TroubleinFL

Being sued by Portfolio but with a twist...

Recommended Posts

57 minutes ago, TroubleinFL said:

So, hypothetically,  if I walk into court with a piece of paper that states that PRA owes me $15000, a piece of paper saying that Joe sold me their debt, and a spreadsheet entry stating that I bought their debt from  Joe's Credit Company, then that is all that I need now?

You would first need evidence that PRA has a debt with Joe’s Credit Company just as PRA must have evidence that you have a credit card debt. 

 

Quote

Does the "produce a signed contract between myself and PRA" defense not work anymore?

Credit  card agreements state that accounts can be assigned/sold.   They also state that a consumer’s use of the card constitutes the consumer’s agreement with the terms and conditions.   By using the card, you agreed that your account could be sold.  

Courts have ruled that assignees have the same rights as original creditors.

  • Like 1

Share this post


Link to post
Share on other sites
2 hours ago, TroubleinFL said:

Does the "produce a signed contract between myself and PRA" defense not work anymore?

Not in a credit card case. The courts in every state are well aware there is no signed contract between you and the original creditor or PRA.  They do not need one to prevail.

1 hour ago, TroubleinFL said:

So, hypothetically,  if I walk into court with a piece of paper that states that PRA owes me $15000, a piece of paper saying that Joe sold me their debt, and a spreadsheet entry stating that I bought their debt from  Joe's Credit Company, then that is all that I need now?

Hypothetically anything is possible.  The reality is PRA is a known top 5 JDB.  They know the courts they are in and will produce legal affidavits stating their evidence meets the business records requirements under state law.  A few consumers have tried that stunt and got shot down by the courts. Do not try it.

 

  • Like 1

Share this post


Link to post
Share on other sites
16 hours ago, TroubleinFL said:

So, hypothetically,  if I walk into court with a piece of paper that states that PRA owes me $15000, a piece of paper saying that Joe sold me their debt, and a spreadsheet entry stating that I bought their debt from  Joe's Credit Company, then that is all that I need now?

Those "pieces of paper" are called affidavits.  They are sworn testimony under penalty of perjury.  Perjury is a felony.  Just like paper currency, it's not the "paper" that gives the paper it's value.  It's what the paper says and the way it has been certified that counts.

Share this post


Link to post
Share on other sites
1 hour ago, Harry Seaward said:

Those "pieces of paper" are called affidavits.  They are sworn testimony under penalty of perjury.  Perjury is a felony.  Just like paper currency, it's not the "paper" that gives the paper it's value.  It's what the paper says and the way it has been certified that counts.

Thank you all for taking time to provide me excellent answers as I am asking questions to learn, and I thank you all for taking time to teach me and others about these situations.

If you were in my shoes, and you had received the same summons with another person's account attached to it, would you ask to see the proof they have regarding your account? If they do not show up with any records relating to your account at the Pre Trial Conference, would you push for a trial or ask for dismissal based on lack of evidence?

 

Share this post


Link to post
Share on other sites

If the papers they supplied has an arbitration clause, I would MTC arbitration and take this out of a judges hands and make is costly for them to continue. It would be at arbitration where I would ask for the correct papers after they already spent a ton of money to get to that point.

Share this post


Link to post
Share on other sites
4 minutes ago, WhoCares1000 said:

If the papers they supplied has an arbitration clause, I would MTC arbitration and take this out of a judges hands and make is costly for them to continue. It would be at arbitration where I would ask for the correct papers after they already spent a ton of money to get to that point.

Thank you. The papers that they sent do not contain anything about arbitration, my name or my address. It is for a woman in another state and is a 3 page Cap1 statement. I do not know this person at all, never have. Hence my confusion as to what to do. Within the complaint, they list the last 4 digits of a card/account that I have no idea was mine or not as I have gone through quite a bit since I had a Synchrony Cap1 card more than 2 years ago and have no access to any of my records due to a natural disaster and losing my house.

Am I even eligible for arbitration as I've read that Cap1 removed the arbitration clause from all of their agreements several years ago?

Share this post


Link to post
Share on other sites

Is the OC Synchrony or Cap One?  In your original post, you said Synchrony.  In which case, arbitration is available and is the strategy you should use.

Share this post


Link to post
Share on other sites
28 minutes ago, nobk4me said:

Is the OC Synchrony or Cap One?  In your original post, you said Synchrony.  In which case, arbitration is available and is the strategy you should use.

That's my bad as I'm getting confused as well.

The claim states Synchrony Bank. The 3 pages of the account summary for the woman is Cap1.

Is there a link to a template for a MTCArb that I can build on?

Share this post


Link to post
Share on other sites

Have you ever had an account with Capital One that you defaulted on?

I am uncertain how to proceed because Synchrony accounts usually have an arbitration clause BUT Capital One accounts never have them and in Florida, you waive the right to arbitrate if you answer the lawsuit.

If you never had a Capital One account, my thought is for you to play dumb at first and think this is a Synchrony account, find the account agreement that would apply to you at the CFPB website and file the MTC arbitration. If they oppose the motion, you can then bring attention to the court that the statements are not yours which would either trap them into admitting that the account is not yours or bringing in the correct statements and admitting that the account is a Synchrony account and subject to arb.

I would like to call @fisthardcheese into this because this is such an unusual situation.

Share this post


Link to post
Share on other sites
4 hours ago, WhoCares1000 said:

If you never had a Capital One account, my thought is for you to play dumb at first and think this is a Synchrony account, find the account agreement that would apply to you at the CFPB website and file the MTC arbitration.

My instinct would be to fight this and let them fall flat in court for having the wrong person sued. The evidence they filed and served is on the WRONG PERSON.  I would file a counter claim for fraud and and FDCPA violation against the law firm if I had never had an account.  If they sued on the wrong person/information there could be a good solid defense in this.  A consult with a consumer attorney ASAP is in order.

Share this post


Link to post
Share on other sites
13 minutes ago, Clydesmom said:

My instinct would be to fight this and let them fall flat in court for having the wrong person sued. The evidence they filed and served is on the WRONG PERSON.  I would file a counter claim for fraud and and FDCPA violation against the law firm if I had never had an account.  If they sued on the wrong person/information there could be a good solid defense in this.  A consult with a consumer attorney ASAP is in order.

Thank you. I did have a Synchrony Bank card that I defaulted on so that's my only hesitation with regards to a counterclaim.

I wish I could afford an attorney but again, I am in financial ruin after Michael and struggling to make it day to day.

Hence my need for help. I did go to CFPB site and download Synchrony Credit Card statements. Where can I find a Motion to Compel Arbitration template? And by playing dumb and saying that I do not recognize any of the cards they are refencing at the pre trial conference, are you saying that I have "answered" the lawsuit and have thusly waived my right to arbitration? Again, the claim references "...an extension of credit by Synchrony Bank." in one line and then "The original card number was ************xxxx." where "xxxx" represented the last 4 digits.

Share this post


Link to post
Share on other sites
4 hours ago, Clydesmom said:

My instinct would be to fight this and let them fall flat in court for having the wrong person sued.

It wasn't the wrong person. They just attached the wrong documentation to the complaint, which is meaningless by the time they get to summary judgment/trial and have already provided the correct paperwork in discovery/MSJ/trial. Now, if they send the wrong records in discovery/MSJ/trial, that's a different ballgame at that point. The catch-22 is you have to lay low until then, and the arbitration option is long gone by that point. 

Share this post


Link to post
Share on other sites
5 minutes ago, Harry Seaward said:

It wasn't the wrong person. They just attached the wrong documentation to the complaint, which is meaningless by the time they get to summary judgment/trial and have already provided the correct paperwork in discovery/MSJ/trial. Now, if they send the wrong records in discovery/MSJ/trial, that's a different ballgame at that point. The catch-22 is you have to lay low until then, and the arbitration option is long gone by that point. 

Okay, so at the pre trial conf, I give them my written MTCArb after I tell them that I do not recognize the accounts based on the evidence they've provided? Or do I leave out the fact that I do not recognize either evidence and tell them I want a trial and then give them my written MTCArb when they try to get me to settle?

Share this post


Link to post
Share on other sites
12 minutes ago, Harry Seaward said:

I wouldn't bring up the wrong documents ever, regardless of whether you go court or arb route. 

Okay, thank you. How should I answer the questions at the pre trial conference? I'm a bit confused and not sure what to expect.

So is this sufficient for my MTCarb? 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION
 

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about xx XXXXX, 2019, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

3. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


4. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

5. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

6. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day xx XXXX, 2019


ME, Defendant, pro se

 

 

ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION



Case No. xxxxxxxxxx                                                 COUNTY COURT OF THE xxTH JUDICIAL                                                                                             CIRCUIT IN                                                                                               AND FOR xxx COUNTY, FLORIDA, SMALL CLAIMS DIVISION


PLAINTIFF
VS.                                                                               Case No. xxxxxxxxxx
ME, DEFENDANT

The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:


_______ GRANTED      /    _______ DENIED

Further, this case shall be stayed pending the outcome of private arbitration.


This _____ day of _________________, 2019


By: _________________________________

       Judge of the ____________ Court

 

 

ETA: I did copy this from the Arbitration 2018 post and edited what I knew that I needed to edit, I deleted #2 which stated that I sent a letter to their attorney, which I did not do. Thanks.

Share this post


Link to post
Share on other sites
12 minutes ago, Harry Seaward said:

What questions are you expecting at the pre-trial?

The MTC looks fine. 

Thanks. Do I need to put the case heading at the top of the MTCArb as well? And do I need to change "Defendant" and "Plaintiff" in the MTCArb to my name and theirs?

I'm not sure, that's kinda what I'm asking to be honest. I'm guessing they are going to try and get me to settle? Do I admit that I own the account? Do I ask for any other proof to verify that I am thinking it is the correct account? Do I tell them that I want to invoke arbitration?

ETA: Do I need to include any FL Statutes within the MTCarb? I've got a copy of the Synchony Credit Card agreement to include. Do I need to copy and paste the Synchrony Arb Clause into the MTCarb?

Share this post


Link to post
Share on other sites

If this were me, I would file the MTC now and send a copy to their attorney.

I would NOT mention the wrong documents AT ALL.  The ONLY arguments I would make in court would be that this case belongs in JAMS arbitration per the Synchrony Card Agreement.  I would not mention the account or alleged debt or wrong documents in any way.  I would just get my MTC granted.

After the MTC is granted, I would file the arbitration case with claims of FDCPA violations for suing the wrong person.  I would prepare to use the incorrect documents in arbitration to prove they sued the wrong person, but I believe that a fairly quick settlement for a mutual dismissal with prejudice should be achieved here.

Share this post


Link to post
Share on other sites
15 hours ago, Harry Seaward said:

Basically you want it to mimic the complaint, in format. I would include FL statues in the MTC.

Thank you. Do I create a new number and put them there or do I include them under one of the current numbered points?

Share this post


Link to post
Share on other sites
6 hours ago, fisthardcheese said:

If this were me, I would file the MTC now and send a copy to their attorney.

I would NOT mention the wrong documents AT ALL.  The ONLY arguments I would make in court would be that this case belongs in JAMS arbitration per the Synchrony Card Agreement.  I would not mention the account or alleged debt or wrong documents in any way.  I would just get my MTC granted.

After the MTC is granted, I would file the arbitration case with claims of FDCPA violations for suing the wrong person.  I would prepare to use the incorrect documents in arbitration to prove they sued the wrong person, but I believe that a fairly quick settlement for a mutual dismissal with prejudice should be achieved here.

Okay, thank you. That's the advice that I was thinking that everyone is pointing me toward doing. My understanding, from reading the Florida Small Claims Rules provided me earlier, is that I don't need to file the answer ahead of the pre trial conference but please correct me if I'm wrong, that I just show up to my PTC and they will try and talk me into settling and that's where I tell them I want to go to trial and then file my MTC. Now, do I have the Clerk stamp the MTC as soon as I walk in or do I wait until after the PTC to have it stamped and filed?

Share this post


Link to post
Share on other sites

My only question on this and I am hoping others with more knowledge (such as @fisthardcheese) can answer, what happens if the OP goes to court with the MTC and the plaintiff tries to say that this is a Capital One account which has no arbitration clause based on the incorrect paperwork? Once they try to use the incorrect documents in court, should the OP bring that up and request a dismissal at that point? True that they can come back with the correct documents BUT then the OP would simply do the MTC on that case. That is the only possible scenario that we are missing here, I feel.

Share this post


Link to post
Share on other sites
On 6/7/2019 at 12:19 PM, WhoCares1000 said:

My only question on this and I am hoping others with more knowledge (such as @fisthardcheese) can answer, what happens if the OP goes to court with the MTC and the plaintiff tries to say that this is a Capital One account which has no arbitration clause based on the incorrect paperwork? Once they try to use the incorrect documents in court, should the OP bring that up and request a dismissal at that point? True that they can come back with the correct documents BUT then the OP would simply do the MTC on that case. That is the only possible scenario that we are missing here, I feel.

Then the OP would counter argue that they never had a Cap1 account and that the Plaintiff has sued the wrong person and at that point, I would ask the judge for some time to find an attorney in order to file a counter suit against the Plaintiff for this blatant FDCPA violation.

On 6/7/2019 at 10:26 AM, TroubleinFL said:

Okay, thank you. That's the advice that I was thinking that everyone is pointing me toward doing. My understanding, from reading the Florida Small Claims Rules provided me earlier, is that I don't need to file the answer ahead of the pre trial conference but please correct me if I'm wrong, that I just show up to my PTC and they will try and talk me into settling and that's where I tell them I want to go to trial and then file my MTC. Now, do I have the Clerk stamp the MTC as soon as I walk in or do I wait until after the PTC to have it stamped and filed?

If this were me, I would file the MTC as my answer and send a copy to the attorney prior to the court date.  Even if it isn't required, it won't hurt.

Share this post


Link to post
Share on other sites
On 6/9/2019 at 5:39 AM, fisthardcheese said:

Then the OP would counter argue that they never had a Cap1 account and that the Plaintiff has sued the wrong person and at that point, I would ask the judge for some time to find an attorney in order to file a counter suit against the Plaintiff for this blatant FDCPA violation.

If this were me, I would file the MTC as my answer and send a copy to the attorney prior to the court date.  Even if it isn't required, it won't hurt.

Unfortunately, time does not allow me to do this as my pre trial conference is to soon to get everything sent via certified mail and back.

So my gameplan is to

STEP 1:  Go to my PTC, I will listen to the mediator and attorney and settle if it is an ridiculously low amount.

STEP 2: Provided there is no acceptable settlement, I will ask for a trial date 30 days or more in the future.

STEP 3: I will then file my MTCArb (see above) with the clerk as my answer after my PTC (or should I wait and mail it in?).

STEP 4: Send a copy via certified mail to PRA's attorney.

STEP 5: Wait.

Please advise if I am missing something.

 

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.