Dzdandcnfzd

I'm being sued by Portfolio Recovery in Parker County Texas

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I received summons late last year, did some research and answered and filed my answer as required. I sent certified copy of answer to attorney on suit. I received a letter from the law office of attorney on summons (not from listed attorney) and in this letter it basically told me that if I wanted proof of the debt I should contact Portfolio directly with a written request and included the mailing address. Then today I received notice from the court that the trial date has been set. I thought the time for requesting debt validation was over when I was served. I am confused. What's my next best step to beat these leeches?

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16 minutes ago, Dzdandcnfzd said:

I thought the time for requesting debt validation was over when I was served.

When they sent that letter they were telling you to go gather your own evidence which isn't exactly kosher.  It isn't validation as it pertains to the FDCPA not to mention that NO document PRA has substantiates their right to collect.

Is this in Justice Court or District Court?  If its Justice you have to have permission of the court to do discovery and that letter is also PRAs attempt to subvert that process.  The rules of civil procedure state that if you got the permission of the court to do discovery then their lawyers have to produce what you demand you are not required nor can you go directly to the Plaintiff once they filed suit to get the evidence they intend to use.

19 minutes ago, Dzdandcnfzd said:

What's my next best step to beat these leeches?

See if the card agreement governing the account they are suing over allows for private contractual arbitration and if it does bring a MTC arbitration to the trial and move that this is the jurisdiction for their dispute.  PRA will pack it in at that point and should dismiss with prejudice meaning you can't be sued for the debt again its over.

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16 minutes ago, Dzdandcnfzd said:

However I have no credit agreement to know about arbitration options if any. 

What are they suing you over?  In other words who did they allegedly buy the account from?  And for how much?

You can get the card agreement for the account online from the CFPB.

17 minutes ago, Dzdandcnfzd said:

I don't know what MTC is.

Motion to Compel

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8 hours ago, Dzdandcnfzd said:

I received a letter from the law office of attorney on summons (not from listed attorney) and in this letter it basically told me that if I wanted proof of the debt I should contact Portfolio directly with a written request and included the mailing address.

This is interesting. Why do you think they sent  you this letter? Was this by any chance in response to a separate FDCPA validation request sent to the law firm, or simply in response to your Answer to the Complaint? Have you ever received anything that looks like a "g-notice" from the law firm? You're near Ft. Worth, right?

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Yes. Just outside city in Parker County. I don't know what a "g-notice" is. The letter I received is the only correspondence other than the summons, that I have received from these folks to my knowledge. What is this FDCPA you speak of. I am new to all the terms. Please educate.  

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2 hours ago, nascar said:

Why do you think they sent  you this letter? Was this by any chance in response to a separate FDCPA validation request sent to the law firm, or simply in response to your Answer to the Complaint?

This has been going on in Texas recently A LOT in PRA cases.  There are two maybe 3 law firms (one in particular) doing it and it is  usually done in cases in Justice Court where you need permission of the court to do discovery.  It is an attempt to circumvent the process and then if they don't have any evidence when challenged at trial point to the letter and try to tell the court "we told the Defendant to request it from our client and they didn't bother to so we should prevail."  Not to mention it puts the burden on the Defendant to not only get the evidence they need/want but pay the costs that PRA should bear as the Plaintiff to attain records.  It is sneaky and disgusting but they get away with it with pro-se defendants who do not know any better.  

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So as I have not requested this discovery should I do it now?  I am aware I will have to go to the clerk and follow the courts procedure. I am unclear if it's too late to do so at this point. I'm going to go see the clerk to see if I can request a date change for the trial. The date set is right in the middle of a trip to DC that has been planned and paid for long before the date was sent. Does anyone know if a date change is even possible in these cases?  Or am I out of luck. 

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24 minutes ago, Dzdandcnfzd said:

So as I have not requested this discovery should I do it now?

Are you in Justice Court?

24 minutes ago, Dzdandcnfzd said:

Does anyone know if a date change is even possible in these cases?

Yes you can request a continuance to another date.  Do it ASAP though.  

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2 minutes ago, Dzdandcnfzd said:

Yes this will take place in JP court.

Has there been a pre-trial hearing yet?  They usually do that first where you can request permission to do discovery.  HOWEVER, if you are going to motion to compel arbitration you may not want to do that.

 

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No pre-trial to date. Simply the notification letter of court date.  Which by the way included the docket list, there are about 20 debt trials on that day...many have the same attorney listed on my summons.  Busy lady.  Please clarify, are you saying to request discovery or request MTC instead?  

UPDATE:. Never mind. I just re-read message. So in order to request MTC I won't request discovery if I'm understanding correctly. 

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2 hours ago, Dzdandcnfzd said:

Yes. Just outside city in Parker County. I don't know what a "g-notice" is. The letter I received is the only correspondence other than the summons, that I have received from these folks to my knowledge. What is this FDCPA you speak of. I am new to all the terms. Please educate.  

We all know a summons and complaint is not an initial pleaded that triggers the debt collectors obligations under 1692g(a). See 1692g(d). However, in the absence of an earlier communication, the next communication after the summons and complaint is arguably the "initial communication" that does trigger the 1692g(a) obligations. Therefore, I would suggest that within 5 days of the communication from law firm, instructing you to write to Portfolio if  you want proof of the debt, the law firm is obligated to send you a g-notice explaining your rights under the FDCPA. After all, 1692g(d) does not remove the obligation to comply with 1692g(a) altogether; it just makes some other communication the  "initial communication for purposes of 1692g(a). If you have time, you might consider speaking with Jerry Jarzombek in Ft. Worth. Jerry is a member of NACA and, in my opinion, one of the most dedicated consumer advocates in Texas.

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1 hour ago, Dzdandcnfzd said:

No pre-trial to date. Simply the notification letter of court date.  Which by the way included the docket list, there are about 20 debt trials on that day...many have the same attorney listed on my summons.

That first date may be pretrial only, if so that buys you some time.  Call the clerk and ask if it is pretrial and about the continuance.  I would NOT mention a vacation.  

10 minutes ago, nascar said:

If you have time, you might consider speaking with Jerry Jarzombek in Ft. Worth. Jerry is a member of NACA and, in my opinion, one of the most dedicated consumer advocates in Texas.

THIS^^^^^^^^^^^  He will most likely do the first consult for free and statistics show that 70% or more of consumers who hire a lawyer end up winning their cases.  Especially when it comes to PRA because they are after the easy default judgment NOT the consumer who will make them prove their case and when the amount (as in your case) is so low it isn't worth the expense to prove it.

1 hour ago, Dzdandcnfzd said:

 Please clarify, are you saying to request discovery or request MTC instead?  

In some states if you engage in the litigation "process" which discovery would be you give up your right to arbitration.  Talk to Jerry before you do either.   If that May date is pre-trial nothing will happen beyond that lawyer trying to get you to agree to a consent judgment right then and there.  DON'T.  If you can't agree the court will simply set a trial date up to 60 days or more out.

10 minutes ago, nascar said:

We all know a summons and complaint is not an initial pleaded that triggers the debt collectors obligations under 1692g(a). See 1692g(d). However, in the absence of an earlier communication, the next communication after the summons and complaint is arguably the "initial communication" that does trigger the 1692g(a) obligations. Therefore, I would suggest that within 5 days of the communication from law firm, instructing you to write to Portfolio if  you want proof of the debt, the law firm is obligated to send you a g-notice explaining your rights under the FDCPA. After all, 1692g(d) does not remove the obligation to comply with 1692g(a) altogether; it just makes some other communication the  "initial communication for purposes of 1692g(a).

Interesting argument.  I had not even thought of that.  I know that those letters only go out after they have sued someone.  

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Just WOW!  Overwhelming to be sure. So I should expect another letter from law firm advising me of my rights?  If this does not occur they are in violation of some rule?  I will reach out to the attorney you mentioned and see if he can decipher all this in terms I can wrap my head around and plan a strategy.  I'm flat busted financially so I will have to go through this on my own for the most part. So all your information is priceless to me right now. Thank you all so very much. 

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2 hours ago, Dzdandcnfzd said:

So I should expect another letter from law firm advising me of my rights?

Not exactly.  If @nascar is right then the law firm has already violated the Federal FDCPA law.  If that is the case it is a counter claim you could file and since the penalty for that is $1000 to you and they are suing you for less than that it is entirely possible that with this counter claim you also have that as a weapon to make PRA dismiss this with prejudice to get you to go away.  

2 hours ago, Dzdandcnfzd said:

I will reach out to the attorney you mentioned and see if he can decipher all this in terms I can wrap my head around and plan a strategy.  

If this law firm has indeed violated the law then Jerry will likely take the case on contingency because PRA will be paying your attorney fees.

Call his office first thing tomorrow.  At the very least speaking to him will give you additional peace of mind.

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1 hour ago, Clydesmom said:

If this law firm has indeed violated the law ...

"[A]lthough a debt collector may choose to file suit without initially communicating with the debtor, the law is clear that once an initial communication is made and the debtor requests verification, the debt collector must provide the verification before resuming collection efforts." Anderson v. Frederick J. Hanna & Associates, 361 F. Supp. 2d 1379 (N.D. Ga. 2005).

This is an interesting passage, especially since it was made before the 2006 addition of 1692g(d). In any case, it indicates to me that an "initial communication," along with the obligations triggered under 1692g(a) can in fact occur after the filing of a complaint. That appears to be the case here. Now, no violation may have occurred yet; the debt collector has 5 days to comply with 1692g(a). But, I would look at the letter to see if it contains the required language in 1692e(11). Section 1692e(11) requires a debt collector to state that it is a debt collector in all communications with consumers. If it doesn't say that, then, yes, there's already been a violation.

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5 hours ago, nascar said:

We all know a summons and complaint is not an initial pleaded that triggers the debt collectors obligations under 1692g(a). See 1692g(d). However, in the absence of an earlier communication, the next communication after the summons and complaint is arguably the "initial communication" that does trigger the 1692g(a) obligations. Therefore, I would suggest that within 5 days of the communication from law firm, instructing you to write to Portfolio if  you want proof of the debt, the law firm is obligated to send you a g-notice explaining your rights under the FDCPA. After all, 1692g(d) does not remove the obligation to comply with 1692g(a) altogether; it just makes some other communication the  "initial communication for purposes of 1692g(a). If you have time, you might consider speaking with Jerry Jarzombek in Ft. Worth. Jerry is a member of NACA and, in my opinion, one of the most dedicated consumer advocates in Texas.

"If you have time, you might consider speaking with Jerry Jarzombek in Ft. Worth. Jerry is a member of NACA and, in my opinion, one of the most dedicated consumer advocates in Texas."  I will second that,  Great lawyer and a great guy who even took time to email an answer to me even though I am not a TX resident.

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5 hours ago, nascar said:

We all know a summons and complaint is not an initial pleaded that triggers the debt collectors obligations under 1692g(a). See 1692g(d). However, in the absence of an earlier communication, the next communication after the summons and complaint is arguably the "initial communication" that does trigger the 1692g(a) obligations. Therefore, I would suggest that within 5 days of the communication from law firm, instructing you to write to Portfolio if  you want proof of the debt, the law firm is obligated to send you a g-notice explaining your rights under the FDCPA. After all, 1692g(d) does not remove the obligation to comply with 1692g(a) altogether; it just makes some other communication the  "initial communication for purposes of 1692g(a). If you have time, you might consider speaking with Jerry Jarzombek in Ft. Worth. Jerry is a member of NACA and, in my opinion, one of the most dedicated consumer advocates in Texas.

 

Jerry Jarzombek

http://www.jarzombeklaw.com/

 

 

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