Sued by PRA in Texas

[TexasDad]

Hello everyone, I was hoping I could get some guidance on a lawsuit that has been filed by a JDB. I believe the proper protocol here is to answer the below questions, which I have done. Thank you so much for any guidance you can give. I have not sure where to begin in this process. I know I need to file an answer this week.

 

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.) Rausch Sturm 

3. How much are you being sued for? $2,XXX.XX

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

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

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? Texas, Harris 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 7/2017

11. When did you open the account (looking to establish what card agreement may be applicable)? 2015

12. What is the SOL on the debt? To find out: 4 years

13. 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). Suit served and I have to file an answer 20 days from October 20th. 

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? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No I did not 

16. 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? I have to file an answer 20 days from October 20th. 

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. None other than the "Facts" and "Counts" stated below. I have listed them in the numbered order as listed on the summons.

E. Facts

7. On or about 9/2012, Defendant(s) opened a credit account with CAPITAL ONE BANK (USA), N.A. in the Defendants name under its account ending in XXXX Defendant used the account thereby became obligated to pay for the balance owed on the credit account. Plaintiff's records indicate Defendant's last payment on the account occurred May 16, 2017. Defendant defaulted on the obligation to make monthly payments on the credit account, and the account was subsequently closed due to nonpayment and/or charged off to profit and loss on or about December 2017. on or about February 2018 CAPITAL ONE BANK (USA) , N.A. assigned Defendant's credit account to Plaintiff, and Plaintiff is the current holder of Defendant's account and the proper party to bring this lawsuit. The balance remaining on the credit account is presently due and payable in full.

8. Defendant(s) applied for and received a credit account bearing the account number (SAME NUMBER AS STATED ABOVE) Defendant(s) used or authorized the use if the account for the acquisition of goods, services, balance transfers or cash advances in accordance with the customer agreement governing the Account with CAPITAL ONE BANK (USA), N.A. 

9. Defendants breached the agreement by failing to make periodic payments as required thereby and the Account was subsequently charged-off. The current Account balance is $2,XXX.XX which includes any applicable payments and credits. The Account is not accruing post charge-off interest.

10. That although demand has been made upon Defendant(s), neither said sums or any portion thereof has been paid.

11. Plaintiff has performed all conditions precedent to the filing of this action or all such conditions precedent have been performed or have occurred 

F. COUNT 1: Breach of Contract

12. Plaintiff is entitled to recover breach of contract. CAPITAL ONE BANK (USA) N.A.'s offer and extension of credit to Defendant's constitute performance and/or tendering of performance by CAPITAL ONE BANK (USA) N.A. Defendant(s) failed to repay the amount owed on the account and thereby breached the contract.

13. Defendant(s) breach was a proximate cause of actual damages of $2,XXX.XX All just and lawful offsets, credits, and payments have been applied to the account.

G. Count 2: Account Stated

14. Plaintiff is entitled to recover on an account stated claim because (1) transactions between the Original Creditor and Defendant(s) gave rise to the indebtedness, (2) there existed an agreement between the OC and the Defendant(s) which established the amount due to OC, and (3) the Defendant(s) promised to pay the OC on the indebtedness

 

Edited to add: There was a "Plaintiffs First Discovery Requests, Request For Disclosure, Request for Production, Plaintiff's First set of Interrogatories Attached" as well which says I have 50 days to respond to it. I can type it also if needed.

 

[texasrocker]

"Facts" and "Counts" in their original petition are not evidence.

What court is this in?  

[TexasDad]

2 hours ago, texasrocker said:

What court is this in?  

@texasrocker Harris County Civil Court at Law #1. Thank you for any guidance you can give.

[texasrocker]

  I suspected it was a county court since they had embedded discovery in their original petition.  This is great because you won't have to get the court's approval to send discovery.

Scan and post their discovery requests. 

[TexasDad]

15 minutes ago, texasrocker said:

  I suspected it was a county court since they had embedded discovery in their original petition.  This is great because you won't have to get the court's approval to send discovery.

Scan and post their discovery requests. 

I'll be home shortly and will scan and post. Thanks again.

[indotx]

On 11/5/2018 at 5:43 PM, texasrocker said:

I suspected it was a county court since they had embedded discovery in their original petition. 

I wonder why they chose County Court instead of JOP?

I wish mine was filed at County Court so I can just send them Discovery without the court approval/hearing first.

[texasrocker]

Same reason- they would have had to wait for approval.  If they can embed discovery it will increase their chances of getting a default judgment.

[TexasDad]

Great news! The Plaintiff (JDB) dropped their case against me a week before mediation. Big thanks to @texasrocker for his excellent guidance.