Norfolk&Wayman

TEXAS, SUED, PRA/Synchrony/Walmart - Please Help!

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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.)
This citation is issued pursuant to .a petition filed by the above-named Plaintiff on -20l8. The Plaintiffs attorney's name and address, or·the Plaintiff's address, if they have no attorney, are: 120.Corporate Blvd. Norfolk;,VA 23502.


3. How much are you being sued for?
More than $500 but less than $1000


4. Who is the original creditor? (if not the Plaintiff)
SYNCHRONY BANK/ SYNCHRONY BANK/ WAL-MART 


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? 
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?
South Texas


10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
They say 2016


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


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?  

14 days or so...

 

I was served late September 2018, that gives me until around first part of October 2018, I believe.

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

Please see attached documents. This is everything I was served. I did redact  a lot of personal information.

 

____________________________________

 

I've been reading different posts on here, and from what I've read it sounds like MTC arbitration filed with my answer is the best route?????  I don't even know where to start with writting my answer, any help will be greatly appreciated.

 

Also - I was trying to find my CC agreement from 2015, no luck.  So I looked it up online and all I can find is the current 2018 version. Not sure if its the same or not.

 

 

 

 

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You are correct.  MTC with your answer is the best bet.  Lots of people have beaten PRA with Synchronicity accounts.

 

You need to do a lot of searching on this site, and you will probably find everything you need.

In particular, look at people who have had Synchronicity accounts in Texas.

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Thanks - Ill take a look!  Seems like the MTC arbitration and filing is pretty straight forward.  What I'm having a hard time finding is a copy of my original cc agreement. Can anyone help with that?  Also - I don't know where to start with writting my answer - I attached my docs - but it looks and seems different than others I see posted here.  Any help is greatly appreciated!!!!

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https://texaslawhelp.org/toolkit/i-want-file-answer-non-family-law-case

 

So my county website linked me to the website above. And I found the attached form. Does this look good to file my answer with? Also just clarify, I should check the arbitration and award box correct? Id like to file today or tomorrow at the lasted so please' any help is appreciated.

civil-answer_deadlines.pdf

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16 minutes ago, Norfolk&Wayman said:

https://texaslawhelp.org/toolkit/i-want-file-answer-non-family-law-case

 

So my county website linked me to the website above. And I found the attached form. Does this look good to file my answer with? Also just clarify, I should check the arbitration and award box correct? Id like to file today or tomorrow at the lasted so please' any help is appreciated.

civil-answer_deadlines.pdf

Note that you would need to locate a copy of the cardmember agreement that was in effect when the account went into default.   You can locate it in the archives in the following link. 

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

When you locate the agreement, check to see if it includes this statement:

2.  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.

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Attached agreement - Page 4 "2. 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."

 

???  How should I word my answer ???

 

 

 

Synchrony Bank - Walmart Credit Card Account Agreement and Pricing Information.pdf

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1 minute ago, Norfolk&Wayman said:

Attached agreement - Page 4 "2. 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."

 

???  How should I word my answer ???

 

 

Walmart_Credit_Card_Account_Agreement_and_Pricing_Information.pdf

Okey dokey.  Your answer might include that the alleged account is subject to private contractual arbitration as provided for in the relevant cardmember agreement. 

In the MTC, I would reference the statement about the party who is required to commence.  

@fisthardcheese

@Harry Seaward

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I just saw the other archives on the cc agreement page - I double checked my specific agreement and it's the same.

 

Also - is there any case law I should include? What about additional affirmative defenses? Or just stick to arbitration and concentrate on that???

 

I found this on Texaslawhelp.org - looks like theres some case law noted there....  Is there any that are more specific to this case, I'd like to make the job for the Judge as easy as possible, and give me a better chance of getting my MTC granted. Right???  Now for the MTC form - I'm not seeing much at all as for a official form anywhere except the post on here with a sample.

Last - Should I file with AAA or JAMS - I read where AAA denied the case based on PRA's reputation??? So should I not even bother trying with them?

DM'S - ARE WELCOME!!!  

 

 

 

Arbitration and Award

Arbitration is a process where a third party looks at the evidence shown by the parties and makes a decision. The parties usually agree to arbitration as part of a contract before any problem even comes up.

Having an agreement for arbitration in a contract or part of the contract that involves the plaintiff and defendant’s dispute may be used as an affirmative defense.

Example: Ty and Danny signed a contract for Ty to buy eggs from Danny’s farm. A clause in the contract states that any disputes will first go to arbitration. Ty buys the eggs but later becomes upset when half fail to hatch. Ty and Danny then go to arbitration. At arbitration the third party looked at the evidence shown by both sides and orders Danny to refund Ty half of her money. Ty doesn’t think the third party awarded large enough money damages and files a lawsuit against Danny. Danny may be able to assert an arbitration and award affirmative defense. Arbitration awards are favored by the courts as a way to take care of disputes and the court will try to uphold the arbitration award.

To do more research, look up: 

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1 hour ago, Norfolk&Wayman said:

What about additional affirmative defenses?

Do you have any other defenses?  You cannot just list a bunch of them and hope one sticks.  The burden is on you to prove your defenses.

1 hour ago, Norfolk&Wayman said:

Now for the MTC form - I'm not seeing much at all as for a official form anywhere except the post on here with a sample.

Justice Court does not use pre-printed forms.  You will need to draft a motion according the rules of civil procedure for Justice Court in Texas.

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I went to the county clerks office and the informed me that the attached forms look fine to file. That no one has ever actually filed with printed forms before, they always just turn in a  handwritten  answer and motions on a piece of paper. She told me this is going the extra mile, it'll look good. LOL WOW.... That says a lot for my county....  Attached is what I plan on filling out and turning in.

What case laws can I use for my MTC arbitration defense?

civil-answer_deadlines.pdf

Synchrony Bank - Walmart Credit Card Account Agreement and Pricing Information.pdf

MOTION TO COMPEL PRIVATE.docx

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10 hours ago, BV80 said:

In the MTC, I would reference the statement about the party who is required to commence.

I don't like nitpicking over this.  I like fewer items to argue over in court and just making the MTC easy.  This Card Agreement has free JAMS.  It costs OP nothing to file and actually gives OP the advantage of being the Claimant when filing.

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Heres the update...

 

Filed MTC, it was granted.

 

Filed with JAMS, waiting for response.

 

Had court today - plantiff filed to stay in court for no longer than 7 months or until arb is completed.

 

They told me in the hallway before court, that they reviewed my card agreement and that I do have the right for arbitration. They went on to say that i would be responsible for paying all arbitration costs, and they would reimburse me only if i prevail. They showed me this in the agreement.

 

"4. 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. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced. "

 

I havent requested them to pay anything yet, I just simply asked them in person to pay for all the fees. They said no, and that they would bring it up to the Judge. They never mentioned any of it to the Judge.  Pretty sure they were just trying to bully me a bit before the hearing.

 

So my next step is to write a letter requesting they pay for all arbitration fees? 

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On 10/4/2018 at 11:06 PM, fisthardcheese said:

I don't like nitpicking over this.  I like fewer items to argue over in court and just making the MTC easy.  This Card Agreement has free JAMS.  It costs OP nothing to file and actually gives OP the advantage of being the Claimant when filing.

 

 

@fisthardcheese

 

What are your thoughts on what they said above? Just trying to get some clarity on all this.  I've filed with JAMS.  But i believe i can file with AAA if i wanted, should i do so, and drop the JAMS?  Either way, i just don't want to get stuck paying for anything like they tried to claim.

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15 hours ago, Norfolk&Wayman said:

They said no, and that they would bring it up to the Judge. They never mentioned any of it to the Judge.  Pretty sure they were just trying to bully me a bit before the hearing.

They were.  They want to scare you away.  Don't let them.

15 hours ago, Norfolk&Wayman said:

They went on to say that i would be responsible for paying all arbitration costs, and they would reimburse me only if i prevail. They showed me this in the agreement.

They can say anything they want, but they can't re-write the card agreement and they can't override the JAMS consumer rules.

All you need to do now is to file the case with JAMS and include a cover letter to JAMS that simply says "Please find this Consumer Arbitration Demand enclosed. As stated in the contract, I have requested that the Respondent forward the consumer portion of the filing fee to JAMS".  (When you send the required 2 copies of the Card Agreement to file with JAMS, I always highlight the line where it says they will pay your fees if you ask).

When I send a copy of everything to the PRA attorney, I also send a copy of that same cover letter to JAMS but I don't bother highlighting the card agreement for them. :)

After that, the rest is up to JAMS and not PRA or their attorney.  JAMS will bill them for the full amount and they can complain all they want.  In fact, if they do, I would request a hearing regarding fees - which of course they would pay for.  Any hearing (even when by phone) over side squabbles prior to the "real" hearing in arbitration is gold.

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23 hours ago, Norfolk&Wayman said:

Heres the update...

Filed MTC, it was granted.

"2. 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."

"4. 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. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced."

@fisthardcheese If #2 can be argued to apply in this situation (MTC granted), then isn't it the responsibility of PRA--as the "party asserting the claim(s)"--to commence the arbitration proceeding?  JAMS consumer rules (See #7 below) state PRA must pay all costs associated with the arbitration they initiate as claimant. Fist, why do some of these judges require the defendant to file an arb demand first before granting the MTC when the Synchrony clause states it's the JDB plaintiff's responsibility?

@Norfolk&Wayman The contract's arb clause states at #4, "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."  If you ask PRA and they believe you are initiating an arb claim in "good faith," then they've agreed to pay your $250 JAMS filing fee. PRA can decline to pay if they assert bad faith on your part.

This next clause applies only after the arbitrator rules for you as claimant at the end of the arb proceedings:  "We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced." For a debt under $1000, how would it make any sense for PRA to arbitrate this? 

JAMS Consumer Arbitration Minimum Standards

"7. With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration.

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14 hours ago, Brotherskeeper said:

@fisthardcheese If #2 can be argued to apply in this situation (MTC granted), then isn't it the responsibility of PRA--as the "party asserting the claim(s)"--to commence the arbitration proceeding?  JAMS consumer rules (See #7 below) state PRA must pay all costs associated with the arbitration they initiate as claimant. Fist, why do some of these judges require the defendant to file an arb demand first before granting the MTC when the Synchrony clause states it's the JDB plaintiff's responsibility?

@Norfolk&Wayman The contract's arb clause states at #4, "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."  If you ask PRA and they believe you are initiating an arb claim in "good faith," then they've agreed to pay your $250 JAMS filing fee. PRA can decline to pay if they assert bad faith on your part.

These 2 paragraphs should be flipped if you want to think about this in terms of how it plays out in real time.  First, the administrator (filing) fees are due.  And this contract states that they will pay for it.  The "good faith" portion should be moot since there is a court order in place to arbitrate.  How can following a court order to arbitrate be in bad faith?  That argument would be DOA.  However, IF the JDB wants to attempt to make a "bad faith" argument, the beauty of it is that a hearing would need to be held in which the arbitrator would decide if the filing was in "bad faith" regarding the filing fee and in order to get that "bad faith" hearing (or even a written decision based on submitted briefs), JAMS would require the JDB to pay the filing fees initially, plus the $2500 or so for the arbitrator's deposit just to find out if they can force you to pay them back $250 of the filing fee.

Now, once we move passed the filing fee, the other part of the contract states that they will pay all your fees, attorney and costs if you prevail.  Well, final costs are not submitted until after a case ends.  Therefore, it is irrelevant regarding the filing fees to get the case started.  Paragraph #4 is in regards to the final cost of everything, but we know it never gets this far with a JDB.  Not only that, but we have only seen ONE case - and it was with an OC - where the bank asked for the costs of arbitration to be awarded to them and the arbitrator (wrongly, IMO) awarding it.  But as we know, PRA is not going to actually arbitrate this case in full.

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15 hours ago, Brotherskeeper said:

isn't it the responsibility of PRA--as the "party asserting the claim(s)"--to commence the arbitration proceeding? 

Because of my reasons above as to why I firmly believe JAMS will not require the consumer to pay the $250, I would never attempt to squabble over who should assert the claims (actually file).  Not only that, but there is a distinct advantage for the consumer to file first and be the Claimant as opposed to the Respondent in these cases.

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4 hours ago, fisthardcheese said:

Because of my reasons above as to why I firmly believe JAMS will not require the consumer to pay the $250, I would never attempt to squabble over who should assert the claims (actually file).  Not only that, but there is a distinct advantage for the consumer to file first and be the Claimant as opposed to the Respondent in these cases.

Your wise advice to file as the Claimant has been very valuable for settlement leverage. I just wondered why/how several of these judges read that #2 Synchrony clause and decide (sometimes dripping with derision) that the defendant's MTC is perilously ripe for denial because defendant hasn't first filed a claim with AAA or JAMS before bringing the motion. I'm also struck by how often our members have had to "walk" the judge through the contract language, and sometimes even the law text. We can never stress enough the importance of being prepared to argue anything and hope to remain silent and let the judge do the heavy-lifting! 

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1 hour ago, Brotherskeeper said:

Your wise advice to file as the Claimant has been very valuable for settlement leverage. I just wondered why/how several of these judges read that #2 Synchrony clause and decide (sometimes dripping with derision) that the defendant's MTC is perilously ripe for denial because defendant hasn't first filed a claim with AAA or JAMS before bringing the motion. I'm also struck by how often our members have had to "walk" the judge through the contract language, and sometimes even the law text. We can never stress enough the importance of being prepared to argue anything and hope to remain silent and let the judge do the heavy-lifting! 

To be fair, IMO, most judges are "walked through" almost every case law in any type of case before them.  Usually attorneys file detailed briefs (sometimes multiple detailed briefs) for all motions and responses.  In what we do here, we use a very basic, stripped down MTC sample mostly to make it easier for people who come here trying to navigate the justice system for the very first time and who are also usually pressed for time to get the motion filed.  If we had the advantage of telling a knowledgeable, seasoned attorney with easy access to their state's case law database and said "file an MTC Arbitration", they would probably come up with at least a 2 page motion filled with strong case law and make it an easy to understand argument.  This is what Judge's are used to seeing, so I am not surprised that they are not coming to what seems should be an easy conclusion right off the bat.

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