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.)
"Portfolio Recovery Associates," with Original Petition signed by Orjanel Lewis, Texas SBN 24083667
3. How much are you being sued for?
4. Who is the original creditor? (if not the Plaintiff)
Cit Online Bank / Dell Financial Services, LLC
5. How do you know you are being sued? (You were served, right?)
6. How were you served? (Mail, In person, Notice on door)
7. Was the service legal as required by your state?
8. What was your correspondence (if any) with the people suing you before you think you were being sued?
None. Never any phone calls or mail from anyone from Portfolio Recovery Associates.
9. What state and county do you live in?
Texas, Brazoria County
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Not sure. Claimed to be January 21, 2013 in Complaint, but should have been sometime prior to mid-to-late 2012 if it is an account of mine. Date complaint filed with the court was August 23, 2016.
11. What is the SOL on the debt?
4 years. Account opened in 2005 as claimed in suit would have been in Mississippi, with 3 year SOL. I moved to Texas in August 2012.
12. 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).
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.
15. 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?
14 days, ending Thursday, September 29, 2016. Answer filed with the justice court on September 28.
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
The complete Original Petition is inserted below, but a summary of attachments is:
a. Affidavit of PSA Custodian of Records supposedly certifying “personal knowledge of Account Assignee's record keeping system,”
b. un-notarized “Bill of Sale” from “Kelly M. Barrett, Title: President” with title at bottom the page of “WebBank Secondary Bill of Sale FY15 FFDS Month 8,”
c. “Schedule 1 to Bill of Sale dated October 14, 2014 – Accounts specifically identified in the following file: Secondary FF Oct2014 sales WebBank.xlsx Is save and encrypted on Hyperoffice at the following path: WebBank / DFS / Asset Transfer / Oct (2014) FY15 FFDS Month 8
d. Apparent photocopy of Dell Financial Savings statement from October 2013 with my name and address
e. Status Report to Servicemembers Civil Relief Act (I am not and have never been in the military)
The Original Petition served from the justice court is as follows:
=========================== (Begin Petition)
I have filed an Answer with the justice court which is basically the one posted on this forum by TexasRocker:
Case No. xxxxxxx
PORTFOLIO RECOVERY ASSOCIATES, LLC § IN THE JUSTICE COURT
ASSIGNEE OF CIT ONLINE BANK / DELL §
FINANCIAL SERVICES, LLC §
§ PR 4 PL 1
Defendant § BRAZORIA COUNTY, TEXAS
DEFENDANT'S ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS
Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of The Plaintiff's allegations.
Defendant asserts that the claims are barred by the applicable statute of limitations.
Defendant asserts that the interest rates charged by the original creditor are usurious.
PLEA TO THE JURISDICTION
Grounds for Dismissal for Lack of Standing
This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges "Defendant's(s').credit account was assigned to Plaintiff on October 16, 2014, and Plaintiff is the current holder of Defendant's(s') account. See Plaintiff's Original Petition under "Facts," paragraph 7. There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit.
A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Ceramic Tile Intern., Inc, v. Balusek, 137 S.W.3d 722, 724 (Tex. App, – San Antonio 2004, no pet.); Delaney v. Davis, 81 S.W.3d 445, 448-49 (Tex. App, – Houston [14th district] 2002, no pet.). Plaintiff has not done either.
If Plaintiff is the assignee and rightful owner of the debt, this should be very easy for Plaintiff to allege and prove, yet Plaintiff avoids and dodges the issue, when such issues cannot wait until trial. Without a pleading of an assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and this case must be dismissed. Whether plaintiff has standing to bring this lawsuit is a threshold issue that should be resolved at the onset, and the instant plea to the jurisdiction is a proper means by which to address this threshold question.
Legal Standards for a Plea to the Jurisdiction
The purpose of a plea to the jurisdiction is to dismiss a cause of action without regard to whether the underlying claim has merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the court's power to adjudicate the subject matter of the controversy. Texas Dept. of Transp. v. Arzate, 159 S.W.3d 188, 190 (Tex.App. – El Paso 2004, no pet.), Axtell v. University of Texas, 69 S.W.3d 261, 263 (Tex.App. – Austin 2002, no pet.). Standing is a basic requirement of the judicial system and goes directly to the court's subject matter jurisdiction over a case. It may be raised at any time and, unlike a challenge to a party's capacity to sue, cannot be waived or presumed. Nootsie Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 661-662 (Tex. 1996), Continental Coffee Products v. Cazarez, 937 S.W.2d 444 n.2 (Tex, 1996). A plea to the jurisdiction is the proper way to challenge a party's lack of standing. Waco ISD v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000). The Plaintiff must come forward with sufficient evidence to demonstrate that there is at least an issue of fact as to the existence of jurisdiction. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227-228 (Tex. 2004). The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the Plaintiff is not the original creditor, which therefore puts standing at issue, and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit. SPECIAL EXCEPTION TO ACCOUNT STATED
1. Credit Card Cases Are Based on Express Contracts and Cannot Be Brought On Implied Contract Theories Like Account Stated.
The Texas Supreme Court made clear in Truly v. Austin, 744 S.W. 2d 934, 936 (Tex. 1988) that a plaintiff may not avoid the terms of its express contract by seeking recovery on an implied contract theory if the damages claimed are covered by the express contract. Credit card cases brought on an account stated theory violate this Supreme Court holding. Credit Card arrangements are governed by express contracts. The only viable cause of action for breach of a credit card is breach of contract. Implied or quasi-contractual causes of action like an account stated cannot be brought on a credit card debt without violating Truly v. Austin.
Texas courts will not imply the existence of contract where an express contract already exists. Fortune Production Co. v. Conoco, Inc.,52 S.W.3d 671 684 (Tex. 2000), Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex 1964), Musick v. Pogue, 330 S.W.2d 696, 699 (Tex. Civ App.- San Antonio 1959, writ ref'd n.r.e.). The reason for this rule, as described by the Supreme Court in Fortune Production, is that parties should be bound by their express agreements. When a valid agreement addresses the matter, a party should not be able to recover more than is provided for in the agreement. Id., 52 S.W.3d at 684. "Count 1" of the Original petition fails to provide fair notice as to how The Plaintiff can avoid this express contract in favor of an account stated.
The principle that a plaintiff should not be able to use an implied contractual theory to recover more than his contract authorizes is particularly applicable to credit card cases. Credit card fees and interest rates are heavily regulated. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended. See e.g. 15 U.S.C. § 1637 ¶ (1)-(7), 12 C.F.R. 225.5-225.16. Credit card plaintiffs should be able to produce these disclosures or otherwise prove the interest rates and fees that their customers agreed to pay. Using an account stated theory to imply an agreement to pay the interest and fees would improperly relieve plaintiff from establishing the amount of interest and fees that were required to be disclosed to the defendant under Federal law, and must have been included in the terms of its alleged express agreement with the defendant.
2. A Credit Card Account Is Not an Account Stated
A credit card account is not an "account" as that term has been used in the common law governing suits on account. A credit card account does not arise out of a course of dealing between two parties engaging in transactions in goods. A credit card account is a multiparty arrangement. Each transaction involves at a minimum, the debtor, a merchant, the merchant's bank, a clearing organization such as Visa, Mastercard, American Express, the card issuing bank and the card issuing bank's credit card processing unit. Every transaction brings a new merchant and merchant bank into the web of transactions that make up the account, with the result that over the term of a credit card account, hundreds of parties may be involved, not just two as envisioned for a common law account. Moreover, the transactions in a credit card account are not merely sales of goods. The account issuer does not sell goods to the account holder: instead, it makes extensions of credit to the account holder or to third party merchants on the account holder's behalf. For these reasons the cause of action for account stated does not apply to credit cards.
An account stated is merely an open account that has been closed because the party charged has agreed that the account is correct. Whittlesey v. Spofford, 47 Tex. 13, (Tex. 1877), Wroten Grain & Lumber v. Mineola Box Mfg. Co., 95 S.W. 744 (Tex Civ. App.-1906), Padgitt Bros. Co. v. Dorsey, 194 S.W. 1124, 1126 (Tex Civ. App.- El Paso 1917, no writ). An open account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from one to the other. McCamant v. Batsell, 59 Tex. 363, 367-369 (Tex 1883), Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex App.----Beaumont 199, no writ).
Over a century ago in McCamant v. Batsell, 59 Tex. 363, 1883 WL 9175 (Tex. 1883), a case that has never been overruled, The Supreme Court construed the word “account” as it is used in this context as limited to suits arising out of relationships in which title to goods was transferred from the plaintiff to the defendant and further excluding suits in which the rights of the parties were defined by a written agreement.
In McCamant, a suit on a promissory note, the plaintiff sought to make use of the then existing statute governing suits on account, which like current Rule 185, set up abbreviated procedure for resolving disputes involving such suits. Unlike the current rule the statute did not enumerate the kinds of action that could be brought as suits on account. The Supreme Court construed the meaning of the term “account” in the statute as being consistent with the common law meaning of the term:
“As used in the statutes of this state, in the act referred to, we believe that the word 'account' is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon one side and purchases upon the other, the title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing.”
The Court also ruled that the plaintiff’s suit against the maker of a note and his sureties could not be brought as a suit on account or an open account because it did not arise out of the course of dealings between a buyer and seller, but was based upon a written agreement in which all the terms were fixed and certain. Id., 1883 WL 9175 at 6.
The Supreme Court reaffirmed the holding of McCamant in Meaders v. Biskamp, 316 S.W.2d 75 (Tex. 1958), in which The Court distinguished a suit on an account from a suit based upon an express contract for purposes of awarding attorney’s fees. The then-applicable language of Tex. Civ. Stat. Art. 2226, the predecessor to Tex. Civ. Prac. & Rem. Code Ch. 38 permitted an award of attorney’s fees for a suit upon a sworn account but did not include the present language authorizing fees in a breach of contract case. The Meaders court, citing McCamant, held that a suit founded upon a written contract for the drilling of an oil well was not a suit on account because the relationship of debtor and creditor did not arise from a course of dealing but from a contract. Id., 316 S.W.2d at 78
The classic statements of the elements of the account stated cause of action expressly draw a distinction between suits that grow out of a course of dealing and suits that grow out of an express agreement. For example, in Central Nat. Bank of San Angelo v. Cox, 96 S.W.2d 746, 748(Tex. Civ. App.—Austin 1936, writ dismissed), the court said:
“The cases are legion on what constitutes an account stated. In general the essential elements involved are: Transactions between the parties which give rise to an indebtedness of one to the other; an agreement, express or implied, between them fixing the amount due; and a promise, express or implied, by the one to be charged, to pay such indebtedness. 1 Tex.Jur. p. 371 et seq.; 1 C.J. 678; 1 Am.Jur. 272; 1 C.J.S., Account Stated, p. 693.”
The first and defining element of the claim is existence of a debtor-creditor relationship that arises from a series of transactions—from a course of dealing, not a contract. This element is identical across all suits on account, whether open, sworn or stated. While the other elements of the claim do reference an agreement, the subject matter of the agreement is not the creation or terms of the debtor-creditor relationship, but the acknowledgment, after the transactions that gave rise to the relationship have occurred, of the amount due and the obligation to pay.
Recent court of appeals decisions allowing a stated account on a credit card have overlooked these Texas Supreme Court authorities and instead are based upon mere dicta from a footnote in a decision out of the Dallas court of appeals. In a footnote in that case, Dulong v. Citibank (South Dakota) N.A., 261 S.W.3d 890 (Tex.App.----Dallas 2008) the court stated that a sworn account requires the passage of title and is thus not a proper tool for a credit card case but noted that it differs from an account stated in this regard. But neither that decision nor any of the other appellate decisions that have followed it have explained how they reached this conclusion. These decisions are utterly devoid of any analysis or legal authority on the issue, and none of them discuss McCamant v. Batsell. These decisions are simply contrary to Texas Supreme Court authority PRAYER
Wherefore, premises considered, Defendant prays that the Court grant his Plea to the Jurisdiction, grant his Special Exceptions, enter judgment in his favor and against Plaintiff, that Plaintiff take nothing, that the Court assess costs against Plaintiff and award Defendant all other relief, at law and in equity, to which he is entitled.
Signed_________________________________ Name: xxxxxxxxxxx
Phone: xxxxxxxxxxx CERTIFICATE OF SERVICE I do hereby certify that I will mail by Certified Mail with return receipt a true and correct copy of this ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS to the Plaintiff on the 28th day of September, 2016.
======================= (End Answer)
I have received the green certified mail Return Receipt card from the plaintiff for this Answer.
I've been working through the book "O'Connor's Texas Rules - Civil Trials" recommended by TexasRocker, and from it and other reading I've done in civil procedure ebooks available from the Texas State Law Library, I'm feeling more and more confident that a lot of the deficiencies cited by other forum members in their cases are contained in the plaintiff's Original Petition.
The "Bill of Sale" is generic and does not even have a notarized signature, and the affidavit from the PRA employee to establish the business record refers only to a vague entry in some computer file somewhere, not a specific record with my name or data.
The more I read and observe, this Petition appears to contain just enough "evidence" to back up a default judgment, but with plenty of holes--with many referenced by the points in TexasRocker's Answer--that would be easy to exploit if the suit continues. I am presently working on Discovery questions to submit to the justice court for approval to send to the plaintiff; as of today I have received no Discovery questions or other correspondence from the plaintiff or anyone else from Portfolio Recovery Associates.
I would appreciate any suggestions on proceeding further, but TexasRocker's example Answer has already been indispensable. Just before finding it here I almost filed just a General Denial, but TexasRocker's arguments looked better than anything else I had found elsewhere or that I had tried to cobble together myself.
I'll be sure to post any and all developments here so that everyone can benefit from what happens with me in this suit. I will also be happy to answer any questions if I've been unclear with anything I've posted. Just note that I suffer from debilitating migraines and fibromyalgia that can put me out of commission for days at a time, so if I don't respond immediately to a post this is most likely the reason. It's not that I'm ignoring anyone, and the occasional fibromyalgia "brain fog" could make one of my postings more incoherent than I would like it to be. (I'm hoping a medication adjustment appointment with my internist next week will help enough for me to make it relatively symptom-free through this next push with Discovery and anything else that crops up with the suit.)
Thanks in advance to all...