Berrygin

Sued by Portfolio Recovery in Georgia

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Hey Everyone, I am one of the very rare folks sued by Portfolio :rolleyes: After freaking out a bit,  I searched the web, and found this great site.  I have read a fair number of threads over the last few weeks, good info, but I have managed to pretty much confuse myself completely (I spent way too much time reading threads about people in other states, the advice they were given, how they handled their cases...)

so, a few questions if I may (I feel like this is half-assed, but had to post something before time got away from me, please bare with me!

Not sure if this is important or not (thought I read there isn't much you can do/protest in Magistrate court in GA)

My Dad pointed the first things out, Bill of Sale and Assignment from Citibank Dated 6-8-16 notarized by  Portfolio described in transfers and assigns accounts described in exhibit 1, but omits accts described in exhibit 2


Exhibit 2 shows $358  amount over credit limit but no mention limit in exhibit 1.


balance of $835, 9-2014, became $1209 on May  8 months later. I keep telling my Dad it's late/overage fees, is any of this even worth bothering to mention/do something about at this point?

Arbitration? Is it possible in GA Magistrate court? In what order should  I do things? I know I have to file an Answer , get three 3 copies stamped...


 3 different banks owned this credit card, (HSBC, then Capitol One, Citibank) which bank rules apply? the first banks rules, or the last one to control the account?

Thanks, my brain is basically mush at this point...I am sure I could have been clearer, and have questions I have forgotten...

Thanks!

 

1. Who is the named plaintiff in the suit? Portfolio Recovery

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

3. How much are you being sued for? $1006 including late/over-limit fees, I am guessing

4. Who is the original creditor? (if not the Plaintiff) HSBC, then Capitol One, Citibank at the end.

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

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? None

9. What state and county do you live in? Georgia, Clayton Country

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

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. 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? Not quite sure, Affidavit is dated 7-26-16,  Served 8-6-16

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. An affidavit

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46 minutes ago, Berrygin said:

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Oct. 2014

11. What is the SOL on the debt? To find out:4 years

SOL in GA is 6 years on credit card debt not 4 but they are still well within the SOL so it is a moot point.

47 minutes ago, Berrygin said:

Not sure if this is important or not (thought I read there isn't much you can do/protest in Magistrate court in GA)

There is A LOT  you can do in Magistrate Court in a county like Clayton where you have actual trained judges vs. kangaroo court in some of the rural GA counties.

48 minutes ago, Berrygin said:

In what order should  I do things? I know I have to file an Answer , get three 3 copies stamped..

You file an answer first and in Magistrate Court you do NOT need a formal answer.  Most large counties have a pre-printed form you can use and file with the court.  Another option is to show up to Magistrate Court on an open docket day and verbally enter your appearance but I would not trust that.  A formal answer like you see courts in other states require is NOT done in Magistrate Court.

Within a month the court will notify you of when the trial date is.  Typically within 30-60 days of your answering.

50 minutes ago, Berrygin said:

3 different banks owned this credit card, (HSBC, then Capitol One, Citibank) which bank rules apply? the first banks rules, or the last one to control the account?

The last one to control the account.  Even then having it change creditors 3 times works in your favor.  PRA won't want to get documentation from 3 original creditors.

51 minutes ago, Berrygin said:

Arbitration? Is it possible in GA Magistrate court?

It is VERY possible and your best weapon against PRA.  Especially on a debt this small their initial filing fees are more than what they claim you owe.  Magistrate Court does not set special hearings on motions to compel arbitration.  You simply type up 3 copies of the MTC arbitration and stay the case pending arb and bring it with you to the trial date along with 3 copies of a motion to dismiss with prejudice.  In the mean time you send a letter to Cooling and Winter indicating that you have been served and answer and per the terms of the card agreement attained from the CFPB that applies to the account they allege is your you elect binding arbitration through JAMS and you have filed (go ahead and do this).  Then you show up to court.

Here is what will happen:  The Magistrate will send you and their lawyer to the hallway to try and settle it.  They will try to convince you arbitration doesn't apply and/or it is too expensive for you (it isn't, your fee is capped at $250 don't fall for this argument or let it scare you) ALL you need to do is hang tough and stand firm that you want binding arbitration through JAMS.  If they ask what it will take you simply say they can go to arbitration in JAMS (they won't) or sign the dismissal with prejudice.  I guarantee you PRA folds.  They don't want to have to argue in front of the Magistrate.

2 other important facts you need to know:  

PRA is under a consent judgment with the CFPB for violating consumers rights in regards to their collection tactics and lawsuits.  I would read it word for word and ensure that they are in compliance with the evidence they are supposed to have in order to sue you.  Speaking of consent judgments:  Cooling and Winter is a splinter law firm of Freddie Hanna who is also under a consent judgment with the CFPB for his robo signing bottom feeding antics as well.  In that hallway conference I would make it clear to their lawyers that I intend to fight tooth and nail based on their client being under a consent judgment and their association with old Freddie because basically all Freddie did was spin his attornies off and open new "firms" to avoid the consent judgment he entered to get rid of the federal lawsuit against him.

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Well, I wrote some questions yesterday while very tired, fisthardcheese was nice enough to respond and today , it's as if they never happened...I thought someone had deleted them, and really couldn't figure out why...then I scrolled down the forum, and see this was a problem for several folks...man, that sucks.

I had used my email program to write up the questions, and just deleted early this a.m, thinking, there is no need to keep this, I posted the questions on the forum, they will be there forever! ;)

I keep putting off going to court to get the answer in...feel like I will have written something stoopid.....I guess where it says on the Clayton Co. form, I deny the claim as follows, I will say , cuz... or something smarter like...not my debt?? Anything else? that's it?  I know I need to keep it simple, I guess it's their wording for the denial that gets me.  Well I will soon find out unless I find a way to chicken out again today :/

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Well, I was hoping the 2 missing posts would pop back, they didn't....I know fisthardcheese was basically telling me I was worrying too much. I just wish I could re-read my questions and his answers. I...didn't go to the courthouse, little voice in my head was saying, I shouldn't.  I have til the 6th of Sept, really want to make it this week, what with the holiday next week. I just felt like I was forgetting something, and that what little I had written was half-assed. Any and all advice appreciated. I just feel what I wrote for the answer sucks...and no matter where I go to read up on it, it just doesn't seem to fit what their option is. I know, keep it simple stupid..

on the Clayton County  Answer form , option 3 says,  I deny the clam of plaintiff as follows:

and after much soul searching and contemplation I came up with.....Plaintiff's claims are denied. If this is truly good enough, I will run with it...It just looks like I reworded option 3 on the form.

Portfolio is the plaintiff, of course. Cooling and Winter is the film they hire here in G.A. Ok. On the Notice and summons, they co-mingle Portfolio's name and the address of Cooling and Winter. I will then just put the Cooling and Winter address for the Plaintiff's name, address and Phone # listed at the top of the form? I then mail of the 3 forms to Cooling and Winter at this address, and forget looking for some other address for Portfolio? I think I know all this, I just feel like I could come back here and have someone say, oh you fool, NO why did you say/do that? I know, short answers, don't give any info, deny, deny, deny...don't know why I am hung up on the seemingly simple Answer. Once I get the show on the road, I am sure my I.Q. will at least climb back to room temp

Thanks....

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Ok, I finally got past my stupid fears at got the 3 Answer forms stamped before the deadline. They did keep 2 of them. Should I assume they will mail one to Portfolio's shell firm ? I felt like deer in the headlights when she only gave me my copy back. I asked if I was supposed to get 2 back, she said no. I just don't know what happens if the film claims they weren't notified since I have no proof of 3 copies being stamped

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5 hours ago, Berrygin said:

Well, that was quick....have a court date, the 11th...

It usually is.  Once you answer most of the courts can set a trial date within 30 days.  

Reposting so you can refresh your memory:

Here is what will happen:  The Magistrate will send you and their lawyer to the hallway to try and settle it.  They will try to convince you arbitration doesn't apply and/or it is too expensive for you (it isn't, your fee is capped at $250 don't fall for this argument or let it scare you) ALL you need to do is hang tough and stand firm that you want binding arbitration through JAMS.  If they ask what it will take you simply say they can go to arbitration in JAMS (they won't) or sign the dismissal with prejudice.  I guarantee you PRA folds.  They don't want to have to argue in front of the Magistrate.

2 other important facts you need to know:  

PRA is under a consent judgment with the CFPB for violating consumers rights in regards to their collection tactics and lawsuits.  I would read it word for word and ensure that they are in compliance with the evidence they are supposed to have in order to sue you.  Speaking of consent judgments:  Cooling and Winter is a splinter law firm of Freddie Hanna who is also under a consent judgment with the CFPB for his robo signing bottom feeding antics as well.  In that hallway conference I would make it clear to their lawyers that I intend to fight tooth and nail based on their client being under a consent judgment and their association with old Freddie because basically all Freddie did was spin his attornies off and open new "firms" to avoid the consent judgment he entered to get rid of the federal lawsuit against him.

In addition you can call Steve Koval or Skaar and Feagle.  They are two great consumer law firms in GA and do initial consults for free.  I would run the fact pattern past them.  Especially Steve.  He has sued Freddie Hanna lawyers before in Federal Court.  Very experienced at dealing with that ilk.

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6 minutes ago, Clydesmom said:

Here is what will happen:  The Magistrate will send you and their lawyer to the hallway to try and settle it.

If the JDB tries the send it to mediation tactic will that request be in writing or just an oral request and how much of a heads up will the defendant have to object?

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1 hour ago, CCRP626 said:

If the JDB tries the send it to mediation tactic will that request be in writing or just an oral request

There is no court or state mediation in GA.  The hallway conference is meant for the Defendant to agree to a consent judgment or for the whole issue to be dropped so the Magistrate doesn't have to hear the case and nothing more.   If the parties don't settle then there is a trial immediately.

Now settlement can also mean the Plaintiff realizes the Defendant is not low hanging fruit and finally asks what they want and when handed a dismissal with prejudice signs it or agrees to arbitration and then you go back and simply hand that paperwork to the Magistrate:  CASE OVER.

If the Plaintiff won't agree to arbitration or to drop it then you both have to go back to the Magistrate right then and you argue your MTC arbitration and if its denied there is a trial right then.  If you lose you appeal de novo in GA.  

In this case:  Cooling and Winter are former Freddie Hanna attorneys who are NOTORIOUS for having nothing in the way of documentation.  At best they will try the "arbitration will cost you the consumer SO much money" tactic and ultimately if you stand firm at best they will agree to arbitration then disappear or sign the dismissal with prejudice.  Like PRA they want the low hanging fruit.  

If it were me I would make sure what ever rent-a-lawyer shows up hears me loud and clear that I am acutely aware their client has a consent order for their spurious or missing evidence and that the lawyer is from a firm also slapped by the CFPB.  They don't want other defendants who might show hearing that kind of talk and getting cahones to fight and not agree to a consent judgment.

1 hour ago, CCRP626 said:

how much of a heads up will the defendant have to object?

Object to what?  The hallway conference?  None.  Magistrate Court doesn't allow motions in advance everything is done the day of trial.  Basically the Bailiff will call all parties on the docket to see who showed up.  Then the Magistrate will advise all matched sets to see if they can work it out and feel free to use [space] (usually the hallway) to talk and try to work it out.  Then the scenario I laid out above takes over.

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35 minutes ago, Clydesmom said:

There is no court or state mediation in GA.

This is what I was referring to and there was a recent thread where the defendant went and signed a payment agreement after the Plaintiff JDB requested mediation.

http://magistrate.cobbcountyga.gov/v6/mediation.htm

http://godr.org/sites/default/files/Godr/supreme_court_adr_rules/CURRENT ADR RULES COMPLETE 5-28-2014.pdf

 

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2 minutes ago, CCRP626 said:

This is what I was referring to and there was a recent thread where the defendant went and signed a payment agreement after the Plaintiff JDB requested mediation

This is in Cobb County.  The OP is in Clayton County.  If you read the first link Cobb is the FIRST county in GA to offer this.  Chances are good Clayton isn't on line yet.  Even so, the argument is that you want what is in the contract they allege is governing:  private contractual arbitration in JAMS.

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6 minutes ago, CCRP626 said:

if mediation does come up, the OP should steer clear and not agree to anything except they want their private contractual arbitration.

That goes in ANY state.  Court ordered "mediation" is nothing more than an attempt to steam roll the Defendant to a consent judgment in debt cases.

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I missed the posts after my last one Tuesday, thanks everyone! I am tired right now, so will have to read more carefully in the A.M.

One thing though that I thought was odd, perhaps it happens a fair bit, but hadn't seen others mention on the threads I've seen.  Cooling and Winter called me...I  didn't answer. I assume they were hoping to settle for some moola right now...have you all heard of firms doing this?  Perhaps they have had some luck of late doing this before going to court with anyone that  fights them.

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7 hours ago, Berrygin said:

I assume they were hoping to settle for some moola right now...have you all heard of firms doing this?

It would not be unusual for them to call to make a settlement offer or to try to get you to agree to a consent judgment.  You are not required to discuss it with them.

One thing I did think of that you REALLY need to watch out for is a letter arriving that states "you can come to their offices at [address] and review the documents they intend to use at trial.  Contact......"  MAKE certain you respond to this objecting to having to go to their facility to do this.  If you do not object to this tactic IMMEDIATELY under the lax GA business records law and no discovery in Magistrate Court they can then use that as "evidence" in the trial because they will argue you waived your right to protest their documents by reviewing them first.

 

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On 9/22/2016 at 9:55 AM, Clydesmom said:

It would not be unusual for them to call to make a settlement offer or to try to get you to agree to a consent judgment.  You are not required to discuss it with them.

One thing I did think of that you REALLY need to watch out for is a letter arriving that states "you can come to their offices at [address] and review the documents they intend to use at trial.  Contact......"  MAKE certain you respond to this objecting to having to go to their facility to do this.  If you do not object to this tactic IMMEDIATELY under the lax GA business records law and no discovery in Magistrate Court they can then use that as "evidence" in the trial because they will argue you waived your right to protest their documents by reviewing them first.

 

Clydesmom,

glad you mentioned this as I just received a letter today...

they don't mention coming to their office, they just mention".....their client doesn't wish to cause you any unnecessary inconvenience, flexibility to resolve  blah, blah...

Then they say Please call ________  and choose option _ or toll free at _______ and choose option _ to speak to a rep. We look forward to hearing from you...."

Nothing about coming to their office is mentioned in the letter...

Now, if I don't call them, can they also claim I waived right to protest?  Clearly, I worry about talking to them, they record it, twist my words around and then use that in court....

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1 hour ago, Berrygin said:

Clydesmom,

glad you mentioned this as I just received a letter today...

they don't mention coming to their office, they just mention".....their client doesn't wish to cause you any unnecessary inconvenience, flexibility to resolve  blah, blah...

Then they say Please call ________  and choose option _ or toll free at _______ and choose option _ to speak to a rep. We look forward to hearing from you...."

Nothing about coming to their office is mentioned in the letter...

Now, if I don't call them, can they also claim I waived right to protest?  Clearly, I worry about talking to them, they record it, twist my words around and then use that in court....

That is a different letter.  They are hoping you will agree to a consent judgment and they won't have to go to court at all.  I wouldn't call them but it is up to you.

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@Berrygin

Hang tight.  Don't call the law firm.    I know you are worrying and stressing.  That's normal.  But try to stay calm and focused.   We have had a lot of GA defendants like you who had their cases dismissed by following the advice given here.

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On 9/23/2016 at 4:55 PM, Clydesmom said:

That is a different letter.  They are hoping you will agree to a consent judgment and they won't have to go to court at all.  I wouldn't call them but it is up to you.

Thanks...I am wondering if they are just trying to scare me as I got a large packet from Cooling and Winter last week that looks like what I was served with....then just yesterday, I got a letter from PRA with just copies of the credit card bills and a letter that said this...

"In response to your dispute related to the above account, PRA has enclosed additional documentation for your review. We have completed our investigation of your dispute concerning this account. PRA LLC has obtained and reviewed the attached documents related to this account, which establish its validity" (somehow ;) )

I sent this info to Mr Kovel, (and how they refer to Citibank as the seller and the OC which isn't true) but I can't believe how quickly time is flying by, as my court date is a week from today..yikes!

On 9/24/2016 at 0:22 AM, debtzapper said:
 

@Berrygin

Hang tight.  Don't call the law firm.    I know you are worrying and stressing.  That's normal.  But try to stay calm and focused.   We have had a lot of GA defendants like you who had their cases dismissed by following the advice given here.

Yep. I go from feeling confident one day, to afraid the next. I have that kind of luck that I would have something happen that no one has ever heard of before...and I truly can't afford to pay. I know, everyone says hold tight, and they will fold with threat of Arb...I will hopefully feel better in little over a week.

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If you are going to ask for arbitration at trial, make sure and bring a copy of the credt card agreement that outlines the arbitration clause.  Bring a copy for the plaintiff and the judge.  You can give it to the plaintiff in the hallway and tell him it's a dismissal or arbitration with JAMS ( if that's the arbitrator in the agreement, it could be AAA, either will do, but JAMSHEDPUR will cost them more

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12 hours ago, Berrygin said:

 

I sent this info to Mr Kovel, (and how they refer to Citibank as the seller and the OC which isn't true) but I can't believe how quickly time is flying by, as my court date is a week from today..yikes!

 

Are you being represented by the lawyer Mr Kovel? 

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On 10/4/2016 at 0:39 PM, shellieh98 said:

If you are going to ask for arbitration at trial, make sure and bring a copy of the credt card agreement that outlines the arbitration clause.  Bring a copy for the plaintiff and the judge.  You can give it to the plaintiff in the hallway and tell him it's a dismissal or arbitration with JAMS ( if that's the arbitrator in the agreement, it could be AAA, either will do, but JAMSHEDPUR will cost them more

Thanks. One thing I was a bit fuzzy on, I just need to bring the copies of the C.C. Agreement, nothing else?  JAMSHEDPUR just all the arb companies?

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15 hours ago, debtzapper said:

Are you being represented by the lawyer Mr Kovel? 

I haven't heard back yet...and now I realize Monday is Columbus day.... I just was wondering if my admittedly small discrepancies were anything to bring up or not.

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Nope.  Keep your mouth shut.  Only thing you need to say is you want to go to priviate arbitration per the credit card agreement.  If you really want to make an impression, find the motion to compel arbitration floating around this forum, and take from it the federal ruling on arb, quote that to the judge.  Look in GA rules about anything about arbitration, quote those too.  If he denies it you have an excellent grounds for appeal.  You shouldn't have to do anything more.

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    You can cite this case, the guy was trying to get out of arb, the appeal court affirmed arb is where the case needed to be heard.

http://caselaw.findlaw.com/ga-court-of-appeals/1644521.html

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