when a JDB sets a summary judgment hearing than at any other time.  JDBs love summary judgment hearings because they can use an affidavit from the records custodian instead of having them appear in person to be cross-examined.

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4 hours ago, nascar said:

I've seen this tossed around now and again, but never thought much about it. Does Florida define  "corporate resident" for purposes of 57.011? As you are no doubt aware, in federal court, a corporation resides in any district where it is subject to personal jurisdiction at the time the action commenced. 28 U.S.C. 1391(c). I would expect Portfolio to argue that, if there's an equivalent definition.

Some FL courts will dismiss w/prejudice for failure to file the cost bond as here:

http://vocelleberg.com/Galbraith-2012-Dismissal.html  while others allow leave to post the bond.

 In "Madura  v BAC Loan Servicing, (M.D. FL 2012). the federal district court said  the cost bond was a FL procedural law that would not apply in federal court.

The Maduras assert that the Court erred in not disposing of the Bank's foreclosure Counterclaim when it is uncontested that the Bank did not post a $100.00 bond with this Court. However, Florida Statute Section 57.011 does not apply in this federal forum. See Certex USA, Inc. v. Vidal, No. 09-cv-61818, 2010 WL 2942441, at *5 (S.D. Fla. Feb. 8, 2010)(Florida Statute § 57.011 "is a procedural state law requirement, and accordingly does not apply in federal court."). Whether asserted pursuant to Rule 59 or 60 of the Federal Rules of Civil Procedure, the Maduras' argument on this point is unavailing. Accordingly, the Court denies the Motion for Reconsideration to the extent such Motion is based on the Bank's failure to post bond

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8 hours ago, CCRP626 said:

You can check at sunbiz.org (Fl Secy of State). It will state Foreign Corp and the state.

Thanks. I am aware of that. But in a technical legal argument, whether a company is a "corporate resident" of a state depends on much more than its state of incorporation. The statute does not define the term; my question, therefore, was whether it was defined elsewhere in the statutes. Otherwise, where a statute does not define a term, it is generally given its ordinary and common meaning. However, Florida Statutes continually delineate between citizens and residents; and to be a "resident," you do not have to be a "citizen."

For instance, Florida's long arm statute: 48.193 Acts subjecting person to jurisdiction of courts of state.

(1)(a) A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:
1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state ...
 
... and on and on.
 
And, with respect to Portfolio, while it may be a foreign limited liability company (with respect to Florida), Portfolio's Florida attorneys listed in paragraph 8 of the complaint, i.e, Greenbaum, Wonder, etc., are officed in Florida, although PRA doesn't advertise that fact (probably for good reason). And if you are a business that operates in Florida or has an office in Florida, I recall that you're viewed under Florida law as a corporate resident for many purposes, one of which, arguably, could be 57.011- but I haven't seen anything on point regarding that question.
 
 
 

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On the Florida sunbiz site, it will usually say a corporation is a foreign corporation but licensed to do business in Florida. I think PRA is that way.  But others, such as Capital One are not listed as active on that site.  Cap 1 was incorporated in Delaware I believe and I know PRA was incorporated outside of Florida too. So even though a business may be licensed here, for the purposes of the statute we normally look at where the business was incorporated.  If not in Florida, then they should file a non-resident cost bond.  They are really supposed to do it when they file a lawsuit but they never do unless they get called on it.  I guess not spending that extra $100  in each lawsuit they file is a business decision they make that generally has no repercussions for them.  Since most lawsuits end up with defaults, stips,  or no service, it never comes up.  Of course, I argue that they know the statute and blatantly and willfully disregard it.  Still, the only thing that has come of it is that occasionally one of their cases will be dismissed because they forget to file the cost bond after being noticed.  But might as well force them to jump through the hoops because it is in the Statutes.

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As an addendum to my previous post, the non-resident cost bond will be going away come July 1, 2016.  They are repealing that statute that requires non-resident plaintiffs to file the cost bond.  I'm sure the bankers hated it so they lobbied to get rid of it. :mad:

SB 396 repeals non-resident cost bond requirement

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7 hours ago, LawKitty said:

As an addendum to my previous post, the non-resident cost bond will be going away come July 1, 2016.  They are repealing that statute that requires non-resident plaintiffs to file the cost bond.  I'm sure the bankers hated it so they lobbied to get rid of it. :mad:

SB 396 repeals non-resident cost bond requirement

Damn.  Well, if corporations can't win in the courts, they just get the legislature to change the law.  I have no doubt we will be  seeing more of this.  North Carolina, which was a very pro-debtor state,  has changed its collection laws to make it harder to defend collection lawsuits.   And,  if corporations can't get the legislature or Congress to change or modify a law, they try to get it declared unconstitutional.  SCOTUS will hear the "Spokeo" case this year, which has the potential to invalidate or weaken consumer laws like the FDCPA

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 @JoseRodriguez I was served by PRA in florida, and came on this site just like you did. I couldnt figure out how to do it myself and i hired @LawKitty, she does a free consultation and then lets you make payments. The same day that she signed into the electronic court system and responded to the suit, within 4 hours PRA had dropped the suit and agreed to have it taken off my credit report. At the very minimum i highly suggest reaching out to her. Good luck!

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