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.) Rausch Sturm
3. How much are you being sued for? Approximately 6k
4. Who is the original creditor? (if not the Plaintiff) Comenity Capital Bank /Paypal
5. How do you know you are being sued? (You were served, right?) I was served
6. How were you served? (Mail, In person, Notice on door) Taped to the front of my door
7. Was the service legal as required by your state? Yes, It seems to have been served legally
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? Smith County, Texas
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) The complaint states September 2018
11. When did you open the account (looking to establish what card agreement may be applicable)? Complaint states October 2015
12. What is the SOL on the debt? To find out: 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). The complaint was served 06/11/20, I e-filed an answer to the complaint on 06/26/20, I also E-filed an MTC Arbitration and Proposed Order on 06/26/20
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? 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'). 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? I was served Plaintiff's Original Petition & First Discovery Requests. I believe I have until 07/06/20 to answer the complaint and 07/31/20 to answer the Plaintiff's request for Discovery. The charges in the complaint are: Count 1: Breach of contract. Count 2: Account stated. They sent a first discovery request, a request for disclosure, a request for production, a request for admissions, and a first set of interrogatories.
17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No evidence or exhibits attached.
18. How did you find out about this site? GoogleCom
After doing some research, I found that the Comenity Capital Bank credit card agreement does have an Arbitration clause which sites AAA as the forum. I have done the following:
06/11/2020- I was served the Plaintiff's Original Petition & First Discovery Requests
06/26/2020- I E-filed a General Denial and listed Arbitration and Award as an Affirmative Defense. I also E-Filed a Motion to Compel Arbitration, with the relevant Comenity Capital Bank credit card agreement attached and an Affidavit which certifies it is true and correct copy. Also, I filed a Proposed Order to go with my motion per the local Civil Rules.
There are a few things that I am unsure about after reading the local County Rules of Civil Trial, which I will post below:
RULE 2. MOTIONS
2.1 Certification of Conference (I did not do this. However, the motion was accepted)
Before filing a motion, counsel for a moving party must confer or certify that a reasonable effort has been made to confer with the counsel, if known, of all parties affected by the requested relief to determine whether or not the contemplated motion will be opposed. Such a conference is required for all motions except motions to dismiss the entire action, motions to quash, motions for protection, temporary restraining orders, motions for judgment on the pleadings, motions for summary judgment, and motions for new trial.
The purpose of the conference requirement is to promote a frank exchange between counsel to resolve issues by agreement or to at least narrow and focus the matters in controversy before judicial resolution is sought.
If a motion to compel or for sanctions is sought, the Court will not consider the motion unless the movant certifies that the movant has conferred with or made a reasonable effort to confer with opposing counsel in an effort to resolve the dispute without the necessity of Court intervention and that the attempt has failed.
Motions shall be in writing and shall be accompanied by a proposed order granting the relief sought. The proposed order shall be a separate instrument. All pleadings, motions, orders and other papers filed with the Court shall be consecutively numbered at the bottom of the page.
2.3 Submission (I'm not sure if I stated a date of submission????)
Motions shall state a date of submission at which time the Motion will be considered without a hearing, unless both a request for oral argument and a response are filed. The movant shall select the date of submission which shall be no sooner than the Monday following fifteen (15) days from date of filing, except on leave of Court. The motion will be submitted to the Court for ruling on that date or later.
Submission date on motions for summary judgment shall be no sooner than the expiration of thirty (30) days from the date of filing of the motion for summary judgment. A response, if any, to a motion for summary judgment shall be filed and served seven (7) days before the submission date pursuant Tex. R. Civ. Proc. Rule 166a. However, the Court will not actually hear oral argument on a motion for summary judgment unless (i) properly requested pursuant to Local Rule 2.7., and (ii) the Court determines that oral argument will substantially aid the Court in ruling on the motion for summary judgment. Counsel are encouraged to include citations and copies of any cases believed to be controlling as part of the motion or response.
I'm a little anxious because I was not too comfortable with the e-file system. I filed all the documents and requested service on the Plaintiff's attorney but the motion has not been ruled on and the status of my case has not changed since I filed my answer. I feel like I should have mailed a copy to the Plaintiff's attorney to be on the safe side. Also, I have not yet sent a response to the discovery since am waiting on the MTC to be granted. I'm pretty sure I was not required to schedule a hearing for the Motion.
Advice is greatly appreciated.