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Being sued by Portfolio Associates in Texas - Williamson County


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So I'm being sued by Portfolio Associates and need some help on how to proceed.  Here is the information I have.  I appreciate any help I can get.

Suit was filed in County court at Law #4, Williamson County, Georgetown, Tx 78626.

 

1. Who is the named plaintiff in the suit?

PORTFOLIO RECOVERY ASSOCIATES, LLC

ASSIGNEE OF GENERAL ELECTRIC CAPITAL

ASSIGNEE OF GE CAPITAL RETAIL BANK

(CARE CREDIT)

 

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

FALLON R. HAMILTON

C/O ENERSON LAW LLC

 

3. How much are you being sued for?

$589.79

 

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

GE CAPITAL RETAIL BANK (CARE CREDIT)

 

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

Yes, I was served

 

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

I was served in person

 

7. Was the service legal as required by your state?

Yes, I was served at my home by a person

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

No correspondence with Portfolio Associates

 

9. What state and county do you live in?

Texas, Williamson County

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

May of 2012

 

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

4 years

 

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Contract other - 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? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

 

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically.

I believe I have until 10:00 am on the Monday next following 20 days after I was served.  I was served on sat. March 19th, 2016.

 

In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming.

E. COUNT 1: Breach of Contract     Plaintiff is entitled to recover for breach of contract. GE CAPITOL RETAIL BANK (CARE CREDIT) 'S offer and extension of credit to Defendants(s) constitute performance and/or tendering of GE CAPITAL RETAIL BANK (CARE CREDIT) .  Defendant failed to repay the full amount owed on the credit account and thereby breached the contract.  Defendant(s) breach was a proximate cause of actual damages of $589.79.  All just and lawful offsets, credits, and payments have been applied to the account.  

F. COUNT 2: Account stated    Plaintiff is entitled to recover on an account stated claim because (1) transactions between the original creditor and defendant (s) gave rise to the indebtedness, (2) there existed an agreement between the original creditor and defendant(s) which established the amount due to the original creditor, and (3) the defendant(s) promised to pay the original creditor on the indebtedness.

 

 

Did you receive an interrogatory (questionnaire) regarding the lawsuit?

No

 

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

There is no evidence, no affidavit, no statements from the OC, no contract, no exhibits.   Just a 1 page citation advising me I've been sued, a page showing me the pre-trial procedure information.  The 3 page " Plaintiffs Original Petition",  and their lawyers information on the final page.

 

I know it's not much that i'm being sued for, but, i just don't have the money right now to pay.    Any help I get from this forum will be greatly appreciated.

Thank you!

 

 

 

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I just dealt with this in kentucky.  Same OC same collection agency.  I filed a motion to compel arbitration...judge for some reason ordered mediation anyway...went to mediation and the other lawyer dropped it with prejudice as long as I would call JAMS off.  Look into that route..it costs them somewhere around $2k to file with JAMS on their end...for $500 not worth it to them.

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@57-VW this has come up before for Texas. You have to also supply an answer with private arbitration per the cardmember agreement as an affirmative defense along with your MTC Private Contractual Arb if it's in the cardmember agreement.

While doing that answer check @texasrockerposts for a general denial answer that addresses the rest of the complaint such as breach of contract, standing and account stated. You might just get them to dismiss early especially for a $589 suit. It would cost them over $1,000 to enter arbitration.

You can find your cardmember agreement at http://www.consumerfinance.gov/credit-cards/agreements/

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34 minutes ago, CCRP626 said:

@57-VW this has come up before for Texas. You have to also supply an answer with private arbitration per the cardmember agreement as an affirmative defense along with your MTC Private Contractual Arb if it's in the cardmember agreement.

While doing that answer check @texasrockerposts for a general denial answer that addresses the rest of the complaint such as breach of contract, standing and account stated. You might just get them to dismiss early especially for a $589 suit. It would cost them over $1,000 to enter arbitration.

You can find your cardmember agreement at http://www.consumerfinance.gov/credit-cards/agreements/

So I have to start arbitration also and add it to my answer to the suit?  I'll try to look for the general denial letter you mentioned the texasrocker has posted.  I hope I can find it.

 

 

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@57-VW You can just state it as an affirmative defense. You don't have to start it at this time but you should check your cardmember agreement to see if there is an arbitration clause there if you use it as an affirmative defense.

An alternative approach is not even mention it in your answer if you don't have a cardmember agreement and aren't aware it's an option to you. If the case drags out for whatever reason, you get your agreement as mentioned above or through discovery and if that's the first you see private contractual arbitration covers it, you then do a motion to compel it.

The main thing is not to waive your right to arbitration by extensive litigating but Texas gives a fair amount of leeway on that-

http://www.cooperscully.com/uploads/seminars/Sohlman-PerryHomes.pdf

 

 

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1)  I found on my credit card agreement that is says that we have to go to arbitration with AAA or JAMS.  I know that's gonna cost more than the suit, so what should I do?

 

2) I have not been able to find a general denial letter I could use for my answer.  I don't know what to look for, or what applies to my case,  I have attached a copy of the Citation for more information on how to proceed.

 

Thanks again for all your help.  

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@57-VW if you decide on private contractual arbitration (make sure that's how you word it so you don't get stuck in some court operated mediation/arbitration), opt for AAA. Portfolio isn't registered so that adds another roadblock for them. @fisthardcheese is familiar with AAA so hopefully he'll see your post.

Look for Texasrocker's posts, he's got an answer that covers your complaint including general denial.

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@57-VW

 

This is a reply by @texasrocker to an OP sued in TX Justice court who wanted to have her case arbitrated

Why are you making it so hard on yourself?

Type this in the same format as the Plaintiff's Original Petition of which you were served:

"Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the
plaintiff's allegations.

Defendant has elected private contractual arbitration with JAMS pursuant to the terms of the governing credit card agreement."     

Enclose a copy of said credit card agreement.

File it with the court before the deadline and send a copy via certified mail to the attorney's office that filed the lawsuit.   Talk to someone in the arbitration section here and learn about everything you need to prepare for.

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Since they did not provide any evidence of the debt should this be mentioned on my answer?  Shouldn’t the judge throw this out just based on not providing any evidence?  Maybe I'm just delaying the inevitable, or have them start asking more questions.   If I ask for arbitration per the credit card agreement won’t this be an admission of the debt?  If I answer “"Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the plaintiff's allegations. will I still be able to have this go into arbitration per the CC agreement later? 

I appreciate all the help I have been given so far and would like to have answer for the court in 2 days.  Thank you!

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@57-VW 

Quote

 If I ask for arbitration per the credit card agreement won’t this be an admission of the debt?

No. If you don't know if anything they stated is true, such as this was opened on this date and so-on, but based on that you see every agreement in the CFPB archives for that original creditor in that timeframe has the same arbitration clause, you would select the agreement that closest fits. One anytime the account would have been active if there's a survivability clause or the one in effect at time of default. Or you contact the original creditor and ask for the agreement for the account number shown in the complaint (use the CFPB complaint if the card issuer is uncooperative). This doesn't mean you admit to the debt.

Once you motion to compel arbitration the case is stayed. The Judge decides is there is a valid arbitration agreement and that's it.

Texas Arbitration Code for court procedure. Cardmember Agreement has the individual arb terms, such as fees and governed under FAA.

http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.171.htm

 

Quote

 If I answer “"Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the plaintiff's allegations. will I still be able to have this go into arbitration per the CC agreement later? 

See the earlier post about waiving your rights to arbitration and read the link. If you know there is an arbitration clause at the beginning and on the day of trial pull it out, the chances are much greater of it considered waived.

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My husband has received the identical suit and posted a few days ago but must have posted it wrong.  I have the exact same suit for similar amount from PRA.  However, they did not include any supporting documentation of the account as they did in this one.  Any ideas on why they wouldn't provide it?  I too am looking for assistance on how to respond.  My case is in Collin Country and I need to submit my response by Monday.  Since my husband is not a fan of public speaking, I am going to represent him (which I understand is legal now in small claims court)

Any help is greatly appreciated!

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I just submitted my answer which I'll elaborate on my next post, but, I should have asked this question first on the amount of time I had to submit my answer.  When I received the summons it had a county stamped document that said...

" If you or your attorney do not file an answer with the clerk who issued the citation by 10:30 am on the Monday next following the expiration of 20 days after you were served this citation and petition. a Default Judgement for relief demanded in the petition may be taken against you" 

I was served on the 03/19/2016, as of today 04/07/16, that will be 19 days.  I am assuming I am under the time frame right?   I keep seeing 10 days and 14 days, but, I'm going based on the paperwork sent with the citation.  Which is correct?  Here is a copy of  of the document that I got with the citation...

 

Thank you so much.

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OK since Portfolio presented no evidence, just an allegation,  I've decided to answer using the general denial letter that TexasRocker has posted.  It starts with the following...

" Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of The Plaintiff's allegations.

Defendant asserts that the interest rates charged by the original creditor are usurious. PLEA TO THE JURISDICTION

Grounds for Dismissal for Lack of Standing "  

 

So what's next?  Do I wait for another summons?  Is their attorney going to contact me?  Do I have to call the court and check for any new hearings?  I'm hoping that since the amount is so small that they will not purse it any further.  If they do I will ask them to provide all the documentation,  including their first letter to Santa Claus, that they have to prove this debt exists.

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55 minutes ago, CCRP626 said:

@texasrocker here's a question for you, please. 57-VW's court documents show County Court and it's for under $600. I thought an assignee credit card case would go into Justice Court under Rules 500-508 as a Debt Claim Case also giving 14 days to answer instead of 20?

Never assume when it comes to deadlines. Only go by the deadline stated on your summons.

They can file wherever they so desire.  A couple of months ago someone came here with one that had been filed in a district court. 

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  • 2 weeks later...

ok so I got this in the mail today...  It looks like their lawyer is saying they have provided sufficient evidence that it's pleading conforms to the " fair notice" requirements promulgated in Texas Rules of Civil Procedure 47(a).  and they've asked the judge to sign an order denying my motion to dismiss.   Should I just wait for the judge to answer or should I start the discovery process?  Is their statement enough to proceed with the suit without showing any evidence?

 

thank you

 

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Thanks for the quick reply Texasrocker.  I did not answer with anything entitled "Motion to Dismiss".  All I did was answer by using your general denial that i've seen posted that starts with...

 

" Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of The Plaintiff's allegations.

Defendant asserts that the interest rates charged by the original creditor are usurious.

 

 PLEA TO THE JURISDICTION

 

Grounds for Dismissal for Lack of Standing 

 

This is a lawsuit arising out of an alleged consumer credit card debt...   "

 

So should I just wait to see what the judge says?  Thank you Texasrocker. 

   

 

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  • 2 weeks later...
  • 3 weeks later...

Sorry for the delay,  I called the court yesterday and they said there has been no change or hearing date assigned.  I'm going to drive by and ask what is the latest,  I'm curious if the judge  actually signed their supplied " order denying defendants motion to dismiss ".  Stay tuned.   

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  • 1 month later...

I called yesterday to the court and they said no hearing date has been assigned.  I still have not heard anything different.  I'm wondering if the court is just not going to proceed because it's been over 3 months since anything has happened?  The amount is so small that they are claiming, maybe they are giving up?

 

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