catlady22

Colorado - being sued by Portfolio Recovery

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4 hours ago, catlady22 said:
 

I've sent the settlement offer once and they denied it. Exact text said - "Thank you for your offer of settlement.  At this time, the Plaintiff has incurred a cost of $4200 under the current arbitration process and is unable to accept your offer of a mutual dismissal. However,  I am able to counter your settlement offer at this time.  The plaintiff is willing to dismiss with prejudice their claims against you with payment to the Plaintiff by you of $4200 and an agreement that you dismiss your claims with prejudice. "


I'm finishing my discovery now. I sent my requests to them and received them the day before they were due, so it's my understanding since they sent me interrogatories to answer with documentation I have 30 days since the receipt. I have been able to use a couple things they sent me (big one being I requested their call log to me. They provided one saying they've only called 3 times. My call log shows over 50. Another is the affidavit of sale that has a wrong date - and I read about a previous suit against PRA for such affidavits https://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/)

Should I still type out an affidavit of what happened and include a summary under the violations I'm claiming?

 

How much is PRA suing you for?

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16 hours ago, catlady22 said:

Should I still type out an affidavit of what happened and include a summary under the violations I'm claiming?

Yes.  Just claim that the JDB violated the FDCPA through their agent's (the attorney's) actions. 

If they provided proof of calling my cell phone 3 times, I would then add 3 TCPA claims for $1500 each.  Since these are new claims, you DO need to ask the arbitrator.  I would email the arbitrator with the attorneys copied and state that through discovery you have uncovered additional claims and ask to be allowed to amend your initial claims.  I would send a brief of all my claims with the exhibits of your proof attached. 

After I filed my amended claims, which from what I know should add up to $6500 (2 FDCPA violations (($1000 x 2)) plus wilful TCPA violations (($1500 x 3)) = $6500), I would then send another settlement offer to them and see if they don't have a change of mind on the mutual dismissal.

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56 minutes ago, fisthardcheese said:

Yes.  Just claim that the JDB violated the FDCPA through their agent's (the attorney's) actions. 

If they provided proof of calling my cell phone 3 times, I would then add 3 TCPA claims for $1500 each.  Since these are new claims, you DO need to ask the arbitrator.  I would email the arbitrator with the attorneys copied and state that through discovery you have uncovered additional claims and ask to be allowed to amend your initial claims.  I would send a brief of all my claims with the exhibits of your proof attached. 

After I filed my amended claims, which from what I know should add up to $6500 (2 FDCPA violations (($1000 x 2)) plus wilful TCPA violations (($1500 x 3)) = $6500), I would then send another settlement offer to them and see if they don't have a change of mind on the mutual dismissal.

Why would they not be allowed to call?  

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6 hours ago, fisthardcheese said:

Yes.  Just claim that the JDB violated the FDCPA through their agent's (the attorney's) actions. 

If they provided proof of calling my cell phone 3 times, I would then add 3 TCPA claims for $1500 each.  Since these are new claims, you DO need to ask the arbitrator.  I would email the arbitrator with the attorneys copied and state that through discovery you have uncovered additional claims and ask to be allowed to amend your initial claims.  I would send a brief of all my claims with the exhibits of your proof attached. 

After I filed my amended claims, which from what I know should add up to $6500 (2 FDCPA violations (($1000 x 2)) plus wilful TCPA violations (($1500 x 3)) = $6500), I would then send another settlement offer to them and see if they don't have a change of mind on the mutual dismissal.

So I have over 45 calls logged right now from them. Can I just include it under what I've already claimed (violations of state and federal law) ?

I haven't written a brief, I was told by the arb to do that after discovery. In the brief, would that be where I say I'm asking for X in damages or whatever the term would be? I haven't laid out anything in an official document that includes arb asking for a settlement (only in that email.)  So I'm including my call logs in the docs they ask for and have them listed as violations and a direct opposition to what they provided. 

I already had to ask the arb today for an extension because I didn't realize my discovery deadline passed. Crap. It was granted but 😬.

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On 7/24/2020 at 8:05 PM, BV80 said:
 
 

Why would they not be allowed to call?  

My claim would be that they do not have express written permission per the TCPA to call my cell phone.  I could easily testify that I have no recollection ever giving a JDB express permission.  The JDB would need to present evidence to the contrary.  Maybe they could, but they will pay for an arbitration hearing and then they would also need that evidence directly from the OC.  We know their evidence of the DEBT has gotten better over the years, but not always evidence of other issues like this.  So this is why I, personally, would make the TCPA claim.

On 7/25/2020 at 1:57 AM, catlady22 said:

So I have over 45 calls logged right now from them. Can I just include it under what I've already claimed (violations of state and federal law) ?

I haven't written a brief, I was told by the arb to do that after discovery. In the brief, would that be where I say I'm asking for X in damages or whatever the term would be? I haven't laid out anything in an official document that includes arb asking for a settlement (only in that email.)  So I'm including my call logs in the docs they ask for and have them listed as violations and a direct opposition to what they provided. 

Okay, since you made an initial generic claim of "violations of state and federal law" and your brief is not due yet, then I would say you are allowed to add any claims you want without further permission. That is good.

You can mention the 45 calls logged.  I suppose you could even add $500 per call, which is an amount allowed under TCPA if they are not considered "willful". The problem is they will say no autodialer was used to make those calls and you won't have a way to prove it unless you actually remember answering those calls and hearing the clues that it's an auto-dialed call and can testify to that.

The conclusion of your brief should include a "prayer for relief", where you ask for a dollar amount for all of their violations that you lay out in your brief. It's not a "settlement", it is an award amount you are asking the arbitrator to make.  "I ask the Arbitrator to make an award in Claimant's favor in the amount of $XX,XXX and to dismiss all claims by the Respondent".  It should look something like that.

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46 minutes ago, fisthardcheese said:

My claim would be that they do not have express written permission per the TCPA to call my cell phone.  I could easily testify that I have no recollection ever giving a JDB express permission.  The JDB would need to present evidence to the contrary.  Maybe they could, but they will pay for an arbitration hearing and then they would also need that evidence directly from the OC.  We know their evidence of the DEBT has gotten better over the years, but not always evidence of other issues like this.  So this is why I, personally, would make the TCPA claim.

Okay, since you made an initial generic claim of "violations of state and federal law" and your brief is not due yet, then I would say you are allowed to add any claims you want without further permission. That is good.

You can mention the 45 calls logged.  I suppose you could even add $500 per call, which is an amount allowed under TCPA if they are not considered "willful". The problem is they will say no autodialer was used to make those calls and you won't have a way to prove it unless you actually remember answering those calls and hearing the clues that it's an auto-dialed call and can testify to that.

The conclusion of your brief should include a "prayer for relief", where you ask for a dollar amount for all of their violations that you lay out in your brief. It's not a "settlement", it is an award amount you are asking the arbitrator to make.  "I ask the Arbitrator to make an award in Claimant's favor in the amount of $XX,XXX and to dismiss all claims by the Respondent".  It should look something like that.

Ok thank you! I haven't said anything anywhere about TCPA, just "state and federal" and the FDCPA. Actually, this triggered a memory from the exchange outside the courtroom. I mentioned harassing calls and she said they don't use spoofed or auto dialed calls. But if they don't use auto dial, how is it they only have a record of 3 calls to me and 1 to my mother while I have quite the contrary? 
 

So with my stuff being due now Wednesday, do I just submit my call log with all the other evidence and then mention TCPA in my brief? 
 

Basically what I have almost ready to go is my answers to the interrogatories which I structured as exhibits. A brief would basically just be summarizing everything I have and asking for the reward, right? 

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On 7/26/2020 at 4:16 PM, catlady22 said:

A brief would basically just be summarizing everything I have and asking for the reward, right? 

And including as much case law as possible to show that your arguments are correct under those cases other judges have ruled on.

On 7/26/2020 at 4:16 PM, catlady22 said:

So with my stuff being due now Wednesday, do I just submit my call log with all the other evidence and then mention TCPA in my brief? 

If you have any memory of answering some of those calls and having a long pause before they came on the line, or any other indications that an auto-dialer was used, I would type up an affidavit and include a notarized copy as part of my evidence.  You need to have SOME kind of indication showing it was auto dialed, so I would not rely only on the call logs.    Yes, I would point out the TCPA violations in the brief.

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