No CC agreement in filing- IN

[mkb1]

Looking through the forums, it seems that PRA is on a roll this month.

 

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.)  Portfolio Recovery Associates, LLC

3. How much are you being sued for? $6071

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

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

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? - Indiana, Hendricks

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

11. When did you open the account (looking to establish what card agreement may be applicable)? 2013

12. What is the SOL on the debt? To find out: 10 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  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Pending

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? 20 days after service- have about 2 weeks left.

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.

Summons, e-file appearance paperwork, complaint, very generic bill of sale from Capital One, a page of a statement from 2016, an affidavit of debt.

 

I have two questions on this one:

1) There was no cardholder agreement included in the court papers.  I'm having a hard time even finding one online for Capital One in 2013.  If I do find one, can I include that in my response, as well as a motion to compel arbitration?

2) The Indiana state website took me to a small claims court page, which lead me to a handbook page. ( https://www.in.gov/judiciary/files/small-claims-manual.pdf ) The handbook says that small claims can only be filed up to $6,000.  Should I do anything about the fact that I'm being sued for more than the maximum amount?

 

[nobk4me]

Cap One took arb out of its agreements.

Are you being sued in small claims court?  If so, you could file a motion to dismiss for lack of small claims jurisdiction.  But first make sure you really are in small claims court.

[mkb1]

Thanks for the reply.

Yes, I'm being sued in small claims.  I still haven't found a cardholder agreement, either.

The complaint itself is confusing, because it says "Comes the plaintiff, the Creditor herein, by Counsel, and for a Complaint..."  The plaintiff on the cover sheet is PRA.  PRA is represented by counsel named in the complaint.  PRA bought the debt, according to the bill of sale submitted as evidence.  The complaint even says "The original creditor is Capital One Bank (etc.) and Plaintiff is the assignee of the Account." 

So, which is it?  Is PRA presenting themselves as creditor, assignee, or both?

[mkb1]

Update: I filed my answer, and a motion to dismiss for lack of small claims jurisdiction. The judge ordered a hearing for next month.

I’m off to read about what to do next. This will be a first for me.

[mkb1]

Update #2: after some back-and-forth, the judge has ordered a bench trial to take place in August.

The PRA lawyer left me a voice mail last week. He said that he had some information that I would find “important,” and he left his direct phone number. I’ve never heard of such a thing happening. Do lawyers actually call defendants personally to offer settlements? I’m very hesitant to call back.

[Goody_Ouchless]

Since you are acting as your own lawyer, yes.

[mkb1]

Another update:

Bench trial is still on for next month.

I have been receiving regular phone calls lately from unknown toll-free numbers. Whoever was calling never left a voice mail. The calls come on various days of the week, including Sundays. I started to notice some common numbers that kept calling, and I finally Googled a couple of the numbers. Surprise! Portfolio Recovery Associates has called me repeatedly in the last month, including on Sundays.

Here’s the next question: would it be worth my time to file a CFPB complaint for the phone calls? Repeated phone calls with no voice mails-especially on Sunday mornings-can be construed as harassing, right? We’re going to court. There shouldn’t be anything else to discuss unless it’s in writing.

[Robby8900]

2 minutes ago, mkb1 said:

Another update:

Bench trial is still on for next month.

I have been receiving regular phone calls lately from unknown toll-free numbers. Whoever was calling never left a voice mail. The calls come on various days of the week, including Sundays. I started to notice some common numbers that kept calling, and I finally Googled a couple of the numbers. Surprise! Portfolio Recovery Associates has called me repeatedly in the last month, including on Sundays.

Here’s the next question: would it be worth my time to file a CFPB complaint for the phone calls? Repeated phone calls with no voice mails-especially on Sunday mornings-can be construed as harassing, right? We’re going to court. There shouldn’t be anything else to discuss unless it’s in writing.

CFPB is a waste of time. I did that and it turned out to be another dispute and CFPB sent my complaint to  CRA  who treated like another verification then CFPB sent me CRA'S response. Bunch of BS  in my opinion.

[Harry Seaward]

26 minutes ago, Robby8900 said:

CFPB is a waste of time.

Didn't you say it was the smartest thing you ever did? 

[Robby8900]

17 minutes ago, Harry Seaward said:

Didn't you say it was the smartest thing you ever did? 

Don't recall saying that.

 

[mkb1]

So no recourse for the multiple phone calls at this point in the case?

[Harry Seaward]

1 hour ago, Robby8900 said:

Don't recall saying that.

My apologies then.  I had told someone it was a waste of time and they did it anyway.  They had also sent in a dispute notice (or maybe it was a notification to use arbitration) at the same time and their entry came off their credit reports.  This person attributed the item removal to the CFPB complaint, however it's very common for debt collectors to remove tradelines while an item is under dispute or legal action, which arbitration would be.

Anyway, if that wasn't you, sorry for the mix-up.

[Clydesmom]

34 minutes ago, mkb1 said:

So no recourse for the multiple phone calls at this point in the case?

No. When you represent yourself pro-se they can call you. Not all contact in a lawsuit is written.

[mkb1]

1 hour ago, Clydesmom said:

No. When you represent yourself pro-se they can call you. Not all contact in a lawsuit is written.

Thanks for the clarification. I could find plenty of advice on how and when a debt collector could contact an individual, but nothing about a debt collector contacting an individual representing himself or herself.