Author Topic: Sued by PRA in Florida...What steps next?  (Read 2445 times)

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4WheelsFL

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Sued by PRA in Florida...What steps next?
« on: May 21, 2015 04:11:35 PM »
Greetings helpful people :)

We received the following Complaint summons in Florida. Served in person on May 09. Answer due in 20 days time.

Portfolio Recovery Associates, LLC
Plaintiff

vs.
Me
Defendant

Complaint:
Plaintiff sues Defendant for damages and would allege:
1.) This is an action for damages for more than $5,000.
2.) Defendant obtained and used Wells Fargo Bank, N.A./Wells Fargo Bank N.A. revolving credit account ************# (the account.)
3.) Plaintiff is the successor in interest of said Account having purchased said Account in good faith, for value, and in the ordinary course of business. (See Exhibit A) -----Which is a bill of sale for unlisted accounts from Wells Fargo, this account is not specifically listed and attached is a copy of a statement.
4.) Defendant did make purchases and charged same to the Account, but after statements were provided to Defendant, Defendant failed to make the monthly payments due upon the Account and failed to object to the balance then owing, resulting in an Account Stated in the sum of $6500. (See Attached) ---- This is the copy of the CC statement from 01/2013.
5.) Plaintiff has declared Defendant to be in default and demands payment of the balance due on the account. Defendant has refused said demand.
6.) Defendant is indebted to the plaintiff in the sum of $6500.
7.) All conditions precedent to this action have occurred.
8.) Email address communications....yada yada....

Wherefore: Plaintiff demand Judgment against Defendant for $6500, plus costs.


Attached to the Summons is an affidavit by the custodian of records for PRA, Bill of Sale for portfolio of debts, CC statement from 01/10/2013.

On the day that we were served, we went into a panic and called PRA. They agreed for a payment plan. After reading a whole bunch of stuff, I realized that this was probably stupid. We owed the money to WF, we admit that. But PRA is a whole different animal.

We still need to answer the summons, but what do I say?

I prepared this answer: Defendant responds to allegations by Plaintiff:
1.)Unable to answer.
2.)Affirm.
3.)Denied: Responding Party objects to this request on the ground that it is vague, ambiguous and unintelligible in that Responding Party has to speculate as to the validity of the purchase of said debt.
4.)Deny in part. Plaintiff included a billing statement that includes a credited payment and a balance due at that point. There is no purchase history, interest, transactions, or any fee schedule included. Unable to affirm said purchases or object to the balance then owing without further proof.
5.)Deny in full. No refusal to pay has been made to Plaintiff by the Defendant.
6.)Deny in full.
7.)Deny.

Wherefore: The Defendant asks the court for judgment
Dismissing the complaint herein with prejudice.
Plaintiff is responsible for court costs and fees.


I considered putting in Affirmative Defense of PRA has already agreed to enter into a settlement with Defendant... Good idea?
Or just deny the whole dang thing and see how the judge goes with it all?

Advice is greatly appreciated. Only have a few more days to answer.
« Last Edit: May 21, 2015 04:29:41 PM by 4WheelsFL »

Bruno the JDB Killer

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Re: Sued by PRA in Florida...What steps next?
« Reply #1 on: May 21, 2015 04:42:36 PM »
Scrap that for now, Wells has arbitration in their contracts. Here is a current one:

https://www.wellsfargo.com/credit-cards/agreements/rewards-agreement

Here are a couple of older ones:

http://www.cardmemberagreements.org/wells-fargo/


PRA pays about 3 cents on the dollar for these accounts. Arb can cost them 30-40,000 and they have to pay for it. 98% of the time they won't, for obvious reasons.

Answering a complaint if FLA waives your right to arbitration. What you want to do is file a Motion to Compel Private Contractual Arbitration with the court.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

4WheelsFL

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Re: Sued by PRA in Florida...What steps next?
« Reply #2 on: May 21, 2015 04:52:22 PM »
Thanks Bruno. That is what I am looking at now. Do I use JAMS for this? Does this count even though we have set up a payment plan?

explorerman

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Re: Sued by PRA in Florida...What steps next?
« Reply #3 on: May 21, 2015 05:00:16 PM »
Going through the same thing at them moment, MTC for ARB is a good way to go.  Just make sure you follow all court procedure rules to the letter.  PRA is isn't backing down on mine and it's for way less than $5000.
Who is PRA's lawyer in your case?

Bruno the JDB Killer

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Re: Sued by PRA in Florida...What steps next?
« Reply #4 on: May 21, 2015 05:01:43 PM »
You can only use the forum named in the agreement. Sorry, I didn't read it all. If JAMS is named, yes, use JAMS. The ones I saw had AAA. Either way, they'll never follow up and pay their fees.

The payment plan never happened unless you signed paperwork.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Stormcrow

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Re: Sued by PRA in Florida...What steps next?
« Reply #5 on: May 21, 2015 05:05:46 PM »
Quote
Each arbitration, including the selection of the arbitrator(s) shall be administered by the American Arbitration Association (AAA), or such other administrator as you and the Bank may mutually agree to (the AAA or such other mutually agreeable administrator to be referred to hereinafter as the “Arbitration Administrator”), according to the Commercial Arbitration Rules and the Supplemental Procedures for Consumer Related Disputes (“AAA Rules”).

You can request JAMs, but they'll likely steer you toward AAA. Either way, it will cost them far more than they paid for the debt. Like Bruno said, they won't follow most consumers into arbitration, but as explorerman relates, they won't always back down, either. They'll likely fight the motion to compel. Though nothing's guaranteed, once you get past the MTC, they probably won't spend the money to pursue you in arbitration.
« Last Edit: May 21, 2015 05:14:04 PM by Stormcrow »

howucantoo

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Re: Sued by PRA in Florida...What steps next?
« Reply #6 on: May 21, 2015 05:25:24 PM »
Going through the same thing at them moment, MTC for ARB is a good way to go.  Just make sure you follow all court procedure rules to the letter.  PRA is isn't backing down on mine and it's for way less than $5000.
Who is PRA's lawyer in your case?

They won't back down b/c they know unsophisticated consumer is going to give up.

DB members are sophisticated enough not to back down or give up ;)
I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.
My PM is turned off.

4WheelsFL

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Re: Sued by PRA in Florida...What steps next?
« Reply #7 on: May 21, 2015 05:48:54 PM »
Thanks for the reply, everyone.

This thread is full of value:http://www.debtorboards.com/index.php/topic,27238.45.html

Following the advice contained in it:
1.)File MTC Affidavit
2.) MTC Arbitration/Dismiss
3.) Judge Order MTC (w/prejudice)
4.) CC Agreement

Send all at the same time, CMRRR to PRA ATTY, notorized, of course. File a copy at the Clerks office/or electronically?

And do all this before the 20 day answer is due? Don't want a default against me. Thanks so much! It may sound dumb, but this is kinda fun. :)

Stormcrow

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Re: Sued by PRA in Florida...What steps next?
« Reply #8 on: May 21, 2015 06:07:09 PM »
You definitely want to get this in before the 20 days are up to avoid a default judgement. 

Bruno the JDB Killer

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Re: Sued by PRA in Florida...What steps next?
« Reply #9 on: May 21, 2015 06:11:31 PM »
Yup, here's what you need.


MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALTERNATIVE, TO STAY THE PROCEEDINGS PENDING ARBITRATION





NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2015, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2015, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2015


(Your name typed), Defendant, pro se



VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief.



_______________________________________
XXXXXXXXXX, Defendant Pro Se


Witness my hand and official seal this the _________ day of __________, _________.



(SEAL)

____________________________________
Notary Public

My Commission expires:

____ / ____ / ________.



I CERTIFY that I mailed a copy of this MOTION to:

XXXXXXXXXXXXXXXXX., Plaintiff's attorney
Their address


By: Your name typed, Defendant

Date: __________________, 2015



  ORDER


The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:


      GRANTED      /                 DENIED



Dated at City, Jurisdiction,  this _____ day of _________________, 2015


THE COURT

By: ________________________

       Judge of the Superior Court





DOCKET NO:   XXXXXXXXXXX         :   SUPERIOR COURT
Plaintiff name                            :   J. D. OF XXX
VS.                     :   AT    XXXX
Defendant name                                                  :   DATE



      AFFIDAVIT

STATE OF XXXX


                              Name of your town

COUNTY OF  XXXXXXX



   The undersigned, being duly sworn, does depose and say:


1.   I am over the age of eighteen and believe in the obligation of an oath.


2.   I am self represented as the Defendant  in connection with the above captioned matter.


3.   By pleadings XXXXX, Defendant   XXXXX served XXXXX  in the above captioned matter. (answer, whatever)


4.   The Defendant hereby states the following facts:


5.   Upon information and belief, the attached credit card agreement is the governiong document in the instant action.









Dated at XXXXXX, on:  DATE





________________________________


Subscribed and sworn to, before me, on:






_______________________________


Notary Public
















      









I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

4WheelsFL

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Re: Sued by PRA in Florida...What steps next?
« Reply #10 on: May 22, 2015 06:35:57 AM »
Thanks again everyone. I'll get this together in the next day and post a review if you're up for it. Thanks!

4WheelsFL

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Re: Sued by PRA in Florida...What steps next?
« Reply #11 on: May 29, 2015 03:46:57 PM »
Well...That was interesting.

Submitted MTC, Affidavit, CC agreement, and judge's orders sheet. I e filed and submitted to the PRA atty the same day. Within an hour or two, voluntary dismissal with prejudice submitted by the atty.

I'm super thankful for the folks here that lent a hand in making this happen. This is a great resource! Now....to get them out of our lives forever!

credit_h

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Re: Sued by PRA in Florida...What steps next?
« Reply #12 on: July 18, 2015 10:48:44 PM »
You can only use the forum named in the agreement. Sorry, I didn't read it all. If JAMS is named, yes, use JAMS. The ones I saw had AAA. Either way, they'll never follow up and pay their fees.

The payment plan never happened unless you signed paperwork.

If somebody is paying a JDB say $50 a month for a few months, isn't it reasonable to assume that there's a payment plan even if no paperwork was signed?

Stormcrow

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Re: Sued by PRA in Florida...What steps next?
« Reply #13 on: July 18, 2015 11:09:21 PM »
It's not unreasonable, but it wouldn't prevent a JDB from taking additional action, including litigation. Verbal agreements overwhelmingly work in their favor, not the debtor's.

fisthardcheese

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Re: Sued by PRA in Florida...What steps next?
« Reply #14 on: July 19, 2015 04:26:09 PM »
Well...That was interesting.

Submitted MTC, Affidavit, CC agreement, and judge's orders sheet. I e filed and submitted to the PRA atty the same day. Within an hour or two, voluntary dismissal with prejudice submitted by the atty.

I'm super thankful for the folks here that lent a hand in making this happen. This is a great resource! Now....to get them out of our lives forever!

 :drinking:  Nice!

Make sure you get a copy of that dismissal.  Since this is "with prejudice" it will be an essential paper to have for future beating up on PRA.

For instance, I once got a dismissal with prejudice from a JDB and a few months later when they made a couple "account review" pulls on my credit reports, I used the DWP as evidence in an FCRA suit against them and got them to cough up another $5k in statutory award and attorney's fees.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

 

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