Sued by Portfolio Recovery Associates / Rausch Sturm Israel Hornik

[Cats_in_the_Cradle]

LAWSUIT INFORMATION:

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.) Rausch Sturm Israel Hornik in Dallas, TX

3. How much are you being sued for? $1121.52

4. Who is the original creditor? Synchrony Bank (Sam's Club)

5. How do you know you are being sued? Personally 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? Nothing until this Citation/Petition

9. What state and county do you live in? Comal County, Texas

10. When is the last time you paid on this account? August 28, 2016

11. What is the SOL on the debt? 4 years

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

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

14. Did you request debt validation before the suit was filed? Nope

15. How long do you have to respond to the suit? 14 days from the time the Citation was served

 16. What evidence did they send with the summons? Non-Military Declaration

Hello all, I am new to the site and need some assistance responding to a lawsuit I was served with by Portfolio Recovery Associates. I have 14 days to respond to the allegations.

Below is a generic draft of my "Answer" to the allegations. Do I have to file a Motion to Compel Arbitration separate from my Answer or is there some kind of language that I can put in my answer that I wish to pursue Arbitration for this cause besides what I have already listed in Section 2, Item #1???

DEFENDANT’S ORIGINAL ANSWER

 

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW CATS_IN_THE_CRADLE, Defendant in this Action and files the this Original Answer. Defendant would respectfully show the Court the following:

I.  GENERAL DENIAL

1.         Pursuant to Tex. R. Civ. P. 92, Defendant generally denies each and every allegation contained in the Plaintiff’s original petition and denies that Plaintiff has suffered any injury, damage, or loss in any amount or manner whatsoever by reason of any act or omission by Defendant, denies that Plaintiff is entitled to any legal or equitable relief in any amount or manner whatsoever from Defendant, and demands strict proof of each allegation and claim by a preponderance of credible evidence as is required by the Constitution and laws of the State of Texas.  Defendant reserves the rights to amend and plead further, should such additional pleadings subsequently prove to be either desirable or necessary.

II.   AFFIRMATIVE DEFENSES

            Defendant further alleges the following defenses and affirmative defenses to the purported causes of action in Plaintiff’s Original Petition as follows:

1.                  Defendant asserts Arbitration and Award afforded by Tex. R. Civ. P. 94.  Defendant pleads affirmatively that Plaintiff’s claims are subject to private contractual arbitration in accordance with its applicable credit card agreement.

2.                  Any recovery on Plaintiff’s Original Petition, or any cause of action alleged in it, is barred in that this Court lacks jurisdiction over such claims because Plaintiff has failed to exhaust its administrative remedies prior to commencing this lawsuit as required by law.

3.         Defendant specifically denies that all conditions precedent to Plaintiff’s claims have been performed or have occurred. Tex. R. Civ. P. 54

4.         Defendant reserves the right to plead any additional defenses or affirmative defenses that may be applicable based on evidence revealed during discovery.

III.  PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court deny any and all relief sought by Plaintiff, and enter a take-nothing judgment against Plaintiff. Defendant prays for general relief.

                                                                                                                                                                                          Respectfully submitted,

                                                                                                                                                                                          Cats_in_the_Cradle

[BV80]

@Cats_in_the_Cradle

Do you understand the meaning of the defenses you listed?  Much of what you listed does not apply.

In addition, defendants bear the burden of proving any defenses they raise. 

Do you have a copy of the Synchrony cardmember agreement that was in effect when the account went into default?

The affirmative defenses I would raise are 1) Lack of standing to sue.   Plaintiff has not proven its ownership of the account in question.  Absent such proof, Plaintiff cannot show that it has suffered an injury.  2) Private contractual arbitration.  The account in question is subject to private contractual arbitration as provided for in the applicable cardmember agreement.

 

[Cats_in_the_Cradle]

Yes, I understand that most of the defenses I initially listed will not stand. I modified my Answer and Defenses above.

Attached is the Arbitration Agreement I have for Synchrony Bank specific to Sam's Club.

Sam's Club Agmnt Arbitration.pdf

[BV80]

30 minutes ago, Cats_in_the_Cradle said:

Yes, I understand that most of the defenses I initially listed will not stand. I modified my Answer and Defenses above.

Attached is the Arbitration Agreement I have for Synchrony Bank specific to Sam's Club.

Sam's Club Agmnt Arbitration.pdf

The following link contains a sample motion to compel arbitration.

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

[Clydesmom]

If this is in Justice Court then the TRCP 500 section applies not the regular court sections.  Make sure you cite the correct rules.

[Cats_in_the_Cradle]

Should I be specific in my defense about listing "lack of subject matter jurisdiction" since it is not a matter for the Justice Court and instead Arbitration?

I plan to file my Answer first and immediately follow it with my MTC Arbitration and Order for the judge to (hopefully sign). If the Judge Grant's the MTC, do I then contact AAA and pay the consumer filing fee for arbitration? I noticed it said it costs $1400 to file for Arbitration through their company, which is more than my entire lawsuit itsself.

[Cats_in_the_Cradle]

Here is my final list of Affirmative Defenses to use. Does this sound and look OK?

AFFIRMATIVE DEFENSES

Defendant further alleges the following defenses and affirmative defenses to the purported causes of action in Plaintiff’s Original Petition as follows:

1.         Defendant asserts Lack of Standing afforded by Tex. R. Civ. P. 94.  Plaintiff has not proven its legal basis of the account in question.  Absent such clear ownership, Plaintiff cannot show that it has suffered an injury and is barred from seeking relief for damages.           

2.         Defendant asserts Arbitration and Award afforded by Tex. R. Civ. P. 94.  Defendant pleads affirmatively that Plaintiff’s claims are subject to private contractual arbitration in accordance with its applicable credit card agreement.

3.         Defendant asserts Accord and Satisfaction afforded by Tex. R. Civ. P. 94.  Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies, insurance write-off and/or other credits.

4.         Plaintiff’s complaint fails to allege a valid assignment and there are no allegations as to the nature of the purported assignment or evidence of valuable consideration.  Plaintiff’s complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

5.         Plaintiff’s complaint fails to allege whether or not the Assignor even has knowledge of this action or that the Assignor has actually conveyed all rights and control to the Plaintiff.  The record does not disclose this information and it cannot be assumed otherwise without creating an unfair prejudice against the Defendant.

6.         Plaintiff is not an assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

7.         Any recovery on Plaintiff’s Original Petition, or any cause of action alleged in it, is barred in that this Court lacks jurisdiction over such claims because Plaintiff has failed to exhaust its administrative remedies prior to commencing this lawsuit as required by law.

8.         Defendant reserves the right to amend and/or plead additional answers, defenses or counterclaims at a later date.

 

[Cats_in_the_Cradle]

Also, should I put anything in my PRAYER about the Arbitration or my Motion to Compel Arbitration? If so, can someone help with the language?

This is all I have so far:

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court deny any and all relief sought by Plaintiff, and enter a take-nothing judgment against Plaintiff. Defendant prays for general relief.

WHEREFORE, Defendant respectfully requests that this Court dismiss this action with prejudice with Plaintiff to bear costs of all parties, and any and other just an equitable relief this Court deems appropriate.

[Clydesmom]

Again the 100 rules do not apply to your case in Justice Court.  You need to cite the appropriate rules from the 500 section for Justice Court.

[Clydesmom]

12 minutes ago, Cats_in_the_Cradle said:

1.         Defendant asserts Lack of Standing afforded by Tex. R. Civ. P. 94.  Plaintiff has not proven its legal basis of the account in question.  Absent such clear ownership, Plaintiff cannot show that it has suffered an injury and is barred from seeking relief for damages.  

Justice Court does not require they attach this proof.  You would have to get permission to do discovery to get this.  If you don't do discovery they can present this evidence at trial.  Again the rules under the 500 section for Justice Court are more lax than the 100 section  you are citing for Civil Court cases.

13 minutes ago, Cats_in_the_Cradle said:

3.         Defendant asserts Accord and Satisfaction afforded by Tex. R. Civ. P. 94.  Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies, insurance write-off and/or other credits.

Take this OUT.  It does not apply.  The OC selling the account does not prohibit the JDB from suing you under accord and satisfaction.  It only  prohibits the OC from that.  

14 minutes ago, Cats_in_the_Cradle said:

5.         Plaintiff’s complaint fails to allege whether or not the Assignor even has knowledge of this action or that the Assignor has actually conveyed all rights and control to the Plaintiff.  The record does not disclose this information and it cannot be assumed otherwise without creating an unfair prejudice against the Defendant.

Remove this too.  It does not apply and has no bearing on the case.  The Assignor/OC is no longer in the picture now that the account has been sold and isn't a party.

15 minutes ago, Cats_in_the_Cradle said:

6.         Plaintiff is not an assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

Again, Texas Justice Court does not require they attach the evidence to the complaint.  I would remove this.

 

[Cats_in_the_Cradle]

Thank you for helping me.

How does this prayer look for the ending of my Answer?

PRAYER

WHEREFORE, Defendant prays that the Court dismiss any and all relief sought by Plaintiff, and any and other just an equitable relief this Court deems appropriate.  Defendant respectfully requests that this Court order this case to private contractual arbitration per the credit agreement in this action.

[Cats_in_the_Cradle]

In my Arbitration Request Ltr to Plaintiff, I included a request for them to pay for the Arbitration as the cardholder agreement that applies to my suit says that they (OC not the JDB) will pay for my arbitration if I request it. Since JDB says they now own the contract, it means they have to pay the Arbitration fee, right? How do I get them to pay this to JAMS?

ALSO, is there any reason where a Justice Court judge would deny my MTC Arbitration if I followed the rules of the arbitration agreement and the justice court rules for filing the MTC? Does the judge HAVE to approve the MTC?

[texasrocker]

17 minutes ago, Cats_in_the_Cradle said:

In my Arbitration Request Ltr to Plaintiff, I included a request for them to pay for the Arbitration as the cardholder agreement that applies to my suit says that they (OC not the JDB) will pay for my arbitration if I request it. Since JDB says they now own the contract, it means they have to pay the Arbitration fee, right? How do I get them to pay this to JAMS?

ALSO, is there any reason where a Justice Court judge would deny my MTC Arbitration if I followed the rules of the arbitration agreement and the justice court rules for filing the MTC? Does the judge HAVE to approve the MTC?

@fisthardcheese