Sued by Portfolio Recovery for Kay Jewelers

[Bsutt2016]

1. Who is the named plaintiff in the suit?
Portfolio Recovery Associates, LLC

2. What is the name of the law firm handling the suit?
     Rausch, Sturm, Israel, Enerson & Hornik, LLC

3. How much are you being sued for?

$4353.65

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

STERLING JEWELERS INC (KAY JEWELERS)

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

Served 5/28/16

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

In person

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

I think so.

Process Service Requirements by State - Summons Complaint

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

None

9. What state and county do you live in? 

Texas, Harrison 

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

April 2014

11. What is the SOL on the debt? 

4 years

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).

Suit Served

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. 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? 

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.

none

[CCRP626]

I guess a Kay Jewelers account is a store credit card only usable there? Do you have the cardmember agreement to see if there is an arbitration clause as well as any mention of U.C.C. and secured property?

You'll want to review the CFPB order against Portfolio, especially starting at page 32 for initiating lawsuits.

http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf

Review the boards for posts by @texasrocker

[Bsutt2016]

Here is a copy of the card member agreement section regarding arbitration:

 

10. Arbitration for Disputes - No Jury Trials or Class Actions: This paragraph describes how all Claims (as defined in subparagraph A below) will be arbitrated, at the election of you or us, on an individual (non-class, non-representative) basis instead of litigated in court.

A. The term "Claim" means any claim, dispute, or controversy between you and us arising from or relating to your Card, your Account, or this Agreement as well as any related or prior agreement that you may have had with us or the relationships resulting from this Agreement, including the validity, enforceability or scope of this arbitration provision or the Agreement. Claims arising in the past, present, or future, including Claims arising before the opening of your Account, are subject to arbitration. "Claim" includes, without limitation, claims that arise from or relate to any application for your Account or any advertisements, promotions, or statements related to your Account or goods or services that may be financed in connection with your Account. For purposes of this arbitration provision, "you" and "us" also includes any corporate affiliates, any licensees, predecessors, successors, assigns, any purchaser of any accounts, all agents, employees, directors and representatives of any of the foregoing, and other persons referred to below in the definition of "Claims". "Claim" includes claims of every kind and nature, including but not limited to initial claims, counterclaims, cross-claims, third-party claims, and claims based upon contract, tort, fraud, and other intentional torts, statutes, regulations, common law, and equity. Claims and remedies sought as part of a class action, private attorney general action, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. "Claim" also includes claims by or against any third party relating to or arising from your Card, your Account, or this Agreement. The term "Claim" is to be given the broadest possible meaning that will be enforced. "Administrator" means the American Arbitration Association, 335 Madison Avenue, New York, NY 10017, www.adr.org, (800) 778-7879; or JAMS, 1920 Main St., Suite 300, Irvine, CA 92614, www.jamsadr.com, (949) 224-1810.

B. We OR you have the right to require that each Claim be resolved by arbitration on an individual (non-class, non-representative) basis. A Claim will be arbitrated if (1) both we and you or (2) only one or the other of we or you, exercise the right to require that the Claim be arbitrated. If, for example, we exercise our right to require that the Claim be resolved by arbitration but you do not also exercise your right to require that the Claim be arbitrated, the Claim will be resolved by arbitration. If neither we nor you request arbitration, the Claim will not be resolved by arbitration and instead will be litigated in court. We will not elect arbitration for any Claim you file in small claims court, so long as the Claim is individual and pending only in that court. The arbitrator's authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator's authority to make awards or decisions is limited to you and us alone. Furthermore, Claims between you and us may not be joined or consolidated in arbitration with Claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties. However, applicants, co-applicants, authorized users on a single Account, or corporate affiliates are considered one person for the purposes of this paragraph. No arbitration award will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration. This arbitration provision is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act ("FAA") (9 U.S.C. §1, et seq.).

C. If we or you request arbitration of a Claim, we and you will not have the right to litigate the Claim in court. This means (1) there will be no jury trial on the Claim, (2) there will be no pre-arbitration discovery except as the Administrator's rules permit, and (3) no Claim may be arbitrated on a class-action, private attorney general, or other representative basis, and neither we nor you will have the right to participate as a representative or member of any class or group of claimants pertaining to any Claim subject to arbitration.We or you may elect to arbitrate any Claim at any time unless it has been filed in court and trial has begun or final judgment has been entered.

D. The party initiating an arbitration shall select an Administrator from the organizations listed above. If none of the Administrators listed above will accept the arbitration, the arbitration will be administered by an administrator, or adjudicated by an arbitrator, upon which you and we agree in writing. The arbitration shall be governed by the procedures and rules of the Administrator and this Agreement, which need not apply federal, state or local rules of procedure and evidence. The Administrator's procedures and rules may limit the discovery available to you or us. You can obtain a copy of an Administrator's procedures and rules by contacting the Administrator. A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten years experience or a retired or former judge, selected in accordance with the rules of the Administrator. In the event of any conflict or inconsistency between this arbitration provision and the Administrator's rules or other provisions of this Agreement, this arbitration provision will govern. The arbitrator will take reasonable steps to protect customer account information and other confidential information if requested to do so by you or us. Arbitration hearings for Claims by or against you will take place in the federal judicial district in which you reside. If you make a request to us in writing, we will temporarily advance to you the filing, administrative, and hearing fees for the arbitration of your Claim against us (but not if the Claim is against you) in excess of any filing fee you would have been required to pay to file the Claim in a state or federal court (whichever is less) in the judicial district in which you reside. At the end of the arbitration, the arbitrator will decide if you have to repay the advance (and if you do have to repay, you agree to do so). Unless applicable law requires otherwise, we will pay our, and you will pay your, lawyers', experts', and witnesses' fees. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations, will honor claims of privilege recognized at law, and will have the power to award to a party any damages or other relief provided for under applicable law. The arbitrator will make any award in writing and, if requested by you or us, will provide a brief statement of the reasons for the award.

E. Judgment upon the arbitrator's award may be entered in any court with jurisdiction. The arbitrator's decision regarding any claims will be final and binding, except for any appeal right under FAA. The appealing party will pay the appeal costs. This agreement to arbitrate shall survive any suspension, termination, revocation or closure of the Agreement or your Account, and any bankruptcy to the extent consistent with applicable bankruptcy law.

F. If any part of this arbitration provision cannot be enforced, the rest of the arbitration provision will continue to apply. However, an arbitrator cannot enlarge his or her authority over the adjudication of Claims beyond that provided by this arbitration provision by enforcing only part of this arbitration provision. If an arbitrator determines that applicable law requires this arbitration provision to be enforced in a way that would result in greater authority over Claims than otherwise allowed, such as the adjudication of claims on a class or representative basis, then the arbitrator must decline to hear the dispute and shall refer the parties to a court or other body with sufficient authority. In the event of any conflict or inconsistency between this arbitration provision and the Administrator's rules or other provisions of this Agreement, this arbitration provision will govern.

[Bsutt2016]

&  I dont think there is anything  that mentions secured property or UCC. Here is the section on Default:

 

 13. Default/Collection Costs: If you fail to pay any minimum payment when due, or if the prospect of payment, performance, or realization of collateral is significantly impaired, to the extent permitted by applicable law it will be a default, and, subject to any right you may have under state law to receive notice of and to cure such default, we may declare the entire unpaid balance on the Account due and payable (except in WI you will not be in default until you fail to make a minimum payment on two occasions within a twelve (12) month period). We also may repossess any article of merchandise in which we still retain a security interest, but we will do so only in the manner and to the extent permitted by applicable law. If the Account is referred to an attorney who is not our salaried employee and we bring a suit against you to collect the amount you owe, in addition to the full amount owed and any court costs, you agree to pay our reasonable attorney's fees to the extent permitted by applicable law.

[BV80]

@Bsutt2016

Was this a store credit card that you could use to buy jewelry in the future, or did you buy a particular piece of jewelry and sign a contract?

[Bsutt2016]

@BV80  I bought a piece of jewelry & signed a contract, about a week later was sent the store credit card which i used for one other purchase. 

[BV80]

@Bsutt2016

Well, I was hoping the TX Statute of Frauds would apply, but after reading it, I don't think it would. 

 

[Bsutt2016]

@BV80 thank you for your help I greatly appreciate it.

I've read the posts by @texasrocker you suggested but I'm having trouble figuring out which one I should use in the answer letter to the JP or if they would still apply to my case since this is for a jewlery store credit card. Please advise. 

 

[BV80]

@Bsutt2016

Hopefully, @fisthardcheesewill pop in.  He can advise you the procedure necessary to compel arbitration if you wish to go that route.   @texasrocker can advise as to whether or not an answer is required if you MTC arbitration.

 

[texasrocker]

Always file an answer before the deadline petition even if it is just a simple general denial.

[fisthardcheese]

After you answer with a denial, if you choose to use arbitration, this thread has a sample of the Motion to Compel Private Arbitration that you would need to file with the court.  You will need the court to grant your motion in order to force the case into arbitration.