Jaysmith2323 Posted December 17, 2018 Report Share Posted December 17, 2018 Long story short – I have never been sued before and this is new territory for me. However, given the many lies and deception I was afforded by Synchrony Bank I am inclined to fight this and not lay down for them. I live in NH and I am being sued for an alleged $7,000 Synchrony Bank (Paypal) credit card. I won’t bore you with the background just the facts as they stand now. I am seeking advice as to my next move and whether I should attempt arbitration. Portfolio Recovery purchased the debt from Synchrony Bank and has now retained the law office of Howard Lee Schiff for court action. Last payment on the account was 07/20/2016. On 06/28/2018 I received a collections letter from the attorney representing Portfolio Recovery which clearly indicated that I had the right to dispute the validity of this debt pursuant to the FDCPA by requesting same within 30 days. On 07/16/2018 I mailed a request for validation. This was sent certified mail and was delivered/signed by their office on 07/25/2018 . My understanding is pursuant to section 809 of the FDCPA if the consumer has disputed any portion of the alleged debt then the collector SHALL CEASE collection of the debt until it can provide the consumer validation of the debt. On 10/29/2018 I received a notice from my local court that indicated a small claim had been filed against me. The filing date on this paperwork is 10/15/18. On 10/30/18 I sent a letter to the attorney advising them that they never provided debt validation per my timely request and that filing a small claim against me placed them in violation of the provisions of FDCPA which clearly state that collection efforts shall cease until validation has been provided to the consumer. I requested that they withdraw their suit against me. On 12/07/18 I received a validation packet from the attorney which was essentially copies of several old credit card statements, the cardholder terms and a bill of sale for the debt. The court case against me is scheduled for a mandatory pretrial meeting on January 4th. (I have attached the cardholder terms as it relates to arbitration in case it is needed for reference). I have a few questions: Is the above a violation of the FDCPA or am I misreading something? Is arbitration the way to proceed in your opinion? If so, at what point do I start the process? Any other advice you think would be valuable for me to know as I move towards January 4th? Any questions you need answered to help me in this venture.SKM_36818121714180.pdf Quote Link to comment Share on other sites More sharing options...
Goody_Ouchless Posted December 17, 2018 Report Share Posted December 17, 2018 You are 100% certain that there was no communication from PRA prior to 06/28/2018? Nothing that got tossed as "junk mail?" Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted December 17, 2018 Report Share Posted December 17, 2018 38 minutes ago, Jaysmith2323 said: On 10/30/18 I sent a letter to the attorney advising them that they never provided debt validation per my timely request and that filing a small claim against me placed them in violation of the provisions of FDCPA which clearly state that collection efforts shall cease until validation has been provided to the consumer. I requested that they withdraw their suit against me. They are not required to withdraw the suit. They are not required to prove you received their response. A mere copy of what they claim to have sent back in July will be sufficient for the court. 38 minutes ago, Jaysmith2323 said: Is the above a violation of the FDCPA or am I misreading something? For the sake of discussion lets say it is. The problem is that the violation is one eighth the amount of the debt. PRA has 2 options: not care and continue and even if you are awarded the maximum statutory $1000 they can deduct it from the amount they are awarded when they win the lawsuit against you. Or the other option is to replace the law firm and force you to continue the FDCPA case against them separately from the lawsuit. 40 minutes ago, Jaysmith2323 said: Is arbitration the way to proceed in your opinion? If so, at what point do I start the process? Arbitration is the best option unless you were considering bankruptcy. You start now. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted December 17, 2018 Report Share Posted December 17, 2018 46 minutes ago, Jaysmith2323 said: an alleged $7,000 Synchrony Bank Even if you had an iron clad, gold balls FDCPA violation, the max you could recover is $1,000 (plus attorneys' fees). Best case, they offer to knock $1,000 off your debt. Edit: they also get a shot at a "bona fide" error defense. If they can show they maintain procedures to prevent these kinds of things from happening, and your case just happened to slip through the cracks, you get nothing. Quote Link to comment Share on other sites More sharing options...
BV80 Posted December 17, 2018 Report Share Posted December 17, 2018 @Jaysmith2323 https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/ Quote Link to comment Share on other sites More sharing options...
Goody_Ouchless Posted December 18, 2018 Report Share Posted December 18, 2018 At @Harry Seaward and @Clydesmom made a great point, that I forgot. The same thing happened to us - rather that panic or fold, Midland just knocked the cost of the violation off of their settlement offer. Quote Link to comment Share on other sites More sharing options...
BV80 Posted December 18, 2018 Report Share Posted December 18, 2018 2 hours ago, Goody_Ouchless said: At @Harry Seaward and @Clydesmom made a great point, that I forgot. The same thing happened to us - rather that panic or fold, Midland just knocked the cost of the violation off of their settlement offer. True. But if the judge grants a motion to compel arbitration, the settlement offer would probably be a mutual walk away with neither party owing anything to the other. Quote Link to comment Share on other sites More sharing options...
Jaysmith2323 Posted December 18, 2018 Author Report Share Posted December 18, 2018 OK - I filed my motion for arbitration today (electronic) and within minutes received a call from the attorney asking if I would assent to a motion to dismiss without prejudice. This was left on my voicemail so didn't actually speak with him. He wants me to contact him ASAP or he will just file the motion without my input. Any advice? 1 Quote Link to comment Share on other sites More sharing options...
BV80 Posted December 18, 2018 Report Share Posted December 18, 2018 15 minutes ago, Jaysmith2323 said: OK - I filed my motion for arbitration today (electronic) and within minutes received a call from the attorney asking if I would assent to a motion to dismiss without prejudice. This was left on my voicemail so didn't actually speak with him. He wants me to contact him ASAP or he will just file the motion without my input. Any advice? Wow! That was fast. You could request the dismissal be with prejudice, but I don’t recall them ever refiling after dismissing when they know a defendant is going to bring up arbitration. Let’s wait and see what some others have to say. BTW, you’re lucky. Some people come here extremely confused after reading bad information on other sites or articles. You went right for arbitration. Good job! Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted December 18, 2018 Report Share Posted December 18, 2018 That's amazing! You joined the board less than 24 hours ago. You get the prize for fastest dismissal offer. I'm with BV on this one. I've never known them to refile, and if they ever did, you could come back at them again with arbitration. I say take the offer and enjoy your holidays. 2 Quote Link to comment Share on other sites More sharing options...
Goody_Ouchless Posted December 18, 2018 Report Share Posted December 18, 2018 Nicely done! Quote Link to comment Share on other sites More sharing options...
Jaysmith2323 Posted December 18, 2018 Author Report Share Posted December 18, 2018 He filed the motion and it reads: "Plaintiff brought this action based on consumer debt on or around 10-19-18. defendant then notified plaintiff via letter on 10-29-18 that he previously requested verification of debt. Plaintiff has no record of receiving that validation request but will withdraw the case nonetheless based on the defendant's verbal request for validation. Plaintiff reserves the right to bring this small claim action again if necessary." First, I have proof that they received my request as it was sent registered mail. Second, I never verbally told him anything. In fact I have never spoken to the guy ever. Only through registered mail. What are my options now? It is filed as a motion for voluntary non-suit without prejudice. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted December 18, 2018 Report Share Posted December 18, 2018 Nothing changes. If it were me, i would file a non-oppositional response to clarify on the record that the validation request was in writing, state the was no "verbal" communication ever and include a copy of the certified mail signature. Quote Link to comment Share on other sites More sharing options...
BV80 Posted December 18, 2018 Report Share Posted December 18, 2018 17 minutes ago, Harry Seaward said: Nothing changes. If it were me, i would file a non-oppositional response to clarify on the record that the validation request was in writing, state the was no "verbal" communication ever and include a copy of the certified mail signature. I agree. Hasn’t @fisthardcheese said that FDCPA claims are not a good idea in arbitration? Quote Link to comment Share on other sites More sharing options...
Jaysmith2323 Posted December 18, 2018 Author Report Share Posted December 18, 2018 32 minutes ago, Harry Seaward said: Nothing changes. If it were me, i would file a non-oppositional response to clarify on the record that the validation request was in writing, state the was no "verbal" communication ever and include a copy of the certified mail signature. That's what I was thinking as I want to have it on the record that I did request validation timely and my request was ignored (and never verbal). It was just give me greater piece of mind to have this with prejudice is all. Clearly the withdrawal has nothing to do with what they are claiming as they knew this information back in October and did not take any action until an hour after I filed a motion to compel arbitration today. The SOL on this debt is up in July - maybe I can make it until then before they try to re-file... Quote Link to comment Share on other sites More sharing options...
BV80 Posted December 18, 2018 Report Share Posted December 18, 2018 1 minute ago, Jaysmith2323 said: That's what I was thinking as I want to have it on the record that I did request validation timely and my request was ignored (and never verbal). It was just give me greater piece of mind to have this with prejudice is all. Clearly the withdrawal has nothing to do with what they are claiming as they knew this information back in October and did not take any action until an hour after I filed a motion to compel arbitration today. The SOL on this debt is up in July - maybe I can make it until then before they try to re-file... It would really surprise me if they refile. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted December 18, 2018 Report Share Posted December 18, 2018 6 minutes ago, Jaysmith2323 said: The SOL on this debt is up in July - maybe I can make it until then before they try to re-file... I agree with BV. I can't imagine a scenario where they would refile knowing you'll hit them with another MTC. They never have. Quote Link to comment Share on other sites More sharing options...
BV80 Posted December 18, 2018 Report Share Posted December 18, 2018 @Jaysmith2323 Just for my satisfaction, did you send the validation request to the attorney or to Portfolio? Quote Link to comment Share on other sites More sharing options...
Jaysmith2323 Posted December 18, 2018 Author Report Share Posted December 18, 2018 39 minutes ago, BV80 said: @Jaysmith2323 Just for my satisfaction, did you send the validation request to the attorney or to Portfolio? 1 Directly to the attorney's office using the address provided in their collection letter (which referenced debt validation). Quote Link to comment Share on other sites More sharing options...
BV80 Posted December 18, 2018 Report Share Posted December 18, 2018 2 minutes ago, Jaysmith2323 said: Directly to the attorney's office using the address provided in their collection letter (which referenced debt validation). Oh! Well, I would speak to a consumer attorney in your area that is familiar with the FDCPA. Portfolio’s attorney is considered a debt collector under the FDCPA. You could sue the attorney, but the attorney could not counterclaim for the debt. A consumer attorney could tell you if he thinks the debt collection attorney would settle rather than go to court. 1 Quote Link to comment Share on other sites More sharing options...
Jaysmith2323 Posted December 18, 2018 Author Report Share Posted December 18, 2018 2 minutes ago, BV80 said: Oh! Well, I would speak to a consumer attorney in your area that is familiar with the FDCPA. Portfolio’s attorney is considered a debt collector under the FDCPA. You could sue the attorney, but the attorney could not counterclaim for the debt. A consumer attorney could tell you if he thinks the debt collection attorney would settle rather than go to court. Quite frankly I will be just happy to put this mess behind me - not sure I want to open up any more cans of worms unless of course the potential payoff was big (which I doubt it would be). Maybe if I found an attorney that would offer a free initial consultation but otherwise I will just be happy to move on. Quote Link to comment Share on other sites More sharing options...
BV80 Posted December 18, 2018 Report Share Posted December 18, 2018 1 minute ago, Jaysmith2323 said: Quite frankly I will be just happy to put this mess behind me - not sure I want to open up any more cans of worms unless of course the potential payoff was big (which I doubt it would be). Maybe if I found an attorney that would offer a free initial consultation but otherwise I will just be happy to move on. I don’t blame you one bit. Enjoy the holidays! ? Quote Link to comment Share on other sites More sharing options...
Jaysmith2323 Posted December 19, 2018 Author Report Share Posted December 19, 2018 I'm curious - does anyone know how much a collector like portfolio recovery actually pays for a debt such as this? Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted December 19, 2018 Report Share Posted December 19, 2018 11 hours ago, Jaysmith2323 said: does anyone know how much a collector like portfolio recovery actually pays for a debt such as this? Portflio doesn't even know what they pay for individual debts. They way it works is they buy a 'pool' of debts and pay a lump sum for all of them together. If every debt was for the same amount, you could use simple math like 10,000 $100 debts purchased for $100,000 works out to $10 per debt, but because the debt values are all over the map, it's more complicated than that. Honestly, what they pay for the debt in terms of what they try to collect is irrelevant. Anyone that has any sort of business sense understands that you make more money when you pay less for raw materials. No one would criticize a furniture manufacturer strictly for buying their materials at the lowest cost, and this is exactly how a court would view an argument over what a JDB pays for a debt. Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted December 19, 2018 Report Share Posted December 19, 2018 14 hours ago, BV80 said: I agree. Hasn’t @fisthardcheese said that FDCPA claims are not a good idea in arbitration? If there is no lawsuit against you to defend and if you have solid enough claims that an attorney would usually take your case, I advise not taking those claims to arbitration especially for those consumers with little to no experience in legal hearings or court-room type situations. If there were still a pending lawsuit against the OP, I would then say to use his FDCPA violation as part of his arbitration claims. But in this case, since it was dismissed in court, it is probably best taken to a consumer attorney if he decides to pursue it in the next year. If this were me, I might consider the fact that this FDCPA violation only has a 1-year SOL, while the debt may still be within SOL after that year. It is not impossible for PRA to sit on this debt for a year and after expiration of their violation, file suit again taking away that counter claim as leverage. Just something to keep in mind. 1 Quote Link to comment Share on other sites More sharing options...
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