WillingtoFight593

Being sued by PRA in South Carolina

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1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates LLC

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

Scott & Associates

3. How much are you being sued for?

$4000

4. Who is the original creditor?

Comenity Bank (PayPal)/Synchrony Bank

5. How do you know you are being sued? 

Served a summons 

6. How were you served? 

Certified mail

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

South Carolina / Spartanburg

10. When is the last time you paid on this account? 

04/2018

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

06/2014

12. What is the SOL on the debt? To find out:

3 years

13. What is the status of your case?

Just received summons today. Still need to answer

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?

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?

30 days

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Itemization (just a statement saying I owe $4055), affidavit saying they are an employee of PRA and all debt is now owned by them, Bill of Sale from Synchrony, a charge off statement from 11/2018, “important information about PayPal credit” which is not an agreement but a page on how they credit accounts, how they calculate interest, and the billing rights summary, a copy of my last payment in April of 2018.

Should I do an MTC arbitration? Has anyone ever done this in South Carolina? Does anyone have any examples of an MTC for this state?

Any advice on how I move forward?  Thanks so much.

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PayPal arbitration clauses state if you do not reject the arbitration provision within so many days then "all" disputes in reference to or related to the account shall be resolved by binding arbitration and 'not' by a court. that is the provision of the agreement i would personally use to get the case dismissed if it were me. 

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I also talked to an attorney (free consultation) and he advised that while I could go it on my own (and didn’t discourage me from doing so) he said I should file an answer along with any counterclaim I can come up with, go to court and that they likely won’t bring a witness and just object to them submitting any documents with no witness and the judge should sustain the objection and they will likely go away as they won’t want to produce a knowledgeable witness.

After seeing the case of @catlady22, I’m a bit scared of arbitration, but know it’s unlikely that all the sudden they’re all going to want to go arbitration and duke it out til the end.

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Most folks here say that approach, going to court and objecting to their evidence, doesn't work anymore. That's one reason so many of us favor arbitration.  I don't know the procedures  in your state, but typically these cases don't even get to a trial. What happens is the plaintiff files a motion for summary judgment, and they have statements and affidavits, even from the OC.  Most likely you will lose.

In reading catlady22's thread, I think the problem resulted from a clause in the cardmember agreement that allowed the assessment of fees to the consumer if their claims were frivolous.  See if that language is in your agreement.

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3 hours ago, nobk4me said:

Most folks here say that approach, going to court and objecting to their evidence, doesn't work anymore. That's one reason so many of us favor arbitration.  I don't know the procedures  in your state, but typically these cases don't even get to a trial. What happens is the plaintiff files a motion for summary judgment, and they have statements and affidavits, even from the OC.  Most likely you will lose.

In reading catlady22's thread, I think the problem resulted from a clause in the cardmember agreement that allowed the assessment of fees to the consumer if their claims were frivolous.  See if that language is in your agreement.

I have attached the agreement. I do not see anything about frivolous claims but would love for someone else to review it. There is a claim within the arbitration clause that states "they will not require [me] to arbitrate in small claims court." Does that mean I am not allowed to insist on arbitration? Also, I noticed in the packet they sent me that the affidavit they attached is not from the OC but from the JDB saying they are a "witness to the account" but they are an employee of PRA, not Synchrony Bank.

Additionally, I have noticed that in the complaint, they state that an account was opened with Comenity Capital Bank, that they are the successor-in-interest of the account from Comenity Capital Bank, but the bill of sale they have attached is from Synchrony Bank. Everything I am reading states these are not the same company, nor are they parent companies or anything like that of one another--is this a discrepancy I should attest to in some way?

PayPal_Credit_Account_Agreement_and_Pricing_Information.pdf

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Are you being sued in small claims court? In some states JDB can't use small claims court. Also, a clause saying they won't require you to arbitrate doesn't mean you can't choose arbitration.

Comenity and Synchrony are two different companies. It's possible Synchrony acquired the account from Comenity, but I am not aware that they were ever involved with Paypal. The JDB would have to show a complete chain of custody.

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What potential counter claims have you got? I am glad an attorney told you that, about counter claims. Believe it or not there are folks on this forum who say "that doesn't work anymore". Because that is exactly what I have done. Looked for counter claims, found them, used them as leverage and voila. Scott and Associates is a pretty lazy law firm, anyhow.

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4. However, we will not require you to arbitrate any individual case in *small claims court or your state’s equivalent court*, so long as it remains an individual case in that court. Also, even if all parties have opted to litigate a claim in court, **you or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in any related or unrelated lawsuit**, including modifying an individual claim to assert a class, representative or multi-party claim. Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun, or a final judgment entered

* whether small claims, or justice court, whatever the "equivalent" is in your state, you can be sued.

** if you have any decent counter claims, there is a good chance they will be the ones wanting to go to arbitration. And incurring some high costs in doing so, much more than they already have. Which could turn this litigation into a business decision on their part to just cut their losses.**

If I am understanding correctly here, Comenity Capital Bank was never at any point in time even someone who owned rights to this account at all? There is a small possibility that this arbitration agreement you shared which looks like it was made or revised 6/20 could just be the most recent. Is it possible that originally it was Comenity Bank you opened the account with? They will push the arbitration agreement that was in effect when your account was charged off, probably. If Comenity just came out of thin air, I would lean on that more than anything. In any case, they should be able to provide proof of the debt changing hands from Comenity to Synchrony, and then to PRA. Unless of course they either don't have it, or it isn't required that they show it.

 

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1 hour ago, alwayswinning36 said:

4. However, we will not require you to arbitrate any individual case in *small claims court or your state’s equivalent court*, so long as it remains an individual case in that court. Also, even if all parties have opted to litigate a claim in court, **you or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in any related or unrelated lawsuit**, including modifying an individual claim to assert a class, representative or multi-party claim. Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun, or a final judgment entered

* whether small claims, or justice court, whatever the "equivalent" is in your state, you can be sued.

** if you have any decent counter claims, there is a good chance they will be the ones wanting to go to arbitration. And incurring some high costs in doing so, much more than they already have. Which could turn this litigation into a business decision on their part to just cut their losses.**

If I am understanding correctly here, Comenity Capital Bank was never at any point in time even someone who owned rights to this account at all? There is a small possibility that this arbitration agreement you shared which looks like it was made or revised 6/20 could just be the most recent. Is it possible that originally it was Comenity Bank you opened the account with? They will push the arbitration agreement that was in effect when your account was charged off, probably. If Comenity just came out of thin air, I would lean on that more than anything. In any case, they should be able to provide proof of the debt changing hands from Comenity to Synchrony, and then to PRA. Unless of course they either don't have it, or it isn't required that they show it.

 

In the OP’s other thread, I posted an article that shows Synchrony bought PayPal accounts in 2017. Here is a 2015 PayPal agreement that references Comenity.

https://www.paypalobjects.com/webstatic/checkout/hermes/html/PayPalCreditTerms_v2.html

The 2020 agreement posted by the OP references Synchrony.  

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10 hours ago, BV80 said:

In the OP’s other thread, I posted an article that shows Synchrony bought PayPal accounts in 2017. Here is a 2015 PayPal agreement that references Comenity.

https://www.paypalobjects.com/webstatic/checkout/hermes/html/PayPalCreditTerms_v2.html

The 2020 agreement posted by the OP references Synchrony.  

Ahh, gotcha. I missed that then. I didn't know, or didn't realize maybe he had other threads about this.

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13 minutes ago, alwayswinning36 said:

Ahh, gotcha. I missed that then. I didn't know, or didn't realize maybe he had other threads about this.

It can cause confusion and details can be missed when posters post in more than one thread.  

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23 hours ago, nobk4me said:

Are you being sued in small claims court? In some states JDB can't use small claims court.

I am being sued in county magistrate court, yes. All claims must be less than $7500.

 

20 hours ago, alwayswinning36 said:

There is a small possibility that this arbitration agreement you shared which looks like it was made or revised 6/20 could just be the most recent.

I cannot for the life of me find a 2018 PayPal Credit agreement. I checked CFPB to no avail. That would be the last year the account was active before being charged off.

 

21 hours ago, alwayswinning36 said:

What potential counter claims have you got?

Calling me without consent, calling me constantly, many many many times...also, not sure if they have to prove the chain from Comenity to Synchrony, but they definitely didn’t do that. Do I wait to counterclaim via arbitration, or do I counterclaim in my answer? I have also posted a redacted version of everything they sent me.

 

8 hours ago, BV80 said:

It can cause confusion and details can be missed when posters post in more than one thread.

Yes, I didn’t mean to have two threads actively going like this. The other thread is in a different section because I was just trying to find more info about a specific S.C. MTC arb for case law examples, etc, but BV80 really helped me with that. Sorry for there being two threads. 

1189247534_Nov9Doc1.pdf

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20 minutes ago, WillingtoFight593 said:

 

 

I cannot for the life of me find a 2018 PayPal Credit agreement. I checked CFPB to no avail. That would be the last year the account was active before being charged off.

 

Calling me without consent, calling me constantly, many many many times...also, not sure if they have to prove the chain from Comenity to Synchrony, but they definitely didn’t do that. Do I wait to counterclaim via arbitration, or do I counterclaim in my answer? I have also posted a redacted version of everything they sent me.

 

 

1189247534_Nov9Doc1.pdf 9.98 MB · 1 download

You will have to check the archives. Probably Q4 of 2018, or Q1 of 2019, I would imagine for the agreement that would probably be presumed to be the applicable to your matter.

Calling without consent. This is the caveat here, did the original creditor in your case have the same number you say the buyer is calling you on without your consent? If it is the same number you had when you were in good standing with the creditor, then your consent to that creditor extends to the collector, assignee, buyer, etc. But apart from this, you would have to prove also that it came from a robo-dialer, if you were wanting to seek damages under the TCPA. If you ever sent them a cease and desist letter, there could be a very small possibility that you could recover damages. Maybe under the TCPA, or both the TCPA and FDCPA, but I would consult that attorney again. Sounds like he was pretty helpful and not just shooting you down. Usually if you sound or seem like you are on the right track they will give you little tidbits more information. They wont tell you exactly how to do it all but will usually give you enough info to make you look at what you need.

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2 hours ago, alwayswinning36 said:

You will have to check the archives. Probably Q4 of 2018, or Q1 of 2019,

I have checked the archives and there are PayPal agreements but none of them are exactly PayPal Credit. All sorts of other types but mine was just plain old PayPal Credit. 

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19 hours ago, WillingtoFight593 said:

I have checked the archives and there are PayPal agreements but none of them are exactly PayPal Credit. All sorts of other types but mine was just plain old PayPal Credit. 

I could look for the post in particular, but someone had the same issue, I think with Old Navy. On the last page of the agreement, for another retailer card, it stated Synchrony also had the same for different retailers also. So long as you find one close, that says that on the last page and includes PayPal, and/or the specific type of card account you had, then that will likely be the applicable agreement.

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On 11/13/2020 at 3:42 PM, alwayswinning36 said:

I could look for the post in particular, but someone had the same issue, I think with Old Navy. On the last page of the agreement, for another retailer card, it stated Synchrony also had the same for different retailers also. So long as you find one close, that says that on the last page and includes PayPal, and/or the specific type of card account you had, then that will likely be the applicable agreement.

I am looking, I literally cannot find anything. Attached is the closest thing. It's within a year of when the account charged off but it is not the same year. It's one year earlier. 2017. I don't know what else to do. But they also attached something in their documents that were served to me that IS NOT an agreement, I attached what they sent as well. I know I need this so I can do the affidavit and what not.

credit agreement.pdf Nov 14, Doc 1.pdf

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3 hours ago, WillingtoFight593 said:

 

The credit agreement you attached, on page 15/21, states there is arbitration. It does mention small claims, but says you can bring small claims against them. Doesn't say in plain wording that they can with you, however. Hopefully someone else with a little more knowledge in the language of that sort of arbitration agreement will be able to tell you a more definite answer. But the agreement does allow for arbitration. So, you could in theory file a MTC and hope for the best. As for the other single page document, that appears to be a page from some agreement. Just not sure which one.

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17 hours ago, alwayswinning36 said:

The credit agreement you attached, on page 15/21, states there is arbitration. It does mention small claims, but says you can bring small claims against them. Doesn't say in plain wording that they can with you, however. Hopefully someone else with a little more knowledge in the language of that sort of arbitration agreement will be able to tell you a more definite answer. But the agreement does allow for arbitration. So, you could in theory file a MTC and hope for the best. As for the other single page document, that appears to be a page from some agreement. Just not sure which one.

I think they submitted that one page agreement to try and state that is the "credit card terms and agreements" but it definitely is not. They also attached a bill of sale that does not have a purchase agreement, doesn't even have my name or account number on it. They attached an affidavit from someone with "knowledge of the account" that is robosigned and is not even from the OC, it's just someone that works for PRA. No signatures in the entire packet. The packet is posted earlier in this thread if anyone has time to review it?

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18 hours ago, WillingtoFight593 said:

I think they submitted that one page agreement to try and state that is the "credit card terms and agreements" but it definitely is not. They also attached a bill of sale that does not have a purchase agreement, doesn't even have my name or account number on it. They attached an affidavit from someone with "knowledge of the account" that is robosigned and is not even from the OC, it's just someone that works for PRA. No signatures in the entire packet. The packet is posted earlier in this thread if anyone has time to review it?

Well, they should be able to produce the entire document, not just page as they choose or wish to to select. I am not 100% positive, but I think as long as someone has signed an affidavit claiming they purchased the records, they can get by with it. I am not sure, though. I would try to challenge it, if I were you maybe directly with their attorney. There is one BOS, from the from Comentiy to Synchrony that is dated and has account number ending in 4*** imn June of 2019. I am not sure what all proof exactly you could make them provide. I just know in Texas when I have spoken with attorneys they made it sound like an affidavit is pretty solid for them. I don't see the trail either that you are wanting to see. I would raise the issue with the attorney.

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45 minutes ago, alwayswinning36 said:

Well, they should be able to produce the entire document, not just page as they choose or wish to to select. I am not 100% positive, but I think as long as someone has signed an affidavit claiming they purchased the records, they can get by with it. I am not sure, though. I would try to challenge it, if I were you maybe directly with their attorney. There is one BOS, from the from Comentiy to Synchrony that is dated and has account number ending in 4*** imn June of 2019. I am not sure what all proof exactly you could make them provide. I just know in Texas when I have spoken with attorneys they made it sound like an affidavit is pretty solid for them. I don't see the trail either that you are wanting to see. I would raise the issue with the attorney.

You see a BOS from Comenity to Synchrony? Where? I only see one from Synchrony to PRA and it has no names or account numbers on it, it looks like it could be used for any account anywhere. 

Also, I have read in a few places that a BOS is not a purchase agreement and that they should have to produce the purchase agreement referenced in the BOS. Have you ever heard of anything like that?

And by directly with the attorney, do you mean call the attorney’s office or...?

Thank you.

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7 minutes ago, WillingtoFight593 said:

You see a BOS from Comenity to Synchrony? Where? I only see one from Synchrony to PRA and it has no names or account numbers on it, it looks like it could be used for any account anywhere. 

Also, I have read in a few places that a BOS is not a purchase agreement and that they should have to produce the purchase agreement referenced in the BOS. Have you ever heard of anything like that?

And by directly with the attorney, do you mean call the attorney’s office or...?

Thank you.

Oh did I say it was a BOS, my bad. An affidavit I meant, from Comenity to Synchrony.

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To avoid furthering two threads, I am moving my question to this  thread from the state forms/case law thread. I have an answer document given to me by the court which says to "check one." Can someone please review this and state if this appears to be correct? I have attached it. I was asking the clerk of court if service to the plaintiff is required (after reviewing the forums, it seems in some states it is, and some it is not), and she said she was "not allowed to give me legal advice," which was very unhelpful. Do I stand to lose anything by sending the answer, MTC, and affidavit with agreement to the plaintiff? Also:

-they attached a bill of sale to the packet (attached earlier in this thread) I was served which is from Synchrony Bank but it has no identifying information on it at all. No names or account numbers or anything. It references a purchase agreement which has not been attached. Is a robosigned affidavit from a PRA employee  stating the account was acquired from Synchrony sufficient evidence or can I push them to produce the purchase agreement with specifics on it?

-I have gone back in my records and have at least 28 numbers that have called me in the past regarding this account from PRA, many of which were definitely robodialed, I made note of them. Do I document this anywhere in my answer or wait for arb?

The answer being correct is the most pressing issue, I want to deliver it this week if possible. I wasn't sure how with this formatted answer document I could both say a change of venue is required and answer all the allegations in the complaint.

Thank you all for your help, I appreciate it so much and am reviewing and re-reviewing the forums everyday.

@nobk4me @BV80 @fisthardcheese @alwayswinning36 @BackFromTheDebt

 

SCCA703.pdf

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You do not have to use a process server to deliver your answer to the plaintiff.  Note Rule 8 of the following link.

https://www.sccourts.org/courtReg/displayRule.cfm?ruleID=8.0&subRuleID=&ruleType=MAG

Included is the following’.  “The court shall deliver a copy of the answer to the plaintiff in a manner provided for in Rule 8.” 

I don’t see how it could hurt for you to also mail a copy to the plaintiff’s attorney after you file everything with the court. 

In regard to what you include in your answer, you do not argue the merits.  You only include your defenses.   You might include that the Plaintiff does not have standing to sue.

In order to sue, one must have suffered an “injury”.  For a JDB to be “injured” by your failure to pay the balance, it must prove ownership of the account.  Absent proof of ownership, it has not suffered an injury.

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