Sued by Portfolio Recovery in Texas

[kn0-nothing]

I've been a lurker here for a while and want to start out by thanking all of you. I would not have gotten this far without these forums.

I was sued in Justice Court for an alleged debt that I have no knowledge of. The Original Petition did not name the original creditor which was raised as a defense, among a few other things, in my answer but never remedied. There are literally blank spaces in the petition where the OC should be named making me think PRA is robo-signing documents again.

During the trial I objected to PRA's affidavit based on hearsay and began citing the relevant case law. PRA's attorney cut me off with simply, "I object to that." without stating a reason. Without allowing me to finish the citation the judge immediately sided with PRA and told me not to speak anymore.  I still objected(respectfully and meekly) to every piece of evidence that PRA submitted despite the judge telling me not to talk. Instead of allowing me to present a defense the judge rendered a judgement against me immediately after accepting PRA's evidence(without reading them). The trial lasted less than 2 minutes. The whole situation was ridiculous. Afterwards I asked the clerk for copies of the evidence PRA submitted which is where I finally found out who the alleged OC is, Synchrony/Amazon.com. I filed a Motion for New Trial which was not granted. I did not expect that it would but it gave me extra time to file my appeal.

The appeal(de novo) has been perfected and I need info on filing a motion to compel contractual arbitration. PRA never entered a contract into evidence but sued and won for breach of contract. I downloaded a copy of it from consumerfinance.gov and verified the arbitration clause. I sent a letter electing arbitration, certified mail RRR, and have received no reply. I filed a Motion to dismiss based on that. During the hearing the new judge said there was something wrong with the way I filed it(did not tell me what) and that he could not grant it. 

My concern is improperly filing the motion to compel which could cause me to lose the opportunity to handle the dispute in a less formal setting(JAMS). 

Here is what I have so far. Any information is greatly appreciated.

 

 

CASE NO. 3601999

 

PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff, vs. kn0-nothing, Defendant

§ § § § § §

THE COUNTY COURT OF   XXXXXX COUNTY, TEXAS

MOTION TO COMPEL 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 ______________________, 2016, Plaintiff filed its complaint against Defendant.

2.      Defendant sent a letter via certified mail RRR # _______________________ on _______________, electing arbitration with JAMS and requesting dismissal of this case (See Exhibit A, attached).

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

4.      The Plaintiffs claims it is the assignee of the alleged account and are bound by the Credit Card Agreement of the assignor. The Arbitration Agreement states among other things:

a.       If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account […]

b.      The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. […] The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), […], or JAMS, […].

c.       If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

d.      The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith.

e.       This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA).

5.      The Federal Arbitration Act (FAA) 9 USC, Section 1-2 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”.

6.      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, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). 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 (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 (1989) ."
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 . . . "

7.      The Defendant has elected arbitration to settle this dispute and has sent notice to Plaintiff to which Plaintiff has not responded.

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,

kn0-nothing

123 Sesame St

XXXXXX, Texas 99999

Tel: 999-999-9999

By: ____________________________

 

 

 

 

Certificate of Service

 

I certify that a complete copy of the Motion to Compel Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration was served on the

Plaintiff’s attorney, ______________________, by fax to ________________________

on the ______ day of _________________, _______.

                                                                              _______________________________________

Petitioner, Pro se

[kn0-nothing]

1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates

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

3. How much are you being sued for?

>$1000

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

Was not listed on petition(blank spaces). Please see my original post in this thread for more info.

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

Proper service.

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

In person, at my residence.

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. The only contact made with me was one phone call a month before the hearing(6+ months after service) demanding payment claiming the next step is a judgement against me.

9. What state and county do you live in?

Texas

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

I have no knowledge of an account with PRA or OC.

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  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Appeal from Justice Court perfected. Please see my original post in this thread for more info.

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

Yes, I checked my credit reports after being served and filed disputes. Some info was removed but reappeared a month later. Disputed again, same thing some info removed then back again a month later. Rinse, repeat several times. I finally gave up.

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?

Filed original answer and appeared for the hearing in Justice Court which awarded judgement for PRA. Suit was appealed and perfected almost 2 months ago.

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

None, and there were blank spaces where the original creditor should be named.

Edited December 3, 2016 by kn0-nothing
Edit: typos

[BV80]

@kn0-nothing

Did you include arbitration as a defense or raise the issue to the trial court judge?   If not, it's highly likely that the MTC would be denied by the appeals court.

[kn0-nothing]

The original creditor was not named during the original trial, which was raised as a defense as it it a required party but was ignored by the original judge. So I had no way of knowing if there was an arbitration clause at the time. I only found out who it was afterwards and the appeal is trial de novo. Meaning it's as though the original trial never happened. The appeal judge is aware of the OC not being named. 

[BV80]

19 minutes ago, kn0-nothing said:

The original creditor was not named during the original trial, which was raised as a defense as it it a required party but was ignored by the original judge. So I had no way of knowing if there was an arbitration clause at the time. I only found out who it was afterwards and the appeal is trial de novo. Meaning it's as though the original trial never happened. The appeal judge is aware of the OC not being named. 

If PRA claimed that the it purchased the account, then the OC was not a required party because the OC no longer has anything to do with the account.

A de novo appeal doesn't mean the appeals court can hear new issues that were not raised in an answer or before the trial court .

Did you request discovery?

[kn0-nothing]

Texas Rules of Civil Procedure 508.2(4)  states that if it is an assigned debt the original creditor must be named. I worded it wrong, they are not a required party but are required to be named. They were not and it was raised as a defense among other things. 

I was not allowed to present a defense in the original trial, the judge rendered a judgement against me immediately after taking PRA's affidavit and Bill of Sale. The judge did not even read them just added them to a stack of papers on his desk.

I did not request discovery. I have never had an account with the OC and assumed that there was no evidence and the suit was filed in error.  

[BV80]

6 minutes ago, kn0-nothing said:

Texas Rules of Civil Procedure 508.2(4)  states that if it is an assigned debt the original creditor must be named. I worded it wrong, they are not a required party but are required to be named. They were not and it was raised as a defense among other things. 

I did not request discovery. I have never had an account with the OC and assumed that there was no evidence and the suit was filed in error.  

I apologize, but I'm confused.  If the OC was not named in the complaint, how did you know you didn't have an account with the OC and didn't need to request discovery?

[kn0-nothing]

No apology necessary. A major weakness of mine is properly communicating my thoughts.

I did not know that I did not have an account with OC. However, I do know that all my accounts with other creditors are in good standing and always has been and assumed that the suit was in error.

[BV80]

2 minutes ago, kn0-nothing said:

No apology necessary. A major weakness of mine is properly communicating my thoughts.

I did not know that I did not have an account with OC. However, I do know that all my accounts with other creditors are in good standing and always has been and assumed that the suit was in error.

You can attempt to MTC arbitration with the appeals court, but the other party will object based upon the fact that you didn't attempt to find out the name of the OC.   You could have requested discovery or filed a motion for a more definite statement.

If the appeals court doesn't grant your MTC, you still have a defense in that the plaintiff didn't abide by the court rules (an issue you raised).  

Did you see PRA's evidence before trial?

 

[kn0-nothing]

2 minutes ago, BV80 said:

You can attempt to MTC arbitration with the appeals court, but the other party will object based upon the fact that you didn't attempt to find out the name of the OC.   You could have requested discovery or filed a motion for a more definite statement.

If the appeals court doesn't grant your MTC, you still have a defense in that the plaintiff didn't abide by the court rules (an issue you raised).  

Did you see PRA's evidence before trial?

 

How does one go about addressing the issue of not abiding by court rules? 

I don't know if it matters but the appeal is in county court, not a court of appeals. 

Texas Rules on Civil Procedures 509.8(e) states:

On appeal, the parties are entitled to a trial de novo. A trial de novo is a new trial in which the entire case is presented as if there had been no previous trial. Either party is entitled to trial by jury on timely request and payment of a fee, if required. An appeal of a judgment of a justice court under these rules takes precedence in the county court and may be held at any time after the eighth day after the date the transcript is filed in the county court.

 

I did not see PRA's evidence before trial or even at the trial. I had to request it afterward. 

[Clydesmom]

52 minutes ago, kn0-nothing said:

Texas Rules of Civil Procedure 508.2(4)  states that if it is an assigned debt the original creditor must be named. I worded it wrong, they are not a required party but are required to be named. They were not and it was raised as a defense among other things. 

You would need to appeal based upon this error.  The Plaintiff did not comply with the RCP and the trial court erred in allowing the evidence.

17 minutes ago, kn0-nothing said:

I did not see PRA's evidence before trial or even at the trial. I had to request it afterward. 

Justice Court is unique in that you have to get permission of the court to discovery.  If you didn't get that permission then PRA didn't have to show it to you prior to trial.

Call Jerry Jarzombek.  He is one of the best consumer attorneys in Texas and can probably handle this for you at a very reasonable fee if not on contingency as they may have violated the FDCPA.

[kn0-nothing]

1 minute ago, Clydesmom said:

Call Jerry Jarzombek.  He is one of the best consumer attorneys in Texas and can probably handle this for you at a very reasonable fee if not on contingency as they may have violated the FDCPA.

Thank you. I called Mr. Jarzombek when this all began and left a message on his voicemail but I never heard back from him. I will try to contact him again Monday.

[Clydesmom]

40 minutes ago, kn0-nothing said:

Thank you. I called Mr. Jarzombek when this all began and left a message on his voicemail but I never heard back from him. I will try to contact him again Monday.

ALWAYS follow back up.  Many times those voice mail boxes are not even monitored.  Call during business hours and get a live human.

[kn0-nothing]

20 minutes ago, Clydesmom said:

ALWAYS follow back up.  Many times those voice mail boxes are not even monitored.  Call during business hours and get a live human.

Will do. Thanks again.

[debtzapper]

@kn0-nothing

Clydesmom is correct.  Well-known lawyers like Jarzombek are extremely busy.   Keep calling.  But you can always go to www.consumeradvocates.org to consult other lawyers.

[kn0-nothing]

Update:

I tried calling  Jerry Jarzombek and every local lawyer on  www.consumeradvocates.org leaving messages and recalling daily for almost 2 weeks. Nobody would return my calls. So I filed the MTC on my own. 

After filing the MTC and the day before the MTC hearing I received a Notice of Nonsuit (dismissal WITH prejudice) .

Thank you to the lawyers that would not return my call. I would have had to pay you for doing nothing.

A special thank you to everybody that helped me and others on this forum I would not have been able to do it without you. 

[Clydesmom]

10 hours ago, kn0-nothing said:

Thank you to the lawyers that would not return my call. I would have had to pay you for doing nothing.

Actually you would not have paid them.  The first consult is free. 

[fisthardcheese]

I am just now seeing this, but had I noticed it earlier, I would have said that you were doing the right thing by filing the MTC.  Your motion to dismiss was likely denied due to improper procedure according to the local rules.  Everyone MUST read their local court rules to know if something like a motion to dismiss is proper and being filed at the correct time.

Also, as to all of the appeal information above, it seems that many people get confused when the word "appeal" is used to automatically assume you are in an appellate court and that you may only appeal errors or things brought up in trial.  This case, and as is the case in the small claims court of my state, was appealed de novo, and many seem to misunderstand what that means.  It simply means you are starting your case over in state or county court (not the small claims court) and it begins as if the small claims case never happened.  Therefore, the MTC was proper and it mattered not that the issues was never previously raised.

Great job on your win!!

[debtzapper]

On 1/5/2017 at 11:57 PM, kn0-nothing said:

Update:

I tried calling  Jerry Jarzombek and every local lawyer on  www.consumeradvocates.org leaving messages and recalling daily for almost 2 weeks. Nobody would return my calls. So I filed the MTC on my own. 

After filing the MTC and the day before the MTC hearing I received a Notice of Nonsuit (dismissal WITH prejudice) .

Thank you to the lawyers that would not return my call. I would have had to pay you for doing nothing.

A special thank you to everybody that helped me and others on this forum I would not have been able to do it without you. 

That is a GREAT WIN, esp in TX.  We have not had many OPs use arbitration in TX.  And I think you are the first one that did it on a de novo appeal.