catlady22

Colorado - being sued by Portfolio Recovery

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On 12/18/2019 at 11:32 PM, catlady22 said:

Thanks! She was trying to scare me, I’m pretty sure - making sure I knew “how expensive arbitration would be for me” and how I’d “lose without a doubt” and that accepting an offer right there would be “in my best interest.” Lol.

I have a personal issue with lawyers who do this.  I am pretty sure this is grounds for a bar complaint.  Not only the blatant lying about costs to you, but the fact that they are telling you what is "in your best interest" when they are NOT your attorney and in fact represent the opposing side.  That is a complete conflict of interest AND another blatant lie. 

As far as PRA, I would send them an email offering a mutual dismissal with prejudice of all claims.  Meaning you dismiss the AAA claims and they dismiss the court case with prejudice.  I would give them 7 days before your offer expires.

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2 hours ago, fisthardcheese said:
 
 

I have a personal issue with lawyers who do this.  I am pretty sure this is grounds for a bar complaint.  Not only the blatant lying about costs to you, but the fact that they are telling you what is "in your best interest" when they are NOT your attorney and in fact represent the opposing side.  That is a complete conflict of interest AND another blatant lie. 

As far as PRA, I would send them an email offering a mutual dismissal with prejudice of all claims.  Meaning you dismiss the AAA claims and they dismiss the court case with prejudice.  I would give them 7 days before your offer expires.

Thank you! I'll type that up later and post, do you mind taking a look?

So they have until Tuesday to pay AAA (my fee was waived.) we have a paper review hearing ordered by the judge on Feb 18.

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17 hours ago, catlady22 said:

Thank you! I'll type that up later and post, do you mind taking a look?

So they have until Tuesday to pay AAA (my fee was waived.) we have a paper review hearing ordered by the judge on Feb 18.

It doesn't need to be complicated at all.  Send an email to the attorney and say "In the interest of further time and expense on this matter, I am willing to offer your client a settlement of mutual dismissal with prejudice of all claims.  I will dismiss with prejudice all claims in arbitration in exchange for a dismissal with prejudice filed with XX Court in case #1234.  This offer expires on Feb 14."

It's that simple.

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4 hours ago, catlady22 said:

it looks like they've paid the fee but not the retainer...

Are you seeing something specific showing they paid, or just assuming because you recieved some stuff from AAA?

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4 hours ago, Harry Seaward said:

Are you seeing something specific showing they paid, or just assuming because you recieved some stuff from AAA?

This is what it says on the first page: RESPONSE DATE: FEBRUARY 18, 2020
Dear Parties:
Pro Se Arbitration Administration Team P.O. Box 19609
Johnston, RI 02919
   Thank you for choosing the American Arbitration Association (AAA) to assist you in resolving your dispute. This case is being administered by the Pro Se Arbitration Administration Team. Please review the Pro Se Arbitration Information Sheet, which will provide you with some basic information about the AAA􏰀s administration process. You may also view our website, www.adr.org/pro-se.
The Consumer Arbitration Rules apply to this case. Administrative Fees:
􏰁 Business is responsible for $300 as their share of the filing fee, which has been paid.
􏰁 Business is also responsible for payment of a case management fee in the amount of $1,400, which
will be due sixty days from the date of this letter or when AAA is prepared to appoint the arbitrator,
whichever comes first.
􏰁 If the case proceeds to an in-person or telephone evidentiary hearing, an additional administrative fee
of $500 is payable by the Business.
Unpaid fees are due on or before the above response date. 
 

 

This is what it said in a letter dated Jan 6:

Under the Consumer Rules, the consumer pays a filing fee of $200 and the business pays a filing fee of $300. We have received the consumer􏰇s $200 portion of the filing fee. So that the filing requirements are complete, the business is requested to submit filing fees of $300 and the arbitrator􏰈s compensation deposit of $2,500, totaling $2,800.
 

Maybe I'm misunderstand what the first letter is saying. Did they pay the 2500, and now need to pay a case management fee on top of that?

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I think this:

13 hours ago, catlady22 said:

Business is responsible for $300 as their share of the filing fee, which has been paid.
􏰁 Business is also responsible for payment of a case management fee in the amount of $1,400, which
will be due sixty days from the date of this letter or when AAA is prepared to appoint the arbitrator,
whichever comes first.

Is saying they have only paid $300 to date. 

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This is the amusing part of having a clueless attorney.  They paid the $300 from the initial letter thinking it was the only fee.  Now they get this second letter saying they owe $1400.  On rare occasions we see some attorneys paying this also only to get hit again with the actual arbitrator's retainer once they are selected which can be anywhere from another $1500 - $2500.

You send a settlement offer I assume, which I suggested you state expires on the 14th.  So you wait until the 14th to see what they do with this new information.

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31 minutes ago, fisthardcheese said:

This is the amusing part of having a clueless attorney.  They paid the $300 from the initial letter thinking it was the only fee.  Now they get this second letter saying they owe $1400.  On rare occasions we see some attorneys paying this also only to get hit again with the actual arbitrator's retainer once they are selected which can be anywhere from another $1500 - $2500.

You send a settlement offer I assume, which I suggested you state expires on the 14th.  So you wait until the 14th to see what they do with this new information.

I'll try sending it again, maybe I should do it through the settlement portal on AAA?

Secondly, if the first letter said 300+2500, and the second letter said 1400 and implied only 300 was paid, what happened to that 2500?

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51 minutes ago, fisthardcheese said:

This is the amusing part of having a clueless attorney.  They paid the $300 from the initial letter thinking it was the only fee.  Now they get this second letter saying they owe $1400.  On rare occasions we see some attorneys paying this also only to get hit again with the actual arbitrator's retainer once they are selected which can be anywhere from another $1500 - $2500.

You send a settlement offer I assume, which I suggested you state expires on the 14th.  So you wait until the 14th to see what they do with this new information.

Second question - I discussed with a friend who introduced me to arbitration the email offering the settlement and he said "I don't fully understand the context of that offer? But why would they settle arbitration for nothing if they've paid the fee to proceed? If you were to offer a settlement $$ amount I could see them possibly accepting, but I think sending that now would show weakness which may make them feel more confident to proceed with arbitration. It's a complex question but if it were me, I would go to the paper review and see if they show. If so, she'll try to settle with you before the hearing starts. If not, you can motion the court to Dism w/ prej.....If you proceed to AAA, act confident and we'll file objections to increase their cost. (I say I think the offer of mutual dismissal w prej makes sense if they haven't paid beyond the 300 - like you said, clueless attorney.) Ok I see your point, the retainer isn't a lost fee though so they'll anticipate getting that back which means you don't have a lot of leverage yet. Once you start arbitration and file objections their cost will start to dramatically increase which will give you more leverage."

Thoughts? You're the master at this!

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On 2/5/2020 at 4:45 PM, catlady22 said:

Second question - I discussed with a friend who introduced me to arbitration the email offering the settlement and he said "I don't fully understand the context of that offer? But why would they settle arbitration for nothing if they've paid the fee to proceed? If you were to offer a settlement $$ amount I could see them possibly accepting, but I think sending that now would show weakness which may make them feel more confident to proceed with arbitration. It's a complex question but if it were me, I would go to the paper review and see if they show. If so, she'll try to settle with you before the hearing starts. If not, you can motion the court to Dism w/ prej.....If you proceed to AAA, act confident and we'll file objections to increase their cost. (I say I think the offer of mutual dismissal w prej makes sense if they haven't paid beyond the 300 - like you said, clueless attorney.) Ok I see your point, the retainer isn't a lost fee though so they'll anticipate getting that back which means you don't have a lot of leverage yet. Once you start arbitration and file objections their cost will start to dramatically increase which will give you more leverage."

Thoughts? You're the master at this!

Your friend has no clue how arbitration works.  That is all incorrect information and the way we suggest things here have a very good track record that you can look up many times over on this site.

If your settlement offer included an expiration date as I suggested, then you need to wait until that date before sending anything else.  Give them the time you allowed for them to accept your offer now that they have another bill in front of them.

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4 hours ago, fisthardcheese said:

Your friend has no clue how arbitration works.  That is all incorrect information and the way we suggest things here have a very good track record that you can look up many times over on this site.

If your settlement offer included an expiration date as I suggested, then you need to wait until that date before sending anything else.  Give them the time you allowed for them to accept your offer now that they have another bill in front of them.

Got it! No offense meant - trying to understand/hear a bunch of opinions but you guys are the experts! Thank you so much for being here for people like me on these forums!

Do you think the attorney is going to try and talk to me before/after the paper review in court? Should I be prepared for anything specific in this review?

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10 hours ago, fisthardcheese said:

What do you mean by paper review?  Is this a court hearing?

Yes. It's in a few hours. The judge made it when he granted the MTC.

Since the PRA lawyer approached me beforehand at the MTC hearing, if she does again I'm just wondering if I should mention my offer, and if declined mention I'm looking at bankruptcy (not false) so they're really wasting money by going through with arb...

 

EDIT: I guess I didn't need to show up today even though I swear the judge said to. The clerk discussed with the judge that PRA has had no contact with me and to my knowledge have not paid the full amount due to AAA, so he ordered a status review, and left a message for PRA...

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@fisthardcheese Just received correspondance from the PRA lawyer (awfully late?). Looks like they've added a second attorney and sent a "Arbitration brief." It's in the same formatting as the court documents...but was emailed to me and AAA. The ending summation is: 
 

III. PORTFOLIO HAS SATISFIED ALL ELEMENTS OF AN ACTION UNDER ACCOUNT STATED, THEREFORE JUDGMENT SHOULD BE GRANTED IN ITS FAVOR.
In order to prevail on a claim for account stated a party must prove: 1) an agreement between parties, who have had previous financial transactions; 2) the balance claimed is correct and due between the parties; and 3) a promise by the debtor, either express or implied, to pay the agreed upon balance. Teller v. Ferguson, 24 Colo. 432, 437, 51 Pac. 429.
In the case at bar, Claimant opened an account with Citibank N.A., (herein referred to as the “Original Creditor”) on or about February 26, 2008. The Defendant
 2

herself admitted this fact in Denver County Court on December 17, 2019. The account was used and kept current until July 2018, for over 10 years. After Defendant failed to make payment on the account, the account was charged off in November, 2019. The amount due and owing at that time was $6,858.08. Finally, Claimant neither contests or denies that there is an agreement between parties as she relies upon the agreement for her Motion to Compel Arbitration. (See Exhibit 2 and 4 attached herein).
Further, the documentation demonstrate that the balance claimed is correct and due. Claimant was well aware of the final balance due and owing. Claimant never objected to the final balance due nor did she dispute this final balance at any time during the year between her last payment and the date this action was filed nor has she disputed the balance during this litigation.
Here, the evidence establishes that debtor/Claimant did not make any dispute of the account. Pursuant to the Fair Billing Credit Act, 15 U.S.C. § 1666, a debtor/obligor has sixty days in which to file a written dispute of the debt. Based on PRA’s records, Claimant did not object to this balance prior to the lawsuit filed in this action. Claimant failed to object or dispute this amount and as such, has acquiesced to the amount due.
In this case, the Defendant consistently made payments from the inception of the account in 2008 through June 2018. Ten years of consistent payments creates an implied promise to pay the balance of this account as defined by the courts. (See billing statements attached herein as Exhibit 5)
Therefore, PRA has satisfied all elements of an action for account stated and judgment should be granted in its favor.
IV. Standing
3

In this matter, Portfolio submits a Bill of Sale identifying the Defendant’s account as being sold to Plaintiff, Portfolio Recovery Associates, LLC. (Exhibit 6 attached herein).
This account was transferred only once, from Citibank, N.A. to PRA. Further, Claimant has acknowledged that PRA is a party as evidenced by her Motion to Compel Arbitration.
A party has standing when it has a “judiciable interest in the subject matter of the action.” CACH v Askew, 358 SW3d 58 (En banc ’12). The Bill of Sale is the document that expressly transfers title from seller to buyer. American First Federal, Inc. v. Battlefield Center, LP, 282 SW3d 1 (ED ’09).
In addition, pursuant to 15 U.S.C. 1601 §226, et seq. (Regulation Z), a bank may not send monthly statements to anyone other than the debtor unless the account is sold, then the assignee of the account may be given the monthly statements. Thus, the mere fact that the Plaintiff is in possession of the monthly statements, aside from the Business Records Affidavit, evidences that there is an assignment of this account.
V. Conclusion
For the reasons stated above, judgment should be awarded in favor of PRA in the amount of $6,858.08, plus costs in the amount of $2,800.00, the costs of this arbitration to date.
Respectfully submitted,
__________________________
 

 

Now I'm worried! Should I resend that offer via email especially now that I have the attorneys actual email address (I didn't before and sent it to PRAs general mailbox) ? 
 

thank you again (and @Harry Seaward) for all your help!

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5 hours ago, catlady22 said:

Should I resend that offer via email especially now that I have the attorneys actual email address (I didn't before and sent it to PRAs general mailbox)

If you never sent a settlement offer to the actual attorney, then you have made no settlement offer in this case.

They can copy and paste all the court documents they want to AAA, but it's pointless at this time since an arbitrator hasn't even been appointed to your case yet and you haven't even had your first conference call with the arbitrator.  I would ignore it and send the settlement offer.

 

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Let me amend my response above.  Don't completely ignore their reply to AAA.  Hit Reply All to that email and send an objection to AAA.  Tell AAA that you object to the Respondent's request that the Consumer pay the full arbitration amount as it runs counter to the Consumer Supplement Rules of AAA.  I would send this email FIRST.  And then, I would send a second email to the attorney ONLY with my settlement offer.

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7 hours ago, fisthardcheese said:

Let me amend my response above.  Don't completely ignore their reply to AAA.  Hit Reply All to that email and send an objection to AAA.  Tell AAA that you object to the Respondent's request that the Consumer pay the full arbitration amount as it runs counter to the Consumer Supplement Rules of AAA.  I would send this email FIRST.  And then, I would send a second email to the attorney ONLY with my settlement offer.

This is the only thing I'm seeing about arb costs being paid back - am I looking in the wrong place? I did file with AAA to have my fees waived and was granted that, so clearly I have no money to pay their share! 

b.) The award shall provide the concise written reasons for the decision unless the parties all agree otherwise . Any disagreements over the form of the award shall be decided by the arbitrator .

d) In the final award, the arbitrator shall assess the fees, expenses, and compensation provided in Sections R-4, R-5, and R-7 in favor of any party, subject to the provisions and limitations contained in the Costs of Arbitration section .
R-45 . Award upon Settlement
If the parties settle their dispute at any point during the arbitration and at the parties’ request, the arbitrator may lay out the terms of the settlement in a “consent award” (an award drafted and signed by the arbitrator that reflects the settlement terms of the parties) . A consent award must include a division of the arbitration costs, including administrative fees and expenses as well as arbitrator fees and expenses . Consent awards will not be made available to the public per Rule 43(c) unless the parties agree otherwise .

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34 minutes ago, Goody_Ouchless said:

So PRA has followed to the tune of $2800? That's new.

 

I'm confused as to where they got that number and to what actually they've paid beyond the 300. The last email said they owed 1400, others say a total of 2800 (the rules) .

 

I also noticed in their response they said Citi had the right to charge off after 6mo

of non payment. Maybe I am crazy but July 2 (actual last payment date) and the CO date of Nov 9 is not 6 months.

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33 minutes ago, catlady22 said:

I also noticed in their response they said Citi had the right to charge off after 6mo

of non payment. Maybe I am crazy but July 2 (actual last payment date) and the CO date of Nov 9 is not 6 months.

Where are you seeing a charge of date?  They don't have to charge it off before they sell it. 

Edit: also, the charge of date is based on when the account went delinquent, not when the last payment was made. 

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7 minutes ago, Harry Seaward said:

Where are you seeing a charge of date?  They don't have to charge it off before they sell it. 

Edit: also, the charge of date is based on when the account went delinquent, not when the last payment was made. 

Ah. So this was in a section I didn't post. Here it is (and the Regulation Z is where it says the charge off must be 6mo after non payment. So even if my last payment was Jul 2, assumed delinquent Aug 2, and charged off on Nov 9, that's not 6 months either. The text says last payment was 6/30 but it was 7/2.

" On or about, June 30, 2018, Claimant made a final payment on the Account to Citibank, N.A. in the amount of $112.73. The Account became delinquent thereafter by Claimant’s failure to make timely monthly payments.
On or about November 9, 2018, Citibank, N.A. charged off the entire balance of the Account in the amount of $6,858.08, as required by the FDIC. Pursuant to Regulation Z (15 CFR § 1026) after six months of non-payment or default on an account, a credit card lender must close the account and “charge it off” of their accounting records as an accounting loss. The term “charge off” does not mean that the defaulted amount is forgiven. On or about January 30, 2019, Citibank, N.A. assigned, transferred and sold this account to PRA."

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25 minutes ago, Harry Seaward said:

Was the June 30 (July 2) payment your June payment that was delinquent? 

"after six months of non-payment or default on an account"

No. That was the last payment date.

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