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Served lawsuit from Portfolio Recovery Associates in TX


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We were served a lawsuit from Portfolio Recovery Associates in Parker County TX and need to know how to answer before time is up on January 14, 2017.  Had considered getting attorney to handle it, but we are not able to pay for one at this time and would at least like to answer on our own and then get attorney before trial if needed.  Ive seen several PRA lawsuits on this site and several answers, so please let me know of a basic way to answer if possible.  I can post the papers or email them if needed.

 

Thank you!

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1 hour ago, BlessedinTX said:

We were served a lawsuit from Portfolio Recovery Associates in Parker County TX and need to know how to answer before time is up on January 14, 2017.  Had considered getting attorney to handle it, but we are not able to pay for one at this time and would at least like to answer on our own and then get attorney before trial if needed.  Ive seen several PRA lawsuits on this site and several answers, so please let me know of a basic way to answer if possible.  I can post the papers or email them if needed.

 

Thank you!

Welcome to the boards.  In order to enable our members to best help you, 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/

 

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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.)

Mahan Garrett, 15660 N Dallas Parkway Suite 350 Dallas TX 75248

3. How much are you being sued for? >$1,500

4. Who is the original creditor? (if not the Plaintiff) Synchrony Bank ( JC Penney)

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

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

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

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 with PRA and nothing recently with Synchrony Bank.  They call repeatedly, but never answer and send to voicemail.

9. What state and county do you live in? Parker County, TX

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) According to papers it was August 20, 2015.  I have not verified this to credit report, but that would be about right.

11. What is the SOL on the debt? To find out: 4 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).

Debt Claims Filed

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? Until January 14, 2017

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. Nothing else attached

17. Read this article:

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

 

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@texasrocker has many good posts that have helped people in TX win their cases. 

Also, I believe using the arbitration strategy in this case will give you a very good chance at beating this, because PRA hates arbitration and won't pay for it.  The Synchrony card agreements list JAMS as the arbitration firm and that will cost PRA a minimum of $5,000 to start.  As you can see, that is many times more what they are trying to get from you, so it is bad business for them to spend way more to try to collect a smaller amount, therefore, they just drop the case instead.  But in order to get there, you will need to file a Motion to Compel Arbitration.  This motion is asking the court to order the case to arbitration and stay the court proceedings.  Once the judge orders arbitration on your motion, PRA is backed into a corner where they now must pay the $5k to arbitrate or be in violation of a court order.  The only out they have is to dismiss the case, which they take 99% of the time.  I am copying a sample of an MTC to give you an idea of what it should look like.  You will need to change the sections to fit your particular case and the Synchrony Card Agreement language.

 

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 ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, 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 parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(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.


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 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 ________________, 2014


(Your name typed), Defendant, pro se

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@fisthardcheese at what point would I request this? Once court date is set or when I submit answer?  Also can I just submit a general statement as this for my answer or does it need to be more detailed.

 

Defendant(s) answer the complaint as follows:

Lack knowledge about the truth and therefore deny the statements contained in Plaintiff’s Original

Petition.

 

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Without knowing the rules of your specific court, I would suggest reading those first to make sure you aren't making a mistake in responding.

Usually what most people do is file the answer and MTC at the same time.

I think a general denial for an answer is probably fine (again, consult the local rules to make sure).  If giving a general denial, I would state something like "Defendant denies each and every allegation made in the complaint".  And then I would add the affirmative defense of improper venue.  "Improper Venue:  Defendant has exercised the private arbitration clause in the underlying contract, therefore, this court lacks subject matter jurisdiction."

Remember to always send a copy of the answer and the MTC to the PRA attorney after filing.  I always bring 3 copies of everything to the court and have the clerk stamp all my copies.  1 for the court, 1 to send PRA and 1 to keep as proof of filing.

It may also be a good idea to type up an affidavit (notarized) to testify to the fact that the card agreement you are submitting as evidence with your MTC is a true and correct copy of the agreement that governed the alleged account in question.  This will bolster your position and make it more difficult for the other side to show up at court and claim you have the wrong agreement.  Since you are testifying in an affidavit, they will have to present their own copy of an agreement with testimony from Synchrony that it is the correct one.

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@fisthardcheese I read the court rules online and it stated all motions, exceptions and please should be filed no later than 3 days before the scheduled trial.  So, if I'm understanding correctly, we can wait to file the MTC once trial date is set or at least we have time to file it, correct.  I'm running out of time on getting everything together as my answer has to be in by the 14th, so I will file it today and then work on gathering everything needed for the MTC, such as the original card agreement, etc.    From your experience, do you think it's possible the whole thing gets dropped once I file my answer or is it almost a guarantee that PRA will move forward with a court date?

 

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Does the MTC need to be signed or just have my typed name?  I found the credit card agreement for JCP and will make sure the language matches and attach it, just need to know how my letter to their atty should read?  Thank you again for helping with this.  I have know clue on this stuff and am just trying to get it resolved the quickest way possible. 

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