FLnative

Florida - Sued by PRA - All help appreciated

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

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Pollack & Rosen, Joseph F. Rosen

3. How much are you being sued for? $2700-3500

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) Papers handed to my adult son at my residence

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? Florida, Duval

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) March 2017

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

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

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 B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Served

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? Must respond no later than 5 days before court date. Claim is Account stated. I don't believe I have a questionnaire.

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 statement from Synchrony

Edited by FLnative
OP redacted

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Unless your court rules specifically say a MTC is a proper surrogate for an answer, I would file an answer and separate MTC. Too many people have gotten burned recently trying to be 'cute' by filling a motion to dismiss or MTC instead of an answer. 

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@Harry Seaward I've read a lot of threads here and I see where some people answer a set of questions, starting with their name and address. They either admit or deny points. I don't have any questions to answer in my paperwork, so I don't know if this is how it's typically done in Florida. Basically, what am I answering directly if there are no questions?

I'm currently looking at this document https://www.floridabar.org/wp-content/uploads/2017/04/small-claims.pdf  -- I just don't see anything in regards to how to answer a claim.

 

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Did you get anything that meets these parameters? 

"(1) Statement of Claim. Actions are commenced by the filing of a 
statement of claim in concise form, which shall inform the defendant of the basis 
and the amount of the claim. If the claim is based on a written document, a copy or 
the material part thereof shall be attached to the statement of claim. All documents 
served upon the defendant with initial process shall be filed with the court."

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If you mean one statement from the OC with my name and address on it, then that's what's included in the papers. And under the Statement of Claim, they state the basis and amount of the claim.

 

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Ok, so the statement of claim is what you respond to. Admit your name and address, and deny everything else. Assert a "subject matter jurisdiction" affirmative defense on the grounds that the matter is subject to private contractual arbitration. Then make a separate filing for your motion to compel arbitration.

I would use AAA over jams. Aaa's filing fees are a little cheaper and they have a rule that says synchrony's arbitration fees cannot be reallocated to you at the conclusion of arbitration.

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Thanks, Harry. Sorry for all these questions, but like I said, this is my first time being sued. I found this to help me file an answer: https://www.floridalawhelp.org/node/325/filing-your-answer-complaint

But again, if anyone familiar with Florida law could chime in on either (a) filing an answer and MTC or (b) only file MTC, that would be great. I know I read that Florida law is tricky that way and I don't want to do anything that would waive my right to arb.

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As far as I know (and I don't), in Florida you can answer but must raise arbitration in your ANSWER or it could be deemed waived.  To avoid any potential issue with that, some past cases here from Florida have just filed an MTC in place of an answer, but I do not believe an answer is wrong so long as you mention arbitration in your affirmative defense section of your answer.

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Thanks to @Harry Seaward and @fisthardcheese and also @LawKitty (who I exchanged a few PMs with) for getting me this far. I filed my answer and MTC with the court today.

My big concern right now is arguments I can make for PRA's "account stated" claim. Since I never disputed this debt, I'm very worried that my MTC would be denied based on that. 

I've read a few threads here, specifically in Florida, about account stated, but so far, I can't find a winning argument in case their attorney argues that. Any suggestions?

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2 hours ago, FLnative said:

Since I never disputed this debt, I'm very worried that my MTC would be denied based on that. 

Disputing the debt before getting sued has nothing to do with getting into arbitration. If you denied owing the debt in the answer, that's good enough to create a dispute to be heard in arbitration. 

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1 minute ago, Harry Seaward said:

Disputing the debt before getting sued has nothing to do with getting into arbitration. If you denied owing the debt in the answer, that's good enough to create a dispute to be heard in arbitration. 

Thanks again, Harry. At this point, I can only wait and see what happens until my mediation date. 

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The "account stated" issue in other threads here were erroneous rulings by judges in those cases.  If the same happens to you, I would file an interlocutory appeal right away.  But before it gets to that point, you will be allowed to file a counter to any opposition they make against your MTC and you can make good arguments in your counter one you know if/when/what arguments they may raise against the MTC.  If you look at your agreement, it clearly states that regardless of what type of claim or tort, arbitration is valid.  Therefore, there is no account stated waiver to arbitration.

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Hi all,

Just wanted to thank everyone again for all of your help. I have court later today and am nervous. I'm as prepared as I can be, I think. I have all my papers, arguments ready, etc. There's no way I could have done this much without this forum.

PRA's attorney called me the day after I filed my answer and MTC. I didn't answer because (1) I wasn't expecting them to call and (2) since I wasn't expecting a call, I didn't want to say the wrong thing. They didn't leave a message, so I have no idea what that was about.

I've been checking the court docket regularly and nothing's been done since I filed my answer. So today will either be good or awful. I'll update later on.

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UPDATE: (I'm providing more info than what's probably necessary as a way to help anyone else in this situation know what to expect, for the most part. I've read a lot of threads here and many of them just end, so I don't know if the OP "won" or lost.)

I went to a Legal Aid pre-pre-trial session, where an attorney tells people what to expect and takes questions. Because we were in there until the start of court, no lawyer approached me beforehand or anything. As soon as we left that room to go into the other one, most everyone else was there and waiting. At least a dozen attorneys for different cases and quite a few defendants but as names were called, there were a lot of no-shows.

PRA's lawyer, unfortunately, showed up, but I guess he figured he should because there were 10-12 names they called for him, and only 2-3 of us were there. He looked kind of rent a lawyer and was "nice," I guess, but he didn't try and make conversation and neither did I. I had to go up to one clerk and admit or deny; I denied. (People who admitted went into another room.) Then lawyer & me go in front of judge and she asked if I was disputing some or all of the debt. I just said I had filed an MTC for arb and was waiting to see if it would be granted. She noted that and lawyer & me go to the clerk to set a hearing date for the motion. While we're standing there, he asked if I'd filed the MTC already. I said yes and that his office received a copy because I sent it CMRRR and I got my green card back a while ago. He acts like they never got anything. 🙄

Hearing date is in October. I called the judge's office later on because nothing new is on the docket and she said PRA has 20 days from the time I filed my answer (it's been 14 days now) to oppose or whatever. So now I wait and keep researching to make sure my arguments are solid.

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You did everything exactly right. PRA will probably file an objection to the MTC and we will help you with a response at that time. 

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Question: The plaintiff's attorney filed a motion requesting they appear by telephone for our next hearing date. In the motion, they included a Certificate of Service saying that a true and correct copy was provided to me at my address. They filed this on 9/12 and I still haven't received a copy of it. Doesn't this mean I was supposed to get a copy of this motion? If so, and I don't ever get anything before the hearing, is there anything I can say about that? 

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6 hours ago, FLnative said:

Doesn't this mean I was supposed to get a copy of this motion?

Yes. 

6 hours ago, FLnative said:

If so, and I don't ever get anything before the hearing, is there anything I can say about that? 

You have to argue their failure to send it prejudiced you in some way. Since you're aware of it now, you can't use 'surprise' as your prejudicial reason.

Unless this is for a hearing on the merits of the case, there's really no prejudice by them appearing telephonicaly.

You can ask the court to admonish opposing counsel for not sending you copies of everything, but they'll insist they sent it, you can't prove they didn't and you'll end up looking like a whiner when you weren't harmed anyway.  

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57 minutes ago, Harry Seaward said:

Yes. 

You have to argue their failure to send it prejudiced you in some way. Since you're aware of it now, you can't use 'surprise' as your prejudicial reason.

Unless this is for a hearing on the merits of the case, there's really no prejudice by them appearing telephonicaly.

You can ask the court to admonish opposing counsel for not sending you copies of everything, but they'll insist they sent it, you can't prove they didn't and you'll end up looking like a whiner when you weren't harmed anyway.  

Gotcha. Thanks! I won't mention it then.

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UPDATE: MTC GRANTED!!!

Thank you SO MUCH @fisthardcheese and @Harry Seaward

There's NO WAY I would have made it this far without all of your selfless help!!!

To recap, plaintiff attorney called in, 15 minutes late. Atty said that in 10 years, he's never seen anyone seek arb. and that it's costly. I said my fees are capped at $200 with AAA and that, according to the contract, they'll pay all fees associated with arb (since I already asked) so cost isn't a factor.

Judge asked why I wouldn't rather do court mediation because it's free and I said because court info is public and I preferred the privacy in arb. 

Atty then said they were suing on account stated, not contract breach. That's when judge asked if I disputed the debt. I said I did have a Synchrony acct but I was disputing that this was the correct acct. When he asked me if the amount they were suing me for was correct, I said I didn't know (which is true). 

Atty said people threaten arb and don't follow through. I said all I'm waiting for to file is to see if my MTC would be granted (I had the AAA forms with me) so atty told the judge that they didn't oppose arb as long as I file in a timely manner, like 90 days. So the judge granted my motion and told me to file within 90 days. Haha, I'm filing TODAY.

Unfortunately, I didn't have a proposed order for the judge to sign (he asked if I did), which is in fist's arb. link, so he told me to email it to his assistant and then a copy to the atty, which I'll do as soon as I get it. 

Thanks again for all of your help!!!

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17 minutes ago, FLnative said:

UPDATE: MTC GRANTED!!!

Thank you SO MUCH @fisthardcheese and @Harry Seaward

There's NO WAY I would have made it this far without all of your selfless help!!!

To recap, plaintiff attorney called in, 15 minutes late. Atty said that in 10 years, he's never seen anyone seek arb. and that it's costly. I said my fees are capped at $200 with AAA and that, according to the contract, they'll pay all fees associated with arb (since I already asked) so cost isn't a factor.

Judge asked why I wouldn't rather do court mediation because it's free and I said because court info is public and I preferred the privacy in arb. 

Atty then said they were suing on account stated, not contract breach. That's when judge asked if I disputed the debt. I said I did have a Synchrony acct but I was disputing that this was the correct acct. When he asked me if the amount they were suing me for was correct, I said I didn't know (which is true). 

Atty said people threaten arb and don't follow through. I said all I'm waiting for to file is to see if my MTC would be granted (I had the AAA forms with me) so atty told the judge that they didn't oppose arb as long as I file in a timely manner, like 90 days. So the judge granted my motion and told me to file within 90 days. Haha, I'm filing TODAY.

Unfortunately, I didn't have a proposed order for the judge to sign (he asked if I did), which is in fist's arb. link, so he told me to email it to his assistant and then a copy to the atty, which I'll do as soon as I get it. 

Thanks again for all of your help!!!

Congratulations!  Good Job!

BTW, does your cardmember agreement include the following statement?

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.

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4 minutes ago, BV80 said:

Congratulations!  Good Job!

BTW, does your cardmember agreement include the following statement?

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.

Yes, it does, I just realized that means they're supposed to start arb proceedings?

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4 minutes ago, FLnative said:

Yes, it does, I just realized that means they're supposed to start arb proceedings?

That’s the way I read it.  They filed the lawsuit, they made the claims, and those claims are subject to arbitration.  However, it might be too late to do anything about now if the judge told you to commence.  Let’s see if @fisthardcheese or @Harry Seaward has any thoughts about it.  

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Just now, BV80 said:

That’s the way I read it.  They filed the lawsuit, they made the claims, and those claims are subject to arbitration.  However, it might be too late to do anything about now.  Let’s see if @fisthardcheese or @Harry Seaward has any thoughts about it.  

Thanks for pointing that out. I even had that part highlighted but I read it wrong, i.e., thought I was supposed to open an arb case. 

Yes, I'm now anxious to see what happens if they're the ones who start arb.

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