Sued by PRA in California

[CCmommy]

Hello. I posted this in another thread but think I had it in the wrong place so reposting. I filed my general denial yesterday not listing any affirmative defenses, now I’m worried it was a mistake to raise any? I’m also not sure about my next step. Cause of action is Account Stated. I’m a little worried because from reading it is my understanding that I cannot send a demand for a Bill of Particulars because it is account stated and I also cannot compel arbitration because my original account was through Capital One.Thank you! Here is my info. 

1. Who is the named plaintiff in the suit? Portfolio Recovery Associates

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Jordan D Cook

3. How much are you being sued for?

$6500

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. Phone calls in which I didn’t answer. 

9. What state and county do you live in? California, Los Angeles

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) August 2017

11. When did you open the account (looking to establish what card agreement may be applicable)? November 2014

12. What is the SOL on the debt? To find out: 4 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). I filed a general denial. Just checked box, not sure if I should have listed any affirmative defenses.

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 disputing after being sued 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? Already answered. Have not yet received any discovery.

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. 2 statements one of which is final, last page which has “your account has been charged off it is now being serviced by the recoveries dept.”

18.  How did you find out about this site? Search 

 

 

[RyanEX]

The one affirmative defense that I think is worth pursuing is statute of limitations (when it applies). From your answers you understand that the SOL affirmative defense wouldn't apply to your case - so I think you're general denial is fine. You are correct, a Bill of Particulars isn't proper for an Account Stated complaint. But that doesn't mean you can't ask for it anyway - of course they can object, but they'll have to write that up and send it to you, which makes them work

How do you know you cannot pursue arbitration because it's Capitol One? Did you pull a Cap1 card agreement from the year the alleged account was opened to make sure there is no arbitration clause? Even if arbitration is not available to you, defending your case as-is is a good option. CA laws place the burden of proof on the plaintiff, and they don't make it easy on them (so long as you know how to press that advantage), see this thread for a basic rundown of trial strategy: https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

[YOLO YOLO]

On 7/26/2019 at 2:51 PM, RyanEX said:

The one affirmative defense that I think is worth pursuing is statute of limitations (when it applies). From your answers you understand that the SOL affirmative defense wouldn't apply to your case - so I think you're general denial is fine. You are correct, a Bill of Particulars isn't proper for an Account Stated complaint. But that doesn't mean you can't ask for it anyway - of course they can object, but they'll have to write that up and send it to you, which makes them work

On my case, 1 Account Stated and 2 Money Lent I asked for the BOL and I got nothing. Plaintiff objected based on Attorney/Client confidentiality and ... Plaintiff is only required to  produce an itemization of he account within the pleading indicating what accounts are subject on the lawsuit. Plaintiff is continuing to search its records for documents that are responsive to this demand... All they sent are the same monthly card statements that were attached to the original summons.

10 Days later I sent a M&C letter given them 10 more days to comply with the BOL and I got the same ( copy and paste) objection and no new documents.

While I answered to the Plaintiff's Discovery set, I sent my own discovery request to them 30 days ago. So far no answer. What happens if they do not answer to my discovery set?

[CCmommy]

On 7/26/2019 at 2:51 PM, RyanEX said:

The one affirmative defense that I think is worth pursuing is statute of limitations (when it applies). From your answers you understand that the SOL affirmative defense wouldn't apply to your case - so I think you're general denial is fine. You are correct, a Bill of Particulars isn't proper for an Account Stated complaint. But that doesn't mean you can't ask for it anyway - of course they can object, but they'll have to write that up and send it to you, which makes them work

How do you know you cannot pursue arbitration because it's Capitol One? Did you pull a Cap1 card agreement from the year the alleged account was opened to make sure there is no arbitration clause? Even if arbitration is not available to you, defending your case as-is is a good option. CA laws place the burden of proof on the plaintiff, and they don't make it easy on them (so long as you know how to press that advantage), see this thread for a basic rundown of trial strategy: https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

Thank you so much for replying. Ok I sent them the demand for BOP. Reading the thread you referred me to I’m going to send them a Request for Production of Documents by the end of this week. In California I don’t need permission from the Court to conduct discovery, correct? 

I did find the original CC agreement online and there is not an arbitration clause. From reading on this forum I’m under the impression that Capital One removed it some time ago.

[Clydesmom]

On 7/26/2019 at 2:51 PM, RyanEX said:

How do you know you cannot pursue arbitration because it's Capitol One? Did you pull a Cap1 card agreement from the year the alleged account was opened to make sure there is no arbitration clause?

Capital One completely removed arbitration as an option in their card agreements over a decade ago.  The first post states the card was opened in 2014 which means that arbitration is not an option.