Texas Trial Date Against Portfolio Recovery Associates, LLC. Soon--Need Help

[mquinton12345]

I just found this site today and need to figure out what options--if any--I have left. I was sued back in May of this year. I filed an answer denying all allegations and demanding proof (boilerplate "Defendant denies all of the Plaintiff's allegations and demand that the allegations be proven."). A judge trial date was set for November 5.

I was obviously--and wrongly now, I realize--under the assumption that they would send me some form or fashion of the proof. After looking over the site I see now that it seems I was supposed to file a discovery motion. I have not spoken to them yet (I did leave a message regarding case number only), and I sent an e-mail regarding the possibility of a continuance as the court here in Texas says that I have to discuss a continuance with them. I am currently looking to file the continuance as I got an automated reply from the e-mail address of the only lawyer I received a letter from (who is different from the lawyer that sued me). I have no idea if that will work or not, and don't know what I can or should do at this point.

Clearly showing up and hoping for the best is a terrible idea. I have attached the relevant claims from the initial suit.

 

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? Michael J Garza (letter received after answer filed from Roberto Jaramillo) [both lawyers listed with Rausch Sturm]

3. How much are you being sued for? $1080.56

4. Who is the original creditor? Synchrony Bank (Walmart)

5. How do you know you are being sued? Served

6. How were you served? In person

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

TEXAS

Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto.

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/Harris

10. When is the last time you paid on this account? Between March and May of 2015

11. When did you open the account? January or February of 2014

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

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

Hearing Information

Hearing Description: Judge Trial
Hearing Date/Time: November 05, 2018 10:30 AM

Event Information

Event Description: Citation
Date Added: April 24, 2018

Event Description: Debt Claim-Citation
Date Added: April 24, 2018

Event Description: Original Petition Filed
Date Added: April 24, 2018

Event Description: Service Return
Date Added: May 15, 2018

Event Description: Answer Filed
Date Added: May 21, 2018

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

15. Did you request debt validation before the suit was filed? No

16. How long do you have to respond to the suit? Already answered

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Plaintiff's Original Petition only lists their claims. There are no affidavits, contracts, nor statements from the OC.

suit.pdf

[Clydesmom]

1 hour ago, mquinton12345 said:

Plaintiff's Original Petition only lists their claims. There are no affidavits, contracts, nor statements from the OC.

If this is in Justice Court then they were not required to attach any of that to the complaint in Texas.  You are correct you would have had to get permission from the court to do discovery.  We have had instances where that was actually denied so do not panic too much over it.

Synchrony has the best arbitration clause of any of the creditors.  I would immediately file a MTC arbitration and demand that be heard before any trial took place.  The court might do that on Nov 5th date or might set a new hearing date and cancel that trial date.  No way to know if you do not try.

[mquinton12345]

On 10/24/2018 at 1:20 PM, Clydesmom said:

Synchrony has the best arbitration clause of any of the creditors.  I would immediately file a MTC arbitration and demand that be heard before any trial took place.  The court might do that on Nov 5th date or might set a new hearing date and cancel that trial date.  No way to know if you do not try.

Thank you for the reply! Here is what I sent and this was the reply:

SENT--

To Whom It May Concern:

 

I am contacting you regarding your file number: 2968266. We have a pending trial date on Nov. 5. I have not received any information from you regarding my request for proof. However, I also do not wish to have a judgement against me.

 

Please advise on a possible continuance in this matter, or failing that a settlement offer so that we do not waste the court's time.

 

Thank you for your time and consideration.

 

Sincerely,

REPLY--

Good Afternoon,

I would be agreeable to a continuance. However, should the court deny the request for a continuance, I would have to proceed forward with trial. What request for proof has been made? The only previous correspondence that I see in my file is an answer containing a general denial.

My client is still open to settling this case. Did you have an offer I could take to  my client for review?

 Regards,

 

Given the e-mail chain I am wondering if I should try for the continuance and then the MTC, just the MTC, or what? The court was closed today, so I'll have to file on Monday regardless as I am tied up tomorrow. I have until Wednesday to file the continuance.

I also noticed in another thread (about PRA here in TX) that they filed for discovery (Synchrony/Walmart was the OC in this instance as well), and the case was ultimately dismissed. Should I also try this? Should I try it regardless of the continuance?

Thanks again for taking the time to answer these questions. This has been ridiculously stressful, especially considering my naivete to this point.

[Harry Seaward]

If you want to use arbitration, you need to get the ball rolling on that now. That's personally the direction I would go. If the court grants the MTC, it's a guaranteed dismissal vs. near certain judgment against you if you stay in court. 

[mquinton12345]

On 10/25/2018 at 6:38 PM, Harry Seaward said:

If you want to use arbitration, you need to get the ball rolling on that now. That's personally the direction I would go. If the court grants the MTC, it's a guaranteed dismissal vs. near certain judgment against you if you stay in court. 

Thank you for the tip! Should I file both the MTC and the continuance and see what happens? Also, can I do that? What about the discovery? Should I file that also? I'll be doing it first thing Monday morning.

 

Thanks again for all the advice.

[mquinton12345]

Also, I'm looking for the MTC form, but I don't see it listed. Maybe I'm misunderstanding the acronym? I've included a screen shot from the court's website for downloadable forms that I can file.

[Clydesmom]

8 minutes ago, mquinton12345 said:

Also, I'm looking for the MTC form, but I don't see it listed.

That is because this is a special motion not commonly used.  You will have to properly draft and file the motion yourself if you want to take this approach.

19 minutes ago, mquinton12345 said:

What about the discovery? Should I file that also?

The peril in doing that is courts have ruled that by engaging in the litigation process (and filing discovery would be doing that) waives the right to arbitration.  So you need to decide HOW you are going to fight this.  If it is arbitration then you wait on the discovery.  If it is to defend the suit then you file discovery.

[mquinton12345]

34 minutes ago, Clydesmom said:

That is because this is a special motion not commonly used.  You will have to properly draft and file the motion yourself if you want to take this approach.

Ah; gotcha. Do you know where I can find examples of this? I am clearly not using the search engine on this site very well. Also, I checked the commonly used abbreviations and couldn't find 'MTC.' Googling it referenced 'Municipal Trial Court' but I don't think that's correct.

So, regardless of which way I decide to go on Monday, can I file both the continuance and the other document (the arbitration or discovery)? My chief concern is that I don't want to file one and have it counteract the other so that the judge doesn't see what I'm trying to do. Thanks so much again for all the advice.

[Clydesmom]

1 hour ago, mquinton12345 said:

Also, I checked the commonly used abbreviations and couldn't find 'MTC.'

Motion to Compel.  Search this site for that.

1 hour ago, mquinton12345 said:

can I file both the continuance and the other document (the arbitration or discovery)?

Yes  File the continuance and which ever motion you are going to pursue.  Discovery or arbitration.

[mquinton12345]

Okay, so here's what I'll be doing tomorrow:

1.) Sending off the letter Certified Mail.

2.) Notarizing an affidavit saying that I sent it (using a copy of the letter itself), as well as one saying that I have the 2014 Cardholder Agreement. (Relevant portion is the jpeg.)

3.) Filing both the continuance and the MTC with the court.

 

I have already started the process with AAA as well. If anyone would be willing to look these over and see if they will pass muster, I'd greatly appreciate it. Also, any other advice will not go unnoticed nor unappreciated!

My continued thanks to those who have taken the time to assist.

Redacted Continuance.docx

Redacted MTC Arbitration.docx

Redacted Arbitration Letter.docx

[texasrocker]

5 hours ago, mquinton12345 said:

Okay, so here's what I'll be doing tomorrow:

1.) Sending off the letter Certified Mail.

2.) Notarizing an affidavit saying that I sent it (using a copy of the letter itself), as well as one saying that I have the 2014 Cardholder Agreement. (Relevant portion is the jpeg.)

3.) Filing both the continuance and the MTC with the court.

 

I have already started the process with AAA as well. If anyone would be willing to look these over and see if they will pass muster, I'd greatly appreciate it. Also, any other advice will not go unnoticed nor unappreciated!

My continued thanks to those who have taken the time to assist.

Redacted Continuance.docx

Redacted MTC Arbitration.docx

Redacted Arbitration Letter.docx

@fisthardcheese

[mquinton12345]

Is that a tag to bring it the thread to a user's attention?

[mquinton12345]

Here is the affidavit as well.

Redacted Texas General Affidavit.docx

[fisthardcheese]

I wouldn't bother with a letter.  You are already well into the court process.

I wouldn't have started AAA this early, but that's fine, just don't worry about it for now.  You need to get the court situation taken care of first and NOW.

File the Motion to Compel arbitration if you have not already and send a copy by email to the attorney as well as dropping a copy in the mail (first class, no need to spend extra money on certified).

Once they get your motion, given that it is less than a week to your court date, I can almost guarantee that on the 5th, they will ask for a continuance themselves, so you don't even need to file anything regarding that.  If they don't ask for a continuance, that's good, just prepare to move forward and ask the judge to rule on your MTC.  If you haven't already, read the link in my signature below to get an idea on the typical arguments that they may bring up to fight against your MTC.  Be prepared to counter their arguments and just remember that TX law and the US Supreme Court have said that arbitration is your absolute right if a valid agreement containing an arbitration clause exist. Therefore, the ONLY argument they could possibly make that holds any merit is that your card agreement is somehow not valid.  If you have an affidavit testifying to the accuracy of the agreement, then the attorney will need an affidavit or witness of his own, as HE personally can not testify to the authenticity of the agreement since he was never a party to that agreement.  These are the key things to keep in mind when you head to court.  Your only goal is to get the judge to grant your MTC and stay this case.  Do not allow the other side to trick you into discussing the merits of the debt in any way.  All questions of "is this your debt, etc" should be held for the proper arbitration venue.  The ONLY question you should answer is whether you once held a Synchrony Bank card, which you can say yes, you did and therefore, the card agreement is valid and the MTC should be granted.  (Admitting to once having a Synchrony Card does not mean you are admitting that you OWE any money on that card or that PRA is the proper party holding any alleged debt from that previous account).

[mquinton12345]

Well, I already did everything yesterday as I said because I didn't want to wait at all and risk anything. So, the court got both motions, the affidavit, and copies of everything (except for the original of the notary signed affidavit which I did provide to them). I kept two copies of everything for myself to bring on Monday if needed. Also, the closest attorney is in Dallas, so I did have to mail it to them as well. I did the whole Certified Mail so that I would ideally have proof that they received everything should the need arise in court, especially since the only actual contact I've had with any attorney is via e-mail from one guy in Wisconsin. I don't know that they have a local attorney (unless this Garza guy is in Houston, but the address is Dallas, so I'm at a loss).

Also, I didn't know I wasn't supposed to actually start with AAA. I figured I had better be able to show the court that I wasn't just stalling. I haven't laid any money out, yet. The agreement is structured so that if I ask them to pay--which I have--then they will. I communicated that to AAA via the initial submission and was told that they'd get back to me.

My affidavit regarding the agreement (which I turned into the court with said agreement) is that it is an accurate agreement during 2014 & 2015 (it is from 09.14), so I know its right. Even Synchrony's most recent agreement has the same clause, and I guess I'll bring that one with me as well to show that Synchrony has maintained their stance on arbitration (again, if needed). If it's relevant, I can even bring up that I currently have Synchrony Bank credit accounts in good standing (which is true: I have at least three).

I will also re-read your link as well. If you can think of anything else based on this reply, please don't hesitate to let me know, and I'll make sure to bring up any questions I have regarding the link as well.

Thank you so very much--all of you--for your insight and expertise! No matter what, I'll keep you updated. Right now, it seems that all I can do is study up and get ready for Monday, unless I somehow hear from the judge before then.

 

 

Edited October 30, 2018 by mquinton12345
Added the AAA information and corrected "read your link" to "re-read your link."

[mquinton12345]

Good Afternoon, all!

I got back from court date today, and the judge granted the continuance. New date: January 15, 2019. I asked the clerk about the MTC and she told me that the judge didn't rule on it since the continuance was granted.

I spoke to the lawyer for PRA to let her know my position: that I was only stipulating that I had a Walmart Card, and that I was wanting to resolve any dispute through arbitration as listed in the credit card agreement. I had sent the same information to PRA as I had the law firm, and showed her the agreement, the arbitration clause, and that according to said clause they--as the agent for Synchrony--were to pay for it. She nodded her head at this (so I guess this is assent?) and said she needed to wait until she heard back from PRA, and most likely we'd be back in January to sort out the MTC.

I told her that was fine, and that she could reach out to me before then with any other information. I sent her the following e-mail:

 

Good Afternoon, Ms. Addison:

 

As per our conversation this morning, I am sending you this follow up e-mail so that you will have my e-mail address at the ready upon having heard back from PRA. Thank you again for your time.

 

Sincerely,

 

 

I asked the clerk if I needed to resubmit my MTC, and she said no, that it would sit there until January to be ruled on by the judge in the event we haven't worked things out by then.

 

So, I guess I need to know if I'm just supposed to sit tight or what? I looked up relevant case law for Texas and wrote some cases down, so I'll keep that information handy for January. Thanks again as always to all of you who have followed this thread and offered advice and assistance!

[fisthardcheese]

Yes. Sit tight.  I would expect to hear NOTHING from the attorney prior to the court date, as part of the latest strategies with the JDB attorneys now is to keep continuing these cases to avoid any ruling on the MTC and making you show up for court over and over and over in hopes that you will fail to show up at just one of them so they can then get their easy default judgement.  I would make sure to put an end to this cycle at the next court date. I would object to any further continuance requests and ask the judge to rule on your MTC.

[mquinton12345]

Happy New Year, all!

First of all, thank you again to everyone who's looked in and helped with the thread. I hope you all have had a wonderful holiday season. Due to a very hectic schedule, I am finally able to get back to business on this nonsense, and wanted to share with you a couple of e-mails that I received, both from the same person (another lawyer I've not heard of before, unrelated to the other lawyers I've dealt with other than the fact they're all from the same firm).

First one from November 20th:

Mr. ----,

 

I was forwarded your file because you filed a motion for arbitration. I have already sent that to my client and they wanted me to reach out to you to see if we can get this case resolved prior to proceeding with such.  Once I get involved in a case, I bill my clients hourly for my work and they would like to avoid that based on the small balance of your case. With that being said, what can we get done.  Please let me know. Thanks.

 

Then the second from today (01.09.2019):

Mr. ----,

 

I am following up to the below email I sent in November to see how you wanted to proceed. Please let us know. Thanks.

 

Trial date is for next Tuesday, the 15th. I'm not exactly sure how to respond. Do I just offer to settle for zero with prejudice? I think that might get laughed at and/or shown to the judge to make me look bad. Should I just ignore it and show up on Tuesday, rolling the dice on the MTC? I feel like I should reply, even if only to say that I'm willing to let the judge decide on the MTC first.

 

My continuing thanks is extended.

[Goody_Ouchless]

I don't think it would hurt to offer mutual walk-away. With or without prejudice doesn't matter because they are prohibited from reselling debts so they will just drop the matter. Some may suggest asking for trade-line deletion. I can't recall how much success people have with that, since they can just dismiss of their own accord and keep reporting, hoping you need a mortgage in the future.

Obviously they "want out" and are trying one last time to scare you into thinking they will follow to arb.

[mquinton12345]

If I could prevail upon you once more, please let me know how the wording works here, then:

 

Good Morning, Mr. ----,

Thank you for following up with me in this matter, and I hope your holiday season was pleasant. In the interest of saving additional time and money for all parties, I would be amenable to mutual walk-away in this matter, preferably with a trade-line deletion. If this is untenable for you, then please let me know your counter-proposal.

I look forward to your reply.

Sincerely,

 

Any suggestions would be appreciated! I'll send this out tomorrow after it's been reviewed. Thank you!

[Goody_Ouchless]

These guys are trained to exploit weakness, even when it's not there, so I'd get rid of anything that gives him an opening:

Good Morning, Mr. ----,

Thank you for following up with me in this matter, and I hope your holiday season was pleasant. In the interest of saving additional time and money for all parties, I would be amenable to mutual walk-away in this matter, with trade-line deletion. 

I look forward to your reply.

Sincerely,

[mquinton12345]

I'll send it out now as you suggest and keep you posted. Thank you!

[DHABTE]

nvm you already filed for arbitration lol sorry.

[mquinton12345]

1 hour ago, DHABTE said:

 

nvm you already filed for arbitration lol sorry.

No worries. Thank you for sharing your story, though. I'm glad it worked out for you. I don't think this would have worked here, to be honest.

 

For those wondering about the quote, I have e-mail updates, and got one which detailed DHABTE's original successful challenge of--most likely--Asset Acceptance in Maryland.

Edited January 10, 2019 by mquinton12345
Added info related to quote

[mquinton12345]

This was the e-mail reply from my "settlement" request:

Mr. ----,

 

Thanks for responding.  Let me check with my client and see if they will approve that or not.

 

So, I suppose we'll see. I'll let you know as I do. If nothing else happens, I'll post again on Tuesday after the hearing where I will be requesting the judge to rule on the MTC.