Need Guidance! Being Sued by Portfolio Recovery Associates CA

[fast267]

I was served yesterday and I am looking for guidance on the appropriate steps to take.

1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates

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

Emily Pierce (240084) Jordan D Cook (179720) Lori N Williams (242985) Kristen L Brinkerhoff (263579)

3. How much are you being sued for?

$6,059.55

4. Who is the original creditor? (if not the Plaintiff)

Bank Of America

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

I was 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

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

I spoke with them once on the phone. I denied any knowledge of the mention debt and asked for validation. I was told my case had been reviewed by a lawyer and promptly hung up on.

9. What state and county do you live in?

San Bernardino county, California

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

December 31, 2013 according to lawsuit 

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

4 years in California

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Active, service required

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.

I requested over the phone not written. I never received validation

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? 

30 days

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Jan 2015 statment & August 2015 statement

[sadinca]

Portfolio is a junk debt buyer that buys junk debt for pennies on the dollar. if you were served personally yesterday, you have 30 days to answer the complaint. 

is the complaint verified? most complaints are not verified, in which case, you should answer the complaint using a general denial form 

http://www.courts.ca.gov/documents/pld050.pdf

 

[fast267]

Complaints

1. Plaintiff is an LLC

2. This court is the proper court as a resident of SB county

3. At all times herein mentioned, defendants, and each of them, were principles, agents, employers, employees, masters, or servants of each  of their co-defendants and ratified, adopted or approved the acts or omissions alleged herein, and each defendant, in doing the things alleged, were acting in the course and scope of said authority of such agents servants and employees.

4. This suit concerns a credit account that was purchased by the plaintiff on or after January 1, 2014 and, therefore, is subject to California civil code 1788.50

COMPLIANCE WITH CIVIL CODE 1788.50

5. Plaintiff is a debt buyer

6. US Bank issued a credit account to defendant. Defendant used, or authorized the use of the credit account to make purchases and/or transactions. Defendant received periodic billing statements for the account. Defendant defaulted in making the required payments. Subsequently, Plaintiff was assigned and transferred all right. title and interest in the credit account.

7. Plaintiff is the sole owner of the credit account at issue, or has authority to assert the rights of all owners of the debt.

8. The balance at charge off was $6,059.55. Plaintiff is not seeking any post charge off fees or interest

9. The date of the last payment on the credit account was December 31, 2014

10. The name of the charge off creditor is US Bank National Association and the account number of the charge off creditor ended in 5006.

12. The subject credit account has been purchased by recovery portfolio associates

13. Plaintiff has complied with Section 1788.52 of the California Civil Code. Pursuant to California Civil Code 1788.58(b)

14. Attached hereto as Exhibit A is a true and correct copy of a document required by section 1788.58(b) of the California Civil Code

FIRST CUASE OF ACTION: ACCOUNT STATED

15. Plaintiff alleges and incorporates by referencing the foregoing paragraphs.

16. Within the last 4 years, an account was stated in writing between Defendant and US Bank, and on the account a balance was stated to be due to US BANK from Defendant. Defendant expressly or impliedly agreed to pay US Bank that balance. Attached hereto as Exhibit B is true and correct copy of a billing statement showing the balance due and owing.

17. Before the commencement of this action, the plaintiff was assigned the credit account and indebtedness. Plaintiff is now the owner and holder of the credit account.

18. Plaintiff has made demand on the Defendant for repayment of the credit account. but the Defendant has failed to pay the balance due.

19. Payments, set-offs, credits or allowances in the amount of $0.00 have been received or posted to the account after the rendering of the last account record.

20. The total balance due of $6,059.55 is presently due and owing on the account.

 

 

[fast267]

8 minutes ago, sadinca said:

Portfolio is a junk debt buyer that buys junk debt for pennies on the dollar. if you were served personally yesterday, you have 30 days to answer the complaint. 

is the complaint verified? most complaints are not verified, in which case, you should answer the complaint using a general denial form 

http://www.courts.ca.gov/documents/pld050.pdf

 

How to I determine if the complaint is verified? I have listed the complete list of complaints above.

[sadinca]

Go to the last page of the attached link and you will see a typical verification form for California complaints. As in the example, most (but not all) verified complaints say so in the caption itself: http://cluebytwelve.net/monkeys-lawsuit/complaint.pdf

 

Sometimes, plaintiff will include a venue declaration saying why you were sued in a certain county.  That is not the same as a verification of the complaint itself. 

[sadinca]

if the complaint is verified (99% sure it is not) it would say something like this after the cause of action:

VERFICIATION

I, ___________ under oath, hereby state that i have read the foregoing Verified Complaint and am familiar with the contents thereof, and that the facts set forth therein are true to my knowledge. 

Signed under the pains and penalties of perjury this ___ day of ____ 20__.

[fast267]

Complaints are not verified. Should I include any a affirmative defenses with my General Denial form?

[sadinca]

you dont have to. however, if the debt is close to SOL, i would invoke the statute of limitations. the general denial generally denies all the allegations in the complaint. 

 

[fast267]

Im going to send the General Denial form via certified mail. Do I need to receive proof of service before filing the form with the court clerk? Can I mail it to the clerk also or do i have to take it to the court?

[RyanEX]

33 minutes ago, fast267 said:

Im going to send the General Denial form via certified mail. Do I need to receive proof of service before filing the form with the court clerk? Can I mail it to the clerk also or do i have to take it to the court?

I wouldn't send the GD via certified mail, regular mail is good enough for that particular item. Just include a proof of service: POS-030

You don't need to prove that plaintiff received the GD - all that matters is that the court receives it on time.

You will need someone to serve (mail)  both items to the plaintiff's attorney. That person must be an adult & not be a party to the lawsuit: so a friend, relative, co-worker, etc. You can file the GD & POS yourself at your courthouse.

You can follow this procedure: Fill out and sign your General Denial & fill out (but don't sign) the POS. Make a copy of each and give the copies to the person who will serve it (mail it) to the plaintiff for you. That person will mail the GD & unsigned POS to the plaintiff's attorney. Have that person sign the original POS. Take the originals (GD&POS) to the courthouse and get them time stamped, then have them make copies, then file the stamped originals and keep the copies for your records.

Going forward however, most items you send to plaintiff you will use certified mail.

[sadinca]

Deleted: 

 

sorry, i read your question wrong. 

[fast267]

So just to clarify before I send the form today. The copy of the POS-30 that will be mailed to the plaintiff SHOULD NOT be signed? 

[sadinca]

that would be the correct way to do it. yes. Calayer has explained in the past that section 4 states "i served the documents by enclosing them in an envelope..." the person doing the serving is signing the fact that the serving has been done. 

the copy that you keep and file should be signed. 

however, most people serve a signed document (including me, at first), but the correct way should be to serve an unsigned copy.