Sued by Portfolio - California

[slamber84 2]

Hi-

I've been following these forums since January 5th when I received my "threat of being sued" letter came in the mail from Winn Law Group.  After doing some online research, I realized who they were and that they were really and truly coming after me.  A summons was attempted to be served at my home on Friday, February 2 while I was at work (my husband told them I wasn't home).  At this point I've found my case on the San Diego Case Search website and am basically just waiting to be served by mail presumably. 

When I received the original letter from Winn on January 5 (dated 12/28), I mailed them a certified Debt Validation letter dated 1/22 and I received the certified receipt signature back dated 1/29.  Is it odd that the case that's listed online against me is dated 1/22, which did not even allow my 30 days to request debt validation or respond in any manner?  

Thanks for your help and I look forward to this forum as I continue my journey to fight this junk debt collector!!  I am very optimistic about this option! 

[slamber84 2]

My summons and complaint was served to my husband before I came home tonight. There are 2 credit card statements attached.  Not verified.

First cause of action: account stated

i plan to proceed with BOP and General Denial immediately.  Any other info on how to proceed would be wonderful!! I’m a nervous wreck! 

[RyanEX 879]

We understand your nervousness, because we've all been there. Don't worry, this is just the beginning and California has laws that are very good for consumers/defendants in these types of cases. You'll have time to learn and get comfortable.

Technically, a BOP is not appropriate for an Account Stated cause of action and they'll object to it, but you can send one it anyway because it'll make them work a little. When they do object, you can use that in some of your discovery responses a bit further down the line.

The General Denial is easy. However, once you file it, it gets the ball rolling in your case (your first conference at the courthouse will be scheduled shortly thereafter, etc). My advice: take your time, use these 30 days (until your answer is due) to read up, educate yourself, ask questions, etc. Then file your General Denial a little closer to the deadline. You can also take that time to explore some different options.

Have you read this thread? It's got a great explanation of how these cases work: https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

Also, go to this thread and copy/paste the questions (with your answers) back in this thread. It'll help us out. ou can make some of the answers (dollar amounts, etc) a little vague since we sometimes have "prying eyes" checking out the forum. https://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

Welcome to the board!

[slamber84 2]

Thanks @RyanEX!   Nice to have an ally in the fight!  I have read through the majority of those threads in anticipation of the lawsuit and because I’m kind of freaked out. In the interest of time and stress, I was almost considering calling and settling to protect our families home and income! 😩

I will attempt to paste answers for additional help! 

[slamber84 2]

 

Who is the named plaintiff in the suit?

Portfolio recovery

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

Portfolio Recovery Associates

3. How much are you being sued for?

$3,750

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

Citi

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

served to husband at home 2/8

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

in person

7. Was the service legal as required by your state?

yes

Process Service Requirements by State - Summons Complaint

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

None 

9. What state and county do you live in?

San Diego, CA

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

May 2015 according to statements attached to complaint

11. When did you open the account (looking to establish what card agreement may be applicable)?

1/13 according to complaint

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

4 yrs

Statute of Limitations on Debts

13. 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).

summons and complaint

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

No

16. 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 

account stated 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

one monthly statement and final monthly statement with OC

18. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

[RyanEX 879]

By the way, since your husband was served instead you personally, that counts as substitute service. Keep an eye on your online case file and (hopefully) when it's updated it should say so. Substitute service gives you a longer period to file your answer.

In the meantime there's a good chance Portfolio/Winn will try to contact you, likely by phone, to inform you they've filed suit and to offer a settlement. They assume you have no idea how to fight & will tell you that they will win unless you settle. You can listen to them if they have an offer, but don't tell them anything. They are always looking to get you to say something that will hurt you. Their best offer isn't going to come anytime soon anyway, not til the date of your trial is close.

[slamber84 2]

I never answer the phone anyway so I’m not worried about incriminating myself.  I’ve become pretty good at screening those calls.  So I’ll just file general denial in a couple of weeks.  I’ll draft a BOP to send out and waste some attorney time and just ride it out for a bit. Praying this is the only lawsuit for now. I actually have 2 accounts with Portfolio and 1 with Midland at this point. Ugh. Hard lessons learned in adulting!  I will never let credit get this out of hand again. So not worth it! 

 

I found this and thought it might be handy for verbiage on the defenses that applied to me:

[slamber84 2]

http://www.courts.ca.gov/partners/documents/2011SRL5eADContract.pdf

[slamber84 2]

I'm working on my Bill of Particulars (one that @sandica shared in another thread I'm following).  I have a few sections that I need help with:

Where it says "name" above defendant, do I need to include the verbiage from the complaint "and DOES 1 to 25"?  What exactly does that mean anyway??  

PORTFOLIO RECOVERY ASSOCIATES,

LLC

                           Plaintiff.

vs.

NAME

                           Defendant.

Do I need to include anything where it says "Court Name" below?  Or is the latter sufficient? 
 

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

THE COUNTY OF SAN DIEGO

COURT NAME

[sadinca 768]

On 2/15/2018 at 9:55 AM, slamber84 said:

Where it says "name" above defendant, do I need to include the verbiage from the complaint "and DOES 1 to 25"?  What exactly does that mean anyway??  

no, just your name. 

"Does 1 to 25" is just as place holders in the case after the filing of the complaint plaintiff finds out there are other defendants aside from your e.g. husband, wife, co-signer. 

[sadinca 768]

sorry, i missed this earlier: f you need help tag, quote or DM so i get notifications. 

[slamber84 2]

On 3/2/2018 at 9:22 AM, sadinca said:

sorry, i missed this earlier: f you need help tag, quote or DM so i get notifications. 

So I filed my general denial on March 2nd. I served Plantiff the week prior.  I received some crap that appears to be in response to the original debt validation I sent to Winn because the BOP and General Denial I sent was addressed to the Plantiff Portfolio.  That part is confusing to me but I’m just serving to the address provided on the complaint from this point on.  I don’t see winns name on anything besides the threat to sure letter I received right before being served the complain. 

Should I address the debt validation package that Winn sent or hold off and see if I receive an objection from Portfolio due to the Account Stated cause of action?!  The debt validation was 4 statements, and affidavit that’s supposedly signed by a Citibank account rep, a bill of sale with one signature and no account info, 2 Exhibits , one with a table of account info and my name and address and the other a table with some purchase info on the group of accounts sold to Portfolio.  The dates of last payment in their documents is a year off from what I see on the statements also...are they that dumb?! 

 

I guess im wondering what my next steps should be?! Wait for BOP response?  If it doesn’t arrive within 30 days file a Meet & Confer?  I felt good about the first 2 items I filed but now I’m sort of lost as to what my next steps should be. 

 

[1stStep 242]

Did they only sue on Account Stated?

[slamber84 2]

2 hours ago, 1stStep said:

Did they only sue on Account Stated?

Yes

[1stStep 242]

Wow -  ususally JDBs sue on Account stated, open book account, money lent and received and/or breach of contract. 

[slamber84 2]

50 minutes ago, 1stStep said:

Wow -  ususally JDBs sue on Account stated, open book account, money lent and received and/or breach of contract. 

Is that better or worse for me?!

[1stStep 242]

Better - you'd be able to use a BOP...

[small-town-girl 5]

I’m sorry, I am new to this also and just trying to learn the abbreviations of everything.  Does BOP stand for Balance Of Payments?  And when do you request that?  As part of discovery phase?

[sadinca 768]

BOP refers to Bill of Particulars. California Civil Procedure §454. it is defendant demand for plaintiff to itemize in detail the items that make up the account. 

http://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-454.html

Bill of Particulars request.doc

 

[sadinca 768]

When serving a BOP demand on an Account Stated cause of action most likely you will receive an objection stating that defendant is not entitled to a Bill of Particulars since it is not necessary to prove the items of the account on which the account stated is based. they will also cite Ahlin v Crescent and Distefano v Hall. 

this is because an Account Stated cause of action is based on the final statement. allegedly, that final statement, with the final amount due was sent to your mailing address and failed to object to the balance for a reasonable length of time making the balance due and owing from one party to another. This becomes a new contract. one not based on the original items but upon the final balance "agreed to" by the parties. 

[sadinca 768]

On 3/16/2018 at 10:18 PM, slamber84 said:

So I filed my general denial on March 2nd. I served Plantiff the week prior.  I received some crap that appears to be in response to the original debt validation I sent to Winn because the BOP and General Denial I sent was addressed to the Plantiff Portfolio.  That part is confusing to me but I’m just serving to the address provided on the complaint from this point on.  I don’t see winns name on anything besides the threat to sure letter I received right before being served the complain. 

Should I address the debt validation package that Winn sent or hold off and see if I receive an objection from Portfolio due to the Account Stated cause of action?!  The debt validation was 4 statements, and affidavit that’s supposedly signed by a Citibank account rep, a bill of sale with one signature and no account info, 2 Exhibits , one with a table of account info and my name and address and the other a table with some purchase info on the group of accounts sold to Portfolio.  The dates of last payment in their documents is a year off from what I see on the statements also...are they that dumb?! 

 

I guess im wondering what my next steps should be?! Wait for BOP response?  If it doesn’t arrive within 30 days file a Meet & Confer?  I felt good about the first 2 items I filed but now I’m sort of lost as to what my next steps should be. 

 

who is the lawfirm handling the case? is Winn Law representing Porfolio? 

[slamber84 2]

2 hours ago, sadinca said:

who is the lawfirm handling the case? is Winn Law representing Porfolio? 

At further look, I have a letter from Winn regarding a different account.  This lawsuit appears to be represented by Portfolio, Portfolio is also plaintiff. 

[slamber84 2]

2 hours ago, sadinca said:

who is the lawfirm handling the case? is Winn Law representing Porfolio? 

Disregard all discussion of Winn and debt validation.  This was for a separate account through Cavalry.  General Denial and BOP went to Portfolio.  How long would it generally take for them to respond or what should I do next?  BOP was mailed 2/17/18 with no response.  General Denial was served via mail certified return receipt and received on 2/28/18 and also filed in court on 3/2/18.  I don't have a court date nor have I received anything in response to BOP or General Denial.  Should I send a Meet & Confer? 

[sadinca 768]

if you count that CCP454 allows plaintiff to respond to BOP within 10 days after receiving the demand, allow 5 days for delivery from mailing date, and 5 days for their response to arrive to you from mailing date. 5+10+5=20. has it been more than 20 days from the day you mailed your demand?

 

[slamber84 2]

4 minutes ago, sadinca said:

if you count that CCP454 allows plaintiff to respond to BOP within 10 days after receiving the demand, allow 5 days for delivery from mailing date, and 5 days for their response to arrive to you from mailing date. 5+10+5=20. has it been more than 20 days from the day you mailed your demand?

 

It was mailed 2/17 but I did not send the Demand certified. What’s next?