Served by Portfolio Recovery Associates - California

[Iamkar33m]

Here's my questionnaire 

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.)

HUNT & HENRIQUES ATTORNEYS AT LAW

 

3. How much are you being sued for?

$5,169.47

 

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

BARCLAYS BANK DELAWARE

 

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

Personally served summons on 1/3/19

 

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

In person, via process server at home

 

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?

PRA sent a couple letters & many missed calls (I never responded to anything)

 

9. What state and county do you live in?

California, Orange County

 

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

January 11th 2016

 

11. What is the SOL on the debt? To find out:

It's 4 years.

 

12. 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).

Here is the Register of Actions on the case page, notice the service on 1/3/19 hasn't even been filed yet:

5	PAYMENT RECEIVED BY ONELEGAL FOR 170 - COMPLAINT OR OTHER 1ST PAPER <=$10K IN THE AMOUNT OF 225.00	11/20/2018	1 pages
4	SUMMONS ISSUED AND FILED FILED BY PORTFOLIO RECOVERY ASSOCIATES, LLC ON 11/16/2018	11/16/2018	1 pages
3	CIVIL CASE COVER SHEET FILED BY PORTFOLIO RECOVERY ASSOCIATES, LLC ON 11/16/2018	11/16/2018	2 pages
2	COMPLAINT FILED BY PORTFOLIO RECOVERY ASSOCIATES, LLC ON 11/16/2018	11/16/2018	15 pages
1	E-FILING TRANSACTION 1562455 RECEIVED ON 11/16/2018 02:50:43 PM.	11/20/2018	NV

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

OC never listed debt with CRA; plaintiff did.  Disputed and CRA listed as "Dispute Resolved; customer disagrees".

 

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No; I did not think they would pursue a lawsuit.

 

15. 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?

I believe I have 30 days to answer the summons (From 1/3/19), that would be by 2/1/19 (since 2/2/19 is a Saturday).  I did not receive an interrogatory questionaire.  I did receive a "Statement of Location/Venue" and a packet on ADR.

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Exhibits A & B are January 2016 and August 2016 statements (respectively).

[sadinca]

if the complaint is not verified, a simple General Denial will suffice to answer the complaint.

https://www.courts.ca.gov/documents/pld050.pdf

 

[Iamkar33m]

I've read that much, do we have any examples of what to put in the general denial form?  I tried skimming a few of the pinned threads, but it seems like quite a bit of URL's no longer work.

[sadinca]

as far as Affirmative defenses go, i would include Statute of limitations if the alleged debt is anywhere near SOL; in this case it does not appear to be. 

you should assert Failure to pursue Alternative Dispute Resolution if you want to go the Arbitration route. 

"Failure to Pursue Alternative Dispute Resolution (ADR)

You may use this defense if the person suing you failed to request mediation or arbitration as required before filing a lawsuit.  CAUTION: If you think this affirmative defense applies to you, and you want to enforce an arbitration clause in the contract which is the subject of the lawsuit, filing an answer alone, without filing a petition to compel arbitration at the same time, may cause you to waive your right to have the dispute resolved through arbitration. You can get a form for filing a petition to compel arbitration from the court’s Self-Help Legal Access Center."

if you decide to go the court route, google California Courts Affirmative Defenses for other samples. however, you dont have to include anything in section 2 of your GD, but at the very least i would type this up  "Defendant reserves the right to amend and or add additional Answers, Defenses, and or/counterclaims at a later date"

[Iamkar33m]

So here's my section 2 text in the general defense:

Quote

Defendant generally denies each and every allegation of the plaintiff's complaint and demands private contractual arbitration as provided by, and in accordance with, the cardmember agreement (see attached EXHIBIT A). Defendant also files a separate motion to compel arbitration.

I will file my answer with the clerk on the last possible day for the response to the summons (this Friday).  I need 3 copies, right?  One for me to keep, one to file and one to serve to the plaintiff's attorney?

How about the MTC?  Once I've compiled that, does that need to get served to the plaintiff's attorneys as well?

[Iamkar33m]

Also one more thing... I was served within the first few days of January, and the court's website still doesn't have the service recorded in the register of actions.  Should I still file my answer within the 30-day period?  Or will that be doing the JDB's job for them?

The last thing listed in the case's register of actions is the payment received for e-filing the complaint back in November.

[Iamkar33m]

In writing my motion to compel, I found this case:

http://www.pooleshaffery.com/news/2015/january/a-formal-demand-for-arbitration-no-longer-necess/

https://caselaw.findlaw.com/ca-court-of-appeal/1687066.html

It seems that it's no longer necessary for a Defendant to explicitely notify the Plaintiff in case of arbitration.

[Iamkar33m]

So I've mailed the Bill of Particulars request, served & filed both my General Denial and MTC w/ Affidavit ... now it's just a waiting game to see what the other side does?

I greatly appreciate your guys' help/support in this matter.

[BV80]

On 1/30/2019 at 6:49 AM, Iamkar33m said:

In writing my motion to compel, I found this case:

http://www.pooleshaffery.com/news/2015/january/a-formal-demand-for-arbitration-no-longer-necess/

https://caselaw.findlaw.com/ca-court-of-appeal/1687066.html

It seems that it's no longer necessary for a Defendant to explicitely notify the Plaintiff in case of arbitration.

Whether it’s necessary or not, the case you cited is not applicable.  If you read the footnotes at the bottom of the court’s decision, you’ll see that the agreement in Hyundai stated “This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California."

Credit card agreements usually state that the arbitration provision s governed by the Federal Arbitration Act.  The agreement will also usually specify that the rest of the agreement is governed by the state where the bank is located.  Unless the agreement specifies California, Hyundai is inapplicable.  

[Iamkar33m]

2 hours ago, BV80 said:

Whether it’s necessary or not, the case you cited is not applicable.  If you read the footnotes at the bottom of the court’s decision, you’ll see that the agreement in Hyundai stated “This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California."

Credit card agreements usually state that the arbitration provision s governed by the Federal Arbitration Act.  The agreement will also usually specify that the rest of the agreement is governed by the state where the bank is located.  Unless the agreement specifies California, Hyundai is inapplicable.  

 Well, let’s hope the judge agrees with me in that filing a suit is essentially refusal to arbitrate as that is what I claimed in the MTC. 

[Iamkar33m]

So they responded to my Bill of Particulars with statements dated: 3/12/15, 4/12/15, 5/12/15, 6/12/15, 7/12/15, 8/12/15, 9/12/15, 10/12/15, 11/12/15, 12/12/15, 1/12/16, 2/12/16, 3/12/16, 4/12/16, 5/12/16, 6/12/16, 7/12/16, 8/12/16.  There's nothing in there except those statements... no account opening documents, nothing bearing my signature, nothing showing they acquired the debt from Barclays.

They also sent me a separate letter containing interrogatories, a redacted copy is attached.

interrogatories-redacted.pdf

[Clydesmom]

12 minutes ago, Iamkar33m said:

no account opening documents

They do not need the application to establish that the account is yours.  18 months worth of statements is plenty.

13 minutes ago, Iamkar33m said:

nothing bearing my signature

They also do not need this either.  Rarely does a Judge want to see a signed application.  The charge slips are also irrelevant because the copy would have been given to you not Barclays so the only one who could produce that would be you if you kept every one.  

14 minutes ago, Iamkar33m said:

nothing showing they acquired the debt from Barclays.

This they do need to show standing.

On 2/1/2019 at 7:07 AM, Iamkar33m said:

Well, let’s hope the judge agrees with me in that filing a suit is essentially refusal to arbitrate as that is what I claimed in the MTC. 

They filed suit before you asked for arbitration.  That isn't a refusal.  The card agreement says "MAY" arbitrate it does not say it is required as the only method of dispute resolution.  Hopefully PRA dismisses on their own and it never gets to a hearing on the MTC.

[Iamkar33m]

6 minutes ago, Clydesmom said:

22 minutes ago, Iamkar33m said:

nothing showing they acquired the debt from Barclays.

This they do need to show standing.

How do I call this out in court?

Also what, if any, response should I make to their interrogatories?

[Kauai1018]

Should you request the proof the CA bought the debt when you 1st get a letter from them or does that flag you?

[BackFromTheDebt]

42 minutes ago, Kauai1018 said:

Should you request the proof the CA bought the debt when you 1st get a letter from them or does that flag you?

When you first hear from a CA or JDB, the first step is almost always to send a DV letter.  In this case, a DV letter should include a demand for proof as to who actually owns the debt.  

You can demand proof of ownership of a debt without admitting to the debt.

[Clydesmom]

5 hours ago, Kauai1018 said:

Should you request the proof the CA bought the debt when you 1st get a letter from them or does that flag you?

You can ask for it in a DV letter but they can ignore it.  ALL that is required in response to a DV is the name of the original creditor and amount you owe.  Unless there is already a judgment they are not required to produce any proof and they are in compliance with the FDCPA.

Unless they sue you they are not required really to prove anything.

[Iamkar33m]

4 minutes ago, Clydesmom said:

You can ask for it in a DV letter but they can ignore it.  ALL that is required in response to a DV is the name of the original creditor and amount you owe.  Unless there is already a judgment they are not required to produce any proof and they are in compliance with the FDCPA.

Unless they sue you they are not required really to prove anything.

So once they sue, what requires them to bring provenance?

[Iamkar33m]

Also... the firm (Hunts & Henriques) has been trying to call me almost every day since I've filed the answer & the MTC Arbitration.  Of course I don't pick up, because why would I want to talk to these snakes?  No voicemails or anything left.  Still no movement on the court docket since my answer was filed and the MTC Arb.  They still haven't even filed proof of service for the initial summons/complaint, not that this matters since I've already responded.  Should it?

[Clydesmom]

3 hours ago, Iamkar33m said:

So once they sue, what requires them to bring provenance?

You and/or the court.  You engage in discovery and demand the proof.  In some cases before the Defendant can do that the Judge does it for them telling the Plaintiff what evidence they must have to prove their case.

20 minutes ago, Iamkar33m said:

Also... the firm (Hunts & Henriques) has been trying to call me almost every day since I've filed the answer & the MTC Arbitration.  Of course I don't pick up, because why would I want to talk to these snakes? 

You are defending yourself pro-se.  It is expected that the other side may need or want to communicate with you regarding the discovery, depositions, court dates, and settlement talks to name a few reasons.  If you had a lawyer they would communicate directly with him/her.  This is something that pro-ses often over look: that the Plaintiff's counsel may contact them and it is a normal part of the trial process.

[Iamkar33m]

@Clydesmom you make a good point.  The other problem is that I am deaf (and they probably don't know it).

Also I was just looking at this:

https://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_110

Quote

 

Service of complaint

The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint.

 

 

It's been 90 days (11/16/18) since they've filed the complaint with the court and they have not yet filed proof of service of the summons/complaint.

[Iamkar33m]

Also, I just saw this thread: 

 

My OC is also Barclay based out of Delaware.  SOL in Delaware is 3 years on credit accounts and my last payment was 1/11/2016.  They served me 8 days before the SOL hit, is it tolled or is it still applicable?

 

 

[Clydesmom]

22 minutes ago, Iamkar33m said:

They served me 8 days before the SOL hit, is it tolled or is it still applicable?

Once the suit is filed with the court the SOL is tolled until a verdict is entered rendering the SOL moot or the case is dismissed.  If the case is dismissed without a verdict then the SOL continues to run as if it had never been filed.  

[Brotherskeeper]

9 hours ago, Iamkar33m said:

My OC is also Barclay based out of Delaware.  SOL in Delaware is 3 years on credit accounts and my last payment was 1/11/2016.  They served me 8 days before the SOL hit, is it tolled or is it still applicable?

This 2018 white paper on SOL from the National Consumer Law Center has some excellent information:

Shortening the Limitations Period on Credit Card Collection Lawsuits

The standard rule is that a limitations period begins to run from the date of default. How this applies to a credit card transaction is not always clear. If the claim is based on an account stated, the limitations period should run from the last transaction listed on the account stated. See id. § 3.6.7.2.

When the claim is based on a breach of contract, state law or the credit card agreement may have language related to when the card account is in default. If the card agreement states default is based on a failure to make a minimum payment, then the limitations period should run from that missed payment.

Other card agreements provide that upon a missed payment, the card issuer may declare the balance immediately due and payable. Card issuers or debt buyers in that case may claim that the declaration that the balance is due immediately was not made until the collection lawsuit was initiated. Of course, this argument fails if the card issuer did in fact demand payment in full at an earlier date.

Moreover, the Arizona Supreme Court, confronted with this language in a credit card agreement, has just ruled that the limitations period should run from the first missed payment. See Mertola, L.L.C. v. Santos, 2018 WL 3595915, at ¶ 18 (Ariz. July 27, 2018). The Arizona Supreme Court stated:

Under credit-card contracts like the one at issue here, however, the date when the entire debt will become due is uncertain and may not occur until far in the future. To hold that a cause of action on the debt does not accrue until the creditor exercises his right to accelerate would vest the creditor with unilateral power to extend the statutory limitation period and permit interest to continue to accrue, long after it is clear that no further payments will be made, subject only to a standard of reasonableness and other equitable doctrines. This would functionally eliminate the protection provided to defendants by the statute of limitations. We decline to extend such power to the creditor.

Determining the Date of the Consumer’s First Missed Payment

To determine the date the consumer first missed a payment, start with the collector’s own pleadings and any attached documents. Even if the collector is claiming a later date of default, its own pleadings, affidavits, and other documents may indicate an earlier date of default. Never underestimate the sloppiness of debt buyer documentation.

The date on which a consumer stopped payments on a credit card account can also be inferred from the charge-off date, if the collector provides that date in any of its documents—something collectors do surprisingly often. The charge-off date, under federal standards, is 180 days after the account becomes delinquent. Thus, a reasonable assumption of a delinquency date is 180 days before the charge-off date.

Another approach is to look at the consumer’s credit report to determine the last payment on the account reflected in the report. Do not confuse the charge-off date, which may be indicated there as well, with the date when the consumer stopped paying. Be alert to certain collectors seeking to “re-age” a debt by reporting an incorrect date of first delinquency, which is a potential violation of the FCRA (albeit without a federal private right of action unless first disputed with the credit reporting agency), as well as the Fair Debt Collection Practices Act.

See generally NCLC’s Collection Actions § 3.6.7.3 on proving the date of default.

[Iamkar33m]

So I guess they tolled it right on time then... let's hope arbitration makes them run so I can run out the clock after dismissal.

[Iamkar33m]

So 2 days before the MTC hearing, I got a dismissal w/ prejudice.  can they do that with an outstanding motion?