lthrwing

Sued by Portfolio Recovery Orange County CA Summons and Complaint

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Vpick001 said:

Talk about great (terrible?) timing, I just got served for PRA by the same firm, the only difference is that I'm in San Bernardino county.  That being the case, I'm in the same boat as you, Ithrwing.  I'm going to keep up with this thread and contribute whenever I can.

Two questions:

1.) Why do we send an unsigned POS030 to the plaintiff?  I understand that we sign it when filing with the courthouse, I just don't understand what difference it makes whether or not the plaintiff's copy is signed.

2.) When sending a BOP, so I also need to send it with a POS030?  I would assume not since it's not being filed, but I just want to be sure.

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RyanEX said:

3 minutes ago, Vpick001 said:
 

Talk about great (terrible?) timing, I just got served for PRA by the same firm, the only difference is that I'm in San Bernardino county.  That being the case, I'm in the same boat as you, Ithrwing.  I'm going to keep up with this thread and contribute whenever I can.

Two questions:

1.) Why do we send an unsigned POS030 to the plaintiff?  I understand that we sign it when filing with the courthouse, I just don't understand what difference it makes whether or not the plaintiff's copy is signed.

2.) When sending a BOP, so I also need to send it with a POS030?  I would assume not since it's not being filed, but I just want to be sure.

1) It's the proper way to do it  (though many have sent a signed POS instead without any issue). Consider what the POS says: that the person performing the service has (already) deposited a sealed envelope with the USPS. How can they sign a POS stating they already deposited a sealed envelope, when that envelope includes that same POS? It's just matter of the order you do things.

2) Yes, send a BOP with a POS. You are requesting something from the plaintiff; even if you are not filing the request, you want to be able to prove that you served it properly. Also, the POS identifies a date of service and the plaintiff needs to time their response according to the date of service. Sending it CMRRR will also prove they received it.

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Patz said:

For anyone being sued by Portfolio, be aware that in 2015 the CFPB settled with Portfolio for over $25 million for abusive collection practices. Read  about it here:   http://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

 

You should find something in the settlement that can help you in your case.  For example, the settlement says Portfolio tries to collect on debts when the sales agreement with the debt seller makes it clear that the debtor records are NOT guaranteed to be accurate.  CFPB said Portfolio can't collect on these debts that can't be verified.  That would probably apply to any collector.

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Anon Amos said:
1 hour ago, Vpick001 said:



 

1.) Why do we send an unsigned POS030 to the plaintiff?  I understand that we sign it when filing with the courthouse, I just don't understand what difference it makes whether or not the plaintiff's copy is signed.

 

I always felt the same way  as you about this. RyanEX explains it well in his post above. I always sent mine already signed, and put them in the mail myself rather than bothering the person who signed it.  It is an area the court doesn't pay much attention to.

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RyanEX said:
9 minutes ago, Anon Amos said:
 

I always felt the same way  as you about this. RyanEX explains it well in his post above. I always sent mine already signed, and put them in the mail myself rather than bothering the person who signed it.  It is an area the court doesn't pay much attention to.

Did the same thing myself.

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Vpick001 said:
7 minutes ago, RyanEX said:

Did the same thing myself.

Unrelated, but I see by your avatar you're "1-0 vs JDB", how long did fighting your case take?  I understand that it varies from person to person, but I would like to know about how long of a fight I'm in for...

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calawyer said:

I get signed proofs of service from big law firms every day.  Only once have I had a judge comment (however, in fairness, there is seldom a reason why a judge would look at a proof of service on routine pleadings).

However, the procedure RyanEx suggests is the correct one.  And, in my opinion, if you are going to do something, you may as well do it right.

For the OP:  A somewhat long (for me) post I did on BOPs and motions to compel written discovery can be found here: 

http://www.creditinfocenter.com/community/topic/309078-motions-to-compel-bop-vs-written-discovery-in-cal/?do=findComment&comment=1115890#comment-1115890

One additional reason to send a BOP, even if you don't think you will move to compel, is that it gives you a nice objection when Plaintiff sends YOU a bunch of discovery.  See, 1111girl's thread.

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Hi everyone! Being a non-legaleze and first time sueeeeee..... I posted a Bill of Particulars and was hoping one of you might be able to give it a thumbs up or down. Thanks for all the input!

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So, the list of steps look like this so far;

1. Was served at home with the Plaintiff's, Portfolio Recovery, Summons and Complaint.

2. Noted that the Summons mentions the Amount of Time I have to respond.

3. Noted the Complaint mentions Limited Civil and the Amount I'm being sued for.

4. Noted the Summons and Complaint packet is divided into several parts; 1) the Summons. 2) the Complaint. 3) the Exibit. 4) the Statement of Location/Venue. 5) the Civil Case Cover Letter. 6) the Alternative Dispute Resolution (ADR) Info Package.

5. Thoroughly read and researched every page of the Summons and Complaint.

6. Due to this wonderful website and the graciousness and expertise of Poster calawyer, it was brought to attention that my Summons and Complaint doesn't contain a Verification Form/Document and is a Limited Civil Case and is a case seeking more than $1,000.00 but less than $25,000.00 and the Plaintiff, Portfolio Recovery, is not a third party collecting a debt for someone else but is the proclaimed owner... which means I am able to respond to the Summons and Complaint using a Demand for Bill of Particulars (BOP) Code of Civil Procedure Section 454 (thanks Anon Amos) along with a Proof of Service (POS unsigned) followed soon after sometime near the end of the 30 days with a General Denial Form (thanks calawyer) along with a Proof of Service (POS) (Thank you RyanEx!) (Links supplied in above Posts).

7. Filled out the Bill of Particulars (BOP) (see example and link above because I couldn’t find a suitable version on the net ready to go) and a Proof of Service (POS)(link above). Make a copy of the Bill of Particulars and the Proof of Service. Mail the original Bill of Particulars along with the original Proof of Service (POS is unsigned) First Class Mail Certified Mail Return Receipt Requested (thanks RyanEx). The Bill of Particulars and the Proof of Service don’t need to be filed with the Courts (thanks Sadinca). Keep the copies for your records. Now wait.

 

 

8. Wait to hear back from Plaintiff’s Lawyer. Not exactly sure what the Plaintiff's Lawyer is going to do about the Bill of Particulars at this point but when I find out I'll update this Post. Until then, here's what the plan is so far... Wait until it gets closer to the end of the 30 days then continue with the following: Obtained the General Denial (link thanks to calawyer) (http://www.courts.ca.gov/documents/pld050.pdf and in above Posts) and filled out using the examples supplied by Sadinca as follows (much appreciated!):

-On the General Denial, in the top left section it states ATTORNEY OR PARTY WITHOUT ATTORNEY and asks for name, address, email and so on. Is this where I put the Plaintiff's Attorney info? Here, you’d put your name and address, and next to “attorney for” you’d type “Pro se” to indicate that you are a party without attorney.

-Below that is states SUPERIOR COURT OF CALIFORNIA , COUNTY OF and asks for address and branch. The Court involved in my case is the Superior Court of California, County of Orange, Central Justice Center, Civil Division. What do I need to put in the Branch section? On here, it will be SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE, The address, which is 700 Civic  Center Drive, And next to Branch: Central Justice Center.

-Beneath that is the Plaintiff Section where I assume the Plaintiff's Name is entered. Portfolio Recovery Associates.

-Beneath that is the Defendant Section where again I assume my name is entered. Your name.

-To the right of that is the Case Number section where I assume I enter the case number. Yes.

-Beneath all that is a section describing reasons why I can or can't submit a General Denial.

-Beneath that is Number 1 which asks for the Defendants Name where I assume I put my name. Yes.

-Beneath that is Number 2 Check Box which states DEFENDANT STATES FOLLOWING FACTS AS SEPERATE AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT. Do I check this box and if so what do I need to write? You may use the Statute of Limitations if the alleged debt is close to the 4 year limit. The statement you posted shows a payment on 2014, so SOL is not even near.

-Beneath that I date and print and sign my name. Yes.

9. Obtained and Filled out the Proof of Service (POS) (thanks RyanEx for the link POS-030 and in above Posts), pretty self-explanatory plus it contains an instruction sheet. DO NOT SIGN THE POS!

10. Here's what to do with the General Denial and Proof of Service once they're filled out... (thanks RyanEx!); Make a copy of each (end up with the original General Denial and the original Unsigned POS plus a copy of both) and give the COPIES to the person who will serve it (mail it) for you (non-relative and not associated to the case, must be an adult). They will mail the General Denial and UNSIGNED POS copies first class mail to the Plaintiff's Attorney. Once the copies are mailed, have the same person sign the original Proof of Service (POS). Then take the originals (the General Denial and Signed Proof of Delivery) to the courthouse and get them time stamped, then have them make copies, then have the Court file the stamped originals and keep the copies for your records. There most likely is a fee the Court will ask for the filing, if you are unable to afford the fee, ask the Courts for a fee waiver.

11.... More to come!

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lthrwing - 

Thanks so much for posting such a thorough right up of the steps you took.  I am using it as a guide myself, as my case is nearly identical in all aspects.

I do have one question:  I only have 2 days left to file, so should I send the BOP today and file the General Denial at the court on the same day, to get both items in under the 30 day window?

 

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Thanks JohnDubar! Actually we're in the same boat... I'm learning as my case is going on thanks to the experts on this site and doing my own research on the side. I'm putting this Post together because when I initially started out, the info was there and available but it seemed really scattered around and this made things difficult for me to piece it all together and get started addressing the Summons and Complaint. To answer your question, my thought is get the stuff out ASAP before the end of the 30 day mark... but, I'm not the expert... best to put the question to the Board Experts and hope one of them can give you answer soon.

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54 minutes ago, JohnDunbar said:

I only have 2 days left to file, so should I send the BOP today and file the General Denial at the court on the same day, to get both items in under the 30 day window?

Hi everyone! Is there any Expert who can give JohnDunbar an answer to his question?

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the General Denial (Answer) must be filed no later than 30 days from the date summons was served. 

the BOP can be served before or after you file your answer. The BOP does not get filed in court. 

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2 hours ago, lthrwing said:

my thought is get the stuff out ASAP before the end of the 30 day mark... but, I'm not the expert... best to put the question to the Board Experts and hope one of them can give you answer soon.

great advice, you may not want to wait for the 30th day to file your answer, you never know what could go wrong. when i filed my GD, i went the 29th day, because i wast going to be at work on the 30th day (court is 5 minutes walking distance from my work), it so happens that i was actually filing the GD on the 30th day because some months have 31 days. 

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Still waiting to hear back from the Plaintiff's Attorney and for it to get closer to the 30 day mark to file the General Denial and the accompanying Proof of Service (POS - signed). Will get back as soon as I hear something! Thanks again everyone!

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lthrwing

Ithrwing,

Just saw your thread and it looks like you are on the right track. You are getting good advice from everyone on the process. Here are my two cents. I have gone up against H&H more times then I would like to admit but have had success every time. H&H are very qualified attorneys and put together good documents and arguments. However, they have one fatal flaw in that their arguments never change from one case to the next. Therefore, it can be easy to figure out how they will litigate the case and use that to your advantage. As you are likely a newbie and just beginning to understand this process I will focus on your Bill of Particulars since that is the step you are on. Unlike other lawyers, H&H will always respond to any document you send including the Bill of Particulars. They will likely send you back a very nice letter regarding your Bill of Particulars that says Account Stated cause of action is not relevant to a Bill of Particulars and leave it at that. However, the final cause of action on your complaint for Open Book Account is relevant to a Bill of Particulars and could be worth a response back to them. Because you are being sued by a Junk Debt Buyer, they will likely not have every statement from Capital One. However, I have argued in the past (including with H&H) that every statement is required to prove an Open Book Cause of Action.

"The most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all  of the debits and credits entered into the book account.” Interstate Group Administrators, Inc. v. Cravens, Dargen & Co. (1985) 174 Cal. App. 3d 700, 708. Therefore, Plaintiff must identify and produce all alleged account statements, from a zero balance to the last alleged transaction, for its claim of an open book account. If Plaintiff cannot identify and produce originals of all alleged statements which comprise the alleged “account,” Plaintiff must amend its complaint and remove the Open Book Account cause of action. It by no means a fool-proof argument, but it tells the Plaintiff you know what your doing. 

When attorneys know you understand all elements in the complaint they filed and can directly argue against those elements, they tend to scale back their efforts. Especially when the debt is smaller like yours. The key is to hit them hard and hit them often. Actively manage the case like you are doing and just keep sending or responding to documents. 

It may also be helpful to go to google scholar or similar website and do a bit of research into Account Stated and Open Book Account. Understanding what Account Stated and Open Book Account are will help you to respond to their discovery requests and handle your case more effectively. Account Stated is much harder for a Defendant to argue but can be done if you have previously disputed the debt.  Also, see CIC forum "Served Summons from H&H - info inside - assistance please?" There is good info in this forum specific to H&H.  Homeless in California and Easy619 also have excellent threads with stories of how they went all the way to trial in California. Could be worth a look. Good luck to you.

 I am not an attorney

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Hey @Ithrwing, any news?  I just got a response to my general denial: a Request for Admission as well as a Demand for Production of Documents.  I'm not sure how to proceed.  If I don't see an update from you within a couple days I'll go ahead and make a new thread for myself. 

 

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okay, so here's whats happened since my last post.... it got real close to the end of the 30 days. I started a new job which took me out of town. I received a reply to my Bill of Particulars (BOP) (literally in my mailbox about 3 days before the end of the 30 days) which was a book sized reply of every correspondence and bill that was exchanged between me and the original creditor CapitalOne since day one of my contract with them. I was unable to make it to the Court to submit my General Denial and Proof of Delivery because i was out of town. I was unable to find someone who would go to the Court for me to submit the paper work. I searched online and on the Courts Website and found that they would accept the Forms electronically through specific websites BUT it was going to cost around 400.00 dollars. After deep discussion with my wife and a very wonderful sister, I decided to contact the attorney and make a deal and my sister would supply the funds which I could then pay back to her rather than portfolio and the attorney. The deal was that Portfolio/attorney would send me a letter stating all debt had been paid in full and that all legal actions have been cancelled and then once I have the letter a one time payment for 1600.00 rather than the 1900.00 dollar amount would be sent to Portfolio/attorney. So, the issue has been resolved. Unfortunately, that leaves this Post hanging because it hasn't ended the way I originally thought it was going to. So, is there a Guru in the house that can speculate and explain what would have happened had I been able to submit the General Denial/Proof of Delivery to the Court House and what would have most likely happened from that point forward through the Court Room and finally to the end where the Defendant and the Court get to tell Portfolio/attorneys to go pound sand?! Or, is there another Defendant out there who can pick this Post up from where I'm leaving off so we can have a complete process to the end??? Thank you BIG TIME to all you Guru's who donated their expertise and time to this Post! You guy's are saving the Defendants of the world!! 

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I can tell you what probably would have happened if you would have spent the 400.00.  You would have won, and it would have cost you some time and 400.00.  not 1600.  and they hardly gave you a deal--only 300.00 off.  But if your happy, we are happy.

Don't worry there are plenty of California threads here where the defendant saw it though to the end and won.  To the other posters in this thread seeking help, I highly recommend you start your won thread, we can help you. Good luck.

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On ‎10‎/‎5‎/‎2016 at 10:44 AM, lthrwing said:

okay, so here's whats happened since my last post.... it got real close to the end of the 30 days. I started a new job which took me out of town. I received a reply to my Bill of Particulars (BOP) (literally in my mailbox about 3 days before the end of the 30 days) which was a book sized reply of every correspondence and bill that was exchanged between me and the original creditor CapitalOne since day one of my contract with them. I was unable to make it to the Court to submit my General Denial and Proof of Delivery because i was out of town. I was unable to find someone who would go to the Court for me to submit the paper work. I searched online and on the Courts Website and found that they would accept the Forms electronically through specific websites BUT it was going to cost around 400.00 dollars. After deep discussion with my wife and a very wonderful sister, I decided to contact the attorney and make a deal and my sister would supply the funds which I could then pay back to her rather than portfolio and the attorney. The deal was that Portfolio/attorney would send me a letter stating all debt had been paid in full and that all legal actions have been cancelled and then once I have the letter a one time payment for 1600.00 rather than the 1900.00 dollar amount would be sent to Portfolio/attorney. So, the issue has been resolved. Unfortunately, that leaves this Post hanging because it hasn't ended the way I originally thought it was going to. So, is there a Guru in the house that can speculate and explain what would have happened had I been able to submit the General Denial/Proof of Delivery to the Court House and what would have most likely happened from that point forward through the Court Room and finally to the end where the Defendant and the Court get to tell Portfolio/attorneys to go pound sand?! Or, is there another Defendant out there who can pick this Post up from where I'm leaving off so we can have a complete process to the end??? Thank you BIG TIME to all you Guru's who donated their expertise and time to this Post! You guy's are saving the Defendants of the world!! 

He did what was right for his situation. A reminder that sometimes it is better to respond a little earlier.

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