redd4949

NEED HELP! Portfolio Recovery Suing Me!

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First of all, Thank you for any and all assistance.

 

I recently recieved a subpoena notifying me that I am being sued by Portfolio Recovery Associates. I have never been issued a subpoena before and have no clue what to do.  I am panicking.

 

I have attached the first 5 pages of the subpoena. The other documents included are sell of the debt and a credit card statement from 08/2012.  If I need to include those, then I will. The documents

have been edited to remove personal information (name, address, case number, ect.) If needed, I will PM you.

 

Thank you again,

 

redd4949

 

Here is how it reads.

 

Portfolio Recovery Associates LLC Assignee of                                                                  In the Justice Court

HSBC Bank Nevada N.A. Capital One N.A. / Best Buy                                                       Harris County, Texas

Plantiff                                                                                                                                  Precinct 4, Place 2

vs.                                                                                                                                        7900 Will Clayton Parkway

My Name Here                                                                                                                     Humble, TX 77338 5849

Defendant                                                                                                                             713 287-2450

 

                                                                               Citation (Debt Claim Case)

The State Of Texas

County of Harris:

 

To:   ANY SHERIFF, CONSTABLE, PROCESS SERVER CERTIFIED UNDER ORDER OF THE SUPREME COURT, OTHER PERSON AUTHORIZED BY COURT ORDER, OR CLERK:

 

Deliver this citation, together with a copy of the petition, to:

My Name Here

My Address Here

My Phone Number Here

 

TO THE DEFENDANT:

You have been sued. You are commanded to appear by filing a written answer to the petition filed by Plantiff with the Clerk

of the Court on or before the end of the 14th day after the date of service of this Citation. If you fail to file an answer as

required, a judgement by default may be rendered upon the plaintiff's proof of the amount of damages.

 

Date Petition Filed : 10/02/15

 

Nature of demand made by Plaintiff(s): money owed in the amount of $1381.04 together with attorney's fees, cost of court, interest as provided by

law and general relief. A copy of the Petition is attached.

 

You have been sued. You may employ an attorney to help you in defending against this lawsuit. But you are not required to

employ an attorney. You or your attorney must file an answer with the court. Your answer is due by the end of the 14th day

after the day you were served with these papers. If the 14th day is a Saturday, Sunday, or legal holiday, your answer is due by

the end of the first day following the 14th day that is not a Saturday, Sunday, or legal holiday. Do not ignore these papers. If

you do not file an answer by the due date, a default judgment may be taken against you. For further information, consult the

Texas Rules of Civil Procedure, Part V, Rules of Practice in Justice Courts. A copy of the Rules is available at

http://www.jp.hctx.net/ or at the Justice Court.

 

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Hi Redd4949, welcome to the forums! Although it's kind of scary getting served the first time, the main thing is not to panic and freak out. If you can't think clearly it tends to make one do silly or hasty things--like call Portfolio and start begging to settle!

 

What you need to focus on right now is filing your answer. Absolutely DO NOT IGNORE THIS!! burying one's head in the sand will not make this go away and will only result in a quick win (ie. default judgment) for Portfolio--which is EXACTLY what they're banking on!!

 

Because the amount is quite low, I suspect simply putting up a fight will result in a dismissal. I'll read through your attachments and come back with my two pennies worth. In the meantime, there's a few very good Texas people here on the forums who can also chime in and help.

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No worries! I just read through the summons and complaint. Please just don't stress too much. Portfolio Recovery is a junk debt buyer. They bought the debt from HSBC for literally pennies on the dollar. They have filed suit just within the Texas SOL in the hopes that you'll freak out, bury your head in the sand, not show up for court or file an answer, and win an easy default judgment against you--which is exactly what 98% of defendants do.

 

We're not talking mega bucks here. If you put up a fight to this, they will more than likely dismiss the case. So what you need to do now is formulate your answer. I would do general denial (ie. deny all plaintiff's claims) and request permission to conduct discovery. Because this has been filed in JP court, you need to get the court's permission to conduct discovery. Your discovery will also be limited to ten items at a time but it bascially gives you the right to ask plaintiff questions, request copies of documents, yada yada yada--all prior to trial.

 

The strategy here is to cause them more headaches than it's worth to pursue the case against you--by simply fighting it. Remember: the more they have to fight to get this, and start digging around for documents, etc., the more it will cost them in legal fees and time. At some point it simply becomes a business decision to "let it go" because it will cost them more than the judgment is worth. And, because you are in Texas, they may never be able to collect on the judgment even if they got one.

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By the way, did you ever validate the debt with Portfolio? Or ever have any communications with them at any point? Any offers to settle or promise to pay anything or anything at all like that?

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Ok @qednick. I will definitely relax a little bit.

 

Please bare with me because I have no idea what I'm doing, but I have a few questions. Thank you.

 

As far as a general denial, what would that consist of? Just me writing them that I deny any and all claims made by the plaintiff? Does it need to be notarized?

 

As for the discovery portion, what sort of documents would I request and what sort of questions would I ask?  I am also assuming that discovery has to be made by written notice to the JP or does it need to be made to portfolio recovery or both? Also, does it need to be notarized as well?

 

I do not believe that I have had any communication with them.  All unknown numbers get sent directly to vm and I do not remember ever speaking with them.  They may have sent me something via mail, but any and all of those notices were sent straight to my trash can per my fiance or myself without opening it, thinking it was junk mail.

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OK cool. I'm just going to grab something to eat before I collapse and I'll be back in a bit. In the meantime, have a look at some of the other posts here regarding lawsuits in Texas and it will start giving you a good idea of what's involved.

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Ok I'm full of pizza and functioning again. Before you can formulate your answer to the summons, it's important to know whether Portfolio violated any laws in contacting you. For example, did they robo call you too many times in one day at call at crazy hours? If so, do you have any proof? If you can file your answer with counter claims you will have much stronger case. If not, I still wouldn't worry too much because the plaintiff has the burden of "proving up" the chain of custody in your case. Them simply including an affidavit saying they "bought XXX accounts from HSBC" won't cut it in court. They have to actually prove that they really do own the account they're claiming the debt is for. Unless the affidavit states your particular account/number then you can attack their standing to sue you. One thing I would ask for in discovery is the agreement and terms of their purchase of accounts from HSBC. When a bank like HSBC sells accounts to JDB's they will usually stipulate something about the lack of accuracy of the accounts sold.

 

Note that you can essentially ask for anything in discovery. When I got into it with my ex-HOA I asked all kinds of stuff including whether any board members had felonies or had been convicted of any crime of moral turpitude. Of course, they can object to stuff and most likely will, but if you ask for something that's directly related to proving their chain of custody then it becomes more difficult for them to refuse. Also, since it's JP court we're talking about, you're limited to only ten items per request so you have to choose carefully.

 

Hopefully somebody can chime in with a good set of discovery for the OP?

 

When filing your answer, you need to format it exactly like the top of the complaint you received but it would be titled something like "DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT". You would then state that you deny all plaintiff's claims and list any affirmative defenses. Hopefully, by now you will have seen examples on this site that are specific to Texas and the JP courts?

You will also need to include a "certificate of service" to show that you sent plaintiff's attorney a copy. I can't recall if this needs to be notarized (been a while since my last suit). Answers to discovery usually always need to be notarized.

You would need 3 copies of your answer. You file one with the clerk of the court, send one CMRR to the plaintiff's attorney, and keep one copy for your records.

 

Examples of affirmative defenses would be stuff like Statute Barred (passed the SOL), or Lack of Standing (this applies to you!). You also need to include that you reserve the right to amend or add affirmative defenses later. In your case you would definitely use the Lack of Standing defense. It's always a good idea to explain why and cite case law you can find. I would also attack the "Account Stated" claim.

 

Once your answer is filed, you should also file a motion to conduct discovery with the clerk. Again, header needs to formatted just like the original complaint with the case number, etc. but it would be titled something like "DEFENDANT'S MOTION FOR PERMISSION TO CONDUCT DISCOVERY". Remember, a motion is basically you're asking to "move" the court (or "motion" the court to do something). Any motions you file should also be sent to the plaintiff's attorneys and include a certificate of service. I'm not too clued up on your particular JP court process but I would actually ask the clerk whether they need a copy of the proposed discovery with your motion. Whether they do or not I would only give plaintiff's attorney the motion initially and then only send them the set of discovery once permission is granted to you.

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Ok @qednick,

 

So I have been reading through some of the posts and have been finding it all hard to understand. So would the #10 post by @texasrocker in http://www.creditinfocenter.com/community/topic/325709-being-sued-by-portfolio-in-county-court-in-texas/#entry1319415 apply for my letter of general denial. If so, what would I change and would I need to add anything else?. Do I need to file for discovery BEFORE I send this letter?

 

Thanks

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Yes that is absolutely it...not sure if you should take out the bit about statute of limitations though. Two schools of thought on that. You're just within the SOL and I believe it's plaintiff's burden to prove it isn't--so maybe nothing lost by including it. On the other hand, you don't want the judge or anyone else thinking you're a bozo for including that defense when clearly it's within the SOL. On saying that, you can include it and claim ignorance later ;-)

 

You would need to change the bits highlighted in red to match your complaint.

 

You would need to file it with the clerk of the court, get another copy file stamped and mail to their attorney CMRR (that's what the certificate of service is about--you're basically certifying that you have/will send copy to the other side!). Keep the last copy for your records.

 

Once you've filed your answer, you then file the motion to get permission to conduct discovery. Like I said, depending on the court, the judge may or may not expect your propsed discovery requests with the motion. You'll need to ask the clerk--you can do that when you file the answer.

 

@texasrocker has a set of discovery you can use. Hoepfully he'll chime in and PM you a copy. Wouldn't mind a copy myself @texasrocker as I might be needing those soon myself ;-)

 

Then once permission to conduct discovery is granted by the judge, you fire it off to their attorney (you do not need to send copies of your discovery to the court).

 

The main thing is getting your answer filed. This is what throws a wrench in the plaintiff's works because they are hoping you'll just shrivel up into a balling mess upon being served with their lawsuit. By filing your answer within the allotted timeframe, you're basically saying that you're willing to fight tooth and nail and won't lay down and take it that easy. Bullies don't like folks that fight back!

 

Oh one other thing... on your answer and any subsequent motions you may file with the court, use at least 12 point type and double space it. Some judges are finicky about that.

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Took the liberty of formatting it for you (attached). You still need to include the Case # at the top (this should be on the summons somewhere), add your name as defendant (in the header), do the changes marked in red on the original post by @texasrocker, and also your name and contact info at the bottom and also below the certificate of service.

 

If it were me I would sit on it until a couple days before it's due.

 

Case No.docx

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Wow, this is more than I could have expected. I really appreciate the help. You're a life saver @qednick. You have saved me DAYS of stress lol.  I will do as instructed. Thank you again :yahoo:.

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You're welcome! The main thing is to not stress too much so you can keep a level head. Being served with a lawsuit is no fun but all it is is putting you on "notice". By filing your answer it's the same as pleading "not guilty your honor" in a criminal case. Because you're dealing with a JDB and not the OC, and because it's a low amount of money, you have a very very good shot of beating this.

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You are being sued for a very small sum.  I find it very strange that there is no local law firm involved.  These bumbling idiots are in Virginia, filing a lawsuit in Texas and citing case law from other states which will not hold up for one minute in Texas courts.  You need to hurry and get your answer filed before the deadline then work on getting the court's approval to begin discovery since you are being sued in a JP court. 

 

 To qednick- I have no idea who you are and have never before communicated with you whatsoever.  I have no problem speaking for myself. 

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You should also read the Texas TFC-392 and review it just incase their is anything there that might help you. Everything helps. Stay off the phone with them as they will probably try to call you many times, also they will try to settle now and the day of court. Stand your ground. Many times the day you appear in court they will try and drag you into a small room or out in the hall and show you a bunch of papers claiming that they have all this evidence and that you should settle. Normally a big bluff. Again, stand your ground and they may well dismiss in court before it moves forward. Howdy TR.

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You are being sued for a very small sum.  I find it very strange that there is no local law firm involved.  These bumbling idiots are in Virginia, filing a lawsuit in Texas and citing case law from other states which will not hold up for one minute in Texas courts.  You need to hurry and get your answer filed before the deadline then work on getting the court's approval to begin discovery since you are being sued in a JP court. 

 

 To qednick- I have no idea who you are and have never before communicated with you whatsoever.  I have no problem speaking for myself. 

 

The OP needed help and less stress... and nobody else was responding. Was it wrong of me to try and help?

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