NeedLegal Advice-Being Sued by Portfolio Recovery

[Randy2016]

I was served a summons today that I am being sued by Portfolio Recovery Associates for a debt with a Walmart credit card through Sychrony bank.   Any suggestions on how to handle it?

[BV80]

Just now, Randy2016 said:

I was served a summons today that I am being sued by Portfolio Recovery Associates for a debt with a Walmart credit card through Sychrony bank.   Any suggestions on how to handle it?

Please copy and answer the questions in the following link:

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

 

[Randy2016]

1. Who is the named plaintiff in the suit? 

Portfolio Recovery Recovery Associates

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

Allen & Withrow

Attorneys at Law

P.O. Box 17248

Little Rock, AR  72222

3. How much are you being sued for?

$678.87

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

Synchrony Bank 

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

Yes

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

In person at home

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

Yes

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?

Arkansas  Baxter County

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

Around April 2015

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

5 years

Statute of Limitations on Debts

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).

I just received summons today so I'd say 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?

30 days

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

Statements from OC showing balance owed

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

 

[Randy2016]

43 minutes ago, BV80 said:

Please copy and answer the questions in the following link:

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

 

1. Who is the named plaintiff in the suit? 

Portfolio Recovery Recovery Associates

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

Allen & Withrow

Attorneys at Law

P.O. Box 17248

Little Rock, AR  72222

3. How much are you being sued for?

$678.87

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

Synchrony Bank 

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

Yes

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

In person at home

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

Yes

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?

Arkansas  Baxter County

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

Around April 2015

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

5 years

Statute of Limitations on Debts

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).

I just received summons today so I'd say 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?

30 days

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

Statements from OC showing balance owed

17. Read this article:

[BV80]

@Randy2016

Thank you for providing the information in your previous post.

I would suggest that you answer the complaint that includes a defense that the account in question in subject to arbitration as outlined in the applicable cardmember agreement.  The applicable cardmember agreement would be the agreement that was in effect when the account went into default.   You can find the agreement at the Consumer Financial Protection Bureau website.

http://www.consumerfinance.gov/credit-cards/agreements/

Here's a primer:

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

The resident expert is @fisthardcheese

 

[fisthardcheese]

I agree with @BV80 that this is a perfect case for arbitration.  The Synchrony card agreement say that all disputes can be handled with private arbitration through JAMS.   JAMS would cost PRA at least $5000 to hold a hearing on the case.  There is no way they will pay $5k to chase down a $700 debt.  Additionally, the Synchrony card agreement says that THEY will pay all of the consumer related arbitration fees.  So, even though JAMS caps the consumer fee at $250, you won't have to pay that either. It will cost you nothing.

I also suggest that filing an answer, as @BV80 said above.  The answer should deny all of their allegations as stated in their complaint.  At the same time as you file the answer, I file a motion to compel arbitration.  This motion is asking the court to order the parties to arbitration per the card agreement.  Here is a sample of an MTC that has been used by many members on this site. Make sure you read and understand what it is this says and what you are asking the court for.  You will need to change all relevant inforamtion to fit your actual case and the Synchrony card agreement (especially section 3):

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 xxx ^xx , 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 [Bank Name] Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Credit Card Agreement which contains an Arbitration Clause that states among other things:

a) "The terms "we" and "us" shall mean WebBank and Dell Financial Services L.L.C (and) any third party providing products or services to you or us in connection with your Account (including but not limited to any credit bureau, debt collector or vendor, Participating Merchant, and including their parents, direct and o their respective employees, directors and representatives)."

.b) “Any claim, dispute or controversy (whether based upon contract, tort, intentional or otherwise, constitution, statute, common law, or equity and whether pre-existing, present or future including initial claims, counterclaims, cross-claims and third-party claims), arising from or relating to you applying for, obtaining or using this Account, this Agreement (including the validity or the enforceability of this arbitration clause, any part thereof or the entire Agreement), or the relationships which result from this Agreement (called “Claim”) shall be decided, upon the election of you or us, by binding arbitration pursuant to this arbitration provision.”

c)“If either party chooses to arbitrate a claim, neither party will have the right to litigate that claim in court."

4. The Federal Arbitration Act (FAA) 9 U.S. Code § 3. 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 24, 103 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. 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

[debtzapper]

20 hours ago, fisthardcheese said:

I agree with @BV80 that this is a perfect case for arbitration.  The Synchrony card agreement say that all disputes can be handled with private arbitration through JAMS.   JAMS would cost PRA at least $5000 to hold a hearing on the case.  There is no way they will pay $5k to chase down a $700 debt.  Additionally, the Synchrony card agreement says that THEY will pay all of the consumer related arbitration fees.  So, even though JAMS caps the consumer fee at $250, you won't have to pay that either. It will cost you nothing.

I also suggest that filing an answer, as @BV80 said above.  The answer should deny all of their allegations as stated in their complaint.  At the same time as you file the answer, I file a motion to compel arbitration.  This motion is asking the court to order the parties to arbitration per the card agreement.  Here is a sample of an MTC that has been used by many members on this site. Make sure you read and understand what it is this says and what you are asking the court for.  You will need to change all relevant inforamtion to fit your actual case and the Synchrony card agreement (especially section 3):

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 xxx ^xx , 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 [Bank Name] Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Credit Card Agreement which contains an Arbitration Clause that states among other things:

a) "The terms "we" and "us" shall mean WebBank and Dell Financial Services L.L.C (and) any third party providing products or services to you or us in connection with your Account (including but not limited to any credit bureau, debt collector or vendor, Participating Merchant, and including their parents, direct and o their respective employees, directors and representatives)."

.b) “Any claim, dispute or controversy (whether based upon contract, tort, intentional or otherwise, constitution, statute, common law, or equity and whether pre-existing, present or future including initial claims, counterclaims, cross-claims and third-party claims), arising from or relating to you applying for, obtaining or using this Account, this Agreement (including the validity or the enforceability of this arbitration clause, any part thereof or the entire Agreement), or the relationships which result from this Agreement (called “Claim”) shall be decided, upon the election of you or us, by binding arbitration pursuant to this arbitration provision.”

c)“If either party chooses to arbitrate a claim, neither party will have the right to litigate that claim in court."

4. The Federal Arbitration Act (FAA) 9 U.S. Code § 3. 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 24, 103 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. Arkansas courts have consistently looked upon arbitration with approval as a less expensive, more expeditious means of resolving disputes. May Construction Co. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000). Further, Arkansas courts have consistently held that any doubt as to the 606*606scope or reach of the question or arbitrability should be resolved in favor of arbitration. Walton v. Lewis, 337 Ark. 45, 987 S.W.2d 262 (1999).

 

20 hours ago, fisthardcheese said:

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

@Randy2016  I added some Ark. arbitration case citations in paragraph six just for added good measure.

[Randy2016]

On 11/14/2016 at 10:02 PM, BV80 said:

@Randy2016

Thank you for providing the information in your previous post.

I would suggest that you answer the complaint that includes a defense that the account in question in subject to arbitration as outlined in the applicable cardmember agreement.  The applicable cardmember agreement would be the agreement that was in effect when the account went into default.   You can find the agreement at the Consumer Financial Protection Bureau website.

http://www.consumerfinance.gov/credit-cards/agreements/

Here's a primer:

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

The resident expert is @fisthardcheese

 

Thank you for your help!   Ok so here is a picture of the complaint with 7 statements, do I deny all of them?  

 

[BV80]

@Randy2016

You should redact your name and any other personal identifying information from the complaint. 

[Randy2016]

1 minute ago, BV80 said:

@Randy2016

You should redact your name and any other personal identifying information from the complaint. 

@BV80 on here you mean?

 

[BV80]

26 minutes ago, Randy2016 said:

@BV80 on here you mean?

 

Yes. On the copy of the complaint you're showing to us.   You don't know who might be reading your doc on this site.  

[Randy2016]

4 minutes ago, BV80 said:

Yes. On the copy of the complaint you're showing to us.   You don't know who might be reading your doc on this site.  

Ok I just deleted it, whats your opinion on answering the 7 points on the complaint?

 

[fisthardcheese]

1 hour ago, Randy2016 said:

Ok I just deleted it, whats your opinion on answering the 7 points on the complaint?

 

You can either go point by point and deny each allegation made or you can file a general denial that says I deny each and every allegation made in the complaint.

[Randy2016]

1 hour ago, fisthardcheese said:

You can either go point by point and deny each allegation made or you can file a general denial that says I deny each and every allegation made in the complaint.

Ok @BV80 and @fisthardcheese here is my answer to the complaint.  I will also post my Motion to Arbitraition

Answer Preview.docx

[Randy2016]

1 hour ago, fisthardcheese said:

You can either go point by point and deny each allegation made or you can file a general denial that says I deny each and every allegation made in the complaint.

@BV80 and @fisthardcheese  here is the Motion to File Arbitration I plan on mailing these Tuesday to PRA's attorney and the local court for filing.

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND.docx

[BV80]

15 hours ago, Randy2016 said:

@BV80 and @fisthardcheese  here is the Motion to File Arbitration I plan on mailing these Tuesday to PRA's attorney and the local court for filing.

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND.docx

It looks good to me except for one thing.

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;

Since Volt was not cited before that quote, you need to include the whole thing.

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).

 

 

[Randy2016]

On 12/3/2016 at 10:41 AM, BV80 said:

It looks good to me except for one thing.

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;

Since Volt was not cited before that quote, you need to include the whole thing.

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).

 

 

Ok so I mailed my answer and request for arbitration on the 6th, I received a copy back today that they were filed on the 12th.   I also received a  notice of a scheduled hearing in February.  So does that mean that PRA is going through with the lawsuit?

[Clydesmom]

1 hour ago, Randy2016 said:

So does that mean that PRA is going through with the lawsuit?

The lawsuit continues until the court orders arbitration.  Even if the court does order arbitration they may only stay the case pending arb since some consumers threaten it and never follow through.  Keep in mind that even though you elected it and filed the court could still deny your motion.  It does happen so you need to be prepared to defend in court should that happen.

[fisthardcheese]

Is this a small claims court?

[Randy2016]

@fisthardcheese

I believe so, its a county District Court, Civil Division and Small Claims.

Any suggestions on defending myself?  

It doesnt look like PRA didn't drop the suit after I requested arbitration.

[Clydesmom]

2 hours ago, Randy2016 said:

It doesnt look like PRA didn't drop the suit after I requested arbitration.

They may not drop it until the court actually orders arbitration.  It  is like a giant game of chicken.  PRA is still hoping that the court denies your motion and they can litigate.  It isn't unheard of for them to hang on until the court approves the motion then they drop it when faced with the cost of arbitration.  Hang in there.

[Randy2016]

3 hours ago, Clydesmom said:

They may not drop it until the court actually orders arbitration.  It  is like a giant game of chicken.  PRA is still hoping that the court denies your motion and they can litigate.  It isn't unheard of for them to hang on until the court approves the motion then they drop it when faced with the cost of arbitration.  Hang in there.

@Clydesmom

Ok thank you for the input, just nervous.  lol

 

[fisthardcheese]

They never just drop a case because you asked for arbitration.  Their goal is a default judgement, which they can get if you fail to show up to court for any reason.  As far as they are concerned, they hope you get a flat tire on the way to court and they will ask for a default.  Even after the judge grants your MTC they will continue to bluff hoping that you will not know how or not file the arbitration claims in time.  They aren't going to give up until JAMS forces them to pay up or they will close the case.  If JAMS closes the case, PRA will then be in violation of the court's order to arbitrate and they will be stuck with no where to go but to give up.  That's when they will give up.

[Randy2016]

@Clydesmom ok another question, about two weeks ago I received a copy of a letter the attorney sent claiming I didn't answer the complaint in time, which I did, I sent a copy of the filed "Answer" and "MTC Arbritration" to the lawyer and there is a court date for February 15th 2017.  

Today I received a copy of a letter the lawyer sent to the Court Clerk stating "The Plantiff has conflict with said date in that the Defendant has requested arbritration and Plantiff respectfully requests a continuance".   

So is that good or bad?

[Clydesmom]

1 hour ago, Randy2016 said:

So is that good or bad?

Hopefully good.  My educated guess is that the law firm was hoping for a default judgment and the instant they discovered that wasn't going to happen AND you motioned for arbitration they are going to go back to PRA and see what they want to do.  PRA has never followed someone into arb that I know of.  My second educated guess is they either offer to settle (and FYI the only settlement offer you consider is mutual walkaway) or they simply dismiss all together.