Sued by Portfolio Recovery Associates in California

[SuedInCali]

I was served earlier this month and since then I've been looking all over to see how to fight this, if I can. But I have a few things I want clarified to make sure I'm not about to dig my own grave.

This is the second JDB that's mailed me regarding this account. I DV'd the first one, but because I have a couple other credit cards in collections and I've been sending debt verification letters left and right, this one slipped through the cracks and I forgot to do so. Additionally I disputed this collection with TransUnion but it came back as "Disputed information was verified as accurate." Does this hurt my chances? 

While digging through my mail for letters regarding this account I found one from Capital One themselves notifying me that the account was transferred to PRA. How should I interpret this? Does this mean JDB #1 returned the account to Capital One and then they sold it to PRA? Or are they required by law to notify me whenever the account changes hands? I had high confidence going into this because I thought the chain of custody is OC -> JDB#1 -> JDB#2. If that's not the case I'm not going to give up but it does make me more nervous.

Since the complaint is not verified and the case is civil limited I'm thinking of answering with a general denial. As I understand it I can't compel arbitration because Capital One does not have arbitration clause in their agreement. Is this correct?

...

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.)
No law firm listed, five named "Attorneys for Plaintiff."

3. How much are you being sued for?
$2k

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?)
Was served.

6. How were you served? (Mail, In person, Notice on door)
Substitute service, mailed.

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?
Got a letter last year (from Capital One) saying the account was transferred to PRA. Got a few letters from PRA including payment options, then threat of legal action. No other correspondence.

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

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Late 2019

11. When did you open the account (looking to establish what card agreement may be applicable)?
2016

12. What is the SOL on the debt?
4 years

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).
Suit served.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
Yes, with TransUnion; "Disputed information was verified as accurate."

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').
Forgot to do so.

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.
40 days after substitute service, so mid May.

16. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
Account stated. No interrogatory.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
Exhibits A and B; both statements. Nothing else.

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

Edited April 29, 2022 by SuedInCali
details

[Bulldoger]

There is a chance you can arbitrate that falls within the general information you gave.  

1) Is the Capital One possibly a Walmart Capital-One ?

2) If so did you never use the Walmart Capital-One card?

reason is Walmart Card went from Synchrony (good arbitration) to Capital-one (no arbitration on October 2019)

If you never used the New card you can argue that the governing agreement is the  Synchrony agreement. 

  

 

[SuedInCali]

Unfortunately the card is directly from Capital One, so I'm pretty sure I cannot arbitrate. It's a bog-standard Visa Platinum card, and the original cardmember agreement has no arbitration clause.

[SuedInCali]

Update: the court has received my answer.

My non-jury trial date is set for... get this -- April 2023. 😂 An entire year from now!

[Bulldoger]

SWEET,  

you got a year to prepare not sure you can do this in district court but check it out.

 

Research what you should ask for in discovery. Discovery is a double edged sword it can help you by revealing they don't have the evidence needed but  

you might also just move PRA to get the evidence they need to win your case. 

Save and try to settle throughout the year I sure they don't want to go to trial on a 2K debt. 

 

[RyanEX]

@SuedInCali

Read this thread: https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

It'll give you a blueprint on how to handle your case. It's an old thread but the info is still good 👍.

California law places the burden on OCs & JDBs to prove their case, rather than the other way around. Search the forum for other CA threads involving PRA, you'll find examples of discovery requests that PRA uses in their cases and how to respond to them (basically: admit nothing/deny everything).

[alwayswinning36]

On 5/18/2022 at 3:47 PM, RyanEX said:

California law places the burden on OCs & JDBs to prove their case, rather than the other way around. Search the forum for other CA threads involving PRA, you'll find examples of discovery requests that PRA uses in their cases and how to respond to them (basically: admit nothing/deny everything).

This isn't exclusive to California. It is ALWAYS the plaintiffs burden to prove their case regardless of the state or venue. You never want to deny everything in discovery requests, especially if anything can be proven. It is only going to cause further damage to you, if you do.

[RyanEX]

On 6/4/2022 at 3:46 PM, alwayswinning36 said:

This isn't exclusive to California. It is ALWAYS the plaintiffs burden to prove their case regardless of the state or venue. You never want to deny everything in discovery requests, especially if anything can be proven. It is only going to cause further damage to you, if you do.

Perhaps the better way to state it is that CA law places a relatively high bar on the plaintiff to get their evidence admitted; whereas some other states do not,  effectively placing the burden on defendants to get a win. I hope that makes sense.

And of course common sense always applies; the phrase I included ("admit nothing/deny everything") makes better sense in context of the thread that was linked. Unless a JDB gets assistance from the OC in the form of providing a live witness to provide foundation for their evidence (which they practically never receive) CA law makes it very difficult for them to get evidence admitted, provided a defendant learns how CA civil code works. JDBs need "help" from the defendant to get that done, so a defendant should deny that help where appropriate - AST Medic's thread explains that.

[RyanEX]

8 minutes ago, RyanEX said:

Duplicate

 

[RyanEX]

13 minutes ago, RyanEX said:

Duplicate

 

[SuedInCali]

Wow, it's been a year already... hard to believe. The trial date is coming up next month so I've been meaning to refresh myself on how to proceed, but then I received a letter from the JDB. It's a request for dismissal (w/o prejudice).

From what I remember I was planning on filing a Request for Documents, but I never got around to it. Is it now too late to file a CCP 96 (the trial is in less than 30 days)? The last activity on the case was my answer, then nothing else up to now.

I received a settlement offer last year, but at the time I didn't have anywhere near enough to accept it, so I ignored it. Do I accept the dismissal, or should I call their bluff and show up at court and request for dismissal with prejudice? I have a feeling I missed an important step or two (other than the two aforementioned items) so I'd like to know for sure I didn't drop the ball or anything before I proceed.

[Bulldoger]

25 minutes ago, SuedInCali said:

Wow, it's been a year already... hard to believe. The trial date is coming up next month so I've been meaning to refresh myself on how to proceed, but then I received a letter from the JDB. It's a request for dismissal (w/o prejudice).

From what I remember I was planning on filing a Request for Documents, but I never got around to it. Is it now too late to file a CCP 96 (the trial is in less than 30 days)? The last activity on the case was my answer, then nothing else up to now.

I received a settlement offer last year, but at the time I didn't have anywhere near enough to accept it, so I ignored it. Do I accept the dismissal, or should I call their bluff and show up at court and request for dismissal with prejudice? I have a feeling I missed an important step or two (other than the two aforementioned items) so I'd like to know for sure I didn't drop the ball or anything before I proceed.

Most states allow plaintiff to file a dismissal w/o prejudice without you consent any time up till trial or even judge's ruling as long as you don't have counter claims.  Do you have counterclaims ? Check with court clerk your case may have been dismissed w/o prejudice.  

 

 

[BackFromTheDebt]

36 minutes ago, SuedInCali said:

Wow, it's been a year already... hard to believe. The trial date is coming up next month so I've been meaning to refresh myself on how to proceed, but then I received a letter from the JDB. It's a request for dismissal (w/o prejudice).

From what I remember I was planning on filing a Request for Documents, but I never got around to it. Is it now too late to file a CCP 96 (the trial is in less than 30 days)? The last activity on the case was my answer, then nothing else up to now.

I received a settlement offer last year, but at the time I didn't have anywhere near enough to accept it, so I ignored it. Do I accept the dismissal, or should I call their bluff and show up at court and request for dismissal with prejudice? I have a feeling I missed an important step or two (other than the two aforementioned items) so I'd like to know for sure I didn't drop the ball or anything before I proceed.

My personal philosophy is to always accept dismissal without prejudice unless there is some overwhelming reason not to. 
 

In the vast majority of cases the plaintiffs never sue again.  They know you are a formidable opponent and don’t want to waste their time when they could go after lower hanging fruit. 
 

instead of paying out a settlement you are paying nothing.  That is to your advantage. 

[SuedInCali]

28 minutes ago, Bulldoger said:

Most states allow plaintiff to file a dismissal w/o prejudice without you consent any time up till trial or even judge's ruling as long as you don't have counter claims.  Do you have counterclaims ? Check with court clerk your case may have been dismissed w/o prejudice.  

 

 

I checked the moment I read the letter, and I'm checking it now; it hasn't shown up there yet. IIRC I didn't make any counterclaims of any sort.

23 minutes ago, BackFromTheDebt said:

My personal philosophy is to always accept dismissal without prejudice unless there is some overwhelming reason not to. 
 

In the vast majority of cases the plaintiffs never sue again.  They know you are a formidable opponent and don’t want to waste their time when they could go after lower hanging fruit. 
 

instead of paying out a settlement you are paying nothing.  That is to your advantage. 

Good point. I suppose I'll just let sleeping dogs lie, and in the worst case scenario they (or another JDB?) will just come back someday for another beating. Honestly when I saw the letter in the mail I expected it to be another settlement offer, but maybe they were too scared to try? I had once thought to myself that it would make more sense for them to drop the case rather than to fight the one-in-a-hundred outlier like me in court, and I guess this proved me right! 

[SuedInCali]

Upon reviewing the Request for Dismissal I see that it requires my consent?

I did include an Affirmative Defense in my Response; so I take it that means I need to file my consent for dismissal?

This is the referenced CCP 581 (i)-(j):

[BackFromTheDebt]

1 hour ago, SuedInCali said:

Upon reviewing the Request for Dismissal I see that it requires my consent?

I did include an Affirmative Defense in my Response; so I take it that means I need to file my consent for dismissal?

This is the referenced CCP 581 (i)-(j):

Not sure why need this. 
My advice is just sign it. 

[Bulldoger]

Agree no harm comes if you sign and you didn't have too. You could just sign and file with court and copy attorney.  OTOH, you can call plaintiff attorney an ask what you need too in your part to help them with disposal they might just say nothing.