crapola

Arkansas Portfolio Recovery Associates Lawsuit

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Well we all know why I am here lol.

Got summons and I visited 3 lawyers and determined I can not pay their price. I turned to google and filed my answer within my 30 days. I was sent a notice a week later to be at court Oct 12, 2016 9am. The same day I got this court notice I was summons from LVNV and did the same with them. Filed my answer and yesterday I got a request for admissions and production from LVNV (made a new thread for them). I am curious as to why PRA has not sent me a discovery yet. Can I still file a motion to dismiss?
Summons came with complaint
Affidavit
 -employee of PRA ;ordinary course of business ; account having been sold and transferred on 10/21/2015 ;
Bill of sale and Assignment
 -dated 10/21/2015 ; purchase and sale agreement dated 12/19/2014 between buyer and bank, bank transfer and sells grants and bargains set over to deliver to buyer the Accounts described in Exhibit 1 (not attached) and the final electronic file.
-?- did they purchase this on 10/21/2015 or 12/19/2014
Card Statement and terms
Department of Defense Manpower Data Center sheet

Thank you

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Don't do discovery if you're planning on arbitration if available under the original creditor cardmember agreement. Get your MTC Arb filed before any discovery is due and have the motion heard when you show for your next court date.

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for this suit (citibank-bestbuy) I do not have the card terms for anymore. The terms sent in complaint is missing a page and the ones i have do not talk about arbitration so i do not know if i can under JAMS, which im still learning about. At this point an answer is filed and a court date set. I do not know how to argue with their proof of owner ship. They will say well we have a bill of sale right here. Is a bill of sale good enough?
I can not verify the account number ever belonged to me, I do not have any statements.

after i filed my answer i pulled my cr from creditkarma and selected dispute. It did not have a comment box as to why.
yesterday i pulled my cr again and noticed on this account in remarks it says consumer disputed and it has been resolved.
then i see a new account add to my cr from this same company for a different amt opened the day i disputed.

of course i disputed both account and this time a comment box was there, for the first one i put the account is in litigation and has not been resolved
for the new one i put it is not my debt.

for a newbie trying to fight 2 cases at one in 2 different courts is very brain consuming

 

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Okay, so two JDB accounts. You said one had arbitration in the agreement they provided, correct? Use that and draft the motion to compel private contractual arbitration detailed on the first page of the old arbitration thread. The other one is this Best Buy/Citi one? Did you try the CFPB agreement archive section going back to when the account would have been in use?  Citi/Best Buy agreement is at Citi's website but only a later 2016 agreement after your card would have been in default containing AAA. Webarchive or google might produce one or file a complaint at the agreements section of the CFPB site for your card agreement applicable at the time and they'll get it to you.

generic bill of sale with no citi affidavit or detail connecting you won't cut it. If PRA they also have the consent order for what they have to provide. When you show at the court date ask for dismissal for lack of standing and if that doesn't cut it with the Judge state you're waiting for a cardmember agreement to be provided by Citibank to file for arbitration since the JDB hasn't provided this. NOTE- this is not court provided mediation or arbitration, you're going for arbitration under your cardmember agreement which will be with JAMS or AAA. Also take that consent order with you for info they failed to provide. Without getting into discovery, you can ask for those items in a CFPB online complaint at the CFPB site.

The Citi agreements allow arbitration to be filed pretty late compared to other cards. I'd be looking for getting this into arbitration.

You can also mention to the Judge you have two cases at the same time and ask for a continuance since this is a lot to handle pro se while taking care of your husband. That might allow this to be handled one case at a time.

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I am working on the JAMS thing and while trying to find out if filing an answer waived my right to arbitration i came across this, and i guess it does not pertain to JDB? bc of what it says who can sue in small claims. my PRA is a cv case in a district court under small claims--and my LVNV is a circuit case small claims. Do they have different rules?
https://courts.arkansas.gov/sites/default/files/tree/small_claims_info_0.pdf

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The earlier you file your MTC Arbitration and not participating in litigation (such as discovery beyond asking for the terms and conditions) are all in your favor for not waiving the right to arbitrate. You can also look in your rules for amending your answer to include private contractual arbitration as an affirmative defense. Citibank agreements are very good for how late they state you can file for arbitration, so use that in your favor. If you have questions about caselaw, use Google Scholar to research. https://scholar.google.com/

Failure of the JDB to include any terms detailing arbitration with their complaint can also be mentioned to lend weight to your late request for arbitration.

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@crapola

In your first post, you asked if you could still file a motion to dismiss.   What would be the basis of that motion?

For how much are you being sued?

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1 hour ago, crapola said:

after a day of reading the arbitration i think i will pass on it.

If you plan on the various motions to dismiss, such as lack of written documents you'll want to look over the rules and probably amend your answer since these defenses are waived unless brought up when you answer or with a pre-answer motion.

I do have a feeling you'll be back here in a few months after your court case keeps going asking if it's now too late to do arbitration, not to be confused with court ran version.

 

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LVNV and PRA both will not go to arb.  They just won't. 90% guarenteed.  Unless you want to pay them in a settlement, or study and learn your civil rules, you would be better off compelling arb, if available.  You can get a contract online

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The most JAMS will cost you is 250.00.  they wont follow you. You WANT to compel them into arbitration if you can find the cc terms online.

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On 9/24/2016 at 9:53 AM, crapola said:

The terms sent in complaint is missing a page and the ones i have do not talk about arbitration

Gee, I wonder which page they "forgot" to include.  If they are trying so hard to hide and prevent arbitration, you have to wonder why, don't you?

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not enough time frame to send a discovery to PRA so i will pass unless at court they ask for more time to do a discovery. The local attorneys I had met with said normally the judge i will have throws things like this out. PRA sent me a settlement letter, being sued for $1600 and want to settle at $1300. I was not sure if I should answer but after a couple days sleeping on it I decided to reply. I respectfully declined their offer. I denied the debt was mine and they have yet to prove it. However I would be persuaded not to continue legal action if they would accept my counter offer of 10% of the alleged debt. I told them not to counter with a higher offer of the $160, and not to counter with a higher amount and suggest a payment plan. I inform them im on SSD and that $160 is a hardship for me to pay. I also told them that I respect their right to accept or deny the offer. If they do accept I pray they will set forth a motion to dismiss with prejudice on the current complaint of the alleged debt.

I found it odd that court is set for the 12th and their settlement letter says if I accept to inform them no later than the 17th.

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You would not do discovery. You would look online for the credit agreement, the .gov site has them posted.  It's the law, cc companies have to make their agreements available on line.

if the agreement has an arbitration clause, you write a motion to the court to compel priviate contractual arbitration, and attach a copy of the agreement.  There are this very motion posted all over in this forum.  Then you wait for the judge to rule.

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@crapola, did you know if you received disability from the state, the JDB cannot touch it!  If it is your only source of income, then you WIN, period.  SSD cannot be garnished.

However, if you have other 'traceable' income from an employer, that is a different story.  I will continue to comment as if you have more than SSD income, until you respond differently.

I respect what you are trying to do, but JDB are not nice people.  They've already paid $80 or so to file the complaint, and now have you proposing a type of settlement that could easily be construed by the judge as you admitting you owe it.  Remember, District Court is 'small claims' -- literally 'Judge Judy.'  The judge has broad powers of interpretation beyond the contents of the lawsuit filed.  I've seen judges look at credit card statements, and immediately find for the Plaintiff.  IMO, you should fight with your WORDS first.  Then, IF the case get in front of a judge, there are many many arguments on your side.

As I mentioned previously, I can't offer a fully educated opinion without having seen all that's been filed.  If you answered the complaint some time ago, and now the trial date is rapidly approaching, you can file a motion for a continuance.  I understand you want this to go away as quickly and easily as possible.  But, if it doesn't, you will have to fight it, or lose.

In a worst-case scenario, if you lose in 'small claims,' in Arkansas, you can file an appeal 'de novo' -- meaning the case starts from the very beginning again.  Many states do not give defendants this kind of opportunity.  Best of luck!

Jimmy

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It appears both @shellieh98 and I posted about the same time.  I wanted to make you aware that my post (fighting in court), and her post (arbitration), are two COMPLETELY different 'animals.' 

'Shellieh98' has helped MANY fellow forum members with arbitration information.  I highly recommend you seek her assistance on arbitration, if you do not want the case adjudicated through regular back-and-forth discovery.

Finally, IF SSD is your only income, all of this is MOOT, since it is not legal to garnish these benefits in ANY state as far as I know --- certainly NOT Arkansas!

Jimmy

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7 hours ago, crapola said:

not enough time frame to send a discovery to PRA so i will pass unless at court they ask for more time to do a discovery. The local attorneys I had met with said normally the judge i will have throws things like this out. PRA sent me a settlement letter, being sued for $1600 and want to settle at $1300. I was not sure if I should answer but after a couple days sleeping on it I decided to reply. I respectfully declined their offer. I denied the debt was mine and they have yet to prove it. However I would be persuaded not to continue legal action if they would accept my counter offer of 10% of the alleged debt. I told them not to counter with a higher offer of the $160, and not to counter with a higher amount and suggest a payment plan. I inform them im on SSD and that $160 is a hardship for me to pay. I also told them that I respect their right to accept or deny the offer. If they do accept I pray they will set forth a motion to dismiss with prejudice on the current complaint of the alleged debt.

I found it odd that court is set for the 12th and their settlement letter says if I accept to inform them no later than the 17th.

This would probably all go away if your just file a motion to compel arbitration as others have advised. 

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my husband is disabled and the only income we have is SSD yes i know it is not touchable. but they can take my car, but it is in husband name. my husband had the same cc as i did in college and it is only a matter of time before they start sending him notices. I will keep u guys updated as my court date gets closer.

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@crapola, is PRA aware that your only 'cash' income is SSD benefits??  I've NEVER known a JDB to pursue a case -- especially one for $1300, against someone in your situation.  They want CASH!  At least in everything I've seen in person and read on the forum, it would be WAY too much trouble for them to try to dispose of property for cash, than it would to just leave you alone.

I don't see a 'small claims' judge finding for PRA, if SSD is the only income -- no way!  In my opinion, you are "judgment proof."

There are just too many hurdles for a JDB to jump through to latch onto 'other' money, or vehicles.  You would have to make 30 to 40 times minimum wage per week, and as far as vehicle, its value has to be between a certain dollar range, if it is paid off.  If you  make payments for a vehicle, some complex math comes into play before they can even begin to touch you. 

Again, unless there's something I'm missing, you are "judgment proof."  PRA will drop it when they find out about SSD.

Good luck,

Jimmy

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Good Morning, It is my court day today. I arrived 45 mins early. I was the only one on the doc-it. The doc-it indicated the reason was breach of contract, which is the first time I heard of that.  I went into the lonely court room nervously and sat down. It was 9am and the Plaintiff attorney is a no show. Then a familiar face walks up to me, it was an attorney I met with in town about this case whom sat down with me to write my answer out free of charge, God Bless him, former Judge as well. He introduces himself and has a look on his face of hey we know one another. The Plaintiffs attorney called him and asked if he could step in per-say I guess. He told me the judge will grant the plaintiff a continuance but doubts the other party will pursue. So we are standing there when judge walks in and he tells me there will be a continuance of 60 days and the date to return will be sometime after 1st of the yr. The step in attorney tells the judge after today he will no longer be apart of the case because he has already spoken with me before. I find that interesting because I talked to every attorney we had in town who does cases like this, so I wonder if they pick someone else if that will be a conflict of interest. He will rely the information back to the plaintiffs attorney. As we ended I step to the side with him and he asked about settling, and I told him we had already passed letters on that notion and I have no heard back from them, and again informed him we are on disability. I am confident they will drop the case once they get this information. Now I sit and wait for my other case. Thank you all for your help and support.

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Unbelievable that an attorney who works for consumers is so easily ready to step in and "fill in" for the JDB he supposedly "defends" against on another day.

Consumers will pay the attorney one way or another. As a defense attorney or as the plaintiff's attorney.  Wow.

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On 10/12/2016 at 9:34 AM, crapola said:

The step in attorney tells the judge after today he will no longer be apart of the case because he has already spoken with me before.

He KNEW that when he agreed to step in.  Before he could even agree Bar rules REQUIRE that he determine there is no conflict of interest first.  He either didn't do that or chose to ignore it.  He is lucky it wasn't me there I would have immediately demanded a dismissal with prejudice and informed both the Judge and that lawyer that a Bar complaint was forth coming.

On 10/12/2016 at 9:34 AM, crapola said:

I find that interesting because I talked to every attorney we had in town who does cases like this, so I wonder if they pick someone else if that will be a conflict of interest.

They can't pick a lawyer you discussed the case with it is a CLEAR conflict of interest and you need to argue against this VIGOROUSLY if they try it.

On 10/12/2016 at 9:34 AM, crapola said:

As we ended I step to the side with him and he asked about settling,

HUGE error on his part.  Assuming for a half second he forgot you were already his client once he saw you and realized he was immediately required to recuse himself and not only that was prohibited from representing the Plaintiff his duty is to you not them.

You need to IMMEDIATELY file a complaint the the AR Bar Association or whom ever handles attorney misconduct.  Leave emotion out of it.  Just state that on XX-XX-2016 you consulted with [attorney] regarding a debt collection lawsuit filed against you in [court] by Plaintiff PRA.  [Attorney] aided you in writing your answer to the suit for the court and you submitted it.  On 10-13-2016 you arrived for your trial to discover that [attorney] in court representing the Plaintiff in a clear conflict of interest.  Not only did he not do due diligence prior to taking the case for the original counsel but did not recuse himself when he saw his client as the defendant.  In further violation of ethical standards he attempted to engage you in settlement talks on behalf of the Plaintiff.

24 minutes ago, fisthardcheese said:

Unbelievable that an attorney who works for consumers is so easily ready to step in and "fill in" for the JDB he supposedly "defends" against on another day.

In this case it is a HUGE violation of Bar Rules and Ethics.

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I actual do not believe it rises to the level of a conflict of interest. At most, the attorney provided limited scope representation, and he likely didn't provide representation at all, he simply gave legal advice in the course of a consultation.

Simply providing legal advice in the scope of a consultation would not rise to the level of conflict of interest in my opinion.

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