Served by PRA in Justice of the Peace court in Texas (Help please)

[Michele]

Okay, below is my situation.  Any advice provided would be greatly appreciated!  Thank you in advance.

 

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?

Raush, Sturm, Israel, Enerson & Hornik LLC

 

 

3. How much are you being sued for?

A little over $5000.

 

 

4. Who is the original creditor?

Synchrony Bank

 

 

5. How do you know you are being sued?

Served

 

 

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

In person on 11/19/16

 

 

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

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, Dallas County

 

 

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

June 2015

 

 

11. What is the SOL on the debt?

4 years

 

 

12. What is the status of your case? Suit served? Motions filed?

Suit filed/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?

No

 

 

15. How long do you have to respond to the suit?  Did you receive any interrogatory (questionnaire) regarding the lawsuit?

14 days; I received no questionnaire or any other documentation was attached.

 

 

16.  What evidence did they send with the summons?

None.

 

 

Plaintiff's Original Petition

Court document showing Plaintiff and Defendant names stating that I’m being sued and that I have 14 days to file a written answer to the court; along with the name and address of the Plaintiff’s Attorney.  Signed by Justice of the Peace.  Stamped on October 26, 2016.

A. Parties

 

1. Indicates plaintiff and address

2. Indicates my name and address

 

 

B. Jurisdiction

 

3. Plaintiff seeks only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, and expenses.

4. Plaintiff asserts that the above-named court has Jurisdiction over the subject matter of this case and the person(s) of Defendant(s) and that the damages sought are within the Jurisdictional limits of the court.

 

 

C. Venue

5. Venue of this action is proper in the county named above because Defendant(s) is/are individual(s) believed to be residing in said county at the time of commencement of suit.

 

 

D. Facts

 

6. On or about September 2013, Defendant(s) opened a credit card account with SYNCHRONY BANK (DEPARTMENT STORE NAME) in the Defendant's name under its account number ending in ------------xxxx Defendant used the account and thereby became obligated to pay for the balance owed on the credit account.  Plaintiff's records indicate Defendant's last payment on the account occurred on June 2015.  Defendant defaulted on the obligation to make monthly payments on the credit account, and the card was subsequently canceled.  The credit card account was subsequently closed due to nonpayment and/or charged off to profit and loss on or about November 2015.  On or about December 2015 SYNCHRONY BANK (DEPARTMENT STORE NAME) assigned Defendant's credit account to Plaintiff, and Plaintiff is the current holder of the Defendant's account and the proper party to bring this lawsuit.  The balance remaining on the credit account is presently due and payable in full. 

 

7. After allowing for all just and lawful offsets, credits, and payments on the credit account, the total balance due to Plaintiff by Defendant(s) on the account is $5000.

8. The Plaintiff has made demand upon the Defendant(s) for payment of the amount due and payable in full.  The Defendant(s) have failed, neglected, and refused to ay the amount requested.

9. Plaintiff has performed all conditions precedent to the filing of this action or all such conditions precedent have been performed or have occurred.

 

 

E. Account Stated

 

10. Plaintiff is entitled to recover on an account stated claim because (1) transactions between the Original Creditor and Defendant(s) gave rise to the indebtedness, (2) there existed an agreement between the Original Creditor and Defendant(s) which established the amount due to the Original Creditor, and (3) the Defendant(s) promised to pay the Original Creditor on the indebtedness.

F. Damages

 

11. Plaintiff seeks damages on its liquidated claim in the amount of at least $8,086.62, which is within the jurisdictional limits of this court.

 

 

G. Conditions Precedent

 

12. All conditions precedent to Plaintiff’s claim for relief has been performed or have occurred.

 

 

H. Miscellany

 

13. The undersigned attorneys hereby give notice that they and Plaintiff are attempting to collect a debt and any information obtained will be used for that purpose.  Plaintiff’s attorneys are debt collectors.

 

 

I. Prayer

14. For these reasons, Plaintiff asks that the court issue a citation for Defendant to appear and answer, and that Plaintiff be awarded a judgment against Defendant for the following:

a.     Actual damages in the amount of $5000.

b.     Court costs

c.      All other relief to which Plaintiff is entitled.

 

 

 

 

[Michele]

Hi - Can one of the helpful people in the forum please review my letter and let me know if its appropriate to submit?  I'd really, Really, REALLY appreciate it.

Thanks in advance!!

 

Draft Letter.docx

[Clydesmom]

Is this lawsuit in State Court or Justice Court?

I am hoping you mean motion and answer not letter.  If this is in State Court you will have to follow ALL the rules of civil procedure in answering this suit.  

First and foremost your motion to dismiss must be separate from your answer.  

[BV80]

1 hour ago, Michele said:

Hi - Can one of the helpful people in the forum please review my letter and let me know if its appropriate to submit?  I'd really, Really, REALLY appreciate it.

Thanks in advance!!

 

Draft Letter.docx

It's not a letter.  It's an answer to the complaint.

You stated the following in your answer:

 On or about January 2015 SYNCHRONY BANK (Dept Store) assigned Defendant's credit account to Plaintiff, and Plaintiff is the current holder of the Defendant's account and the proper party to bring this lawsuit.  The balance remaining on the credit account is presently due and payable in full." See Plaintiff's Original Petition under "Facts" paragraph 6. There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit.

Paragraph 6 of the complaint does allege the seller.   It states that Synchrony sold the account to the plaintiff.  Therefore, the plaintiff has alleged that Synchrony is the seller.   The plaintiff has also alleged that it received assignment from that seller.

You also stated:

The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the plaintiff is not the original creditor, which therefore puts standing at issue and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit.

The plaintiff does not have to be the original creditor in order to bring suit.  Also, at this point, you don't really know what evidence they have or don't have.

 

 

[Michele]

Thanks for your response to my answer.

If I understand what you've mentioned, I should remove the statement in red.  Is that a correct assumption?

There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit.

Also, should I remove the below as well?

The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the plaintiff is not the original creditor, which therefore puts standing at issue and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit.

 

Thanks again for your help.

[BV80]

16 minutes ago, Michele said:

Thanks for your response to my answer.

If I understand what you've mentioned, I should remove the statement in red.  Is that a correct assumption?

There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit.

Also, should I remove the below as well?

The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the plaintiff is not the original creditor, which therefore puts standing at issue and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit.

 

Thanks again for your help.

You can let the statements remain, but if the plaintiff's attorney has half a brain cell, he'll respond to the motion and point out what I noticed.  

As @Clydesmomstated, the motion to dismiss is separate from your answer (general denial) to the allegations in the complaint.   Check out your court rules regarding the form of your answer.   If those rules are like most courts, the top of your answer should include the court header (party names, court name, etc.) just like is shown on the plaintiff's complaint.   The header also includes the title of the document.   For instance, the complaint probably includes "complaint" as the title.   Your answer would be titled "Answer" or "Defendant's Answer to the Complaint". 

The same would apply to your Motion to Dismiss.  

Calling @texasrocker

[Michele]

12 minutes ago, BV80 said:

You can let the statements remain, but if the plaintiff's attorney has half a brain cell, he'll to the motion and point out what I noticed.  

As @Clydesmomstated, the motion to dismiss is separate from your answer (general denial) to the allegations in the complaint.   Check out your court rules regarding the form of your answer.   If those rules are like most courts, the top of your answer should include the court header (party names, court name, etc.) just like is shown on the plaintiff's complaint.   The header also includes the title of the document.   For instance, the complaint probably includes "complaint" as the title.   Your answer would be titled "Answer" or "Defendant's Answer to the Complaint". 

The same would apply to your Motion to Dismiss.  

Calling @texasrocker

My apology, I totally missed @Clydesmom comment.  This is Justice Court.

Draft Answer.docx

[texasrocker]

File it with the court as is.  This is the typical answer that I provide to anyone being sued by a JDB in Texas.  It is not a motion to dismiss.

 

[Michele]

Understood.

Thank you all for your help!!  I'll make updates as I get them.

[texasrocker]

Let me know when you get the court's approval to begin discovery and I will PM you first set of discovery to send to the plaintiff's attorney.

[Michele]

Sure, will do!

Endless Thanks!!!!!!

[debtzapper]

4 hours ago, texasrocker said:

Let me know when you get the court's approval to begin discovery and I will PM you first set of discovery to send to the plaintiff's attorney.

Thank you, TR, for finding the time to respond to the MANY Texas posts we get. 

[richarddill]

TexasRocker can you please message me?

[Michele]

I still haven't received any additional information from the court about my discovery request.

[Michele]

@texasrocker   I finally received a "Pretrial Conference Notice" to take place the end of March.  Can you please PM me the first set of discovery.  Thanks in advance.