catlady22

Colorado - being sued by Portfolio Recovery

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5 hours ago, catlady22 said:

Reason being is (assuming my spouses wages aren’t not judged as also mine) I am literally unable to pay based on my income alone.

Debt in Colorado is considered "community".  His are yours and yours are his.

As long as this case isn't in a "small claims" court, you should be able to make short work of this using arbitration.  Read the first few posts of this thread to get an idea of how it works.

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

 

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Thank you! So in my original card member agreement it says they arbitrate with AAS - but since it was sold to Portfolio, do I still contact AAA? Do I just answer this summons requesting arbitration?

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You answer the summons, deny each allegation and assert that the court lacks subject matter jurisdiction because you are exercising your right to contractual arbitration.

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You will need to file a Motion to Compel Arbitration, too.  It doesn't have to be filed with the answer, but you should do it relatively soon.

Hold off on dealing with AAA.  I would wait until the MTC Arb is ruled on for that.

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So I spoke with a lawyer near me today. He said he thought my best bet was to just call Portfolio and attempt to settle for what they paid for the debt (I do not know this amount.) He said in his experience it makes no difference if I were to call or a lawyer was, and would save me the legal fees. 
 

Can anyone explain to me like I’m a 5 year old - If I do file to motion to compel arbitration and AAA gets involved, what are the likely outcomes? i do not have a lump sum to give them.

 

thank you!

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1 hour ago, catlady22 said:

If I do file to motion to compel arbitration and AAA gets involved, what are the likely outcomes?

There's only one outcome. PRA will dismiss their lawsuit. Sometimes they wait until you pay the $200 filing fee, and in rare cases (5%) PRA pays their filing fees, but 100% of the time they have ultimately dismissed the lawsuit. 

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1 hour ago, catlady22 said:

So I spoke with a lawyer near me today. He said he thought my best bet was to just call Portfolio and attempt to settle for what they paid for the debt

I suspect their response would be laughter. Debt buyer's typically have two settlement options: full amount via monthly payments, and a small discount for a lump sum payment.

Follow the advice about arbitration - it sounds strange and confusing, but is actually quite simple and puts them in a position where it will cost as much as the debt in order to collect, so they just walk away.

 

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Thanks everyone. I am so lost and nervous about making sure I get the verbiage right, etc. Can anyone recommend anyone in Denver that would literally help walk me through this, making sure I’ve done everything right? 

 

i always thought I was pretty smart until getting sued and understanding very little lol.

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41 minutes ago, Harry Seaward said:

There's only one outcome. PRA will dismiss their lawsuit. Sometimes they wait until you pay the $200 filing fee, and in rare cases (5%) PRA pays their filing fees, but 100% of the time they have ultimately dismissed the lawsuit. 

Okay. So this is what it says in the card member agreement - not from the JDB but the OC. Is what you said still applicable? 
 

  We’ll pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law. “

 

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Yes, the OC's cardmember agreement applies to the JDB because the JDB steps into the shoes of the OC.    

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On 11/1/2019 at 1:18 PM, Harry Seaward said:

There's only one outcome. PRA will dismiss their lawsuit. Sometimes they wait until you pay the $200 filing fee, and in rare cases (5%) PRA pays their filing fees, but 100% of the time they have ultimately dismissed the lawsuit. 

So if they dismiss it, then is there any arbitration? Would the debt just be gone?

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Another ?:

 

I called Citi to obtain the card member agreement last specifically posted for that account. They said they don’t have it and to try calling the JDB...is that wise to call them to obtain it?

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2 hours ago, catlady22 said:

So if they dismiss it, then is there any arbitration?

No. 

2 hours ago, catlady22 said:

Would the debt just be gone?

Yes. 

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On 11/2/2019 at 5:55 PM, Harry Seaward said:

No. 

Yes. 

@Harry Seaward thank you so much for your help! Now, what about this language in a CMA I found that should be for when my account was closed:

Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

 

but before that, it says You or we may arbitrate any claim, dispute, or controversy between you and us arising of or related to your Account.”

 

Also, I’m not sure if I am in small claims. The papers I was served with doesn’t give a courtroom, and says “complaint under simplified civil procedure.” I thought anything under 7500 was small claims in CO.

 

 

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Well this is ripe.

 

Denver CO has zero record of this and there’s no case number on this summons. So it appears Portfolio basically served me with a fake summons.

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20 minutes ago, catlady22 said:

Well this is ripe.

 

Denver CO has zero record of this and there’s no case number on this summons. So it appears Portfolio basically served me with a fake summons.

Rule 3. Commencement of Action

(a) How Commenced. A civil action is commenced (1) by filing a complaint with the court, or (2) by service of a summons and complaint. If the action is commenced by the service of a summons and complaint, the complaint must be filed within 14 days after service. If the complaint is not filed within 14 days, the service of summons shall be deemed to be ineffective and void without notice. 
 

https://leg.colorado.gov/sites/default/files/images/olls/crs2018-court-rules.pdf

 

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2 hours ago, catlady22 said:

Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

 

The key to this is going to be if Colorado has a court specifically named "small claims", and whether or not you were sued in that Court.

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Title 13, Article 6, Part 4, Section 402 of Colorado code specifically establishes a "Small Claims Court" that is a division of County Court. Section 403 says that County Court and Small Claims Court share jurisdiction, so PRA could have legally sued you in in either court.  If you weren't sued in the Small Claims division, I would argue the "small claims" exception from the card agreement doesn't apply. 

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It appears that in colorado the small claims division generally doesn't allow representation.  See c.r.s. rule 509 & 520.

Chapter 26 - The Colorado Rules of Procedure for Small Claims Courts

If these are the applicable rules, they probably didn't file the complaint in the small claims division.  However, if pra is using an in-house attorney, the rules may allow it.

Prior forum posts by active members from colorado (e.g. here) seem to indicate that these sorts of cases are filed in county court but not in the small claims division.

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On 11/4/2019 at 9:04 PM, Harry Seaward said:

Title 13, Article 6, Part 4, Section 402 of Colorado code specifically establishes a "Small Claims Court" that is a division of County Court. Section 403 says that County Court and Small Claims Court share jurisdiction, so PRA could have legally sued you in in either court.  If you weren't sued in the Small Claims division, I would argue the "small claims" exception from the card agreement doesn't apply. 

If it ends up being small claims and they do argue that, basically I would just have to appeal so it goes to a different court and then the arbitration clause cannot be argued, right?

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19 minutes ago, catlady22 said:

If it ends up being small claims and they do argue that, basically I would just have to appeal so it goes to a different court and then the arbitration clause cannot be argued, right?

It depends, but usually appealing doesn't get you away fromthe small claims exception.

Because attorneys are not permitted in small claims, I'm 99% certain you weren't sued in the small claims court. 

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4 minutes ago, Harry Seaward said:

It depends, but usually appealing doesn't get you away fromthe small claims exception.

Because attorneys are not permitted in small claims, I'm 99% certain you weren't sued in the small claims court. 

That’s also my thought - except for this - “No attorneys are allowed in Colorado, except in limited cases for example, if the plaintiff is an active general partner in a partnership that is a party to the lawsuit.”

 

that seems highly unlikely for a JDB to me.

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I've only once seen a JDB  that was also a lawfirm, so it's essentially non-existent. In any case, PRA is not a lawfirm, so they would not be exempt from the 'no attorneys' rule. 

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