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Being sued by portfolio recover...PLEASE HELP!!


breturbo
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I have searched but I cannot seem to find out exactly what to do, I am posting this in hopes I can obtain some help on how to proceed.  I do not want to wait too long to file an answer.  Please Help!!

 

1. Who is the named plaintiff in the suit?

 

            Portfolio Recover Associates LLC

 

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

 

            Atty, Raush Sturm Israel Enerso & Hornick LLC

 

            15660 N Dallas Pkwy Ste 350 Dallas, Tx 75248

 

3. How much are you being sued for?

 

            $ 1123.79

 

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

 

            Synchrony Bank  (Lowes)

 

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

 

            Was Served paperwork stating I was being sued.

 

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

 

            In person at my door.

 

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

 

            I answered the door and received the paperwork

 

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

 

            I had no interaction with PRA to my knowledge.

 

9. What state and county do you live in?

 

            Texas, Dallas County

 

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

 

            March 15,  2015

 

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

 

            4 years for Texas I believe

 

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

 

            Cannot seem to find info online and court house is closed.

 

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

 

            No I have not disputed any of the debt.

 

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 I did not send a debt validation.

 

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

 

            I must respond within 14 Days. Receive notice on 04/08/16 @ approximately 1800 hrs. (Friday).

 

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

 

            Nothing else was sent with the summons. I have attached pics of all that I have received.

 

 

I am attaching the files of the paperwork I received. I need some help in understanding what I can do. 

 

I really need some help with this, never had something like this before.  If I cannot get out of the suit how do I file for the arbitration agreement with the credit card company. PLEASE HELP!!

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I found a no brainer on @texasrocker page where he commented on someones issue.  I think I did this right but here is the answer I am going to file.  I changed the red to reflect the statement in mine but not sure if I added too much, I copied word for word.  Also looking for some information on discovery?  Not sure if my post above is their discovery process, saying I can request copies of the documents. And last but not least Arbitration, Synchrony bank does have an arbitration agreement, how do I go about doing that ? OH WAIT!! and one more thing, I found an old piece of mail from PRA that they purchased my acct on said date below, with them stating they were "assigned" my credit file vs them stating they purchased it, how does that work out? Can it be used for evidence or something?

 

Case No. 

PORTFOLIO RECOVERY ASSOCIATES, LLC       §                                     IN THE JUSTICE COURT

                       §

Plaintiff                                              §

                                                                                    §                      PR 4 PL 1

v.                                                                                 §

                                                                                    §

                     §

Defendant                                           §          DALLAS COUNTY, TEXAS

                                                                                    §

 

 

 

DEFENDANT'S ORIGINAL ANSWER, PLEA TO THE JURISDICTION

AND SPECIAL EXCEPTIONS

 

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.

 

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. Plaintiff, is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges "On or about July 21, 2015, SYNCHRONY BANK (LOWES) ASSIGNED Defendant’s (s’) credit account to Plaintiff, and Plaintiff is current holder of Defendant’s (s’) account and the proper party to bring this lawsuit." See Plaintiff's Original Petition under "Facts" paragraph 6. There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit.

A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Ceramic Tile Intern., Inc, v. Balusek, 137 S.W3d 722, 724 (Tex. App, – San Antonio 2004, no pet.); Delaney v. Davis, 81 S.W.3d 445, 448-49 (Tex. App, – Houston [14th district] 2002, no pet.). Plaintiff has not done either.

If Plaintiff is the assignee and rightful owner of the debt, this should be very easy for Plaintiff to allege and prove, yet Plaintiff avoids and dodges the issue, when such issues cannot wait until trial. Without a pleading of an assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and this case must be dismissed. Whether plaintiff has standing to bring this lawsuit is a threshold issue that should be resolved at the onset, and the instant plea to the jurisdiction is a proper means by which to address this threshold question.

 

Legal Standards for a Plea to the Jurisdiction

The purpose of a plea to the jurisdiction is to dismiss a cause of action without regard to whether the underlying claim has merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the court's power to adjudicate the subject matter of the controversy. Texas DOT v. Arzate, 159 S.W.3d 188, 190 (Tex.App. – El Paso 2004, no pet.), Axtell v. University of Texas, 69 S.W.3d 261, 263 (Tex.App. – Austin 2002, no pet.).

Standing is a basic requirement of the judicial system and goes directly to the court's subject matter jurisdiction over a case. It may be raised at anytime and, unlike a challenge to a party's capacity to sue, cannot be waived or presumed. Nootsie Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 661-662 (Tex. 1996), Continental Coffee Products v. Cazarez, 937 S.W.2d 444 n.2 (Tex, 1996). A plea to the jurisdiction is the proper way to challenge a party's lack of standing. Waco ISD v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000).

The plaintiff must come forward with sufficient evidence to demonstrate that there is at least an issue of fact as to the existence of jurisdiction. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227-228 (Tex. 2004). The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the plaintiff is not the original creditor, which therefore puts standing at issue and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit.

 

SPECIAL EXCEPTION TO ACCOUNT STATED

 

1. Credit Card Cases Are Based on Express Contracts and Cannot Be Brought On Implied Contract Theories Like Account Stated.

 

The Texas Supreme Court made clear in Truly v. Austin 744 S.W. 2d 934, 936 (Tex. 1988) that a plaintiff may not avoid the terms of its express contract by seeking recovery on an implied contract theory if the damages claimed are covered by the express contract. Credit card cases brought on an account stated theory violate this Supreme Court holding. Credit Card arrangements are governed by express contracts. The only viable cause of action for breach of a credit card is breach of contract. Implied or quasi-contractual causes of action like an account stated cannot be brought on a credit card debt without violating Truly v. Austin.

 

Texas courts will not imply the existence of contract where an express contract already exists. Fortune Production Co. v. Conoco, Inc.,52 S.W.3d 671 684 (Tex. 2000), Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex 1964), Musick v. Pogue, 330 S.W.2d 696, 699 (Tex. Civ App.- San Antonio 1959, writ ref'd n.r.e.). The reason for this rule, as described by the Supreme Court in Fortune Production, is that parties should be bound by their express agreements. When a valid agreement addresses the matter, a party should not be able to recover more than is provided for in the agreement. Id., 52 S.W.3d at 684. "Count 1" of the Original petition fails to provide fair notice as to how The Plaintiff can avoid this express contract in favor of an account stated.

 

The principle that a plaintiff should not be able to use an implied contractual theory to recover more than his contract authorizes is particularly applicable to credit card cases. Credit card fees and interest rates are heavily regulated. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended. See e.g. 15 U.S.C. § 1637©(1)-(7), 12 C.F.R. 225.5-225.16. Credit card plaintiffs should be able to produce these disclosures or otherwise prove the interest rates and fees that their customers agreed to pay. Using an account stated theory to imply an agreement to pay the interest and fees would improperly relieve plaintiff from establishing the amount of interest and fees that were required to be disclosed to the defendant under Federal law, and must have been included in the terms of its alleged express agreement with the defendant.

 

2. A Credit Card Account Is Not an Account Stated

 

A credit card account is not an "account" as that term has been used in the common law governing suits on account. A credit card account does not arise out of a course of dealing between two parties engaging in transactions in goods. A credit card account is a multiparty arrangement. Each transaction involves ata minimum, the debtor, a merchant, the merchant's bank, a clearing organization such as Visa, Mastercard, American Express, the card issuing bank and the card issuing bank's credit card processing unit. Every transaction brings a new merchant and merchant bank into the web of transactions that make up the account, with the result that over the term of a credit card account, hundreds of parties may be involved, not just two as envisioned for a common law account. Moreover, the transactions in a credit card account are not merely sales of goods. The account issuer does not sell goods to the account holder: instead, it makes extensions of credit to the account holder or to third party merchants on the account holder's behalf. For these reasons the cause of action for account stated does not apply to credit cards.

 

An account stated is merely an open account that has been closed because the party charged has agreed that the account is correct. Whittlesey v. Spofford 47 Tex. 13, (Tex. 1877), Wroten Grain & Lumber v. Mineola Box Mfg. Co., 95 S.W. 744 (Tex Civ. App.-1906), Padgitt Bros. Co. v. Dorsey, 194 S.W. 1124, 1126 Tex Civ. App.- El Paso 1917, no writ). An open account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from one to the other. McCamant v. Batsell, 59 Tex. 363, 367-369 (Tex 1883), Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex App.----Beaumont 199, no writ).

 

Over a century ago in McCamant v. Batsell, 59 Tex. 363, 1883 WL 9175 (Tex. 1883), a case that has never been overruled, The Supreme Court construed the word “account” as it is used in this context as limited to suits arising out of relationships in which title to goods was transferred from the plaintiff to the defendant and further excluding suits in which the rights of the parties were defined by a written agreement.

 

In McCamant, a suit on a promissory note, the plaintiff sought to make use of the then existing statute governing suits on account, which like current Rule 185, set up abbreviated procedure for resolving disputes involving such suits. Unlike the current rule the statute did not enumerate the kinds of action that could be brought as suits on account. The Supreme Court construed the meaning of the term “account” in the statute as being consistent with the common law meaning of the term:

 

“As used in the statutes of this state, in the act referred to, we believe that the word “account” is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon one side and purchases upon the other, the title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing.”

 

The Court also ruled that the plaintiff’s suit against the maker of a note and his sureties could not be brought as a suit on account or an open account because it did not arise out of the course of dealings between a buyer and seller, but was based upon a written agreement in which all the terms were fixed and certain. Id., 1883 WL 9175 at 6.

 

The Supreme Court reaffirmed the holding of McCamant in Meaders v. Biskamp, 316 S.W.2d 75 (Tex. 1958), in which The Court distinguished a suit on an account from a suit based upon an express contract for purposes of awarding attorney’s fees. The then applicable language of Tex. Civ. Stat. Art. 2226, the predecessor to Tex. Civ. Prac. & Rem. Code Ch. 38 permitted an award of attorney’s fees for a suit upon a sworn account but did not include the present language authorizing fees in a breach of contract case. The Meaders court, citing McCamant held that a suit founded upon a written contract for the drilling of an oil well was not a suit on account because the relationship of debtor and creditor did not arise from a course of dealing but from a contract. Id., 316 S.W.2d at 78

 

The classic statements of the elements of the account stated cause of action expressly draw a distinction between suits that grow out of a course of dealing and suits that grow out of an express agreement. For example, in Central Nat. Bank of San Angelo v. Cox, 96 S.W.2d 746, 748(Tex. Civ. App.—Austin 1936, writ dismissed), the court said:

 

“The cases are legion on what constitutes an account stated. In general the essential elements involved are: Transactions between the parties which give rise to an indebtedness of one to the other; an agreement, express or implied, between them fixing the amount due; and a promise, express or implied, by the one to be charged, to pay such indebtedness. 1 Tex.Jur. p. 371 et seq.; 1 C.J. 678; 1 Am.Jur. 272; 1 C.J.S., Account Stated, p. 693.”

 

The first and defining element of the claim is existence of a debtor-creditor relationship that arises from a series of transactions—from a course of dealing, not a contract. This element is identical across all suits on account, whether open, sworn or stated. While the other elements of the claim do reference an agreement, the subject matter of the agreement is not the creation or terms of the debtor-creditor relationship, but the acknowledgement, after the transactions that gave rise to the relationship have occurred, of the amount due and the obligation to pay.

 

Recent court of appeals decisions allowing a stated account on a credit card have overlooked these Texas Supreme Court authorities and instead are based upon mere dicta from a footnote in a decision out of the Dallas court of appeals. In a footnote in that case, Dulong v. Citibank (South Dakota) N.A., 261 S.W.3d 890 (Tex.App.----Dallas 2008) the court stated that a sworn account requires the passage of title and is thus not a proper tool for a credit card case but noted that it differs from an account stated in this regard. But neither that decision nor any of the other appellate decisions that have followed it have explained how they reached this conclusion. These decisions are utterly devoid of any analysis or legal authority on the issue, and none of them discuss McCamant v. Batsell. These decisions are simply contrary to Texas Supreme Court authority.

 

PRAYER

 

Wherefore, premises considered, Defendant prays that the Court grant his Plea to the Jurisdiction, grant his Special Exceptions, enter judgment in his favor and against Plaintiff, that Plaintiff take nothing, that the Court assess costs against Plaintiff and award Defendant all other relief to which he is entitled.

 

Respectfully Submitted,

 

 

Signed_________________________________

Name:

Address:

Phone:

 

 

 

CERTIFICATE OF SERVICE

 

 

I do hereby certify that I will mail a true and correct copy of this Original Answer to the Plaintiff on the _____ day of ____________________, 20____.

 

Signed____________________________________

 

Name:

Address:

Phone:

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3 hours ago, breturbo said:

Any idea what this means?  I received it after I was served.  Does this mean they have original documents from synchrony bank?

In Justice Court you have to have permission of the court to do discovery usually.  The law firm is merely informing you that if you want to review their evidence they intend to use that you can contact them.  It does not mean they necessarily have anything reliable.  You would have to review what they have to determine that.

3 hours ago, breturbo said:

I found an old piece of mail from PRA that they purchased my acct on said date below, with them stating they were "assigned" my credit file vs them stating they purchased it, how does that work out?

Not in your favor.  If you produce that letter essentially you are admitting that you knew the account was sold and that the Plaintiff has standing to sue you.  Let that one alone.

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13 minutes ago, Clydesmom said:

In Justice Court you have to have permission of the court to do discovery usually.  The law firm is merely informing you that if you want to review their evidence they intend to use that you can contact them.  It does not mean they necessarily have anything reliable.  You would have to review what they have to determine that.

Should I contact them to see what documents they have? 

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If arbitration is the way to go can I place this in my answer above to the court? 

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.

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

I found that on one of @texasrocker feeds that he had commented on I believe.

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45 minutes ago, Harry Seaward said:

f you stay in court they will be required to turn over whatever documents they have as part of discovery.  If you wait for that to happen, however, you may not be able to use arbitration.

Ummm NO.  Not in Justice Court in Texas.  Discovery is not allowed unless you get permission of the court.  They are not required to turn over anything until that is approved.  PRA is merely circumventing "discovery" by volunteering to give it up on their own thus appearing to be helpful. 

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1 hour ago, Clydesmom said:

Ummm NO.  Not in Justice Court in Texas.  Discovery is not allowed unless you get permission of the court.  They are not required to turn over anything until that is approved.  PRA is merely circumventing "discovery" by volunteering to give it up on their own thus appearing to be helpful. 

My point was that arbitration would circumvent the court altogether and that messing around with discovery could interfere with the arbitration right.

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  • 3 weeks later...

I received almost the exact same letter from this company. The dates are two days apart yet he just received it in the mail. The postage on the envelope is dated May 4,2016.  Does he still have time to respond or is it too late? They weren't able to serve him directly so they mailed it.

 

Thanks

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43 minutes ago, Scarlett said:

My husband received almost the exact same letter from this company. The dates are two days apart yet he just received it in the mail. The postage on the envelope is dated May 4,2016.  Does he still have time to respond or is it too late? They weren't able to serve him directly so they mailed it.

 

Thanks

 

 

It should say that you have a certain number of days from the time he is served.  If he got it in the mail today I would guess that it would be 14 days from today if it states 14 days in your letter.

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Thanks.. so.. I'm wondering what I should do. After reading these answers I'm not sure what to do.. I'm not familiar AT ALL with this and have never been sued.

 

I'm guessing that I should answer with the standard form above in your post changing the personal information and send to the court?

 

What did you do and is it working?

 

Thanks for the help here.

 

Scarlett

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