jkr9010

Texas, Sued by Portfolio Recovery Associates, LLC, Need Help

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I originally posted this in another sub-forum but believe this is actually the correct place now. I'll delete from the other.

 

1. Who is the named plaintiff in the suit? - Portfolio Recovery Associates, LLC Assignee of Capital One Bank (USA), N.A.
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) - Michael J Garza Dallas, TX / Rausch, Strum, Israel, Enerson & Hornik, LLC
3. How much are you being sued for? - A little over $5,000
4. Who is the original creditor? (if not the Plaintiff) - Capital One
5. How do you know you are being sued? (You were served, right?) - Served with Citation and Petition
6. How were you served? (Mail, In person, Notice on door) - In Person
7. Was the service legal as required by your state? - Yes, I believe so.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? - Denial via phone
9. What state and county do you live in? - Texas, Navarro
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) - Jan 2013
11. What is the SOL on the debt? - 4 years
12. What is the status of your case? Suit served? Motions filed? - Petition filed
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? - Yes, only verbally, not written
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. - Nothing beyond petition.

Attached documents. I've seen a drafted answer someone put up for another Texas case and that it has been referred to a few times. I just didn't know if it was applicable to my case.

 

My current plan seems to need to be:

1. Draft answer.

2. File at around 12 days and send a copy to the lawyer via certified mail.

3. Prepare a petition for discovery and motion for discovery.

4. File petition for discovery the next day after answer. Have motion ready in case it is requested or approved.

 

Thanks to all who step up and help me during this trying process.

Small Redacted.pdf

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I am not an attorney but these are things I look for to attack.

 

I always start with a MTD. And list my reasons which could be:

 

Lack of standing or Lack of capacity.

 

Did they include any statements showing any amounts charged?

Did they provide a bill of sale or assignment showing they own the debt?

Bill of sale is usually not very good if they did because they never list your account and makes it easy to defeat.

Did they include a copy of the credit card agreement?

 

If the did you may also want to include as an alternative within MTD a MT Compel Arbitration as CO agreements usually include this unless it is a newer acct. If they included an agreement read it to see. I challenged CO directly on $30K in arb. and they tried to share the cost of arb with me through JAMS. JAMS said no way...consumer debt. I paid my $250 and they waited until JAMS forced them to decide. They agreed to drop and remove from credit report.

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It's JP court so the other recent posts do apply to your case. Other alternative is to file Arb with JAMS if applicable...a lot of folks on here seem to swear by that but if it was me, since it's PRA that's suing and not the OC, I wouldn't waste the JAMS fees...but that's just me :)

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Thanks everyone. JP court = Justive of the Peace, I've learned in Texas debt under 10k can be filed there.

To answer the earlier question:

Did they include any statements showing any amounts charged? - No attachments.

Did they provide a bill of sale or assignment showing they own the debt? - No

Bill of sale is usually not very good if they did because they never list your account and makes it easy to defeat.

Did they include a copy of the credit card agreement? - No

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Sounds like they don't have much. Like I said, if it were me I would'nt waste the Arb fees but that's up to you. Check out this recent thread:

 

http://www.creditinfocenter.com/community/topic/326886-midland-funding-lawsuit-texas/

 

The info there will set you on the right track. Because it's JP court, you have to request permission to do discovery.

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Not sure why MTD won't work in JP Court? Should work in any court.

 

Because it is presided by a Justice of the Peace who is not a Judge and may or may not even be a lawyer who knows the law.  A MTD does not automatically work in ANY court.  Some states are very creditor friendly and the slimmest of evidence is sufficient for the court to find for the Plaintiff.  

 

And with nothing to claim the debt belongs to them they seriously lack standing.

 

Texas does not require that evidence be included when the complaint is filed, many states don't.  For all you know they show up to court with the documents.  Whether they have standing or not is determined by the court.  They claim they do the defendant claims they don't.  Both sides argue their point but the court ultimately decides if the evidence supports the claim as filed.  

 

This case is easy to defeat. 

 

NO ONE can guarantee that.  There appear to be holes in it for sure but there are quite a few posts on here of people who had the same slim evidence only to arrive to the court date to find that the Plaintiff had attained a LOT of documentation.  It doesn't necessarily happen often but it does happen.  You cannot assume that it will be smooth sailing and have to be prepared to fight all the way.

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@Bobby2012

 

We have to take into consideration that rules of civil procedure can vary from state to state.  What is required in FL may not be required in other states.

 

A MTD tests the sufficiency of the complaint and is usually filed before filing an answer to the complaint.  If court rules require certain documentation to be attached to the complaint but none was attached, a MTD could work.  However, if documentation is not required to be attached, then a MTD would only work if the allegations in the complaint were insufficient.  

 

It doesn't matter if it's small claims or a higher court, the allegations in the complaint must simply show that the plaintiff is entitled to relief.  If no documentation is required and the allegations are sufficient (JDB owns the account, Defendant opened the account, Defendant defaulted, etc.), a MTD will be denied.

 

Also, if a defendant has already filed an answer, a MTD is usually considered improper.

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Thanks everyone. It looks like @texasrocker is the expert here, based on the fact his posts have been linked to several times, hopefully he can chime in before I have to proceed. I've started drafting an answer based on the one he posted and has been linked to. Still not clear in if I should file a motion to dismiss instead or at the same time. Also if I go with an answer it looks like I need to file a petition for discovery and may need to attach the motion with it.

Thanks all, reading everything I can.

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Thanks everyone. It looks like @texasrocker is the expert here, based on the fact his posts have been linked to several times, hopefully he can chime in before I have to proceed. I've started drafting an answer based on the one he posted and has been linked to. Still not clear in if I should file a motion to dismiss instead or at the same time. Also if I go with an answer it looks like I need to file a petition for discovery and may need to attach the motion with it.

Thanks all, reading everything I can.

Just file your answer based on what Shellie linked to. 

Filing a motion to dismiss will just make you look like a fool before the court.

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@Bobby2012

 

I don't believe @Clydesmom claimed that a MTD could not be filed in JP court.

 

Up a few she said MTD doesn't work in JP Court. I didn't say it would be dismissed but my comment was that a MTD could be used and she said no. Maybe it is a misunderstanding of words but MTD can be used in JP Court whether they are actually granted or not is another thing.

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Listen. I will stop commenting on any of these cases because I don't want to confuse the person anymore then they already are. I was trying to help and obviously @Clysesmom didn't like it. That's okay. I have been dormant from this site for a bit and I will go dormant again. I have had great success trying to figure out what works and doesn't and thought I would pay it forward if I could help.

 

I know other Jurisdictions and States have different Civil Procedure Rules but they are all similar to degree. Case law varies significantly from state-to-state and from Jurisdiction-to-Jurisdiction. But I don't know of any Court in America that you can't put forth a MTD. It doesn't mean it will be granted but it can be done.

 

I also have some very good national Attorneys and CA attorneys and FL attorneys I've worked with over the last 6 years which I could have recommended especially for Foreclosure defense.

 

This will be my last post and I wish everyone well in defending as defeating creditors.

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@Bobby2012

 

We're all here to help each other and also learn from each other. Although I think this was a misunderstanding or misreading one way or another and everyone's posts should be welcomed, particularly if trying to help a poster who is under stress. Simply sharing a problem and having someone listen and try to help can reduce a newly-minted defendant's stress levels enormously.

As I've learned myself here, sometime's misunderstandings or people's egos or whatever come into play and that's just part and parcel of being in an online forum environment. I just ignored it (since it didn't make any sense whatsoever anyway) and continued on.

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@Bobby2012 We welcome help, feel free to throw your 2 cents in.  I know it is hard to imagine things that work in your state, don't in other states.  It takes awhile, but you get to know the rules (vaguely) for each state on what is allowed.  it never hurts to throw out an idea.  If your unsure, you can always check that states rule on that specific thing, only takes a minute. :)

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