pokergod

Help please, being Sued by Portfolio Recovery LLC in Florida

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1. Who is the named plaintiff in the suit?

Portfolio Recovery Group LLC

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

Hyatt & Hyatt& Landau

3. How much are you being sued for?

1457

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

Webbank, Blustem Systems

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

Was served on May 20th

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

in person at my home

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?

they mailed two letters of debt collection.

9. What state and county do you live in?

Sarasota County, Florida

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

Dec, 2014

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

4 years

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).

Set for Pre-Trial Motion 6/8/2016, I filed a motion for production request,  Portfolio filed a Affidavit of personal knowledge

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

yes

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 am assuming I don't need to file a response since it is a pretrial mediation set up.  I received no questionnaire or no information about answering this only a pretrial mediation setup.

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.

There was 7 credit statements and one was a duplicate, thats all that was in the Statement.

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

Just wondering if anyone out there can give me some advice on my case.  I have been served on the 20th of May and I then filed a motion to produce evidence.  At this point the Hyatt and Hyatt filed a Affidavit of personal knowledge by some Custodian of Records.  How should I handle the next step.  Should I file a motion to subpoena the person to have him there at pretrial or should I do that at pretrial. I am a real rookie here and desperately lost.  I have read all the arguments about 3rd party debt collectors and how to fight them but some more advice would be great.  Also Happy Memorial Day to all.

Thanks in advance for any help.

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Also I read that in the state of Florida has a contingency clause that lawyers can get paid by the plaintiff if we win?  And if that's the case does anyone know of a lawyer in Sarasota county in Florida who I can talk to?

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@LawKitty has sent Portfolio back to where they came from repeatedly and would be my choice, not sure if she handles Sarasota county though.

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Also, in the last couple of weeks, PRA has called my Brothers house repeatably, is this a violation?  My brother had nothing to do with this Account.  Any Free advice would be appreciated as well.  Mostly worried about the Affidavit that they submitted.  I believe I could still argue against that as this is all they submitted for my motion to produce documents.  No signed contract, no more statements etc etc.

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3 hours ago, pokergod said:

Also, in the last couple of weeks, PRA has called my Brothers house repeatably, is this a violation?  My brother had nothing to do with this Account. 

No.  They are allowed to skip trace a consumer.

 

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@pokergodThey are allowed to call once for location acquisition, not repeatedly. Next time they call him have him say FDCPA violation and to cease calling just to hammer it in.

You say you've already been served with a summons so no reason for them to call him. Have you done a counterclaim in your answer?

https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text#804

not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;

 

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make sure your brother tells them to cease calling, that will be a part of proving damages. If any of the calls seem to be robodialed (he picks up and there's nobody there for a brief period), note that as well to look into TCPA violations.

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8 hours ago, pokergod said:

Also, in the last couple of weeks, PRA has called my Brothers house repeatably, is this a violation?  My brother had nothing to do with this Account. 

Has your brother spoken to them?

 

 

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2 hours ago, CCRP626 said:

They are allowed to call once for location acquisition, not repeatedly.

If the calls went unanswered, they can continue to call.

However, if the calls were placed after the OP was served, I would see no reason for calls to the brother for the purpose of locating the OP.

 

1 hour ago, CCRP626 said:

make sure your brother tells them to cease calling, that will be a part of proving damages.

Ceasing communications (1692c(c)) only applies to the consumer who demands that contact be ceased.

 

1 hour ago, CCRP626 said:

If any of the calls seem to be robodialed (he picks up and there's nobody there for a brief period), note that as well to look into TCPA violations.

The brother would have a cause of action, not the OP.

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55 minutes ago, BV80 said:

Ceasing communications (1692c(c)) only applies to the consumer who demands that contact be ceased.

That sounds good but it seems like the OP could bring in that and other sections depending on what was said/revealed in the calls to the other person.

 

59 minutes ago, BV80 said:

If the calls went unanswered, they can continue to call.

Maybe throw in causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number?

 

One possibility I guess for these phone calls after a summons has been served is maybe PRA has more than one account they're collecting on or they're just so messed up they don't even know they're already suing for this?

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1 hour ago, CCRP626 said:

Maybe throw in causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number?

His brother could sue under that provision because 1692d applies to "any person".    But the OP said his brother hasn't answered the calls, so they don't know that his brother just may not be available to answer.  As a result, he may not have a claim right now.   Also, the OP would not have a cause of action because he wasn't the one called.

 

Quote

One possibility I guess for these phone calls after a summons has been served is maybe PRA has more than one account they're collecting on or they're just so messed up they don't even know they're already suing for this?

That's possible, but I'd still want to know why they're calling. 

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Unanswered calls changes things although I'm not sure if any messages were left. I'm guessing they were left (or maybe it just shows as Portfolio on caller ID) otherwise it would be a guess who the calls were about. If certain detail is being left with a third party, I'd think the alleged debtor would be covered by the FDCPA for the calls in addition to the called party getting harassed by the calls.

Communication with third parties
Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

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I told him to answer and tell them to stop calling and if they call again they will be in violation of the FDCPA.  Thanks for the help.

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Just a quick question, I am going to file a motion to dismiss with prejudice and also a motion to strike the affidavit.  My question is do I have to schedule a hearing on these motions before the court date, or will they just hear them before, or at the trial date, are these non-hearing motions?  Also their response to my production request was just the credit statements with nothing else.  I am feeling pretty good they have not established any chain of custody to this account.  Also I included their filling to my response.  Any advice would be appreciated, Thanks for help.

 

Porfolio's Response to my response.pdf

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4 minutes ago, pokergod said:

Just a quick question, I am going to file a motion to dismiss with prejudice and also a motion to strike the affidavit.  My question is do I have to schedule a hearing on these motions before the court date, or will they just hear them before, or at the trial date, are these non-hearing motions?  Also their response to my production request was just the credit statements with nothing else.  I am feeling pretty good they have not established any chain of custody to this account.  Also I included their filling to my response.  Any advice would be appreciated, Thanks for help.

 

Porfolio's Response to my response.pdf

Usually, a motion to dismiss is filed before answering the complaint.  If you file one now, it would most probably be turned into a motion for summary judgment.

Have they provided a bill of sale?  If not, did you request one in your request for production of documents?

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  1. Please produce any credit application signed by the Defendant.
  2. Please produce a copy of the executed contract in Portfolio Recovery LLC, possession setting forth the terms the Defendant is alleged to have agreed to in connection with the account at the beginning.

  3. Please produce a copy of any modifications to those terms specifically agreed to by the defendant.

  4. Please produce a copy of all statements from the beginning of time to the present.

  5. Please produce evidence of all payments received.

 

This is what was in my production request, and all they filed was copies of my credit statements. no bill of sale as of yet. 

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they did not send a copy of the bill of sale from OC to Portfolio? Or an affidavit that says this account belongs to you, and I swear the amounts are true?  usually signed by someone that works at portfolio?

 

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17 minutes ago, pokergod said:
  1. Please produce any credit application signed by the Defendant.
  2. Please produce a copy of the executed contract in Portfolio Recovery LLC, possession setting forth the terms the Defendant is alleged to have agreed to in connection with the account at the beginning.

  3. Please produce a copy of any modifications to those terms specifically agreed to by the defendant.

  4. Please produce a copy of all statements from the beginning of time to the present.

  5. Please produce evidence of all payments received.

 

This is what was in my production request, and all they filed was copies of my credit statements.

You didn't request a copy of the bill of sale.    Usually, they aren't required to file a copy of the credit application.

However, read the Consent Order between Portfolio and the Consumer Financial Protection Bureau starting on page 33.   If a defendant contests a lawsuit, the JDB is required to provide a copy of the bill of sale from the original creditor (or more than one bill of sale if the debt was sold more than once).  Also, the bill of sale or an affidavit from the OC must reference your debt. 

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

@LawKitty can tell you if a motion to dismiss or a motion for summary judgment is proper.

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So, can I fill another production request for the bill of sale?  Court date is july 13th.  Basically all they have currently is all credit statements and the Affidavit, which I want to file a motion to strike the Affidavit.  Does it sound like i have a chance?  At least from my research they should have to prove more than they have,  I could be wrong.  Thanks again for any advice.

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They claimed that the OC assigned the debt to Portfolio Recovery.  That OC and I had business transactions between me and the OC.  They sent a letter of verifying the debt.  Now I owe Portfolio.  In the origional complaint there was only 7 credit card statements and that's it.  Since then, they have filed an Affidavit, and a response to my production request with all credit card statements.  This is where I am at.

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