Served Summons Portfolio Recover (Cali)

Tiglit18 · January 13, 2018

Greetings all! First time poster here but lurked around all day. Essentially I’m being sued for cc debt by a JDB and I’m looking for any advice, links to awesome posts, and suggestions for moving forward. I know that my response will be a General Denial, I’m not sure if I need to state affirmative defenses but leaning towards yes because I do have a ARB clause (jcp synchrony bank 2016).

Thoughts and questions appreciated! TIA

1st Cause of Action: Account Stated

2nd Cause of Action: Open Book Account

Who is the named plaintiff in the suit?

Portfolio Recovery Associates LLC

What is the name of the law firm handling the suit?

Hunt & Henriques from San Jose, CA

How much are you being sued for? $2000

Who is the original creditor? Synchrony Bank formerly owned by GE Bank

How do you know you are being sued?Served

How were you served? In person

Was the service legal as required by your state? Yes

What was your correspondence (if any) with the people suing you before you think you were being sued? None

What state and county do you live in?

Riverside, CA.

When is the last time you paid on this account? June 2016

What is the SOL on the debt? 4 years

What is the status of your case?

Complaint filed - service made but not recorded yet

Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

Did you request debt validation before the suit was filed? No

How long do you have to respond to the suit? 30 days

What evidence did they send with the summons?

Exibit A: billing statement showing last payment made June 2016

Exibit B: billing statement showing last balance owed Nov. 2016

Tiglit18 · January 13, 2018

Here is my arb clause details:

1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or J. C. Penney Corporation, Inc. if it relates to your account, except as noted below.
2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.
3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

How to start an arbitration, and the arbitration process
1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, (800) 352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.
2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.
3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.
4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.
• Governing Law for Arbitration
This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.

fisthardcheese · January 22, 2018

Answer denying everything with an affirmative defense of "Lack of Subject Matter Jurisdiction. The underlying contract which Plaintiff's allegations stem from contains a private arbitration clause which the defendant has chosen to exercise. Therefore, this Court lacks jurisdiction over this subject matter."

Then, either with your answer or very shortly after, I would file a Motion to Compel Arbitration.

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy/

Tiglit18 · February 6, 2018

Thank you for the response! I’ll update here as things progress.

sadinca · February 6, 2018

@Anon Amos is very knowledgeable when it comes to Arbitration in California.

California pretty good some good laws that would assist you if you decide to stay in civil court. idk what the success rate would be for defendants that decide to go into arbitration, but we do have a good amount of defendants that came on top using the civil court rules.

Tiglit18 · February 6, 2018

Quick question:

I have completed my General Denial and will file later this week. I have the MTC arb ready to go but after looking into the Riverside courts rules I see that motions also require me to reserve a civil motion date and pay another fee.

Should I postpone the MTC? If so, when is a good time to do it?

Tiglit18 · February 8, 2018

My answer was filed yesterday and the courts immediately scheduled a Mandatory Settlement Conference for early August. (Riverside, CA)

I was planning to MTC Arbitration but I just read about sending the Plaintiff a BOP first. For clarification purposes, will sending a BOP remove my ability to MTC arb?

id like to see what they are working with and I want to set myself up just in case arbitration gets taken off the table for whatever reason.

Tiglit18 · February 21, 2018

I have not yet sent a BOP to the JDB and today I get a request for Interrogatories. I want to MTC Private Arb. If I answer the Interrogatories will I be eliminating my option for Arb?

Are they trying to trick me into participating in Discovery?

fisthardcheese · February 21, 2018

I am not familiar with CA law or court rules, but many other courts have considered participating in discovery to be a waiver of your right to arbitration.

If you have decided to go with arbitration, I would file the MTC immediately and then respond to their interrogatories within the allotted time frame by objecting to each and every question and stating that there is a pending motion regarding jurisdiction and that discovery is not proper at the time or in this venue.

They aren't trying to "trick" you, since you have not even filed the MTC yet, they have no idea you want that. They are just moving on to the next step of the court process.

Tiglit18 · February 21, 2018

4 hours ago, fisthardcheese said:

I am not familiar with CA law or court rules, but many other courts have considered participating in discovery to be a waiver of your right to arbitration.

If you have decided to go with arbitration, I would file the MTC immediately and then respond to their interrogatories within the allotted time frame by objecting to each and every question and stating that there is a pending motion regarding jurisdiction and that discovery is not proper at the time or in this venue.

They aren't trying to "trick" you, since you have not even filed the MTC yet, they have no idea you want that. They are just moving on to the next step of the court process.

Thanks so much for the info. Filling the MTC this week. I did send a letter to the plaintiffs attorney electing arb - does it matter that it wasn’t sent certified mail? I did track it and it shows it was accepted by the law firm.

fisthardcheese · February 21, 2018

2 hours ago, Tiglit18 said:

Thanks so much for the info. Filling the MTC this week. I did send a letter to the plaintiffs attorney electing arb - does it matter that it wasn’t sent certified mail? I did track it and it shows it was accepted by the law firm.

It makes no difference. They are free to, and will always, ignore such letters since it holds no weight and there is already a case filed in court.

Tiglit18 · February 22, 2018

7 hours ago, fisthardcheese said:

It makes no difference. They are free to, and will always, ignore such letters since it holds no weight and there is already a case filed in court.

Ok thanks! Can I pick your brain a bit more (or anyone for that matter) I'm working on the MTC Arb and found a boiler on this site. I have modified it a bit to fit my situation. Essentially the Complaint made mention of an agreement yet they did not attach one. The complaint also only said that the credit issuer was Synchrony. I figured out it was a JCPenney card that they were referring to and found that credit card agreement online here: https://www.consumerfinance.gov/credit-cards/agreements/

My new question is - do I need to provide that back story for the courts as to how I located the agreement containing the arbitration clause? This is what I wrote so far:

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

2. Plaintiff’s Complaint named Synchrony Bank as the credit account issuer.

3. Plaintiff’s Complaint refers to an “Agreement” between the Defendant and the credit account issuer Synchrony Bank, however, no “Agreement” was provided with the Complaint.

4. Plaintiff’s Complaint stated the credit account defaulted on or about _______

5. Defendant located a credit account Agreement for Synchrony Bank which provides for Private Arbitration (see Exhibit A, attached).

6. Defendant sent a letter via USPS mail to Plaintiff's attorney on __________, electing arbitration with JAMS (see Exhibit B, attached).

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

8. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: I will insert the terms here

9. 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”.

10. 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 . . . "

11. 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.

Tiglit18 · February 22, 2018

New Question

Plaintiff's attorneys still have not filed Proof of Service on me. I was given the paperwork by a process server at my house but my court case files still doesn't show I was served. Can this be used to my advantage?

fisthardcheese · February 23, 2018

On 2/21/2018 at 9:31 PM, Tiglit18 said:

Ok thanks! Can I pick your brain a bit more (or anyone for that matter) I'm working on the MTC Arb and found a boiler on this site. I have modified it a bit to fit my situation. Essentially the Complaint made mention of an agreement yet they did not attach one. The complaint also only said that the credit issuer was Synchrony. I figured out it was a JCPenney card that they were referring to and found that credit card agreement online here: https://www.consumerfinance.gov/credit-cards/agreements/

My new question is - do I need to provide that back story for the courts as to how I located the agreement containing the arbitration clause? This is what I wrote so far:

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

2. Plaintiff’s Complaint named Synchrony Bank as the credit account issuer.

3. Plaintiff’s Complaint refers to an “Agreement” between the Defendant and the credit account issuer Synchrony Bank, however, no “Agreement” was provided with the Complaint.

4. Plaintiff’s Complaint stated the credit account defaulted on or about _______

5. Defendant located a credit account Agreement for Synchrony Bank which provides for Private Arbitration (see Exhibit A, attached).

6. Defendant sent a letter via USPS mail to Plaintiff's attorney on __________, electing arbitration with JAMS (see Exhibit B, attached).

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

8. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: I will insert the terms here

9. 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”.

10. 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 . . . "

11. 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.

IMO this is too much detail about the card agreement. You are adding information that could be used to cast doubt on the agreement. Don't put yourself in that position. I would eliminate #2, 3 and 4. I would change #5 as:

5. The subject credit account Agreement that Plaintiff's allegations arise from provides for Private Arbitration.

On 2/21/2018 at 9:37 PM, Tiglit18 said:

New Question

Plaintiff's attorneys still have not filed Proof of Service on me. I was given the paperwork by a process server at my house but my court case files still doesn't show I was served. Can this be used to my advantage?

No. It takes a few days sometimes for process servers to file and the courts to catch up on entering those files into the system.

Tiglit18 · February 23, 2018

Thanks again @fisthardcheese! I see what you mean about 2,3,4 and I like the change on #5. It looks so much cleaner that way! As far as timing goes, I am able to schedule the Motion hearing for the middle of April. By sending out the BOP today I should have a response before my Interrogatories are due at the end of March. I will serve the MTC Arb just prior to the Interrogatories due date so that my response can be what you recommended above and I dont get stuck entering into formal discovery process thus eliminating my chances of going into arbitration. After that I am assuming I just wait until they oppose my motion and then the tentative rulling gets posted.

I am going to buy a binder and a calendar to keep everything straight...

Tiglit18 · March 3, 2018

On 2/23/2018 at 11:47 AM, Tiglit18 said:

Thanks again @fisthardcheese! I see what you mean about 2,3,4 and I like the change on #5. It looks so much cleaner that way! As far as timing goes, I am able to schedule the Motion hearing for the middle of April. By sending out the BOP today I should have a response before my Interrogatories are due at the end of March. I will serve the MTC Arb just prior to the Interrogatories due date so that my response can be what you recommended above and I dont get stuck entering into formal discovery process thus eliminating my chances of going into arbitration. After that I am assuming I just wait until they oppose my motion and then the tentative rulling gets posted.

I am going to buy a binder and a calendar to keep everything straight...

I received a response to my BOP. All it had was 11 months of statements ending with the one that noted a charge off of my account. They stated they provided presently available billing statements and if additional statements were located they reserved the right to add more in a supplemental BOP. I got nothing proving they bought my account. Do I need to ask again or let it be?

I have until the end of March to respond to their Int./RFA. I’m assuming I should use language mentioning my MTC arb and that a response would not be proper until a decision is made?

Tiglit18 · March 10, 2018

Anyone care to weigh in on my responses.

Basically my MTC Arb hearing is set for early May, I have until the end of this month to reply to the Interrogatories, Request for Admissions, and Document Production. I have served my MTC Arb to the plaintiff and the courts so now I know its more of a waiting game but I want to get these over with.

Interrogatories

1. Did you ever submit a request for a credit account to Synchrony Bank?

2. Did Synchrony Bank issue a credit account number xxxxx in your name?

3. State the date you opened the credit account (credit account issued by synchrony #xxxxx)

4. Identify (name, address, telephone number) of each and every person other then yourself who as ever had possesion of any credit card for the credit account xxxx

5. Identify each and every person who you ever authorized to use the credit account

6. Did you use the credit account?

7. Is $xxxx the amount set forth in the complaint as owed in December xxxx your balance due as of that date on the credit account?

8. If you do not agree that $xxxx is your balance due state all the facts upon which you base your denial.

9. Did you ever report to Synchrony or any collectiona gency that this credit card was lost or stolen?

10. Did you ever report in writing to synchrony that there was any problem with the account which remains unresolved?

11. Did you recieve periodic statements from synchrony regarding the credit account?

12. State the approx. date of your last payment to Synchonry Bank

13. Have you ever corresponed in writing with Synchrony?

14. Have you ever corresponded in writing with Portfolio regarding the credit account?

15. State all facts upon which you base your denial of the complaint in this action.

16. State all facts which you base each affirmative defense to the complaint in this action.

My answers to 1-16

Objection. Defendant has a pending Motion to Compel Arbitration as this court has no jurisdiction over this subject matter and Discovery is premature at this time and in the wrong venue.

Request for Admissions (wasnt sure if I should deny all of them - none of the questions were simple like my name or my current address)

1. John Doe had a credit account number xxxx

2. Credit account #xxxx was issued to John Doe by synchrony

3. John Doe receieved periodic statements regarding credit account number xxxx

4. as of or on about xxxx the balance owed by xxxx on credit account xxx was $xxxx

5. xxxx has not made any payments on credit account xxxx since xxxx

6. John Doe submitted a payment towards the outstanding debt on credit account xxxx within 4 years immediately prior to xxxx

7. Portfolio was assigned account number xxxx

8.Portfolio is the current owener of including right title and interest for account xxxx

9. john doe recieved through us mail pre-legal notification from Portfolio regarding account xxxx

My answers to 1-9

Cannot truthfully admit or deny the matters set forth in this request because he does not have knowledge of these matters, and despite reasonable inquiry into the matter by reviewing all of the records and information available to him, to obtain information from which the truth or falsity of the matter might be learned.

Demand for Docs

1. All correspondance sent by me to Portfolio within the past 5 years on account xxxx

2. All correspondance sent to me by Portfolio within the past 5 years regarding any problem with your former synchrony account xxxx

3. Copies of each cancelled check, money order, receipt abnk account debit and similar evidence of payment for the last payment made by you or on your behal on account xxxxx

4. Any and all docs supporting the affirmative defenses alleged by you in this action

5. Any and all docs supporting any and all of your general denials of Portfolios allegations in this action.

My answers to 1-5

Objection. Defendant has a pending Motion to Compel Arbitration as this court has no jurisdiction over this subject matter and Discovery is premature at this time and in the wrong venue.

Tiglit18 · March 15, 2018

Got a call from the attorneys - they asked if I would be interested in a mutual walk away. I told them to write everything up and email it to me for review. Things are looking hopeful but I am holding my breath until I get their intent in writing

Im still looking for someone to look over my answers for Int/RFA/RFP. I don’t trust I’ll have a walk away agreement before these are due back to the lawfirm and want to finish them soon. @fisthardcheese @calawyer @sadinca @Anon Amos

sadinca · March 15, 2018

i know very little to nothing about arbitration, i am guessing that even tho you are objecting to their discovery questions based on your motion to compel arbitration, your answers still must contain verbiage to comply with CCP. @RyanEX?

you mentioned you received 11 months worth of statements as answer to your BOP demand. where there any objections included in their response?

Tiglit18 · March 16, 2018

22 hours ago, sadinca said:

i know very little to nothing about arbitration, i am guessing that even tho you are objecting to their discovery questions based on your motion to compel arbitration, your answers still must contain verbiage to comply with CCP. @RyanEX?

you mentioned you received 11 months worth of statements as answer to your BOP demand. where there any objections included in their response?

Hi - thank you for chiming in. Every bit of info helps along with different takes on issues.

What you are saying makes complete sense.

The BOP only objected providing particulars for the account stated charge. Then it proceeded to say all it had available at the time of the request was statements but that they reserved the right to amend their response once more investigating has occurred.

sadinca · March 16, 2018

did they mention Ahlin V Crescent Corporation and/or Distefano v Hall? did they assert any attorney client privilege? attorney work product doctrine?

Tiglit18 · March 16, 2018

20 minutes ago, sadinca said:

did they mention Ahlin V Crescent Corporation and/or Distefano v Hall? did they assert any attorney client privilege? attorney work product doctrine?

I don’t have it in front of me but they did assert attorney/client privilege and some statements of confidentiality. Not sure if case law was cited as well though.

sadinca · March 16, 2018

When answering discovery pay special attention to the definition section. make sure all the CAPITAL and bold word are defined.

i have seen a couple of cases when JDB did not defined one ALL CAP word which they used throughout the interrogatories, making it much easier to object. also, on another case jdb defined "ACCOUNT" with a completely different number jdb was actually suing for, also making it easy to object. those cases are rare but sometimes worth the time.

sadinca · March 16, 2018

Interrogatories

1. Did you ever submit a request for a credit account to Synchrony Bank?

Defendant objects on the ground that this Request is overbroad and would seek documents relation to accounts not at issue in this litigation.

Defendant further objects on the ground that this request is vague in that the identity of the “account” actually at issue in this litigation remains unclear. For that reason, defendant has asked plaintiff to respond to a Bill of Particulars setting forth the alleged “credit card agreement” referred to in the complaint, all the charges that were allegedly made pursuant to that “agreement”, all credits that were made to the “account”, the price or charge for each item, materials or good supplied or other considerations rendered, and all payments or credits that have been made to the account. Plaintiff objected and has not provided the complete “account.”

Without such information, Defendant states that after a reasonable inquiry, the information known or readily available by him/her is insufficient to accurately respond to this Request. based on the forgoing Defendant responds as follows: Denied.

Defendant reserves the right to amend or supplement his/her answers to this request after plaintiff complies in full with the Bill of Particulars.

2. Did Synchrony Bank issue a credit account number xxxxx in your name?

Defendant objects on the ground that this request is vague in that the identity of the “account” actually at issue in this litigation remains unclear. For that reason, defendant has asked plaintiff to respond to a Bill of Particulars setting forth the alleged “credit card agreement” referred to in the complaint, all the charges that were allegedly made pursuant to that “agreement”, all credits that were made to the “account”, the price or charge for each item, materials or good supplied or other considerations rendered, and all payments or credits that have been made to the account. Plaintiff objected and has not provided the complete “account.”