Barbara Jean

Urgent help needed---being sued by Portfolio Recovery Associates...

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I have a very old debt to Shell Oil Company.  I tried to settle with them and work out a payment arrangement but they would not hear anything about it.  Wanted all or nothing.  Since I could not give them all, they cancelled my card and then they went away.  Fast forward to last month.  Apparently, PRA bought my debt.  They have harassed me with call after call.  I pick up and then they hang up. Received absolutely NOTHING in the mail.  Unitl...I received a summons for a suit against me by Portfolio Recovery Associates that was served by the local sheriff.  

I have a court date coming up in a little less than two weeks.  I want to know how I can resolve this.  I want to be prepared. If this had gone one just two more months, (June, 2018) I would be out of the statute of limitations.  Alas, I am not. Or am I? How do I know?

So, what do I do?  Any and all help would be so appreciated. The debt is approximately $1450. 

Thanks, 

Barbara

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How do I calculate the age of the debt? This sounds sort of ridiculous I know but the Creditor keeps changing the date of the debt. The Creditor, not being Shell Oil (who I originally had the debt with) but being PRA.  PRA bought it about 3 to 4 months ago.  Do you mean the last time I charged on the account? The last time I paid on the account? The last time that I offered to pay on the account ? Or what PRA says is the date, which they keep on updating and changing. Very frustrating. I keep moving the goalposts. They are all different dates. PRA being Portfolio Recovery Associates. 

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According to what PRA sent me, and I do not have documents from Shell but have requested them and they have not been sent yet, the last time I paid was May 5th 2015 at 12 a.m. . That sounds kind of weird but okay. Last purchase date was 6/24/13 which sounds right. I don't know how I can verify the last payment date. Last cash advance date was August of 08.  It says on their documents that sale amount 1455. 82,  precharge-off interest $204.04, pre-charge-off fees $244.75. Charge off balance $1455.82. This is what they are suing me for. Account was opened 6/83. They show the default date of 4/2015,  charge off date 10/2015.  They have sent me a lot of information. It's funny that I didn't get anything when I requested it but suddenly now that they're are suing me and I have answered this suit with denial, they are now sending me reams and reams of paper. I don't know what to make of it I feel like I am a fairly intelligent person but a lot of this I think it is just nonsense meant to confuse. But, I don't know. I'm petrified I'm going to make a mistake that's going to cost me.

But I find really odd and I think concerning is in their exhibit one, exhibit two documents they send me copies of my account statements that are dated October 2015,  July 2015, May 2015, March 2015, February 2015, January 2015, December 2014, November 2014 and that is all. There is nothing other than that but I know I received statements before and after that.

Insofar as what I offered and what they took, they wanted me to pay the entire balance up front. I had been furloughed at the time, my husband was on reduced work hours as well, and I told them that I would not be able to pay that full amount. I offered to pay them a portion of it immediately but they refused to take that. I believe I offered them approximately $150 at the time. And I asked them so what happens now and they said that they would just cancel my account and that would be it. I did try to work with them but they refused to work with me.

I do have questions about letters that they're sending me that say that the correspondence shall provide notice pursuant to ocga 24 - 8 - 80036 23 of plain its intent to introduce regular held business records as admissible evidence using affidavit testimony complying with ocga 24 - 9 - 902 2013. Plain it will make its affidavit and business records available for inspection prior to trial which provides you reasonable opportunity to review and oppose the admission of said evidence lastly plaintiff asserts here in that regularly held business records with the affidavit testimony and by themselves by a preponderance of evidence prove the admissibility of said evidence pursuant to ocga 24 - 1 - 104. They also provide all sorts of affidavits of some gentlemen in Virginia basically providing affidavits that he bought the papers from pra and as such they're legal. I do remember in reading through other peoples information regarding pra that they do this sort of thing. Essentially, they testify that what they provide is correct but don't provide any evidence. Is that what they are doing here also I have a document here that was provided which does allow me arbitration. I need to know how to take advantage of this. Is it too late? How do I go about doing this? Is there a document or model document that I could use to bring into the Magistrate's court?

A lot of questions I realize. Will try to upload photographs of arbitration agreement but it seems to fall in line with what others have said on this site. What I really need to know is what do I need to do next. I am resigning myself that I have to pay this full amount plus court fees but I sure hope I don't. I don't think these people are playing Fair

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Forget about fighting this in court.  They have already provided you everything they will need to win.  At this point, your only sure shot (or reasonably so) is going to be to force them into arbitration where they will dismiss because going to arbitration will cost them 4 times the amount they are suing you for.

So it seems Citibank is who backed the Shell card.  Is that correct? The problem is that Citibank has a "small claims" exemption in their arbitration clauses which says that a claim brought in a "small claims" court is not subject to arbitration.  I know the GA Magistrate Court is the lowest civil court there, and is considered a small claims court.  The problem for Citi is that they do not define "small claims".  Some agreements say something like "or your jurisdictions equivalent court", but the Citi agreement is missing this language.  I would file a motion to compel private contractual arbitration (look in the arbitration forum for more info).  You can expect PRA to argue the case is not subject to arbitration due to the "small claims" exemption.  I would counter with an argument that the court you were sued in is not called "small claims" and because "small claims" is not defined anywhere in the agreement, it's an ambiguous term.  As a general rule, ambiguity should be ruled against the drafer of the agreement (OCGA §13-2-2(5)), and for that reason, the court should reject PRAs objection and should therefore grant your Motion to Compel.  The problem for you then becomes that OCGA §13-2-2(2) says that "Words generally bear their usual and common signification". PRA will argue that "small claims" commonly means the lowest court, which is where you were sued.  You can try to head this argument off at the pass by demonstrating that "small claims" has different meanings in different jurisdictions.  Since there are 50 states to go through, that can be your homework.

If your MTC is successful, PRA will dismiss their lawsuit pretty shortly thereafter.  You might have to pay to get the arbitration case started, but it won't be more than $200 or $250.  Some people have reported that the arbitration companies don't accept the consumer payments until the JDB pays their portion first, so it's entirely possible you won't have to pay anything.

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2 hours ago, Barbara Jean said:

I do have questions about letters that they're sending me that say that the correspondence shall provide notice pursuant to ocga 24 - 8 - 80036 23 of plain its intent to introduce regular held business records as admissible evidence using affidavit testimony complying with ocga 24 - 9 - 902 2013. Plain it will make its affidavit and business records available for inspection prior to trial which provides you reasonable opportunity to review and oppose the admission of said evidence lastly plaintiff asserts here in that regularly held business records with the affidavit testimony and by themselves by a preponderance of evidence prove the admissibility of said evidence pursuant to ocga 24 - 1 - 104. They also provide all sorts of affidavits of some gentlemen in Virginia basically providing affidavits that he bought the papers from pra and as such they're legal. I do remember in reading through other peoples information regarding pra that they do this sort of thing.

They HAVE to do this if they wish to use the affidavits under the GA business records laws in court instead of a live witness.  Because Magistrate Court does not allow discovery they have to disclose this to you and provide ample time and convenient place to examine all the documents.  If they do not you can challenge them in court.  

2 hours ago, Barbara Jean said:

Will try to upload photographs of arbitration agreement but it seems to fall in line with what others have said on this site. What I really need to know is what do I need to do next. I am resigning myself that I have to pay this full amount plus court fees but I sure hope I don't. I don't think these people are playing Fair

Fair has nothing to do with this.  This is business and this is the legal system.  They are following GA law and the rules of the court.

You need to look up a MTC arbitration on this site and make one for the GA courts and 2 copies.  Have it with you the day of court.  If you need a little more time you can request one continuance and it should be granted which would get you another 30 days or so.  DO NOT file the MTC as @Harry Seaward said.  Magistrate does not do separate hearings and does not allow filing the motion in advance.  Waste of time.  Basically the Magistrate will send you and the attorney to the hallway to work out a settlement on the day of trial.  If you stand FIRM and do not fall for any of their arguments designed to get you to cave in and insist on arbitration one of 2 things will happen.  First the attorney (depending on the law firm) may just drop it.  Or, you have to go back to the Magistrate then and there and he/she decides if the motion is granted.  THIS is where you need to argue your position effectively the most.  If the law firm is arguing that the small claims court case is carved out that is where you raise the ambiguity issue.  

I can tell you that if the law firm involved in this is Cooling and Winter they will argue vigorously and you need to be prepared.  They have been defeated quite a few times and a MTC was granted thanks to this forum.  

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I'm a little confused here and need your clarification please. Do I or do I not file a motion to compel. How do I do that. Do I do that before the court date? Do I write it on a sheet of paper and hand it to the judge on the date of court? What sort of questions will the judge ask me and how do I answer them? I'm s complete neophyte here. The more I'm reading, the more confused I'm getting. I guess I just need a step-by-step. I've looked on this site and I see things that are sort of similar but not quite my situation. What do I say to not cave?

Yes Cooling and Winter is the law firm. I can stand very firm I just need to know what are the sorts of questions that they will ask me and how do I respond?

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In a situation such as mine, what does one say to argue ones case in a compelling way? So I stand firm in the hallway with the attorney I tell him I'm not budging I want to arbitrate. We go back into the courtroom and then what? What does the judge typically say and how would I answer him or her? And yes it is Cooling and winter.

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Barbara Jean, I am likewise confused.  The very first thing you should have done was to find Georgia's court site and read the court rules for filing and answering debt collection lawsuits.  EVERYTHING is on the internet these days.  You don't have to be lost.  You're talking about showing up at the court.  Is that the process in Georgia?  In my state, we have to ANSWER the complaint, not just show up in court.  Did you read all the information on the complaint?  It should tell you how the process works.

Of course you are confused here because you know nothing about Course 101 and people here are telling you about Course 405.  For certain, you are not yet ready for filing motions to compel.  They are not that simple.

I encourage you to use Google to get educated.  Once you have some basic knowledge, you can ask more detailed questions.  Google is your encyclopedia of knowledge.  Use it.

You should know that Portfolio is a bunch of liars.  Hold them to proving their case.  They probably cannot prove they own the debt.

Good luck.

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21 minutes ago, Patz said:

They probably cannot prove they own the debt.

Sure they can. They buy debts and sue for them tens of thousands of times a month. They know what they are doing by now. This kind of misinformation gives people a false sense of confidence causing them to march into court and right of a cliff. 

23 hours ago, Barbara Jean said:

Do I or do I not file a motion to compel.

You do, but it seems that in your court you can only do it on the day of trial.

You do however need to find out if you are supposed to file an answer before your court date. Most jurisdictions require this, but then again most jurisdictions also allow you to file motions before your court date. 

23 hours ago, Barbara Jean said:

Where does one find a motion to compel document that would be appropriate to submit in a Georgia magistrates court?

Look in the arbitration forum. If there isn't one there, create a post and ask. 

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24 minutes ago, Harry Seaward said:

Sure they can. They buy debts and sue for them tens of thousands of times a month. They know what they are doing by now. This kind of misinformation gives people a false sense of confidence causing them to march into court and right of a cliff. 

Seaward, I have fought my way through 8 different debt lawsuits.  4 could not prove they owned the debt.  I am not talking pie in the sky.  One of them was PRA.  Many judges do not buy the blacked out spreadsheets and purchase agreements that do not reflect the debtor's account.  But whatever the case, everyone should be aware that these junk debt buyers must prove they own the debt and to assume they can is a mistake.  It is NOT a false sense of confidence.  It is something EVERY debtor should be aware of.  There are still sloppy JDBs. 

For that matter, someone could read anything here and get a false sense of confidence if they don't do their homework.  This forum or any forum must not be the be-all end-all for anyone seeking information.  It is but one source.  No one should visit here and think ANY information is the gospel.  THAT would be the false sense of confidence.

 

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1 hour ago, Patz said:

Many judges do not buy the blacked out spreadsheets and purchase agreements that do not reflect the debtor's account. 

Most do and by that time arbitration, which has shown thus far to be a sure win against JDBs, is off the table.

Congrats on your wins, but please don't portray them as the norm. They aren't. 

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2 hours ago, Patz said:

You're talking about showing up at the court.  Is that the process in Georgia?

It is and if you have never been to court in GA you should really not be giving specific advice on filing motions and answers because so far everything you have said is spot on wrong for the GA Magistrate Courts.

9 hours ago, Barbara Jean said:

Where can I find an uploadable motion to compel for arbitration for the state of Georgia?

There isn't one.  You can use the court's pre-printed form to ANSWER the suit which you need to do within the time frame allowed by the court.  You will need to search on this forum for a MTC arbitration and format it for the specifics of your suit and GA.  Have 3 copies with you on the date of trial.

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20 hours ago, Clydesmom said:
 

It is and if you have never been to court in GA you should really not be giving specific advice on filing motions and answers because so far everything you have said is spot on wrong for the GA Magistrate Courts.

HUH?  Where did I give "specific advice" about Georgia?   I ASKED A FREAKIN QUESTION.  You even repeated my QUESTION.

If your purpose wasn't to be intentionally mean and snotty, you would have SEEN the question?    This is the mean forum.   Jeez.

HUH?

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21 hours ago, Harry Seaward said:

Most do and by that time arbitration, which has shown thus far to be a sure win against JDBs, is off the table.

Congrats on your wins, but please don't portray them as the norm. They aren't. 

 

Please don't add words to what I said.  I never said anything about "the norm" and didn't portray it that way.  I merely made a statement about my experience.  And yes, arbitration is a great option.  I had a nice win with arbitration.  

Tough forum.  Everybody on the attack.

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18 hours ago, Patz said:

I merely made a statement about my experience.

You made the statement in defense of me telling you to not tell people that JDBs can't prove their cases. In context, you certainly did try to portray your experience as relevant. Otherwise, why mention it? 

18 hours ago, Patz said:

Everybody on the attack.

Pot, meet kettle. 

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