jlock45

Seeking Help Being Sued By Portfolio Recovery Associates , LLC

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I was recently served papers and am being sued by Portfolio Recovery Associates, LLC. Please help! I cannot afford an attorney  &  Any help on how to respond would be greatly appreciated! They have sent me a 1-11 request for admissions as well as 1-5 First Set Of Interrogatories & 1-13 Request For Production. This is very overwhelming. 

 

 

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@jlock45, the JDB wants you to feel overwhelmed -- hoping you will simply 'cave.'  If this is credit card debt, you may be able to have your case arbitrated by JAMZ.  I'm no expert with arbitration, but know most JDBs HATE it, because they have to pay for it!

There will be some forum members who are very knowledgeable with arbitration.  Meantime, you have 30 days to answer their discovery, which will hopefully be a motion that you invoke your right to artibration.

By the way, I found a recent posting from my friend @debtzapper.......

A TX member name @PAGRN got her case dismissed with arbitration.  Follow the advice in her links in chronological order starting with May 1,   I will see if she can assist, even though she hasn't posted here in a while;

http://www.creditinfocenter.com/community/profile/170441-pagrn/

OR:  @texasrocker  If you are still posting, can you assist with the litigation route?

 

Hang tight, and good luck!

Jimmy

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@JimmyE I appreciate your response. I did send a requet to @texasrocker too. :) Yes I feel overwhelmed for sure. I appreciate all of the inforamtion !! I just cannot afford a lawyer an I do not know where to start. I will look at the link you sent and wait for any responses too. Thanks again!!

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1. Who is the named plaintiff in the suit? 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.)Rausch ,Strum, Israel.Emerson,   & Hornk LLC

3. How much are you being sued for? $1,835.29

4. Who is the original creditor? (if not the Plaintiff) World Financial Network Bank Victoria Secret 

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

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

 

Here is more info for my case if anyone can help please! 

 

 

 

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Did they provide the credit card agreement with the paper work, or do you still have a copy of it?

I found a WFNB card agreement from 2009.  It may work if we can't find any others.  It has JAMS and AAA listed as the arbitration firm options.  Read my previous posts about arbitration to understand more about it.  PRA does not arbitrate because it costs too much for them.  You would need to file a Motion to Compel Arbitration with the court to ask the court to order the case to arbitration and remove it from the court's jurisdiction. 

I would not answer the Discovery yet, if you intend to use arbitration.  It could be considered a waiver of your right to arbitration.

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@firsthardcheese no they did not give me anything other than a bunch of demands and it is overwhelming they want me to give them the bills statements and credit cad acct number, they have the last four digits .. then they asked for me to give reasons why I dont have such things they have requested and the list goes on and on I just do not even know where to begin .. Basically it them naming victoria secret as the original creditor wfnb and last 4 of the acct but no bills or statements or even the contract as they want me to give it to them. 

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Are they suing you in Justice Court?  If so then they cannot do discovery i.e. admissions, rogs etc. without permission from the court.  Was there a pre-trial hearing and was permission for discovery granted?

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I think I would go the arbitration route on this one.  It worked for @PAGRN  Click on that link that Jimmy E provided you.  She hasn't posted in a while , but others, esp. @fisthardcheese  (who has caused JDBs to lose thousands of $$$ by getting cases dismissed on this board and the "other board,") will advise you.

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Your first step would be to file an answer before the deadline to prevent a default judgement.  Your answer is just stating that you deny all of the allegations by the Plaintiff.  I would also include the affirmative defense of "Lack of Subject Matter Jurisdiction. The underlying agreement has an arbitration agreement, the court does not have jurisdiction to hear this matter."

After that, you can work on getting your MTC ready to file.  Below is the sample MTC many people have used.  You will need to change the sections, especially #3, to fit what your actual agreement says about arbitration.  Check that other thread linked above to see if there are any good TX case laws to add to the MTC as well.

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION


NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2014


(Your name typed), Defendant, pro se

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@firsthardcheese Thank you! Do you know why I would have received a letter yesterday in the mail when they are suing me already but they are offering me a payment plan now? This made no sense to me why they would send me a lettr a week after they served me saying they work out deals with people all the time. Why offer me anything. One was for two installments of 630 something and th other 38 per month until the 1800 paid off. This just makes no sense to me at all.  If I did not do arbitration is there a template I could respond to that states I will not pay for their court costs or the fee that they served me papers as well as the interest on the card and then in regards to the letter state that I can only pay $25.00 a month until the debt is fullfilled?  I just do not think with my schedule I can do the arbitration. I attached the entire packet of my lawsuit and the resolution letter and I was wondering based upon what I have explained if you coul guide me in the right direction if I do not want to go the arbitration route. 

 

 

Papers to Lawsuit & Resolution Letter.pdf

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@jlock45, loads of paperwork, followed by a 'settlement letter' is not uncommon.  Remember, they are just trying all they can to get you to pay.  Speaking of paying, I understand you wanting to be a good citizen and do the right thing by trying to make payments to this alleged debt.  That speaks highly of you.  But, what you have to remember is, even if you do owe the $1800+, you DO NOT owe it to this JDB named Portfolio.  In fact, Portfolio paid pennies on the dollar for this account, but want to collect the total they say is due.  You wouldn't pay a stranger money that you may owe an 'original creditor.'

These Junk Debt Buyers file thousands of lawsuits like this, with the vast majority of those being sued, simply not responding.  The JDB, Portfolio in this case, files a 'Motion for Summary Judgment' and WINS the case, because the defendant didn't even respond.

Others on the forum have much more experience with arbitration, but the point is, when Portfolio sees you are going to FIGHT back AND it's going to cost them money upfront to arbitrate, I see no reason why they would not simply dismiss the case.  They are not going to spend more money trying to collect what is a low amount to them.  Almost ALL of these situations -- arbitration or court, are settled well before a trial date.

If I were you, with the help of the forum, I would file for contractual arbitration, as others have said.  The WORST that could happen (which won't), is you pay them.  But, again, you should fight this if you can, because you do not owe one red cent to Portfolio!

Best,

Jimmy

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@JimmyE I appreciate your response and I need all the help I can get with this. I just am so busy between my job and family and I am just womndering what the difference is between the arbitration route and what texasrocker suggests 

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If you ever wonder how debt collectors that just buy a line on a spreadsheet manage to get judgments in 99.9% of their cases, here's basically how it goes. 99% of the time the defendant doesn't answer, so the plaintiff gets a default judgment. In the 1% that answer, the plaintiff sends interrogatories and requests for admissions.  90% of the time, the defendant fails to answer the request for admission, so the plaintiff uses the lack of answer as an admission, so they file a motion for summary judgment based on that. Almost no self-represented defendant can file a proper response to a motion for summary judgment, so the defendants win again.      If you are served with requests for admisisons, you must take them as seriously as the initial complaint and answer them.  It is important that you don't admit that you the JDB bought the debt (you don't have any way of knowing) and you dont admit that you owe JDB (again, you don't know that they really bought the debt).  Also, don't assume that you can't afford an attorney or that no attorney will talk to you.

Don't assume that you can't afford attorney advice. Many members of my organization, the National Association of Consumer Advocates will talk to you over the phone the first time for free. If the attorney identifies a Fair Debt Collection Practices Act violation, he/she will usually represent you on a contingent fee basis. If the case is purely defensive, most consumer attorneys (including me) do charge a fee to the client, because that's the only way we can get paid in a defensive case, but in a few states it's different. In those states if one side can get attorney fees then both sides can no matter what the contract says. In those states it's easier to find an attorney if you don't have money.  Here's a link to the NACA find an attorney page so you can find an attorney in your area.  

Regarding Arbitration: As a general rule the success rate in arbitration isn't any better than in court. As a general rule consumer attorneys dislike arbitration because the creditor picks the forum.  There are some exceptions to the rule though. If you are an unrepresented consumer being sued in court in a lawsuit that you seem sure to lose, filing a demand for arbitration on the record in court and served on the suing party may be a worthwhile strategy, especially when the arbitration rules require the business to pay the lion's share of the costs. Under the Consumer Arbitration Rules of the AAA, for example, the consumer's costs are limited to 200-250, whereas the business will generally be paying at least 10 times that much.  In JAMS, the maximum fee to the consumer is $250.  Note in JAMS either party has the right to bring the case in small claims court. This means that if the collector filed in small claims court, you probably don't have the right to compel arbitration.  You can try though.  

In my practice I am trying out a legal theory under the Indiana Deceptive Consumer Sales Act, arguing that it is a deceptive practice to put an arbitration clause in a contract when you don't intend to arbitrate.  For the AAA, the business is supposed to register a contract with an arbitration clause that references the AAA.  If they don't  register the clause, they can still arbitrate, but they have to pay an extra fee.  In my case, we demanded arbitration but the business, a car dealership, refused to pay its fee, so the AAA declined to take the case, freeing us up to sue in court. 

Steve Hofer, attorney, Consumer Law Office of Steve Hofer, Indianapolis, Indiana.  

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20 minutes ago, Steve Hofer said:

Regarding Arbitration: As a general rule the success rate in arbitration isn't any better than in court. As a general rule consumer attorneys dislike arbitration because the creditor picks the forum.  There are some exceptions to the rule though. If you are an unrepresented consumer being sued in court in a lawsuit that you seem sure to lose, filing a demand for arbitration on the record in court and served on the suing party may be a worthwhile strategy, especially when the arbitration rules require the business to pay the lion's share of the costs. Under the Consumer Arbitration Rules of the AAA, for example, the consumer's costs are limited to 200-250, whereas the business will generally be paying at least 10 times that much.  In JAMS, the maximum fee to the consumer is $250.  Note in JAMS either party has the right to bring the case in small claims court. This means that if the collector filed in small claims court, you probably don't have the right to compel arbitration.  You can try though.  

Much of this is very incorrect.  Attorneys just don't understand arbitration.  They don't spend the time to read and understand the rules and procedures of AAA and JAMS.  Whomever files, chooses the forum, not automatically the business.  JAMS caps the consumer at $250, but in many cases, such as the one here with OP, the card agreement states the bank pays ALL fees, so the consumer doesn't even pay the $250.  The Business pays ALL arbitration fees.  As well, it does not matter that the consumer will fair just as well (or badly) in arbitration as in court, because arbitration gives the consumer the great advantage that court does not allow, which is the cost and the attorney's unfamiliarity with the rules.  The small claims option is just that - an option. It is built into the rules of arbitration as a way to make it more fair to consumers.  However, any court - even small claims courts - can order a case to arbitration if one moves the court to do so.  This has been done countless times using the Supreme Court case law and some state's case laws.  Lastly, both JAMS and AAA release consumer case information on their websites.  You can look up the cases in the last year or so and see exactly which companies chose to arbitrate with consumers and which ones don't.  Most JDBs, and especially PRA and their Encore brother Midland, simply do no arbitrate these cases.

The final "you can try though" message after your incorrect assessment of arbitration shows your bias.  It has been proven to work in an overwhelming majority of cases with pro-se consumers who chose to go that route.  It does work.

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I have to second Mr F. H. Cheese's assessment.

Here in AZ, it is essentially impossible to win a consumer debt case in court. The way the statutes and case law are interpreted, a typical package with account statements, bill-of-sale and affidavits is enough to achieve summary judgement. Arguing "standing" and "hearsay" is a complete waste of time and effort. On the other hand, AZ law is very clear on the right to arbitrate (if the contract allows) and we have recently seen plaintiffs walk away from five figure debts rather than arbitrate.

Another reason consumer debt lawyers misrepresent arbitration is because the case is essentially over once an MTC is granted. Not many billable hours...

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@jlock45 As far as the Request for admissions and Interrogatories, I would file my response to those AFTER I filed the MTC.  They can be filed at the same time, it's essentially the same thing. 

My only response to all of the questions would be "Objection.  The Court lacks subject matter jurisdiction and Defendant has a pending Motion to Compel Arbitration on jurisdiction".

I would repeat that answer for ALL of the questions.

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10 hours ago, jlock45 said:

@JimmyE I appreciate your response and I need all the help I can get with this. I just am so busy between my job and family and I am just womndering what the difference is between the arbitration route and what texasrocker suggests 

Lately, we have been having more misses than hits with litigation in TX.   Go with arbitration.  It's easier and quicker and you stand a better chance of winning.   Note I said a "better chance of winning."  It is not guaranteed,  even if the law is on your side.  Judges can basically rule any way  they want.  Appeals courts are supposed to clean up their mess.  Sometimes they do and sometimes they don't.

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@debtzapper if I do choose the arbitration route and I hav not responded to anything at all yet do I contact Jamz and they handle everything from there / Do they take installment plan on money $250.00 ? 

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Court comes first.  Don't worry about JAMS right now.  You will need to file an answer which cites arbitration as a defense (Lack of Subject matter jurisdiction) and then file a Motion to Compel Arbitration.  Depending on how things play out, you may never have to file in JAMS.  In the event that you do (after the court grants your MTC), then JAMS will accept your case with a small payment of, say, $50 and will accept payments.  There is also a potential fee waiver you could ask JAMS for.  But we can cross that bridge when you get there.

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@jlock45

If you decide you want to arbitrate, research your court rulings to determine whether or not discovery requests made by you would jeopardize a MTC arbitration.

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I currently am at the stage in my case where I have answered their discovery ,admissions , interr, etc, and I sent off the paperowrk for them to reply in regards to thier answers for disocvery etc, I have heard nothing from them at all. I tracked it by certified mail and it was signed for on April 10th. What is my next step? Can I file anything to dismiss my case since they have not answered at all? Any help wpuld greatly be appreciated. I think I had posted my question ealrier on a different thread. 

 

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@firsthardcheese I was trying to post in same thread so everyone could follow my case, and I had not had anyone answer so I hope it was okay to reach out to you? 

I currently am at the stage in my case where I have answered their discovery ,admissions , interr, etc, and I sent off the paperwork for them (Portfolio Recovery Associates LLC to reply in regards to thier answers for disocvery, admissions, interr, etc, I have heard nothing from them at all. I tracked it by certified mail and it was signed for on April 10th. What is my next step? Can I file anything to dismiss my case since they have not answered at all? Any help wpuld greatly be appreciated. I think I had posted my question ealrier on a different thread.  Can I fax the clerks office a motion to deem admitted or to dismiss? 

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Just sending an update and asking for some advice.... I have sent my second request for discovery and sent certified mail and stated that if not answered within 7 days of the receipt of certified mail then Iwill be filing a motion to compel along with forward flow agreement of original assignment ahowing complete chain of ownership of alleged debt that is subject matter of lawsuit. The thing is there still has been no answer and I assume there will not be come Friday but when I send a motion to compel I am wondering if I can send a motion to just dismiss. They brought the lawsuit on in February and have provided nothing and done nothing so why send a third request when they are not going to provide anything? 

 

Any feedback would be greatly appreciated. I am ready to be done with this all together. I also would like to know how I can draw up the motion to compel with a motion to dismiss all together with the order for the judge to sign too as I was told the judge will need an order as well... I want them to pay the court costs as well along with a motion to dismiss with prejudice 

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