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Sued by Portfolio Recovery in Texas


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I have already sent the general denial document as stated in one of the other discussions. I received a court date a few days ago not sure what to do next. Need help.

All documents will be attached for perusal.

 

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? (should be listed at the top of the complaint.)

Rausch. Sturm. Israel. Enerson & Horne. LLC

3. How much are you being sued for?

$600

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

Citibank. N.A (Best Buy)

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

Served

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

In Person

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

As far s I know yes

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, Denton

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

January 1, 2014 per complaint

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).

Served 03/25/2016  
Response Due 04/08/2016  
 
Returned 04/04/2016  
04/05/2016     Citation served
04/08/2016     Answer Filed
10/21/2016     Notice of Trial
FAXED TO PL ATTY & MAILED TO BOTH PARTIES
12/15/2016     Trial by Judge  (11:30 AM) (Judicial Officer Holland, Joe)

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

Yes

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?

I have already sent general denial

The "charges" are: see attached docs

There is a credit card account number listed with a bunch of *'s and 4 ending digits.

The only date listed is that supposedly they were assigned all rights, titles, and interests, on 10/30/2014.

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 documentation with the complaint. 

 

 

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@joeblow69

I'm sorry for the lack of response to your thread. 

Considering that you're being sued for such a small amount, arbitration might send the JDB running for the hills.  First, read the following thread on arbitration.

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

When you made that last payment, was the account still in good standing?   Or had it already gone into default?   Also, what year did you open the account?

 

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11 hours ago, joeblow69 said:

Can someone pm me and tell me what I'm doing wrong to get zero replies? I really need some help and have seen a lot of instances where a lot is offered. Why can't I get any help?

I know how you feel, been trying myself to get some help and understanding but no relief here either.   I filed a general denial as well and now I have court on Monday.  Trying to see how I can file a Motion to Compel Private Contractual Arbitration on Monday when I go to court but I cannot find anything that explains how to do that when I get there.  :( It's frustrating.

 

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On 11/5/2016 at 8:42 AM, BV80 said:

@joeblow69

I'm sorry for the lack of response to your thread. 

Considering that you're being sued for such a small amount, arbitration might send the JDB running for the hills.  First, read the following thread on arbitration.

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

When you made that last payment, was the account still in good standing?   Or had it already gone into default?   Also, what year did you open the account?

 

Thank you for your response.

The account was opened in 2012. It was in good standing on date of last payment.

Is it too late for arbitration due to me replying and having a court date soon?

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1 hour ago, joeblow69 said:

If it were me, I'd file a motion to compel arbitration.   Locate the 2012 or 2013 Best Buy agreement on the CFPB website.   Use the information in the arbitration thread I provided.  Shellieh98 provided a sample MTC in the following thread.

http://www.creditinfocenter.com/community/topic/328257-getting-sued-by-cavarly-spv-i-in-indiana/?do=findComment&comment=1349698

Alter to it to fit your lawsuit.   Considering the ruling of the idiot judge in breturbo's case, in your MTC, you might want to include the line from the arbitration section of the agreement that says the agreement applies to assignees and that PRA "claims" to be the assignee to the account.

You would need to include an affidavit stating that the agreement is a copy downloaded from the Consumer Financial Protection Bureau and, to the best of your knowledge, is a true and correct copy of the agreement that applies to the account for which PRA is suing.  The affidavit would need to be notarized.   You should be able to find a notary at your bank.

@fisthardcheese 

Anything else?

 

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@joeblow69  I waited until today to try and file the MTC arbitration at my trail.  I had 0 luck, Judge didn't even read my motion nor did he look at my credit card agreement.  I did have an affidavit completed which I had the court clerk notarize before I went into the courtroom.  I am not sure what county you are in but I am in Dallas County in Texas.  Judge gave PRA their judgement against me so if you still have time I would go ahead and file the arbitration before your court date so it can be reviewed beforehand.  Good luck, wish I could be of more help but just wanted to share what I went through today.

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11 hours ago, joeblow69 said:

I just noticed that the court has the name that PRC is attached to as Capital One but the plaintiffs petition says Citibank. Any action I can take here or ????

I would challenge their credibility and accuracy of their documents since they don't even accurately know who the alleged debt supposedly originates from.

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12 hours ago, joeblow69 said:

I just noticed that the court has the name that PRC is attached to as Capital One but the plaintiffs petition says Citibank. Any action I can take here or ????

Didn't you say that there was no documentation provided with the complaint?  Did you ever have an account with Capital One?

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There was no documentation included. The court has Capital One but the lawsuit from pra says Citibank. It's probably a clerical error. I will reattach all of the docs. 

 

Since I have no documentation from them at all for the account should I ask for continuance and discovery to see what they have?

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13 minutes ago, joeblow69 said:

There was no documentation included. The court has Capital One but the lawsuit from pra says Citibank. It's probably a clerical error. I will reattach all of the docs. 

 

Since I have no documentation from them at all for the account should I ask for continuance and discovery to see what they have?

It's possible that if you engage in discovery, you wouldn't be able to request arbitration.

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How does this look? Should I add a Texas example on 6?

 

 

 

 Case No. XXXXXXXXX

PORTFOLIO RECOVERY ASSOCIATES, LLC    §                             IN THE JUSTICE COURT

                                                                                    §

                                                                                    §

Plaintiff                                               §

                                                                                    §                      PCT. 1

v.                                                                                 §

                                                                                    §

XXXXXXXXXXXXXX                                                        §

Defendant                                           §          DENTON COUNTY, TEXAS

                                                                                    §

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND

DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING

ARBITRATION


NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about March 14th, 2016, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

a) “You or we may arbitrate any claim, dispute or controversy between you and us arising out of or related to your Account, a previous related Account or our relationship (called “Claims”).”


B)“If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court or have a jury trial on that Claim. “


c) “all Claims are subject to arbitration, no matter what legal theory they’re based on or what remedy (damages, or injunctive or declaratory relief) they seek, including Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; Claims made regarding past, present, or future conduct; and Claims made independently or with other claims. This also includes Claims made by or against anyone connected with us or you or claiming through us or you, or by someone making a claim through us or you, such as a co-applicant, Authorized User, employee, agent, representative or an affiliated/parent/subsidiary company.


d) “Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA”

e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

4. The Federal Arbitration Act (FAA) 9 USC, Section provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”. 

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " 

5. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a 'liberal federal policy favoring arbitration,' Moses H. Cone, supra, at 24103 S.Ct. 927, and the 'fundamental principle that arbitration is a matter of contract,' Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___, ___, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), and enforce them according to their terms. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).

 

6. "Indiana and federal law recognize a strong policy of favoring enforcement of arbitration agreements." Safety Nat'l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1000 (Ind.Ct.App.2005)trans. denied. Thus, when construing arbitration agreements, every doubt is to be resolved in favor of arbitration. Green Tree Servicing, LLC v. Brough, 930 N.E.2d 1238 (Ind.Ct.App. 2010).


7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.


Respectfully submitted this day ________________, 2016

(Your name typed), Defendant, pro se



VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief.

 

_______________________________________


Witness my hand and official seal this the _________ day of __________, _________.



(SEAL)

____________________________________
Notary Public

My Commission expires:

____ / ____ / ________.



I CERTIFY that I mailed a copy of this MOTION to:

XXXXXXXXXXXXXXXXX., Plaintiff's attorney
Their address


By: Your name typed, Defendant

Date: __________________, 2012

 

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  • 3 weeks later...

I never did the arbitration. I was waiting for some input on my arb letter to proceed. Am I still able to proceed with arbitration and if so how do I proceed? Do I just submit that letter to the court and then mail certified to plaintiff or ? I'm sorry for being so dumb on this but I am an engineer not a lawyer.

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