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I think I'm being sued by Portfolio (Texas)


misbhavn
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Well, technically, it is my wife who is being sued, I think. We received a couple of letters in the mail today from attorneys wanting to represent her. One of them lists Portfolio Recovery Assosiates and has a number under it which I can only assume is the cause number.

 

She has not been served. What should we do now?

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Okay, I have been able to find the case number online and  it was filed in redacted. Why it was filed in redacted is a mystery. Portfolio Recovery is the plaintiff and plaintiffs attractor is Michael J. Garza.

 

My question is do we just wait until or if she is served or is there another course of action we should be pursuing. I have spent a lot of time on the debt validation forums in the past but this is my first foray into having to defend a suit. Any advice is appreciated.

 

***Edit - I removed where and when the suit was filed to better maintain anonymity.

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Why it was filed in Pasadena is a mystery. Portfolio Recovery is the plaintiff and plaintiffs attorny is Michael J. Garza.

 

Not a huge mystery.  PRA often does this so that they are in a court favorable to them (forum shopping) or better because they hope you don't find out about the case, they use sewer service and get a default judgment.

 

My question is do we just wait until or if she is served or is there another course of action we should be persuing.

 

I would go to www.naca.net and get the names of a couple of consumer attorneys and speak to them.  Most if not all do the first consult for free.  Unless the attorneys who sent letters wanting to represent you are on NACA I would not hire them because they most likely simply want to file BK and there are easier ways to defeat PRA.

 

PRA violates Federal collection laws ALL the time.  More than likely you have counter claims a good consumer attorney can file to make them go away.  You can also start researching using arbitration in JAMS to make them fold. 

 

In the mean time until you speak to a consumer lawyer lay low and wait for them to serve you.  There is always a slim chance they never serve you and it gets tossed out for a lack of prosecution.  Watch the docket on line for any activity.

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Thank you for responding. What is sewer service? Is service by publication considered sewer service? Also what is JAMS?

 

Talking to my wife, she thinks this is something that is very old, like before we got together old, which would put it outside of the SOL. My plan would be to simply file a MTD rather than aswer, but I would need to find out what it is for first. If I just watch the docket online and they claim sewer service, wouldn't they be awarded a default judgement for my not answering?

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Sewer service is when they lie to the court and say they served you or do it at an address you never lived at etc.  That way the court believes you know about the suit when in reality the defendant does not.  They don't show and the Plaintiff gets an easy default judgment.  When you watch the docket on line and you see they are claiming service was performed and you know you were not served that is when you can do something about it before they get a default judgment.

 

You need to look at your court's rules.  Some require that you answer a suit before you can file motions.  

 

I would still consult a consumer attorney.  They can find out what this is for you and then you can do the leg work to see if it is outside the SOL.  I would not put that past PRA either.  If they filed in the wrong county that is a FDCPA violation.  So is suing outside the SOL.  If you have counter claims the attorney can file them after answering the suit for you.  The reason being PRA will be paying your attorney fees for you.  That is why I would at least speak to one.

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@TomnTex

 

read all posts by @TomnTex and @texasrocker.  That is an education in TX collections law.  One of them recommends that you buy and study a book on TX law and procedure that is available on Amazon.com.  I would suggest you do that.

 

An excellent consumer lawyer is Jerry Jarzombek.  He's located in Ft Worth but he handles consumer law cases all over TX. You can google his law office.  

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You said Harris county, where Houston is located.  The University of Houston Law School runs a Consumer Law Clinic.  They accept debt collection defense cases for free or for a nominal fee  if your income is below a certain level.  The law students are supervised by law school faculty members.  There is a number to call below

 

 

 

Consumer Law Clinic

Consumer Law Clinic Director and Associate Clinical ProfessorRichard McElvaney

The Consumer Law Clinic is one of the few of its kind in the country.  Law students learn the law by a mixture of theory and actual hands-on experience representing low-income clients in Justice Court, County Court, and District Court.  Cases include claims under the Deceptive Trade Practices Act, as well as credit and debt-collection problems and landlord/tenant complaints.  The Consumer Law Clinic has a classroom component that meets for two hours a week for 14 weeks for a total of 28 hours over the course of the semester. 

The classroom component provides students with an overview of the law in the areas of law office management (office procedures), interviewing, negotiations, litigation, pretrial and trial procedure, evictions, landlord/tenant law, real estate transactions, home equity loans, consumer law (including DTPA), debt collection, Texas exempt property, community property, bankruptcy, intestate succession and wills.  The classroom component meets on a flexible schedule determined each semester by the class schedules of the clinic students.

The Consumer Law Clinic is a 3 or 4 Unit graded course. Prerequisite: Good Academic Standing.

All students accepted into the Consumer Law Clinic must attend a mandatory ½ day orientation on the Wednesday prior to the beginning of classes.

Click here for the application.

For more information regarding the Consumer Law Clinic contact Rick McElvaney, RMcElvaney@central.uh.edu 713 743-1236.

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It is highly unlikely that "sewer service" occurred in Texas.  The JDB has nothing to do with serving the suit.  It is done through the court by a constable or a bonded private party authorized by the court.  The most likely scenario is they have filed the suit but you have not yet been served.  I was once served in March for a lawsuit that was filed in November. 

 

Those solicitation letters are from, at best, second-rate "ambulance chaser" attorneys who get a list of names and addresses from court records when lawsuits are filed.  They should be ignored as these attorneys normally just push for a settlement instead of fighting for a dismissal.

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Well, here is the latest. We still have not been served, however, we did receive a settlement letter from the law firm representing Portfolio. What should we do now, ignore the letter and wait to be served or respond to the letter with DV? If the suit has already been filed then I think DV would be a waste of time, no?

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Well, here is the latest. We still have not been served, however, we did receive a settlement letter from the law firm representing Portfolio. What should we do now, ignore the letter and wait to be served or respond to the letter with DV? If the suit has already been filed then I think DV would be a waste of time, no?

 

Wait.  If you respond they can escalate serving you.  Plus it indicates knowledge of the suit.  DV once a suit has been filed is pointless and a waste of time you are correct.

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Okay, so I did some digging and this is not what she thought it was for. The OC is listed on the letter she received form the Attorneys representing Portfolio. The OC is HSBC. I dug through old bank statements and the last payment was actually 05/2012. The initial HSBC tradeline has been removed from her credit reports and only the Portfolio tradeline exists now.

 

Now that we know this is not time barred, what should our next move be?

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You can attack them or you can request arb. That would probably make them run away until the SOL is up. They would just sell it off to another JDB giving you some breathing room. They pay pennies on the dollar for these accounts and when they have to spend thousands in arb to defend you can win. Do a search on Linda7's threads and read about arb.

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Arbitration seems like a big gamble to me. I guess there is a good chance they would drop the case if I elected arbitration, but if it did go to arbitration, it seems likely they would win unless they racked up a bunch of violations. It seems to me I would have a better chance of attacking their standing.

 

What are the pros and cons of arbitration?

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I have been reading her thread. We can't recall how long my wife had the card and the original tradeline is not on her credit reports. The 2006 HSBC member agreement allows for JAMS, but the 2007 agreement does not. I can trace payments back to Dec. 2007, but that is far as I can go back. The bank records are destroyed after 7 years.

 

Is there another way to find out when the account was opened? If I can trace it to 2006 I can use that member agreement which allows for JAMS.

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Then, I would hazard a guess and say that you are past SOL and they either may be trying to re-age your account or they just don't care that it's SOL. Again, your strongest position would be to do your best to back track those payments etc. and use them as proof. Also, in my response I would state that the account was SOL and tell them so, and that on a slim chance that it wasn't that you elected Arb with JAMS. This might make them go away, more than likely you will have to at least file ARB.

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