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


misbhavn
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@TomnTex

 

Regarding my last sentence...It is my understanding that in order to use an earlier card member agreement, there has to be a survivability clause in that member agreement. The card was being used and paid on until 2012 so the prevailing member agreement would be the one in place then. Beginning with the 2008 agreement, they no longer allow for JAMS, so I would have to use AAA for arb.

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As I understand, AAA is not favorable for defendants.

Based on what I have been reading, I agree. To me, that kind of takes arbitration off the table as I would probably stand a better chance of attacking standing.

 

Can anyone confirm my thoughts that I can't use the 2006 HSBC member agreement because it doesn't have a survivability clause?

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Regarding my last sentence...It is my understanding that in order to use an earlier card member agreement, there has to be a survivability clause in that member agreement. The card was being used and paid on until 2012 so the prevailing member agreement would be the one in place then. Beginning with the 2008 agreement, they no longer allow for JAMS, so I would have to use AAA for arb.

You are apparently referring to rules from a state other than Texas.

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@texasrocker

 

I am only referring to what I have read in the arbitration forum and, specifically, in Linda7's thread on arbitration. Perhaps I misunderstood. I will continue researching arbitration.

 

To be clear, are you implying that any cardmember agreement that was in place during the life of the account can be used?

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@texasrocker

 

I am only referring to what I have read in the arbitration forum and, specifically, in Linda7's thread on arbitration. Perhaps I misunderstood. I will continue researching arbitration.

 

To be clear, are you implying that any cardmember agreement that was in place during the life of the account can be used?

If you are referring to arbitration guidelines the best place to ask would be the thread you just referred to.

 

Sorry, I am not an advocate of arbitration and I did not realize that was what you were talking about. 

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@texasrocker

 

In your opinion what should we do now, wait to be served and attack standing?

 

Also, the letter we received from the attorney mentions nothing of a lawsuit. It simply reads that they are representing PRA and offering a settlement of the account. At the bottom is states that they are a debt collector and are trying to collect a debt. Would this not be considered a dunning letter? If so, could we not request DV?

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@texasrocker

 

In your opinion what should we do now, wait to be served and attack standing?

 

Also, the letter we received from the attorney mentions nothing of a lawsuit. It simply reads that they are representing PRA and offering a settlement of the account. At the bottom is states that they are a debt collector and are trying to collect a debt. Would this not be considered a dunning letter? If so, could we not request DV?

That is a typical JDB antic, nothing new.

 

Requesting DV is pointless unless you think you can trap them into the FDCPA violation of contacting you again before responding to the DV letter.  It is even more pointless after the lawsuit has been filed.  Wait until you are served and see what they say in the original petition that you are served with.  Ignore any correspondence from them and by all means do not call them or contact them in any way.

 

Order this book and study it as if you were cramming for a final exam-  http://www.amazon.com/OConnors-Texas-Rules-Civil-Trials/dp/1598391828

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Can anyone help me find information on where these suits must be filed? All I can find that they must be filed in the county you live in. My county is divided into precincts and then further subdivided into places. Can the suit be filed in any precinct as long as it's in my county?

 

This suit was filed in the right precinct, but wrong place. Is that a violation or would it be considered close enough?

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Section 1692i of the FDCPA refers to filing suits in "judicial districts."  Exactly what constitutes a judicial district can be very complicated.  Here the court had to do a detailed analysis of that state's judicial system before concluding no violation had occurred.

 

http://scholar.google.com/scholar_case?case=13361200775488162425&q=1692i(a)+judicial+district+place&hl=en&as_sdt=3,44,110,125,367,368,369,370&as_ylo=2010

 

 

 My guess is that Portfolio did not violate, but I am not sure.  You may want to consult 3or 4 consumer lawyers at www.naca.net.

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@texasrocker

 

My wife was served this morning. Now we need to start working on our answer. Any help is certainly appreciated.

 

Count 1: Breach of Contract

Count 2: Account Stated

 

 

1. Who is the named plaintiff in the suit?

 

Portfolio Recovery Asignee of capital One Asignee of HSBC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

 

Rausch, Sturm, Israel, Enerson & Hornik

3. How much are you being sued for?

 

$xxxx

4. Who is the original creditor? (if not the Plaintiff)

 

HSBC Bank

5. How do you know you are being sued? (You were served, right?)

 

Served

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

 

In person

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?

 

Settlement notice in the mail. We didn't respond

9. What state and county do you live in?

 

Harris 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)

 

May 2012

11. What is the SOL on the debt? To find out:

 

4 years

12. What is the status of your case?

 

Active

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

 

No

14. Did you request debt validation before the suit was filed?

 

No

15. How long do you have to respond to the suit?

 

14 days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

None. Only the complaint

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Copy the answer I gave for the person in post #2 this thread, file it with the court before the deadline and send a copy via certified mail to the attorney's office that filed the lawsuit-

http://www.creditinfocenter.com/community/topic/323350-new-portfolio-recovery-suit-in-texas/

Edit this sentence in the Plea to the Jurisdiction to match the exact wording in your case where they claim to have purchased the alleged debt,  ...Plaintiff alleges "Defendant's account has been assigned to Plaintiff, and Plaintiff is the current holder of Defendant's accounts" See Plaintiff's Original Petition under "Facts" paragraph 6

You did not state whether it was filed in a county court or JP court.  Since you are only given 14 days to respond I am assuming it is a JP court.  If it is a JP/small claims court the 2013 amended rules require you to get permission from the court before conducting discovery.  Get on that as soon as possible then I will PM you a first set of discovery to send.  Also in a JP court omit the Request For Disclosure paragraph in the answer linked above as some courts have been known to consider it a form of discovery and toss it out.

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Copy the answer I gave for the person in post #2 this thread, file it with the court before the deadline and send a copy via certified mail to the attorney's office that filed the lawsuit-

http://www.creditinfocenter.com/community/topic/323350-new-portfolio-recovery-suit-in-texas/

Edit this sentence in the Plea to the Jurisdiction to match the exact wording in your case where they claim to have purchased the alleged debt,  ...Plaintiff alleges "Defendant's account has been assigned to Plaintiff, and Plaintiff is the current holder of Defendant's accounts" See Plaintiff's Original Petition under "Facts" paragraph 6

You did not state whether it was filed in a county court or JP court.  Since you are only given 14 days to respond I am assuming it is a JP court.  If it is a JP/small claims court the 2013 amended rules require you to get permission from the court before conducting discovery.  Get on that as soon as possible then I will PM you a first set of discovery to send.  Also in a JP court omit the Request For Disclosure paragraph in the answer linked above as some courts have been known to consider it a form of discovery and toss it out.

 

You're awesome! Quick question, do I include the part about it being time barred even though it isn't out of SOL?

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@texasrocker

 

I called the court clerk this morning and she told me that I needed to file a motion requesting permission for discovery. She said it needed to include what level of discovery I am requesting and it's better to include what I will be asking for than to not include it.

 

I am unsure of how to word this motion. Any help is certainly appreciated.

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I filed my answer today, however, I did not file my request for discovery as I am unsure of how to write this up. I can find samples of motions for discovery, but these are all to the opposing side asking for documents, etcetera. I can find no samples of motions to the Judge asking permission to send discovery to opposing counsel.

 

I'm not asking to be spoon fed, but if someone could at least point me in the right direction, I would appreciate it. I would assume I am just looking for level 1 discovery, but I am unsure.

 

I could probably piece meal a motion together, but the clerk said I should include what I am going to be asking for. I really don't know what to ask for.

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MOTION SEEKING COURT'S PERMISSION TO CONDUCT DISCOVERY

 

Comes now, Defendant ______________ and files his Motion to request permission from the honorable Court to begin Level 1 discovery pursuant to Texas Rules of Civil Procedure Rule 190.2 and Rule 500.9

 

Defendant hereby asks to send Plaintiff Request for Disclosure (pursuant to TRCP Rule 194), request for admissions, production of documents, and interrogatories relative to how Plaintiff intends to prove up the assignment of the alleged debt they claim to own which is the subject of the lawsuit.  Defendant asserts that Plaintiff lacks standing to bring forth this lawsuit; therefore discovery is reasonable and necessary in order to develop his (her) defense and to minimize taking up the Court's valuable time. 

 

PRAYER

Defendant prays that the honorable Court grant his (her) Motion For Permission To Conduct Discovery and grant Defendant any other relief that he (she) is entitled to.

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 Thank you @texasrocker

 

For anyone in Texas with more than one JP in their precinct, I did find this regarding venue in the Texas Civil practices and Remedies Code. It is in Chapter 15, Subchapter E.

 

Sec. 15.099. MORE THAN ONE JUSTICE. If there is more than one justice of the peace in a precinct or in an incorporated city or town, suit may be brought before any justice of the peace in that precinct or incorporated city or town.

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I believe in that instance, the presiding justice assigns the case to the next available JP. Is this in a large city? I ask because in the smaller counties(if there is such a thing in Texas :) ) the JP's can be less than happy when defendants defend.

 

I have relatives in WF and they say the JP's are very pro business.

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A little light reading for the holiday. Also you do know that your wife is at some point going to have to appear and argue the case in court it would be good to get her to post also so she can get in the groove and feel comfortable talking about it.

http://www.law.gonzaga.edu/files/Jarzombek-Defending-Debt-Collection-Suits.pdf

http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf

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@Seadragon

@texasrocker

 

I have printed these out and will read them when time permits. I do understand that it will have to be my wife that argues the case if or when it comes to that. I am explaining things as we go and giving her threads to read to better understand what we are doing and why. I really appreciate everyone's input and assistance.

 

I have filed my motion requesting permission to send discovery. How would I normally be notified of the judge's ruling on that motion and what kind of time frame should I be looking at?

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***UPDATE***

 

I decided to look at the case online today and a pretrial conference is set up for early February. I decided to call the court clerk and ask her how we'd be notified of the judges ruling on the motion to conduct discovery. Her response was that discover usually isn't discussed until the pretrial conference and the judge may not rule on the motion before then.

 

I really expected to have more time before my wife might have to go stand in front of the judge. What should we expect at the pretrial conference? Will she need to argue any of the merits of the case? Lastly, will she have to ask for specific discovery items or will the judge be expected to rule on the motion at that time?

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  • 2 weeks later...

In reading here, it looks like I should have sent the Plaintiff's counsel copies of my motion and answer CMRRR. I just mailed them regular mail with no delivery confirmation. Since no action is required of the Plaintiff, is this a problem? Should I go ahead and mail another copy CMRRR?

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