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Summons portfolio recovery


Stay at home mom
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Day before yesterday I received a summons from Sarasota County Clerk of Courts that I am being sued in small claims court for a little over $4,000. I'm being sued by portfolio recovery. They have sent paperwork showing that PayPal sold it to them and one statement from the credit card bill. What should I do? I have court on April 5th 9 o'clock in the morning. I'm a stay-at-home mom and literally know nothing about the legal system and what I can do to protect myself.

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I have had pretty good luck getting PRA to dismiss the case and getting them to take it off the credit report. I personally am not sold on the arbitration method with JDBs, but I know some that have had good luck with it.  With an original creditor, arbitration may be the best way to go because they DO have the documentation to prove the debt.

With a small claims summons they will most likely require you to mediate and attempt you to get to admit to some or all of the debt and agree to make payments. That way they don't have to prove anything.  Make sure you show up when they say or you will get a default judgment and they will try to raid your bank accounts or garnish your wages. Definitely do not ignore a summons.

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I see your court date is tomorrow.  Hopefully you will appear to avoid the default.  Just don't admit to the debt or any amount of it.  They are going to try to get you to agree to make monthly payments or if you can't make any payments, to consent to a judgment.  I would advise against either of those.  Most people don't follow through on the payments and end up with a judgment anyhow.  And consenting to a judgment, not making them prove their case, is never a good idea.  Make them prove their case at least.  They bought your debt for pennies and want to collect the whole amount plus interest.  Plus a judgment can last a long time and they are often forgotten about until your financial situation improves and you suddenly have money in a joint account or are working a good job, or just paid off your car.  Then they can go after your assets at that time.  Some judgment holders prefer to sit on judgments because they earn interest and several years down the road, your $5000 judgment now is $10000.  Since you are probably representing yourself, don't admit to the debt, having the credit card or anything.  Anything you say can be used against you, but unlike criminal court, you don't have the right to remain silent.  After all, it's quite common you may not recall the account.  Tell the court you're not sure if they are the proper owners of the debt or that the debt is even yours.  You want to do some discovery and ask for it to be set for a jury trial.  A jury trial pushes it out even farther, usually.  You always have the option to settle later.  Many cases settle the day of trial, so having it set for trial will buy you some time to figure out what you want to do. 

If you are planning to try the arbitration route, I think that will have to be brought up at pre-trial tomorrow that you wish to elect arbitration.  Make sure to read up on using that method and that you have the correct cardmember agreement that has arbitration in it.  There are plenty of people on this site that can advise you regarding using the arbitration defense.  Good luck and hopefully you will post back and let us know how it went.

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Went to court this morning took a lot longer than expected because portfolio recovery's lawyer was almost an hour late. We went to a room and discussed the account. I told her it wasn't mine and I didn't know anything about it. New trial date is set for June 21. They're having a witness call in  during that trial. I told her I wanted to see a signature and she (the lawyer for them) expressed to the judge that they don't require signatures to open an account. I requested statements to see what was purchased. She's going to try and come up with statements and advised me to call the original debtor and find them myself. Should I do that or is that just adding more to their pile of evidence? I literally own nothing. My husband works and we have a joint bank account . He is considering opening a separate one so that it does not interfere with his bill paying. we pay the IRS monthly out of that joint account.  My dad is also on that account. Should I take my name off or is that evasion? Everything is in my husbands name. I've thought of bankruptcy I've even thought of divorce. I know it sounds crazy but I can't have them trying to take money from us that I really don't think I own anyways. We have three kids one isn't even a-year-old yet. We don't get a single penny from any government  funding or programs. It's just us trying to get by an on a honest life.

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36 minutes ago, Stay at home mom said:

I told her I wanted to see a signature and she (the lawyer for them) expressed to the judge that they don't require signatures to open an account.

In the digital era this is correct.  There is no signature.  They are likely to be able to produce the electronic application so be prepared for that.

37 minutes ago, Stay at home mom said:

I requested statements to see what was purchased.

Purchases are not material:  use of the account is along with payments on it.  If you did not dispute the amount with PayPal prior to defaulting then there is little dispute on that now unless you can prove PRA artificially inflated the balance.   Forcing them to produce evidence is a good thing because they may fold realizing you won't just simply agree to pay.  They want the easy judgment not to have to prove their case.

40 minutes ago, Stay at home mom said:

Should I take my name off or is that evasion?

Simply take your name off the accounts. 

42 minutes ago, Stay at home mom said:

I know it sounds crazy but I can't have them trying to take money from us that I really don't think I own anyways. We have three kids one isn't even a-year-old yet. We don't get a single penny from any government  funding or programs. It's just us trying to get by an on a honest life.

The good news is FL is one of the few states that requires they notify you before garnishing/levying bank accounts or wages or seizing assets.  They allow a head of household exemption if you are not earning enough to survive let alone garnish for a civil debt.   If you are living hand to mouth then the chances of them being able to take anything at least right now are slim to none.

 

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I have never received any information from PayPal until I was summoned. In fact the lawyer couldn't even find my address in the evidence PayPal gave to them. No addresses were listed as of today. I grew up in this house and have always been here no matter who the owner was/is. This house has been past down through my family since the early 90s. Should I contact PayPal or wait it out and see what they say next?  Do I have anymore defenses? Can I bring up any defenses at my next court date or is that the end of the line? If I do get a judgment can I hire lawyer to figure out the real truth and have it removed?  I see this is even on my credit. Who do they get my SSN? Sorry so many questions. I've literally never run into anything to do with the court besides the day I got married. 

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47 minutes ago, Stay at home mom said:

I have never received any information from PayPal until I was summoned. In fact the lawyer couldn't even find my address in the evidence PayPal gave to them. No addresses were listed as of today. I grew up in this house and have always been here no matter who the owner was/is. This house has been past down through my family since the early 90s. Should I contact PayPal or wait it out and see what they say next?  Do I have anymore defenses? Can I bring up any defenses at my next court date or is that the end of the line? If I do get a judgment can I hire lawyer to figure out the real truth and have it removed?  I see this is even on my credit. Who do they get my SSN? Sorry so many questions. I've literally never run into anything to do with the court besides the day I got married. 

Given there is a very real chance this account may not be yours I would do a free consult with a consumer attorney ASAP because if it isn't yours and they have sued the wrong person very likely the lawyer will take the case at no charge to you.  

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On 4/4/2017 at 11:35 AM, LawKitty said:

I see your court date is tomorrow.  Hopefully you will appear to avoid the default.  Just don't admit to the debt or any amount of it.  They are going to try to get you to agree to make monthly payments or if you can't make any payments, to consent to a judgment.  I would advise against either of those.  Most people don't follow through on the payments and end up with a judgment anyhow.  And consenting to a judgment, not making them prove their case, is never a good idea.  Make them prove their case at least.  They bought your debt for pennies and want to collect the whole amount plus interest.  Plus a judgment can last a long time and they are often forgotten about until your financial situation improves and you suddenly have money in a joint account or are working a good job, or just paid off your car.  Then they can go after your assets at that time.  Some judgment holders prefer to sit on judgments because they earn interest and several years down the road, your $5000 judgment now is $10000.  Since you are probably representing yourself, don't admit to the debt, having the credit card or anything.  Anything you say can be used against you, but unlike criminal court, you don't have the right to remain silent.  After all, it's quite common you may not recall the account.  Tell the court you're not sure if they are the proper owners of the debt or that the debt is even yours.  You want to do some discovery and ask for it to be set for a jury trial.  A jury trial pushes it out even farther, usually.  You always have the option to settle later.  Many cases settle the day of trial, so having it set for trial will buy you some time to figure out what you want to do. 

If you are planning to try the arbitration route, I think that will have to be brought up at pre-trial tomorrow that you wish to elect arbitration.  Make sure to read up on using that method and that you have the correct cardmember agreement that has arbitration in it.  There are plenty of people on this site that can advise you regarding using the arbitration defense.  Good luck and hopefully you will post back and let us know how it went.

Thank you Lawkitty for your always excellent advice and  your willingness to help others.

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6 hours ago, Stay at home mom said:

I have never received any information from PayPal until I was summoned. In fact the lawyer couldn't even find my address in the evidence PayPal gave to them. No addresses were listed as of today. I grew up in this house and have always been here no matter who the owner was/is. This house has been past down through my family since the early 90s. Should I contact PayPal or wait it out and see what they say next?  Do I have anymore defenses? Can I bring up any defenses at my next court date or is that the end of the line? If I do get a judgment can I hire lawyer to figure out the real truth and have it removed?  I see this is even on my credit. Who do they get my SSN? Sorry so many questions. I've literally never run into anything to do with the court besides the day I got married. 

Please see my PM to you.

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5 hours ago, Stay at home mom said:

I have never received any information from PayPal until I was summoned. In fact the lawyer couldn't even find my address in the evidence PayPal gave to them. No addresses were listed as of today. I grew up in this house and have always been here no matter who the owner was/is. This house has been past down through my family since the early 90s. Should I contact PayPal or wait it out and see what they say next?  Do I have anymore defenses? Can I bring up any defenses at my next court date or is that the end of the line? If I do get a judgment can I hire lawyer to figure out the real truth and have it removed?  I see this is even on my credit. Who do they get my SSN? Sorry so many questions. I've literally never run into anything to do with the court besides the day I got married. 

It will be a LOT cheaper and easier to hire an attorney at this stage than post-judgment. It is much more difficult to have a judgment set aside than to avoid a judgment to begin with. Portfolio generally does not have the documentation to prove their case.  

Also I would object to their witness appearing by phone. You don't want their witness to be able to look something up or have notes. That's why it is so important to force them to appear in person so the jury or judge can see how well their "personal knowledge" is under cross examination.

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I agree with the witness thing. I read that was a bad idea and I put up a bit of a fuss with the lawyer and the judge about that.   The judge went on to explain to me that I would have to pay for the person to be flown here because there are most likely in a different state  and she made me feel as if I had no choice. I've got a bad feeling that she was just saying that because the lawyer for PR was her friend. When she got into the court room late I sat there and talked about personal things before we started.  

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With small claims cases, we usually ask or stipulate to "invoking the rules" of civil procedure as those rules are different than small claims rules and then it would be on the plaintiff to get their witness there if you objected to telephonic appearance.  They sued you in that venue so you shouldn't have to pay for their witness to appear to prove THEIR case.  With a witness on the phone you can't tell if they are being coached or have info in front of them so most likely at trial they will seem very knowledgeable.  I also always ask for a jury trial.  You could still do a motion to invoke the Rules, file an answer asking for a jury trial. And file an objection to any witness or party appearing by telephone. Then I would send out requests for admissions, interrogatories, and requests for production.  

PRA is usually not geared up for a long fight in small claims court but with you being pro se, they will fight some but will generally do a Motion for Summary Judgment as their next tactic to end the case quickly and get their judgment, relying only on affidavits of their witness. 

If at all possible, I would do a consult with an attorney ( many will consult for free) or be prepared to spend some time on this site learning how to defend the case yourself.  Plenty of people on this site have successfully beaten PRA.

I've defended a lot of small claims cases for pretty cheap (always less than what the debt is) and I think people felt better about paying me than paying the JDB who bought your debt for pennies on the dollar and is trying to collect the full amount to make a profit. They file a ton of lawsuits because it's cost effective and they usually get payments or judgments that have extended their SOL considerably and have greater collection power AND earn interest. I've seen them get default judgments for $2000 or so and then sit on them for 5 years. After 5 years they will clean out a debtor's bank accounts or garnish wages or take a vehicle to be sold at auction and now the judgment is closer to $5000 to pay off. I had one client that actually got arrested because the judgment was on his business, not him personally, yet he ignored a personal summons to appear for a deposition in aid of execution and to fill out an information sheet on his assets. He ended up filing a bankruptcy at the end, but the judgment had been sitting for several years before the creditor decided to go after his assets.

You may have nothing they can go after right now but people's financial situation can change and they will be watching for the time when it does and then go after you.  So do what you can to avoid a judgment if at all possible.  Once they get one, often the only way out is to pay it, or to file bankruptcy, which is generally more expensive than people realize.

There is a lot of material on this site to help you and you have a bit of time, but you want to get discovery sent out right away because they need 30-45 days to respond to any discovery and they generally ask for an extension.

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3 hours ago, LawKitty said:

There is a lot of material on this site to help you and you have a bit of time, but you want to get discovery sent out right away because they need 30-45 days to respond to any discovery and they generally ask for an extension.

 Where do I go to ask for discovery? The Venice courthouse? Online? A letter? What department to I walk into it I have to go in?         The hole thing about " invoking the rules" I don't have a clue how to do that.    Thank you for helping me.

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42 minutes ago, Stay at home mom said:

Can I motion for dismissal or is that just a shot in the dark?

You can motion for dismissal but you need to read up and understand WHY you are asking it to be dismissed and be able to argue that at the hearing.  And to be honest, the PRA attorneys are pretty good at getting past a motion for dismissal, because it is a common tactic for defendants and lawyers to try and use.  In fact, it is commonly used in a large percentage of lawsuits of all types and therefore it is usually fairly easy to get past a motion for dismissal.

As for starting discovery, you will need to read up on this site and also the Florida Small Claims Rules and Civil Rules.  Since you are pro se, PRA cannot initiate discovery against you.  If you initiate discovery, then PRA can also ask for discovery.  But you can't really prepare a case for trial without discovery.  Discovery consists of written discovery requests, such as Requests for Admission (which you definitely want to file because if they don't answer them timely, it may really help your case); Requests for Production (which is where you ask for any documents, such as all of the statements of the account from its inception, all documents showing exactly how PRA got your account, and procedures for checking records, etc.); and Interrogatories (where you ask them written questions regarding the evidence they have or witnesses they will call, etc.).  Interrogatories must be answered under oath.  You could also ask to take depositions of their witnesses.  This is where you ask them oral questions under oath in front of a court reporter.  PRA will also be able to ask you to produce things.  They often send requests for bank statements to try and get you to prove you made payments on the account they are suing you for.

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 So I think I asked for something along the lines of recovery while I was in the pretrial. I did request statements and documents to be shown at the trail. I want to send a letter requesting dismissal. I'm pretty sure the response "this is BS" isn't a legal term haha.   Paperwork I have is one statement without my name or account number or address, one affidavit and a bill of sales. Is there anything I could say to discredit this? 

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33 minutes ago, Stay at home mom said:

Paperwork I have is one statement without my name or account number or address, one affidavit and a bill of sales. Is there anything I could say to discredit this? 

There is A LOT that can be done to discredit this.  PLEASE PLEASE get a FREE consult with a consumer attorney.  Given what you have posted I would be willing to bet they will take the case at NO CHARGE to you.

Go to Consumer Attorneys to locate one near you or find one who will consult by phone.

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19 minutes ago, Stay at home mom said:

What do I do with fraud?

Fill out a FACTA report and police reports immediately.  

19 minutes ago, Stay at home mom said:

What kind of lawyer do I need?

You can use the consumer lawyer link I provided above to find one ASAP.

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7 hours ago, Stay at home mom said:

I just reviewed my hole credit report. I think I have bigger problems. What do I do with fraud?  There's a handful of high balance accounts. Portfolio , Midland funding and more? What kind of lawyer do I need?

I think you need @LawKitty !!  PM her and just talk to her.  There is no cost or obligation.   Then go from there.

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