Here We Go Again, PRA this time

[CandyCLC]

It's been a while! I knew this was coming, funny it happens two days after I got a job that doesn't start for another couple weeks. I will list the particulars, followed by my questions in another post:

1. Who is the named plaintiff in the suit? Portfolio Recovery Associates

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) No firm listed but 3 lawyers names, with the same address as PRA in Virginia (I am in MI)

3. How much are you being sued for? $2,775

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

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

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

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

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? Michigan, Eaton County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 11/2016

11. When did you open the account (looking to establish what card agreement may be applicable)? 10/2016

12. What is the SOL on the debt? To find out: 4 years I think

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). I was served, that's as far as it has gone

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 disputing after being sued 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? 21 days ( I have until august 8th

They are claiming I owe them. original credit line was 2100. They tacked on several hundred in fees. Once again they didn't use the words "breach of contract" or anything in the summons.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They attached exhibit A, which is a supposed affidavit from someone claiming to have personal knowledge. Nothing else.

 

 

[BV80]

@CandyCLC

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

[CandyCLC]

Okay so here we go. Different lawsuit, different laywers, larger amount. I already know that I am going to elect arbitration like I did last time but I have to have a different strategy because the amount is higher and they most likely won't settle for just $200. This means that instead of when the lawyer tries to make an offer, I have to say no and proceed. I already know exactly what to do and what to file but here are my questions.

1. They are suing me from out of state? When I sued by LVNV, they hired a local firm. There's nothing in Michigan listed anywhere. I assume they will rent a lawyer to show up for the pre-trial hearing, correct?

2. Affidavit from "witness". I have learned enough here to know that this one won't stand up (hearsay), and I can call this witness to testify later on, I can do that in the arbitration, correct?

3. This is more for me, but my new job is absolutely not going to let me have a single day off in the probation period, and most of my court times have been quite early, but what if something happens and I am stuck waiting? My courthouse is an hour drive from my new job. My work starts at 4pm. I wasn't working the last time I was sued and I want to make sure I can keep the new job!

[CandyCLC]

3 minutes ago, BV80 said:

@CandyCLC

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

Yes, I definitely knew right away I would be going Arb, I am quite comfortable with the steps for that now. Nobody likes to get sued but having been down this road, man, I am in no way scared this time. I have pretty much done most of the work for myself already ?

[BackFromTheDebt]

WAIT A MINUTE.

 

I must be missing something.  In general, the law firm can NOT sue you unless they have attorneys who are members of your state bar.  

 

I once got a settlement from an out-of-state law firm just because they threatened to sue me, when they had no attorneys in my state.  

[CandyCLC]

15 minutes ago, BackFromTheDebt said:

WAIT A MINUTE.

 

I must be missing something.  In general, the law firm can NOT sue you unless they have attorneys who are members of your state bar.  

 

I once got a settlement from an out-of-state law firm just because they threatened to sue me, when they had no attorneys in my state.  

The summons has three lawyers listed under Plaintiff Attorney:

Kevin L. Hoist (P66274)
David M. Greenbaum (P64371)
Kristen L. Pepper (P66208)

All listed above an address that is the same as the PRA main address in Norfolk VA. No idea if this changes anything but I would have assumed a law firm in Michigan would have been the one suing me, since someone already obviously went and filed this at my court house complete with a stamp.. well a copy of it, the whole summons is a copy. My last case the summons was hard copy with actual pen and not a photocopy. That one wasn't stamped though. This one is, even though I can't read it.

[BV80]

5 minutes ago, CandyCLC said:

The summons has three lawyers listed under Plaintiff Attorney:

Kevin L. Hoist (P66274)
David M. Greenbaum (P64371)
Kristen L. Pepper (P66208)

All listed above an address that is the same as the PRA main address in Norfolk VA. No idea if this changes anything but I would have assumed a law firm in Michigan would have been the one suing me, since someone already obviously went and filed this at my court house complete with a stamp.. well a copy of it, the whole summons is a copy. My last case the summons was hard copy with actual pen and not a photocopy. That one wasn't stamped though. This one is, even though I can't read it.

Do a name search on the MI Bar Association website.  Greenbaum is licensed in MI. 

[CandyCLC]

7 minutes ago, BV80 said:

Do a name search on the MI Bar Association website.  Greenbaum is licensed in MI. 

According to my search, Hoist is the only one from Michigan, the other two are from Chicago and Norfolk but either way, None of them will probably show up. And on an unrelated note, what is it with these companies never attaching any proofs like agreements or statements?

[BV80]

2 minutes ago, CandyCLC said:

According to my search, Hoist is the only one from Michigan, the other two are from Chicago and Norfolk but either way, None of them will probably show up. And on an unrelated note, what is it with these companies never attaching any proofs like agreements or statements?

The MI Bar search shows Greenbaum. It says “Licensed in:  MI”.

https://www.zeekbeek.com/SBM/Search-Results#lname=Greenbaum&mtype=good&region=MI

[CandyCLC]

1 minute ago, BV80 said:

The MI Bar search shows Greenbaum.

https://www.zeekbeek.com/SBM/Search-Results#lname=Greenbaum&mtype=good&region=MI

I see that now I can't read, which is funny considering I just got glasses a week ago, ha! My eyes zeroed in on Norfolk.

[CandyCLC]

If I file a motion in lieu of an answer again, do I address the "witness" affidavit on there? What I mean is, if I were to answer normally I would immediately deny that whole thing because there was no proof attached of anything (like before) no bills of sale, no statements, nothing. I didn't have anything given to me with the summons last time so I have to go in and add something about this, I am assuming. Otherwise I am going to go the same route as last time and if it gets that far, get her on the witness list to testify.

Oddly enough I found a similar suit on here from last year, they didn't elect arb but the guy never came back and updated. Same lawyers and everything, @bmc100 even knew one of the lawyers personally.

[BV80]

7 minutes ago, CandyCLC said:

I see that now I can't read, which is funny considering I just got glasses a week ago, ha! My eyes zeroed in on Norfolk.

I need glasses to find my glasses. ?

[Clydesmom]

48 minutes ago, CandyCLC said:

According to my search, Hoist is the only one from Michigan, the other two are from Chicago and Norfolk but either way, None of them will probably show up. And on an unrelated note, what is it with these companies never attaching any proofs like agreements or statements?

Some states do not require it be attached to the complaint and the burden is on the defendant to get the documents they want/need in discovery.

They don't have to show up personally even if they filed the suit.  They can contract it out to a local yokel law firm and file a substitution of counsel and it would be legal.

[LaneBlane]

49 minutes ago, CandyCLC said:

If I file a motion in lieu of an answer again, do I address the "witness" affidavit on there? What I mean is, if I were to answer normally I would immediately deny that whole thing because there was no proof attached of anything (like before) no bills of sale, no statements, nothing. I didn't have anything given to me with the summons last time so I have to go in and add something about this, I am assuming. Otherwise I am going to go the same route as last time and if it gets that far, get her on the witness list to testify.

I was following a case out of Florida involving a different JDB/OC.  The defendant hired an attorney who filed a Motion for Summary Judgement.  Again, this is Florida.  The MSJ did not specifically mention the "ownership" documents that had been provided.  It simply argued the Plaintiff lacked standing because they failed to produce any admissible evidence to support their claim they were the assignee of the alleged debt.

I've left a few things out.  I thought the items below may be helpful to you in drafting something in lieu of an Answer to the Complaint.

1.  Plaintiff, __________________, as assignee of _____________________, filed a complaint seeking recovery from Defendant.

2. In its Complaint, Plaintiff sought to collect upon an allegedly past due consumer credit account.  Plaintiff has not alleged to be the originator of the account, but has claimed to be a successor in interest upon the account and claims to have the legal right to collect upon the account.

3. Plaintiff lacks standing to bring this action.

4. Plaintiff has failed to produce any admissible evidence to support that Plaintiff is the assignee of the alleged debt.

5. As there has been no evidence of assignment of the alleged debt, there is no genuine issue of material fact or law in dispute and Defendant is entitled to a summary judgment as a matter of law.

6. To survive a motion for summary judgment aimed at a lack of standing, the burden shifts to the plaintiff to produce admissible evidence that they have standing to bring their action.  [Florida case law cited.]

7. The mere allegation of Plaintiff in its complaint that it has standing to bring this matter, without admissible evidence is not sufficient to raise a genuine material issue and deny the entry of a summary judgment.  [Florida case law cited.]

 

[LaneBlane]

12 minutes ago, Clydesmom said:

Some states do not require it be attached to the complaint and the burden is on the defendant to get the documents they want/need in discovery.

If a company files a lawsuit because they claim they are the assignee, all states should require them to attach evidence of ownership.  Just my opinion.

[Clydesmom]

23 minutes ago, LaneBlane said:

If a company files a lawsuit because they claim they are the assignee, all states should require them to attach evidence of ownership.  Just my opinion.

Not going to happen.  Attaching the evidence to the complaint is too cumbersome and expensive.  The discovery process is designed to handle this but if you want to tilt at the national windmill on this by all means go ahead.

[LaneBlane]

Just now, Clydesmom said:

Not going to happen.  Attaching the evidence to the complaint is too cumbersome and expensive.  The discovery process is designed to handle this but if you want to tilt at the national windmill on this by all means go ahead. 

Looking back at my case, the JDB included their "ownership" documents when they sent me their discovery request.  At least I didn't have to make a discovery request of my own for these.

[CandyCLC]

52 minutes ago, LaneBlane said:

If a company files a lawsuit because they claim they are the assignee, all states should require them to attach evidence of ownership.  Just my opinion.

Would be nice, huh? They just want to get as much money as they can with as little effort as possible. Except OC's that sue directly, they throw money around more easily from what I have read here. The problem is that from all my research last time, telling them to "prove it" (in Michigan at least) isn't as successful as it used to be.

I think having this affidavit, hearsay or not, is basically them trying to skip the whole proof of claim. Even though all the paper states is that I had an account and when they acquired the debt, no actual proof. And nothing from the OC of course, which also means they probably don't have the original agreement with my signature either.

 

 

[CandyCLC]

1 hour ago, Clydesmom said:

Some states do not require it be attached to the complaint and the burden is on the defendant to get the documents they want/need in discovery.

I will definitely be asking in arbitration, should it go that far, which it might since it's over 2k they are after. Like last time, my first steps are going to be to file and be granted the motion first, then work on discovery and all that fun stuff later.

[LaneBlane]

15 minutes ago, CandyCLC said:

I think having this affidavit, hearsay or not, is basically them trying to skip the whole proof of claim. Even though all the paper states is that I had an account and when they acquired the debt, no actual proof. And nothing from the OC of course, which also means they probably don't have the original agreement with my signature either.

Unless a consumer knows what an affidavit must accomplish, they can be a little intimidating.  Although they look official, they often don't meet certain burdens to qualify as admissible evidence.

The JDB I'm dealing with sent chain of ownership docs (two previous owners) with no affidavits and the typical shortcomings.  I found a case in Florida involving the same JDB/OC that included the same "ownership" documents I had received.  The defendant's attorney filed a Motion for Summary Judgment which was granted by the judge at the MSJ hearing.  The JDB did not furnish any additional documents.  This case involved more than $50,000, so I would assume they would provide more documents if they had them.

Doesn't your case involve a credit card?  If so, would there be a signed cardholder agreement? 

[CandyCLC]

1 minute ago, LaneBlane said:

Unless a consumer knows what an affidavit must accomplish, they can be a little intimidating.  Although they look official, they often don't meet certain burdens to qualify as admissible evidence.

The JDB I'm dealing with sent chain of ownership docs (two previous owners) with no affidavits and the typical shortcomings.  I found a case in Florida involving the same JDB/OC that included the same "ownership" documents I had received.  The defendant's attorney filed a Motion for Summary Judgment which was granted by the judge at the MSJ hearing.  The JDB did not furnish any additional documents.  This case involved more than $50,000, so I would assume they would provide more documents if they had them.

Doesn't your case involve a credit card?  If so, would there be a signed cardholder agreement? 

Yes, it involves a cc in the form of a GAP Visa card. There isn't an ink signed one but they have that whole electronic signature thing they do now so I guess my answer would be yes, Synchrony would have had it, but the chances of them handing it to PRA when they sold the debt are slim to none most likely.

[LaneBlane]

10 hours ago, CandyCLC said:

Yes, it involves a cc in the form of a GAP Visa card. There isn't an ink signed one but they have that whole electronic signature thing they do now so I guess my answer would be yes, Synchrony would have had it, but the chances of them handing it to PRA when they sold the debt are slim to none most likely.

Does your cardmember agreement say you're accepting the terms of the agreement by using the card?  I've always believed this is how credit card agreements work.  They're rarely signed.

In my case, the contracts (loans, not credit cards) provided by the JDB aren't signed and say nothing about an electronic signature existing.

[Goody_Ouchless]

15 hours ago, CandyCLC said:

I am going to elect arbitration like I did last time but I have to have a different strategy because the amount is higher and they most likely won't settle for just $200.

You panicked last time and flushed $200. The goal with arbitration should always be settling for nothing. Get your motion granted and wait for them to fold. Synchrony card, if I'm not mistaken, says that they will initiate arb once an MTC is granted, so you don't have to do anything (like initiate with JAMS to show "good faith.") Get your MTC granted and wait. Don't over think this.

 

 

[Clydesmom]

13 hours ago, CandyCLC said:

And nothing from the OC of course, which also means they probably don't have the original agreement with my signature either.

We told you this LAST time there is NO original agreement with your signature in a credit card case and the court KNOWS IT.  Let it go already.

13 hours ago, CandyCLC said:

There isn't an ink signed one but they have that whole electronic signature thing they do now so I guess my answer would be yes

And your guess would be wrong.  Your electronic signature is on the APPLICATION not the card agreement.  They do not need the application to prove their case and quite frankly that is the last thing the consumer wants them to produce if it is their account:  proof they opened it.  

13 hours ago, CandyCLC said:

the chances of them handing it to PRA when they sold the debt are slim to none most likely.

In the electronic era that all changed.  In the paper era the documents were rarely transferred.  Now it is a hard drive of data and almost always goes with the sale.  

13 hours ago, CandyCLC said:

I will definitely be asking in arbitration

Get the MTC granted first.  Do NOT make plans based on one strategy alone.  If the MTC is denied you will have to litigate the case or settle.  

[Harry Seaward]

My opinion is to file an answer denying everything and asserting lack of subject matter jurisdiction due to the arbitration clause of the agreement, and then file a separate MTC. Most jurisdictions don't recognize a MTC as a proper substitute for an answer. Some here will say to file a combo MTD/MTC, but the problem with that is you can immediately appeal a denied MTC, but not so with a denied  MTD. If it's a combo MTD/MTC that's denied, confusion is immanent when it comes time for an appeal. If it's a standalone MTC that's denied, no confusion.