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Hello!

A couple of weeks ago, my wife was served with two separate summons regarding credit card debt from a couple of years back.  She was going through a difficult time after suffering significant pay cut, and was forced to choose between living essentials for her family, and everything else.

This forum has proven to be an oasis of calm for us in a tempest of anxiety.  This is the first time that anything like this has ever happened to either of us, and quite honestly, we were shocked.  We've been quietly researching these forums when time allows, trying to find cases similar to ours so that we might be able to obtain a favorable outcome.  However, there are still a couple of questions that remain unanswered...and it's probably time that we have our situation examined by those who know more than us (which is, basically, all of you).

Since there are two cases,  I'll designate the answers "X" for the first, "Y" for the second:

1. Who is the named plaintiff in the suit?  (X +Y) 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.)  (X + Y)Hunt & Henriques

3. How much are you being sued for?  (X) A bit over $1k  (Y) A bit over $2k

4. Who is the original creditor? (if not the Plaintiff)  (X + Y) GE Capital Retail Bank  (now Synchrony)

5. How do you know you are being sued? (You were served, right?)  (X + Y) Process server

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

7. Was the service legal as required by your state?  (X + Y) We believe so, although we're not sure.  The person who had delivered the summons had blocked access to our garage by parking in our driveway until my wife came home, at which point she pulled out and let my wife park, then parked behind her (effectively blocking her in).

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?  (X + Y)  There was no correspondence that we can remember.

9. What state and county do you live in?  California, San Bernardino County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  ~ November 2013, according to the evidence they sent us

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).  (X + Y) Proof of Service submitted

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) (X) Not to our memory (Y) Yes--there was a dispute regarding some of the late fees, because even though my wife had made the payments on the 1st of the month, she was told that the payments landed in a gray area that was "between billing cycles" (or some such nonsense) and hit repeatedly with $35 fees.

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.  (X + Y) 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?

(X + Y) We were given thirty days, with about ten left  to respond. 

( X + Y) They're claiming that we were "employers, masters, etc." of our co-defendants and ratified such and such alleged herein; that this concerns a credit account purchased after 1-1-14; the plaintiff is a debt buyer; original creditor issued a credit account on a certain date, it was used by the Defendant, the Defendant received statements, the Defendant defaulted, all right, title, and interest assigned/transferred to Plaintiff.; Plaintiff is sole owner of the acct. or has authority; the balance was ~$2k, not seeking recovery of fees, last payment was near the end of '13;  charge-off creditor was original creditor, acct ended in XXXX,; our last known address; credit in question purchased by JDB; Plaintiff complied with Section 1788.52 of CA Civil Code; Attached two exhibits  for each.

(X + Y)  In both cases, the causes of action are "account stated" and "open book account"

There was no questionnaire given.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  (X)  images of what looks like account statements (incomplete) containing summaries, as well as an image of the cardholder agreement fine print typically sent with the statements.  (Y)  Basically the same thing.

17. Read this article:

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

I didn't see any sworn statements in the complaint, although there is an electronic signature at the end.  The only two sworn statements regard their knowledge of my wife's residence in this county/jurisdiction (A "Certificate of Assignment" and a "Statement of Location/venue").  There's also a civil case cover sheet, and something that looks like a transcript regarding OSC service of summons & default judgement dates.

Our plan is to submit a general denial, then send out a "Bill of Particulars" request via certified mail a couple of days before the due date with a Proof of Service.  We'll also most likely be submitting a request for a waiver of fees--although we don't receive assistance or meet the criteria for automatic acceptance of our request, we're essentially house poor (my wife has, in large part, been supporting her mom and sister's family).

I have a couple of questions:

1.  Is it okay to send the BOP and all of the other paperwork in the same package, even though it's for two cases?

2.  Should we go to the court and submit the general denial first, or send out the BOP with the POS?

3.  Is our timeline appropriate?

My wife has some questions as well that I may be forgetting, but I'll try to get them up later on.

 

Thank you so much for any assistance that you can give!

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11 hours ago, Inundated said:

I have a couple of questions:

1.  Is it okay to send the BOP and all of the other paperwork in the same package, even though it's for two cases? I would send the documents for any particular case in one package along with its respective POS.

2.  Should we go to the court and submit the general denial first, or send out the BOP with the POS? You can serve the BOP now, then file your GD at a later time. just don't cut it to short to the GD dateline. you don't want to be late filing that GD.

3.  Is our timeline appropriate? if your wife was personally served, then yes, she has 30 days to respond.

My wife has some questions as well that I may be forgetting, but I'll try to get them up later on.

keep in mind that your wife has to be as up to-date and informed about the case as you are, in case she gets dragged to a hearing or trial.

 

Thank you so much for any assistance that you can give!

 

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2 hours ago, sadinca said:

question: there is another threat with the exact same language, but you named the cases (A+B), are those the same as these X+Y?

No, lol...originally I wanted to label everything "A + B" in parenthesis, but I kept getting a smiley emoticon so I changed it to (X + Y).  I guess I missed one :cool:

We will send both BOPs in separate packages, along with respective POS's, fairly soon on your advice.  I was worried that we might be messing things up by waiting until the last minute, but I thought I'd read somewhere that it was a tactic used by some to put the burden of work on the other side and limit their time somewhat...but I would hate to have it get lost in the mail or have something else go wrong.  Not that it's likely, but I've had bad experiences in the past...

My wife and I have great communication, and are on the same page in this matter.  In fact, I've got some questions from her:

1.  The general denial form PLD-050 states that  it must be filed with the court with proof that a copy was served--do we get it stamped first (by the court) or do we mail it to the plaintiff without the stamp?

2.  Can we include the General Denial and the Bill of Particulars in the same delivery?  (I believe you already answered this, and it shouldn't be necessary)

3.  How long does the request of fee waiver take?  Will we have to pay the filing fees up front, then get approved for a full/partial refund?

We have a lot of expenses that aren't necessarily reflected by our bills, which is due in large part to my wife shouldering the majority of the burden for two families (one of which she isn't claiming as dependents, though they really are) and our mother.  So it turns out that our finances look better than they really are...however, we're unsure how we should file for the fee waiver:  would it be better for us to file for a full fee waiver, or a partial one?  If we file for a full fee waiver, is there a chance that they might give us the partial one instead?

 

I was pretty happy to see your response this morning, Sadinca :)  Most of the stuff that I've read on these forums that pertains to our situation has been put up by you, CALawyer, and a few others.  I just wanted you to know how much it means to us (and so many others, I bet) that you were willing to donate your time to help out others, because I'm sure that, with your knowledge, experience, and expertise, that you could be using this time in a more profitable (materially) manner.  We really appreciate it :)

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3 hours ago, Inundated said:

My wife and I have great communication, and are on the same page in this matter.  In fact, I've got some questions from her:

1.  The general denial form PLD-050 states that  it must be filed with the court with proof that a copy was served--do we get it stamped first (by the court) or do we mail it to the plaintiff without the stamp?

you can send to plaintiff a stamped copy, however that will burden you with the extra step of mailing the POS or visiting the court again to file the POS.

what I would (and did) I would send a copy of the GD and a copy of an unsigned POS to plaintiff, then I will file with the court the GD and the SIGNED POS.

2.  Can we include the General Denial and the Bill of Particulars in the same delivery?  (I believe you already answered this, and it shouldn't be necessary)

you can send them both in the same envelope, just make sure the POS states every document that is included.

 

3.  How long does the request of fee waiver take?  Will we have to pay the filing fees up front, then get approved for a full/partial refund?

to be honest, I am not quite sure how the fee waive works.

We have a lot of expenses that aren't necessarily reflected by our bills, which is due in large part to my wife shouldering the majority of the burden for two families (one of which she isn't claiming as dependents, though they really are) and our mother.  So it turns out that our finances look better than they really are...however, we're unsure how we should file for the fee waiver:  would it be better for us to file for a full fee waiver, or a partial one?  If we file for a full fee waiver, is there a chance that they might give us the partial one instead?

perhaps @Anon Amos or @RyanEX have an answer for this question.

 

I was pretty happy to see your response this morning, Sadinca :)  Most of the stuff that I've read on these forums that pertains to our situation has been put up by you, CALawyer, and a few others.  I just wanted you to know how much it means to us (and so many others, I bet) that you were willing to donate your time to help out others, because I'm sure that, with your knowledge, experience, and expertise, that you could be using this time in a more profitable (materially) manner.  We really appreciate it :)

just happy that I can help others, the way I received help when I needed it. I was once in a position similar and  know what you and your wife are going through and the hard times having to chose what essentials to purchase and which not.  i found a helping hand among anonymous strangers.

and  work a bit slow at the moment. LOL

 

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You can file for the fee waiver ASAP, even before you answer, that way if approved it may cover the fee. I would file for the full fee waiver, that way if you don't get it you could try for the partial fee waiver, or the court could just award the partial fee waiver instead.  There are places in the fee waiver form (I believe) where you can explain your financial situation and your bills etc.

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34 minutes ago, Anon Amos said:

You can file for the fee waiver ASAP, even before you answer, that way if approved it may cover the fee. I would file for the full fee waiver, that way if you don't get it you could try for the partial fee waiver, or the court could just award the partial fee waiver instead.  There are places in the fee waiver form (I believe) where you can explain your financial situation and your bills etc.

That's great advice--makes a lot of sense :)

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When I applied for a fee waiver it took 2 days to get the decision, which I saw online. I didn't qualify. The written notice came a day or two after that and it gave me 10 days (from the time it was generated) to come back and pay the fee.

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2 hours ago, RyanEX said:

When I applied for a fee waiver it took 2 days to get the decision, which I saw online. I didn't qualify. The written notice came a day or two after that and it gave me 10 days (from the time it was generated) to come back and pay the fee.

That's good to know--I was wondering how much time we would have if it were turned down.  I know that there's an appeal process that we can go through if we get turned down, but maybe it would be better if we just asked for a fee reduction, instead.  Thanks!

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21 hours ago, Inundated said:

That's good to know--I was wondering how much time we would have if it were turned down.  I know that there's an appeal process that we can go through if we get turned down, but maybe it would be better if we just asked for a fee reduction, instead.  Thanks!

There are different ways to qualify for the fee waiver.  If you go the income route then there's some machinery that runs in the background and the decision can take some time.  If you qualify through a public assistance program (like Medical), they should be able to grant it immediately, presumably since your eligibility was already verified for the other program.  At least they were in our case.  By immediately, I mean it literally--I gave the clerk the form, she approved it right there, and printed off some copies for me for free.

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15 hours ago, hades01 said:

There are different ways to qualify for the fee waiver.  If you go the income route then there's some machinery that runs in the background and the decision can take some time.  If you qualify through a public assistance program (like Medical), they should be able to grant it immediately, presumably since your eligibility was already verified for the other program.  At least they were in our case.  By immediately, I mean it literally--I gave the clerk the form, she approved it right there, and printed off some copies for me for free.

That's good to know...I think we're going to go with the fee reduction route, because it's more of a sure thing.  Had I known some of the things I've learned so far, I would have went down there immediately to apply for the full waiver, so I could regroup in case it was denied.

Oh well...there's always eBay, ha ha...

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I'm not sure I see the logic of that, but my experience with the fee waiver was very basic.  I would always try to get the full waiver if possible, especially since the appearance fee here is stupidly expensive.  The court should give you the benefit of the doubt when filing paperwork while your fee waiver application is being processed.  But if the waiver is denied you cannot mess around.  If you fail to pay or appeal, the court will act as if you didn't file anything at all, which will result in a default judgment.  Ran into a guy that this happened to when I was at a legal aid clinic.  At the very least though, keeping the application open and going through the appeal process will buy you some time to find the money (if it doesn't get approved).

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 There is actually a multi-part video course on a consumer attorney website that is good on some of the basics you should know when facing a new debt collection lawsuit. Here is the link:  https://consumerlawcoach.com/defending-collection-lawsuit-california/introduction/course-overview/

It is particularly useful when you have  just been sued and can still avoid making big mistakes; Since you have just sued by portfolio recovery associates  in California court, it should be good for you because the site pertains specifically to California collection lawsuits.

In the spirit of full disclosure; I actually am the person who made the course, so hopefully this won't be perceived as spam (but it is free).

Good luck.

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On 6/17/2016 at 4:53 PM, CollectionDefenseGuy said:

 There is actually a multi-part video course on a consumer attorney website that is good on some of the basics you should know when facing a new debt collection lawsuit. Here is the link:  https://consumerlawcoach.com/defending-collection-lawsuit-california/introduction/course-overview/

It is particularly useful when you have  just been sued and can still avoid making big mistakes; Since you have just sued by portfolio recovery associates  in California court, it should be good for you because the site pertains specifically to California collection lawsuits.

In the spirit of full disclosure; I actually am the person who made the course, so hopefully this won't be perceived as spam (but it is free).

Good luck.

Thanks--I'll check it out soon.  Been away helping my Grandmother move, but we're working on it!  It's really nice of you to take the time to put something like that together :)

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Just an update:  the fee waivers didn't go so well.  We're a little over the amounts indicated for automatic fee waiver, but both requests for a fee reduction were denied.  There's no option put forth for payment in installments, either...so we're going to have to do some scrambling, but it will get done.  I'm wondering if it's because we have a relatively small amount of money in the bank set aside for utility bills?  Oh well...

Anyway, we've gotten a response from one of the BOP demands (out of two), and there was a couple of images of statement summaries--no copy of the original signed agreement, no detailed listing of all the transactions.  On the bottom, the attorney wrote that they reserve the right to amend the BOP as other statements are found.  I'm assuming that these will have to show up before the 15 day limit (we served via CMRRR).

Also, I've read that we should request a "meet and confer" after the 15 days are up, give them five more days to send evidence, then file a motion for exclusion on any other evidence provided.  Is that good advice?

Thanks again for your help :) 

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11 hours ago, sadinca said:

Where there any objections in plaintiffs answer? Besides then reserving the right to amend?

I didn't see any objections, and the response was pretty matter-of-fact:  it said that they were including pretty much the only things that they included, and would send an Amended Bill of Particulars (I believe) if/as more statements came up, and reserved the right to do so.   I noted the word "statements" rather than "evidence."

We'll be doing some running around (scrambling) today, but I'll be back on later tonight to elaborate if necessary ;)

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The important thing is that you received an incomplete answer, that will help you answer their discovery questions when they send them your way. 

 

Or have they sent then already? It's hard to follow up on my phone

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On 6/29/2016 at 1:25 PM, sadinca said:

The important thing is that you received an incomplete answer, that will help you answer their discovery questions when they send them your way. 

 

Or have they sent then already? It's hard to follow up on my phone

Okay, here's an update:

We just recently received the discovery questions for both cases.  We still haven't gotten a response regarding the demand for a BOP that we sent out on one of them, and we haven't gotten anything beyond a couple of account summaries for the BOP that was answered.  Seriously, for all the evidence they've provided, they could've come up with it by combing through our trash...and a lot of the things that they are claiming are things that we know nothing about.

I've been reading up on responses to the discovery questions (I guess they're commonly abbreviated ROGS, RFA and a demand for doc production), and it has been illuminating.  Obviously we have to tailor our own response, so I'm going to just keep studying away for now...

Thanks!

**edit:  just a side note, but I found some of your responses to FiredupinCA's thread Cavalry/Winn Lawuit in California, and there's a lot of similarities to draw from ;)

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On 6/17/2016 at 4:53 PM, CollectionDefenseGuy said:

 There is actually a multi-part video course on a consumer attorney website that is good on some of the basics you should know when facing a new debt collection lawsuit. Here is the link:  https://consumerlawcoach.com/defending-collection-lawsuit-california/introduction/course-overview/

It is particularly useful when you have  just been sued and can still avoid making big mistakes; Since you have just sued by portfolio recovery associates  in California court, it should be good for you because the site pertains specifically to California collection lawsuits.

In the spirit of full disclosure; I actually am the person who made the course, so hopefully this won't be perceived as spam (but it is free).

Good luck.

You know, I just went through the entire series...and it's fantastic :)  I'm no expert, but everything that you mentioned therein has been in-step with my experiences thus far.  I wish I'd found these earlier, because some of the information that you give could have saved us hours of internet searching.  It definitely isn't spam--in fact, if I felt like I had any real expertise, I would probably suggest it as a sticky because it's the perfect way to introduce people like ourselves to the processes we're likely to face.

Thanks again!

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Another update:  the due date for the response to the Demand for BoP(s) is very close to being up, and we'll be sending out a request for a "meet and confer" (going off previous relevant examples posted herein).  Should we request for an in-person meeting (so that I can accompany my wife, who is truly a good person but conflict-averse), a phone call, or provide for either?  If an in-person meeting is a good idea, should we schedule it at the court house, or somewhere near to it?  Would a meeting closer to our home (which is petty far from the court) be okay?

I'm working on the responses to their discovery questions but a lot of it hinges on their responses to the BoPs (edit:  the responses have come in, and pretty much consist of the same stuff that was submitted with the original complaints).  Would it be appropriate to send responses those questions before we've sent out a request to meet and confer over it, or should we wait the additional week or so to give them a chance to respond?  Or would it be better to send it the answers out around the time that we file a motion to compel, or to exclude evidence (as detailed in CCP § 454)?

Sorry for so many questions...

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Sorry I haven't been around the threats as often as I should. When are the answers to their request for discovery due?

Perhaps I can help you with the answers and the meet and confer letter to bop.  

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