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HELP going to trial with Portfolio now What do I do?


Sunshyn
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Received summons from Portfolio Recovery for pre-trial mediation. I read up on a forum from 2013 about proving ownership of debt. With summons I received: pages:

1. Served page

2.  Right to venue

3.  Complaint for damages and on this page account stated count 1

   #1-3 nothing unusual

   #4 capital one has assigned the subject account and plaintiff is the owner of debt.

4-5. old capital one statement

6.  Your account has charged off from capital one.

7-12.  Old capital one statements.

There is absolutely nothing that shows they own the debt.

Went to mediation today and asked the mediator for proof of ownership. He did not have anything, not even a copy if the summons. I told him I do not owe Portfolio Recovery because I am not under contract nor do I have proof they own the debt. He asked if I wanted to go to trial to get that proof? I said yes.

Of course sent to judge for trial set up. I told judge I do not owe Portfolio anything. Judge said you are denying oweing Portfolio Recovery. I said yes. He then asked if I deny owning capital one and I said no.

He then set up trial for May and set it for 15 minutes.

Now what do I do. Also I have been unable to work since May 2015 and made my last payment to capital one in May 2016. I am on disability and that's my only income and that is the reason I could no longer pay Capital One.

I don't know if it helps but I have 35 different phone numbers that I have blocked from Portfolio Recovery after I told them numerous times Do Not Call me. I just need to see what I need to do next.

 
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When you went to to the mediation meeting, was there a representative from Portfolio there?  If so, did the mediator ask them about any other proof they have?

Here is the problem.  You're relying on 6 year old advice, and times have change quite drastically.  Most of the time proof is not required to be presented when a lawsuit is filed.  All of these debt buyers can now easily get what they need to prove they own the account, so just because it hasn't shown up yet doesn't mean it won't when it comes time to show the court.  By that time, it'll be too late to do anything else but try to fight a loosing battle.

The best success we've seen people have with these cases is to use arbitration.  Capital One removed the arbitration option from their card agreements a few years ago, so the only way it would work in your case is if you opened the account back before they removed the arbitration clause (pre-2012 or so).

If arbitration is not on the table, I would suggest you try to work out a settlement.  I'd probably wait until you see some additional proof from Portfolio, but if they produce a bill of sale and affidavit, you'll almost certainly lose in court.

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No there was not a representative from Portfolio at pre trial just the mediator. I asked for proof that they own the debt and mediator said they don't provide him with any paperwork. The mediator did not even have a copy of the summons and had to look at mine because he didn't even know it was Capital One, he was calling it HSBC.

I am almost positive it was pre 2012. Can you explain what arbitration is? 

The problem with settling is that I don't have the ability to pay. I am living in disability and every penny is used. I wrote down my finances and at the end of the month after bills and living I am left with $47.00. 

Thanks for any help you can give.

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51 minutes ago, Goody_Ouchless said:

That might be enough to make them go away, since there appears to be nothing to collect.

I think portfolio is one that doesn't care about 'hardship'. Certainly couldn't hurt to call to see, but keep your expectations realistic. 

1 hour ago, Sunshyn said:

How do I request arbitration and is it for capital one or portfolio?

You'd be arbitrating with portfolio. Cap1 has nothing to do with the debt anymore.

Usually the card agreement says you send them a letter. In any case, you'd be filling a motion to compel arbitration with the court. Take a read through the first few posts of this thread. 

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

 

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Now I'm really confused. The mediators first words to me was "this is an old credit card debt with HSBC and I said it is Capital one. He then looked at my summons to see Capital One. I do remember having a HSBC card and that it changed over to Capital One. So does it go by the arbitration of HSBC and not Cap 1? How in the world can I find out what year I got HSBC credit card and etc.

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  • 4 weeks later...

Harry Seaward

Portfolio called me to settle. I told them we have a trial date and if you are not willing to drop this then there is nothing to talk about.  4-5 days later I receive a Motion for Summary with generic bill of sales,no name, no account number and no date for signature but it is signed by James R. Lane VP of Capital One. The sale agreement stated Jan 2018. According to LinkedIn James R. Lane was not VP until July 2018. 

Do I need to answer this Motion for summary disposition or do I just wait for trial. Trial is set for May 21st. I received the motion on May 10th.

 

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First, what's happening with arbitration? Second, yes, you absolutely need to respond to the motion for summary disposition. The MSD is asking the judge to rule on their case without a trial. If he does, that's the end for you - there will be no trial. If you're going to be using arbitration, that's your #1 grounds for opposing the MSD. If your not going to use arbitration, you should have discussed settlement because you probably won't win a trial against then. 

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I could not come up with money for arbitration. I will answer their motion and hope for the best. Should I do a financial affidavit just in case someone has enough sense and compassion to see I live below poverty level? I get $5000.00 less than what minimum wage is. Thanks for your help Portfolio are real bullies.

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1 hour ago, Sunshyn said:

Should I do a financial affidavit just in case someone has enough sense and compassion to see I live below poverty level?

Did you mention this when you had them on the phone?  You owe the money and PRA is rightfully suing you so the court can't just decide to dismiss it because you can't pay. 

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I think my biggest fear is that they can take my car. My car is the only way I can take care of financial pharmacy and other things for my mom who is homebound and unable to get around. Her pharmacy and etc. Is on the Air Force base and public transportation is not allowed on base.

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Pretty much every jurisdiction requires they leave you with a car. Unless you drive a new Mercedes or a classic collector car, they aren't going to mess with your car.

They could put a lien on your car and/or house, but it only becomes an issue when you go to sell. How much equity do you have in your house?

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