Portfolio Recovery Assoc

[LunarMom 2]

First contact:  I received a letter from a local consumer rights attorney on July 28, 2016.  

Second contact:  Left taped to my front door....IMPORTANT!!! (My name spelled incorrectly) An attempt was made to deliver IMPORTANT Court Documents to you today

[Clydesmom 1,218]

52 minutes ago, LunarMom said:

What do I do next? 

Make arrangements to have the lawsuit served so that you can start dealing with it.

53 minutes ago, LunarMom said:

He stated that he had noticed on the Civil Case Records that a suit had been filed against me at the County Clerks Office by Portfolio Recovery.  Basically he was offering to represent me.

No.  He is going to file BK for you which would stop the suit in its tracks.  Now if you have a significant amount of debt BK may be the best option.  However, if your debt can be dealt with on its own I would not file BK but this guy will not represent you in the actual lawsuit. 

PRA can be beat easily.  In order to know the best tactic you need to know who they bought the debt from.  Get the papers and then post back here.  In the mean time search for threads by @texasrocker and start reading.

[BV80 2,794]

@LunarMom

Portfolio Recovery is a junk debt buyer that purchases charged off credit cards and other types of debt.   Call the clerk of court to see if a lawsuit has been filed against you.  

[LunarMom 2]

Ok, they said a suit was filed on July, 16. 

[texasrocker 451]

I would definitely ignore any solicitations from attorneys  whether they are bankruptcy attorneys or not.  They are akin to "ambulance chasers" who obtained your information from court records of pending lawsuits.  If they have to go about getting their business in this way then they will undoubtedly know nothing more than how to negotiate a settlement with the JDB at your expense.     

[LunarMom 2]

Papers were served today.  

 

[LunarMom 2]

 

1. Who is the named plaintiff in the suit?    

2.. name of the law firm handling the suit?    

3. How much are you being sued for?         

4. Who is the original creditor? 

5. How do you know you are being sued?  Served    

6. How were you served? Notice taped to residence door first and then served by a process server. 

7. Was the service legal as required by your state? Yes, I think so. 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None that I am aware of.

9. What state and county do you live in? Texas

10. When is the last time you paid on this account?

11. What is the SOL on the debt? 4 yrs        

12. What is the status of your case? Served - need to send answer to JP Justice Court

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? No                

15. How long do you have to respond to the suit? 14 days

 

th the summons? None

 

Please advise how to proceed.

           

 

[Clydesmom 1,218]

2 minutes ago, LunarMom said:

4. Who is the original creditor? Capital One Bank Credit 

[Clydesmom 1,218]

3 minutes ago, LunarMom said:

4. Who is the original creditor? Capital One Bank Credit 

Sorry for the double post it wouldn't let me add text on the other one.

THIS is going to be your biggest problem.  Unless the account was opened prior to 2010 and has a survivability clause arbitration is not an option.  When did you OPEN the account with Cap1?

[LunarMom 2]

On or about 3-05 is what the paperwork says.  It was a credit card account if that makes a difference. Can you explain?

[CCRP626 430]

Just checking since Capital One Bank Credit  doesn't sound like the typical way Cap One is termed as, but was it Capital One or Credit One?

[Clydesmom 1,218]

13 minutes ago, LunarMom said:

It was a credit card account if that makes a difference. Can you explain?

Yes.  An account that was opened prior to 2010 has a statement in the arbitration clause that says it survives if it isn't in future agreements.  You would still be able to motion to compel arbitration if you opened the account in 2005.  The reason for compelling arbitration in JAMS is because it is SO expensive PRA will simply drop the whole matter and let it go.  i.e. You win.

2 minutes ago, CCRP626 said:

was it Capital One or Credit One?

An excellent question.  If it is Credit One they have arb and there is no concern.

[LunarMom 2]

iT READS

[CCRP626 430]

51 minutes ago, LunarMom said:

When is the last time you paid on this account? 11/14/2013 

Arbitration is probably out unless it's an older Cap 1 account (check your credit reports for opening date) as mentioned above.

If you're stuck in court those Texasrocker threads cover case after case with Portfolio. They're also under a CFPB order for documentation requirements if initiating lawsuits. You can ask for that detail without any court discovery formalities and they have 30 days to provide it. Pages 32-35:

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

[Cliff2009 42]

On 8/11/2016 at 3:25 PM, CCRP626 said:

Arbitration is probably out unless it's an older Cap 1 account (check your credit reports for opening date) as mentioned above.

If you're stuck in court those Texasrocker threads cover case after case with Portfolio. They're also under a CFPB order for documentation requirements if initiating lawsuits. You can ask for that detail without any court discovery formalities and they have 30 days to provide it. Pages 32-35:

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

The OP said 2005. The last page #18 Survival seems clear to me. 

 

Cap+2008+Agreement.pdf

[Cliff2009 42]

2 hours ago, LunarMom said:

 

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, Strum, Israel, Enerson & Hornik, LLC  

3. How much are you being sued for? $782.72         

4. Who is the original creditor? Capital One Bank Credit 

5. How do you know you are being sued?  Served    

6. How were you served? Notice taped to residence door first and then served by a process server. 

7. Was the service legal as required by your state? Yes, I think so. 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None that I am aware of.

9. What state and county do you live in? Texas, Collin 

10. When is the last time you paid on this account? 11/14/2013      

11. What is the SOL on the debt? 4 yrs        

12. What is the status of your case? Served - need to send answer to JP Justice Court

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? No                

15. How long do you have to respond to the suit? 14 days, which falls on 8/24/2016  

16. What evidence did they send with the summons? None

 

Please advise how to proceed.

           

 

If it were me I would do as follows (I did this with Cap One and they still owned it. )

1. Send a letter to the attorney that per the agreement I posted (print it out) you ELECT private contractual arbitration.   You can find sample letters here, check some of my posts. 

2. Before the 14 days, file a Motion To Compel (MTC) private contractual arbitration with the court, also copy the lawyer. 

3. Now this you will want feedback from those who know Texas law, you may want to file an answer (simple general denial) also. 
 

[Cliff2009 42]

This is what I followed. 
 

 

[CCRP626 430]

@Cliff2009 glad you caught 2005, I missed that. It looks like after @LunarMomelects arb and does the MTC, in Texas the burden is on Portfolio to initiate which with JAMS means Portfolio is stuck with the $250 as well.

According to the court of appeals, it would be "illogical ... [to] place[ ] the onus of proceeding to arbitration on the very party who may be seeking to avoid it." 953 S.W.2d at 540. But placing the burden on the party against whom relief is sought would lead to an even stranger reversal of the litigants' proper roles. "It is antithetical to the interests of such a party to itself initiate a proceeding, be it a court suit or arbitration, that would expose it to the risk of liability." Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 468 A.2d 91, 100 (1983). "If no arbitration clause existed, [the plaintiff] would have had the task and expense of initiating suit; she could not have required the [defendant] to sue itself. The rule is the same with arbitration substituted for suit: the party seeking relief is the one who must go forward with arbitration proceedings." Johnson v. Fireman's Fund Ins. Co., 272 N.W.2d 870, 882 (Iowa 1978) (Uhlenhopp, 706*706 J., dissenting). We therefore hold that absent a contrary agreement, a party against whom a claim is asserted does not waive its right to arbitrate by failing to initiate arbitration of that claim.

In re Bruce Terminix Co., 988 S.W.2d 702 (Texas Supreme Court 1998).

 

[LunarMom 2]

I'm guessing that this is what several of you do for a living, and I am VERY grateful that you do, but I am so darn lost and confused by all this. Could someone please simplify this for me?  

[CCRP626 430]

@LunarMom read that steps of arbitration thread Cliff linked above. It looks long but the main stuff is on the first few pages. That should get you up to speed.

[Cliff2009 42]

1 hour ago, LunarMom said:

I'm guessing that this is what several of you do for a living, and I am VERY grateful that you do, but I am so darn lost and confused by all this. Could someone please simplify this for me?  

Nope, I was you a few years ago. Just paying forward now. Take a day, read and re-read.  You have time, it is not as bad as it first looks. I'll post some samples tomorrow. 

[LunarMom 2]

Have you had a chance to get the samples together Cliff?

[LunarMom 2]

I noticed that Texas Rocker advised someone in a similar case to file a  Grounds for Dismissal for Lack of Standing . I'm wondering why that instead of the MTC?

 

Thank you for everyone's help, much appreciated too.

 

[CCRP626 430]

@LunarMom if you want to give it a try in court, use those Texasrocker posts. Not every defendant has a cardmember agreement allowing them to arbitrate. Texas requires a lot for you to waive your right to arbitrate but just to cover yourself it wouldn't hurt to include private contractual arbitration as an affirmative defense in your answer. When/if you decide you want to arbitrate, do your MTC Arb (you'll notice it also requests dismissal). You'd be safe pulling that out if the Plaintiff keeps wasting your time in court and wants to enter discovery although Texas cases have allowed a fair amount of discovery to occur without considering that a waiver.

Here's something you could read up on for waiver- http://www.cooperscully.com/uploads/seminars/Sohlman-PerryHomes.pdf

[LunarMom 2]

@CCRP626  Are you saying that the way previously suggested may result in no court? Arbitration does away with court? And that they Grounds for Dismissal will result in court?