txneedhelp

Texas served today bieng sued by Portfolio Recovery...says 14 days to respond please help

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Never been sued before and I read a post that said I should start my own post so that the details are specific to me. I was served notice today and it says i am being sued. It also states I have 14 days to respond to the Justice Court.

 

1)plaintiff " Portfolio Recovery Associates LLC ASSIGNEE OF CITIBANK, N.A. (The Home Depot)

 

2)Rausch, Strum, Israel, Enerson, & Hornik, LLC

 

3) a little less than $5 k

 

4) Home Depot

 

5) Served by person

 

6) I assume it is a "legal" service

 

7)no communication

 

8) Tx (prefer not to mention county to remain private unless absolutely needed)

 

9) Oct 2012

 

10) SOL 4 years

 

11) 14 day response time

 

12) no request for validation...didn't know about this company

 

13) only has petition with

A. PArties

B. Jurisdiction

C. Venue

D. Facts

E. Count 1 " breach of contract"

F. Count 2 Account Stated

"Plaintiff is entitled to recover on an account stated in a claim because (1) transactions between the plaintiff and defendant(s) gave rise to the indebtedness (2) there existed an agreement between plaintiff and defendant(s) which established the amount due plaintiff, and (3) the defendant(s) promised to pay the plaintiff on the indebtedness.

G. Damages (asking for the amount)

h. Condition Precedent

"all conditions precedent to the plaintiff's claim for relief have been performed or have occurred.

I. Miscellany

"The undersigned attorneys hereby give notice that they and plaintiff are attempting to collect a debt and any information obtained will be used for that purpose. Plaintiff's attorneys are debt collectors.

j. Prayer

asking for damages, court costs, and any other relief entitled

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Txneedhelp, I received the same a few days ago.

A bit under 2k.

July 2012.

14 days

I was hoping for more help before I respond, but I do know this much. Make sure your reply is notarized, affirming your defense, as they have sent a notarized affirmation. Without a notary public, your defense letter will be junk, and they will receive a default judgement.

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Never been sued before and I read a post that said I should start my own post so that the details are specific to me. I was served notice today and it says i am being sued. It also states I have 14 days to respond to the Justice Court.

 

1)plaintiff " Portfolio Recovery Associates LLC ASSIGNEE OF CITIBANK, N.A. (The Home Depot)

 

2)Rausch, Strum, Israel, Enerson, & Hornik, LLC

 

3) a little less than $5 k

 

4) Home Depot

 

5) Served by person

 

6) I assume it is a "legal" service

 

7)no communication

 

8) Tx (prefer not to mention county to remain private unless absolutely needed)

 

9) Oct 2012

 

10) SOL 4 years

 

11) 14 day response time

 

12) no request for validation...didn't know about this company

 

13) only has petition with

A. PArties

B. Jurisdiction

C. Venue

D. Facts

E. Count 1 " breach of contract"

F. Count 2 Account Stated

"Plaintiff is entitled to recover on an account stated in a claim because (1) transactions between the plaintiff and defendant(s) gave rise to the indebtedness (2) there existed an agreement between plaintiff and defendant(s) which established the amount due plaintiff, and (3) the defendant(s) promised to pay the plaintiff on the indebtedness.

G. Damages (asking for the amount)

h. Condition Precedent

"all conditions precedent to the plaintiff's claim for relief have been performed or have occurred.

I. Miscellany

"The undersigned attorneys hereby give notice that they and plaintiff are attempting to collect a debt and any information obtained will be used for that purpose. Plaintiff's attorneys are debt collectors.

j. Prayer

asking for damages, court costs, and any other relief entitled

 

Texasrocker will pop in soon I'm sure.

 

But their trying to sue on 2 Different methods...........I'm not sure that they can sue on BOTH breach of contract (unless they have a signed contract in hand with your signature on it ) and Account Stated (which means that they would have to show several monthly charges and payments to the account). Their just shooting and hope to make one stick.

 

One good thing is they can't garnish wages on judgments in TX. Another you need to determine when you made the last payment on the account, add 30 days and figure the 4 yr SOL, if they filed the suit after 4yrs SOL then you have a very good affirmative defense. They still have to "Legally substantiate and PROVE they own the debt". This is where they will attempt to submit affidavits, generic spreadsheet file, and only a PARTIAL bill of sale" ( actually only a portion of a larger document called a "Forward Flow Agreement"), These are the items that must all be "LEGALLY Substantiated"...............95% of the time they cannot legally do this, they win when people don't answer or answer properly.

 

These standards are in your state's Rules of Evidence, particularly pay attention to Heresay Rules and Exceptions to Heresay Rule (business record exemptions). Texasrocker will know exactly where to point you.Time to go back to "School" and locate, mark and take notes of Civil Procedures for Texas.

 

Also make sure which type Court these are filed in.......I believe Texas has Justice Courts and District Courts as the amounts are less than $10,000 they are most likely both in Justice Court. I'm in OK and our rules bar JDB from filing in Small Claims (equivalent to Justice Court) Court's..............Texas does not, so the rules in Civil Procedure you all need to examine are those pertaining to Justice Courts.

 

Best thing to do right now is check the Rules of Civil Procedures for TX and START NOW preparing and get ready to file a General Denial / Answer / Entry of Appearance ( with any affirmative defense's that might apply, look examples of these up searching the board and Google ) as your answer and appearance within the 14 days allowed by the Summons & Complaint.................the Clock is ticking and weekend days count. That will slow the sled down and give you a slight breather and increase the steps they must go thru to get a Judgment. Not answering or ignoring it and within 45 days they will get a "Default Judgment" with no effort on their part..............At the very least file an Entry of Appearance within the 14 days, prevent a Default Judgment.........make them work for it.

 

OH and ?'s.and.advice, it would be best if you started you own thread and post the same information that  txneedhelp posted.....Easier for everyone to help and keep straight both case's ....................no two case's follow EXACTLY the same paths or at the same time frame............the generalities are similar, but that's where they usually end.

 

Also both need to Google on line for a copy of the Credit Card agreement for your O.C.................look and see if it contain's an arbitration clause and mentions JAM's. Not to say that this the path you need to go...........but it is good information and might give some leverage option's.

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Your first priority now is to get your answer filed before the deadline.  Read my post #10 in this thread-

http://www.creditinfocenter.com/community/topic/325709-being-sued-by-portfolio-in-county-court-in-texas/#entry1319184

 

Your second priority is to ask the court for their approval to conduct discovery since it was filed in a JP court.  When you have received said permission let me know and I will provide you with first set of discovery to send.

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Thank you so much for the information I am truly grateful for all the help.

@texasrocker Just to clarify do I ask for approval to conduct discovery at the same time as I submit my answer? Also is there a formal way I need to request that approval. (just do not want to mess up)

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@saytar it does mention Arbitration and American Association of Arbitration and JAMS

 

Thought it might......its something that might be used to gain some leverage in any settlement negogiations. Not a method I particularly favor, as most people do not have the money to do lump sum settlements (which are the only way to do them...the payment route is not viable, the bottom feeders lie too much and sometimes the OP's situation changes to the worse).

 

But Texasrocker knows Texas pretty well AND the 1st Item on the agenda before ALL else is the Answer as he says. Then you have options in which way to take the case, otherwise your dead in the water.

 

Good luck.

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Your first priority now is to get your answer filed before the deadline.  Read my post #10 in this thread-

http://www.creditinfocenter.com/community/topic/325709-being-sued-by-portfolio-in-county-court-in-texas/#entry1319184

Edit the wording in red to match Plaintiff's Original Petition that you were served with.

 

Your second priority is to ask the court for their approval to conduct discovery since it was filed in a JP court.  When you have received said permission let me know and I will provide you with first set of discovery to send.

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