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1. Named Plaintiff: Portfolio Recovery

2. Law firm handling suit: N/A. 4 individual lawyers and bar numbers are listed, with no firm name. I'm not positive that they are not simply employees of Portfolio?  Names are Emily Pierce, Jordan Cook, Lori Williams, and Kristen Brinkerhoff.

3. What is the amount of the suit: More than $1,000, but less than $1,500.

4. Who was the original creditor: Capital One.

5. How do you know you're being sued: ... I was served with papers on Sunday, 30 April 2017.

6. How were you served: In person.

7. Was the service legal as required by the state: I believe so.

8. What pre-existing correspondence did you have with plaintiff: I'm not aware of any.

9. What state and county do you live in: California. County is a relatively small one, rural-ish, so I'm not sure I should name it. It might make things too identifiable for PRA.

10. When was the last payment made on the account: according to plaintiff's complaint, the most recent payment on the account in question was <3 years ago.

11. SOL on the debt is 4 years.

12. I'm not entirely certain what the status of the case genuinely is at this time. My county does not appear to have case info online other than the immediate court calendar. I was served yesterday, and I was too busy today with work, chemo, and radiation to be able to go to the courthouse. (Yes, this is exactly one extra set of stress that I did not need right now.)

13. I have not disputed the debt with any credit bureaus, the original creditor, or the collection agency. I was rather surprised when I got served yesterday.

14. I did not request debt validation--again, this was all quite a surprise to me yesterday.

15(a). I have 30 days to respond to the suit.

15(b). Claims will be described below.

15(c). No interrogatory was received.

16. There were two exhibits attached to the summons and complaint. Each exhibit purported to be a credit card statement from Capital One. Neither included a complete account number, only the last four digits. Exhibit A purported to show the final payment received by the original creditor, as well as a few small purchases. Exhibit B purported to be a statement from a year later. It purports to show a past due balance and a minimum payment, and has a payment coupon attached, but there is nothing that identifies it obviously as a final settlement. There is an additional page to the purported statement in Exhibit B which notes that the account has been charged off and gives a phone number to call for more information, but there is no account number or other information on this sheet which would tend to indicate that it is associated with any particular account or statement.

 

Verbage of the complaint is as follows:

Quote

Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, ("Plaintiff"), alleges:

  1. Plaintiff is a limited liability company.
  2. This court is the proper court because Plaintiff is informed and believes that Defendant, PSTEELE ("Defendant"), is a resident of COUNTY, State of California.
  3. At all times herein mentioned, Defendants, and each of them, were the principals, 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 Plaintiff on or after January 1, 2014, and, therefore, is subject to California Civil Code ss1788.50, et seq.

COMPLIANCE WITH CIVIL CODE ss1788.50, et seq.

Pursuiant to California Civil Code ss1788.58(a)(1)-(9):

5. Plaintiff is a debt buyer.

6. CAPITAL ONE BANK (USA), N.A. 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 credit 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 [between 1000 and 1500]. Plaintiff is not seeking to recover and post charge-off fees or interest.

9. The date of last payment on the credit account was [mid-2014].

10. The name of the charge-off creditor is CAPITAL ONE BANK (USA), N.A., and the account number of the charge-off creditor ended in XXXX. An address CAPITAL ONE BANK (USA), N.A. maintained at the time of charge-off was 4851 COX ROAD, GLEN ALLEN, VA 23060.

11. The last known address that the charge-off creditor had for Defendant is ADDRESS.

12. The subject credit account has been purchased by the following entities after charge-off: Portfolio Recovery Associates, LLC, who maintains an office at 120 Corporate Blvd, Norfolk, VA 23502.

13. Plaintiff has complied with Section 1788.52 of the California Civil Code.

Pursuant to California Civil Code ss1788.58(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 CAUSE OF ACTION:

ACCOUNT STATED

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

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

17. Before the commencement of this action, 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 Defendant for repayment of the credit account, but 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 credit account after the rendering of the last account record.

20. The total balance due of [1000-1500] is presently due and owing on the account.

WHEREFORE, Plaintiff prays for judgement against Defendant as follows:

On the First Cause of Action:

1. For the unpaid principal balance of [1000-1500];

2. Costs of suit; and

3. Any such other relief as the Court may deem just and proper.

 

It seems as though, since this is exclusively an Account Stated issue, there's no point in doing a BOP. That said, it looks like it still could be a useful attack. I've never seen either one of the exhibits they've attached to the complaint, and so far as I know, nobody makes a habit of sending their credit card statements by CMRRR, so it seems that there's really no way for PRA to prove that I ever assented, implicitly or explicitly, as to the accuracy of the original creditor's account as stated. Therefore, BOP might still prove useful?

It seems additionally useful in forcing PRA to prove that I provided assent, implicitly or explicitly, to the accuracy of their account as stated. I have absolutely no recollection of ever seeing any account statement from PRA, and I certainly can't assent to the accuracy of something I've never seen.

What are y'all's thoughts on this? 

Since this isn't a verified complaint, there's no reason to admit to anything, even my own name, right? Just use the general denial and head for discovery?

Also, one potential wrinkle: I did  have an account with Capital One that was active from 2010 until 2016 when it was paid off, but... it was a car loan. Would documentation from that be subject to discovery by PRA in the present litigation?

Anything else I need to be thinking about right now? (Aside from the obvious of getting the CCP96 and CCP98 stuff that I can tear up with the data from previous cases discussed here, and aside from the equally obvious not being late with my answer and also the whole deal about maybe trying not to die.)

 

 

 

 

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13 hours ago, PSteele said:

It seems as though, since this is exclusively an Account Stated issue, there's no point in doing a BOP. That said, it looks like it still could be a useful attack. I've never seen either one of the exhibits they've attached to the complaint, and so far as I know, nobody makes a habit of sending their credit card statements by CMRRR, so it seems that there's really no way for PRA to prove that I ever assented, implicitly or explicitly, as to the accuracy of the original creditor's account as stated. Therefore, BOP might still prove useful?

I would send a BOP regardless of the exclusivity of the account stated cause of action. the objections you receive would make it easier to answer any discovery request they may send you to in the future. 

14 hours ago, PSteele said:

Since this isn't a verified complaint, there's no reason to admit to anything, even my own name, right? Just use the general denial and

correct. a simple general denial will suffice. fill in your information, check one box, and done! :) 

14 hours ago, PSteele said:

Also, one potential wrinkle: I did  have an account with Capital One that was active from 2010 until 2016 when it was paid off, but... it was a car loan. Would documentation from that be subject to discovery by PRA in the present litigation?

i assume that this car loan would have a different account number (XXYY) than the alleged debt they are suing you for. you dont have to produce any of this documents because they are only suing you on an alleged Cap One account ending in XXXX

 

14 hours ago, PSteele said:

Anything else I need to be thinking about right now? (Aside from the obvious of getting the CCP96 and CCP98 stuff that I can tear up with the data from previous cases discussed here, and aside from the equally obvious not being late with my answer and also the whole deal about maybe trying not to die.)

 right now it seems that you are on the right path. you are learning, and appears that you are learning quite quickly. 

one thing i would suggest is create a calendar and mark all the important dates (Tuesday, May 30, 2017) which appears to be the last day for your GD to be filed, though, i would suggest, not to leave it till the very last day. 

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1 hour ago, sadinca said:

I would send a BOP regardless of the exclusivity of the account stated cause of action. the objections you receive would make it easier to answer any discovery request they may send you to in the future. 

Roger that. I'll get started on it.

1 hour ago, sadinca said:

i assume that this car loan would have a different account number (XXYY) than the alleged debt they are suing you for. you dont have to produce any of this documents because they are only suing you on an alleged Cap One account ending in XXXX

Yes. Good point. Of course, it's all a little bit moot anyway: I don't really keep paperwork around once I'm done with it.

1 hour ago, sadinca said:

right now it seems that you are on the right path. you are learning, and appears that you are learning quite quickly. 

one thing i would suggest is create a calendar and mark all the important dates (Tuesday, May 30, 2017) which appears to be the last day for your GD to be filed, though, i would suggest, not to leave it till the very last day. 

One year of law school was enough to convince me that I really didn't want to practice law. :p

Calendar's already started, too.

Oh. One other thing I found a bit curious: the summons on the front of the packet doesn't have a seal on it. Is this normal? It has a box where the seal would go, and a circle there with the word SEAL in it, rather than a stamped seal.

 

 

Also, one other question here:

Why do they even bother with limited jurisdiction actions more than 150 miles away from their office? Or rather, why do they bother once someone has started to fight? It just seems like, in a post-Target v. Rocha judicial climate, there's no way for them to win unless someone blows off the summons and doesn't file anything at all?

 

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12 minutes ago, PSteele said:

Oh. One other thing I found a bit curious: the summons on the front of the packet doesn't have a seal on it. Is this normal? It has a box where the seal would go, and a circle there with the word SEAL in it, rather than a stamped seal.

I'd go online and check the online docket for your case. Helps to keep track what they're filing, too! It's how I found out that my suit had been dismissed AND that an Ex Parte had been erroneously filed to the case (it was someone else's case - ironically, an Ex Parte filed by a Defendant against the Plaintiff).

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7 minutes ago, PSteele said:

Oh. One other thing I found a bit curious: the summons on the front of the packet doesn't have a seal on it. Is this normal? It has a box where the seal would go, and a circle there with the word SEAL in it, rather than a stamped seal.

 

thats rather odd. never seen that. perhaps  @calawyer  can let us know if that matters. 

 

8 minutes ago, PSteele said:

Why do they even bother with limited jurisdiction actions more than 150 miles away from their office? Or rather, why do they bother once someone has started to fight? It just seems like, in a post-Target v. Rocha judicial climate, there's no way for them to win unless someone blows off the summons and doesn't file

well, i would assume that they do this because perhaps most of the lawsuits the file go unanswered and they get a default judgement. other consumers (and i know this because one of my co-workers expressed his experience with me) they get scared and arrange paying the debt once they get served. others end up settling. 

one way the get attempt to get around the target v rocha ruling is by throwing out 5 or 6 addresses all over California where ccp declarant "can be personally served" or be served "in care of." 

but i dont event think they intent to get that far. they want the simple easy pray. 

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Just now, AuthorCat said:

I'd go online and check the online docket for your case. Helps to keep track what they're filing, too! It's how I found out that my suit had been dismissed AND that an Ex Parte had been erroneously filed to the case (it was someone else's case - ironically, an Ex Parte filed by a Defendant against the Plaintiff).

 

My county does not appear to have an online docket, only the court calendar.

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Just now, PSteele said:

My county does not appear to have an online docket, only the court calendar.

If you have the date it was supposedly filed, you can go to Open Access and search by your name.

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1 minute ago, sadinca said:

thats rather odd. never seen that. perhaps  @calawyer  can let us know if that matters. 

Seemed a bit odd to me as well. Everything else about the packet appeared correct, though.

 

Screen Shot 2017-05-02 at 11.05.42 AM.png

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4 minutes ago, PSteele said:

Seemed a bit odd to me as well. Everything else about the packet appeared correct, though.

 

Screen Shot 2017-05-02 at 11.05.42 AM.png

Do a check at Open Access.

If you need help with your BoP, you can use the one I had in both of my cases. Although it's a little garbled online, when you download, it's fine.

The BoP was drafted (and resurrected) by Calawyer. All credit goes to him.

Send your BoP today with a Proof of Service and don't forget to CMRRR it!

As an aside, although it's not a requirement and simply for your records, I'd note in the footer of all docs the Cert.receipt number, and on the Cert. and RR receipt I'd note, in parenthesis, what docs you're serving (ex: BoP). Helps to keep track of CMRRs and docs when you get a little unorganized with them. lol It sure helped ME!

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6 minutes ago, PSteele said:

@AuthorCat- your openaccess site is for San Bernardino. My county does not seem to have one of its own.

 

Sorry! lol I guess I missed that in the heading.

Maybe do a search for your county? There are several if you do a Google search .

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10 minutes ago, AuthorCat said:

Sorry! lol I guess I missed that in the heading.

Maybe do a search for your county? There are several if you do a Google search .

 

Yes, that was just about the first thing that I did. Couldn't find anything other than the court calendar for the current day.

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2 minutes ago, PSteele said:

Yes, that was just about the first thing that I did. Couldn't find anything other than the court calendar for the current day.

Odd that San Bernardino County would be so tech-savvy. Not exactly the most tech-savvy county in SoCal.

I'm sorry I couldn't help you here. :(

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Okay, coming down to the end of my 30 days for filing the general denial, and I'll be sending the BOP out on the same day.

BUT, I've got a question about the proof of service form.

Question 5a on the form: "Name of person served."

Would I put PRA, LLC, c/o [attorney's name]?

Would I only put the attorney's name, and leave PRA out of it?

Would I only put PRA's name, and leave the attorney's name off?

 

Other than that, I think I'm good to go on the denial and BOP.

 

 

edit for amplification: Yes, I know that in general you serve the attorney, but the way that the attorney's info is filled out on the summons is what makes me question this. Only one of the 4 attorneys has signed anything in my case.

The header on the case looks like this: 

 

attorney name and address header.PNG

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Welcome.

 

THe attorney has made an appearance in the case so you serve her.

So:  Emily P. (I always just use the first one).

Her law firm address

Counsel for PRA

 

*********

 

 

And the seal is OK.  They just didn't serve you with the copy they got back from the court.  They are supposed to but it is not worth making noise about.

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8 hours ago, calawyer said:

Welcome.

 

THe attorney has made an appearance in the case so you serve her.

So:  Emily P. (I always just use the first one).

Her law firm address

Counsel for PRA

 

*********

 

 

And the seal is OK.  They just didn't serve you with the copy they got back from the court.  They are supposed to but it is not worth making noise about.

 

 

Hopefully the judge will be kind, then, as I just sent it to Portfolio, rather than specifically to the attorney. Incidentally, all the papers were signed by ... I don't remember his name off the top of my head, but it was the only male of the four names listed.

Also, @calawyer- PM inbound. I've got a couple of very specific strategic questions about some things that they've done here.

 

EDIT: nvm. Looks like @calawyer can't receive PM's.

 

 

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I would serve the lawyer anyway.  No problem with serving again.  Either Emily or the guy.  Doesn't matter.

My PM mailbox was full.  Deleted some threads so try again.

@admin:  can you increase the storage capacity of my mailbox?  Used to be unlimited and something happened.

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Calawyer is (as always) correct and I was wrong. I should've known the fundamental rule that once a Plaintiff/ Defendant is represented by an attorney, everything must be addressed to that attorney.

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4 hours ago, AuthorCat said:

Calawyer is (as always) correct and I was wrong. I should've known the fundamental rule that once a Plaintiff/ Defendant is represented by an attorney, everything must be addressed to that attorney.

i also stand corrected. Just now do i realize i did it wrong during my case.  

i shouldve remember that heated argument between two divorce lawyers outside the clerks window, where one was trying to personally serve the other, and the other refusing the service. 

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1 hour ago, sadinca said:

i also stand corrected. Just now do i realize i did it wrong during my case.  

i shouldve remember that heated argument between two divorce lawyers outside the clerks window, where one was trying to personally serve the other, and the other refusing the service. 

It was a tough call since the information they'd sent PSteel was confusing. In my cases, H&H were the attorneys for Plaintiff and easily identifiable. In PSteele's case, that's not so clear. But I believe it's the law that once an attorney steps in for Plaintiff/Defendant, all communication must go through them. I just forgot it for a moment, lol.

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Well now, this is rather interesting.

Most of the time when I see plaintiff reject defendant's demand for a BOP it's not in the form of a pleading (though my memory may be faulty on that), and it takes a rather sneering tone as plaintiff says blah blah account stated blah blah, Ahlbin, Auzerais, etc., blah blah.

This one, they titled it "Plaintiff's Objection to Demand for Bill of Particulars" and proceed to "demolish" my demand (using, ofc, Ahlbin and Auzerais, neither of which are really on point in this instance), and close with "Plaintiff respectfully requests that Defendant withdraw his/her Demand for Bill of Particulars as such demand is improper in this case."

Is there anything here that I need to do with this? They sent their objection on the very last day of the 10 day (+5 due to my use of first class mail) window.

Send a meet and confer letter notifying them that I'll be making a motion in liminer if they don't comply immediately? How much detail should I go into on why they really should comply? I'd rather not have them file an amended complaint that might be more difficult to take apart...

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13 hours ago, PSteele said:

Well now, this is rather interesting.

Most of the time when I see plaintiff reject defendant's demand for a BOP it's not in the form of a pleading (though my memory may be faulty on that), and it takes a rather sneering tone as plaintiff says blah blah account stated blah blah, Ahlbin, Auzerais, etc., blah blah.

This one, they titled it "Plaintiff's Objection to Demand for Bill of Particulars" and proceed to "demolish" my demand (using, ofc, Ahlbin and Auzerais, neither of which are really on point in this instance), and close with "Plaintiff respectfully requests that Defendant withdraw his/her Demand for Bill of Particulars as such demand is improper in this case."

Is there anything here that I need to do with this? They sent their objection on the very last day of the 10 day (+5 due to my use of first class mail) window.

Send a meet and confer letter notifying them that I'll be making a motion in liminer if they don't comply immediately? How much detail should I go into on why they really should comply? I'd rather not have them file an amended complaint that might be more difficult to take apart...

Write them a Meet and Confer compelling them to respond.

Calawyer drafted a response to Plaintiff's objection to Defendant's Demand for Bill of Particulars:

Quote

 

On ____, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof." As described below, plaintiffs’ response is entirely deficient.

As a preliminary matter, plaintiff’s objection to Defendant’s Bill of Particulars is not well taken. Plaintiff has alleged a cause of action for Open Book Account. A Bill of Particulars is appropriate under this legal theory as plaintiff concedes in ultimately responding.

The response served, however is not sufficient. Plaintiff has not provided an itemization of the account showing all charges and credits thereto. It has not provided the underlying contract referred to in the complaint. Nor has it provided any contract of assignment of the claim at issue in this litigation. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit. Indeed, the only account statements plaintiff has provided demonstrate full payment of the amounts requested.

Please serve a full response on or before [insert date 10 days from date of letter]. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial.

 

 

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