Need help - TX Portfolio Recovery lawsuit, with a twist

[janebetts]

Need help here. How do we handle this? Which one of them handles it? General Denial (if so, what should it include?), or due to circumstances is there something else that should be filed?

Two weeks ago, my husband was served with a lawsuit from Portfolio Recovery, at our place of business. We questioned what it was, as we have no knowledge of a Capital One card ever being used by my husband.

A few days later, I was talking with one of the Sheriff Officers, who asked if there was more than one person with my husband's name or similar, in the family. I said yes, his deceased father and our son, share the same name. Husband and son use II and III respectively on all their work forms, debts, legal documents, etc.

 

Turns out the paperwork to serve had our son's birthdate on it, our business address, and my father in law's name on it. The SO said it was the strangest lawsuit paperwork he's ever seen, as it really has no information contained it, and what is there is just repeating over and over, and in some spots contradictory. (In one spot it claims last payment was made December 4, 2014 but that Capitol One charged it off on December 18, 2014, due to non-payment on account. Yes, we realize this weird date discrepancy brings it to just in the four year limit for Texas.) There is no attachments other than what I am typing out below.

 

He took the paperwork back, and the following week served it on our son. Our son is 24, and has never opened any credit accounts of any kind. Either way, we know there needs to be an answer filed on this, within the 14 day time frame they have specified on the paperwork. 

 

The rest will be the paperwork in the entirety, so that we can get the best advice possible. Any typos are the way they are on the paperwork that was served.
 

This was filed in the JP court, in Moore County, Texas:

 

PLAINTIFF'S ORIGINAL PETITION

A. Parties

1. Address of the plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, is PO BOX 12914, NORFOLK VA 23541.

 

2. Defendant, Father In Law Name may be served at Business Address of Husband, or at such other place as Defendant may be found.

 

B. Jurisdiction

 

3. Plaintiff seeks only monetary relief of $100,000 or less.

 

4. Plaintiff asserts that the above-named court has jurisdiction over the subject matter of this case and the person(s) of Defendant(s) and that the damages sought are within the jurisdictional limits of the court.

 

C. Venue

 

5. Venue of this action is proper in the county named above because Defendant(s) is/are adult individual(s) believe to be residing in said county at time of the commencement of the suit.

 

D. Facts

 

6. On or about May 2, 2012, Defendant(s) opened a credit account with CAPITAL ONE BANK (USA), N.A. in the Defendant's(s') name under its account number ending in ************XXXX. Defendant(s) used the account and 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 on December 4, 2014. Defendant(s) defaulted on the obligation to make monthly payments on the credit account, and the account was subsequently cancelled.  The credit account was subsequently closed due to nonpayment and/or charged off to profit and loss on or about December 18, 2014. On or about June 19, 2017, CAPITAL ONE BANK (USA), N.A. assigned Defendant's(s') credit account to Plaintiff, and Plaintiff is the current holder of the Defendant's(s') account and the proper party to bring this lawsuit. The balance remaining on the credit account is presently due and payable in full.

 

7. On or about May 2, 2012, Defendant(s) applied for and received a credit account bearing the account number ************XXXX. Defendant(s) used or authorized the use of the Account for the acquisition of goods, services, balance transfers or cash advances in accordance with the customer agreement governing use of the Account with CAPITAL ONE BANK (USA), N.A. .

 

8. Defendant(s) breached the agreement by failing to make periodic payments as required thereby and the Account was subsequently charged-off on or about December 18, 2014. The current Account balance is $1,XXX.XX which includes any applicable payments and credits. The Account is not accruing post charge-off interest.

 

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

 

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

 

E. COUNT 1: Breach of Contract

 

11. Plaintiff is entitled to recover for breach of contract. CAPITAL ONE BANK (USA), N.A.'s offer and of extension of credit to Defendant9S) constitute performance and/or tendering of the performance by CAPITAL ONE BANK (USA), N.A. . Defendant(s)' use of the credit account constitutes acceptance of the terms of the account proposed by CAPITAL ONE BANK (USA), N.A. . Defendant(s) failed to repay the amount owed on the account and thereby breached the contract.

 

12. Defendant(s)' breach was a proximate cause of actual damages of $1,XXX.XX. All just and lawful offsets, credits, and payments have been applied to the account.

 

F. COUNT 2: Account Stated
 

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

 

G. Damages

 

14. Plaintiff seeks damages on its liquidated claim in the amount of at least $1,XXX.XX, which is within the jurisdictional limits of this court.

 

H. Conditions Precedent

 

15. All conditions precedent to Plaintiff's claim for relief have been performed or have occurred.

 

I. Miscellany

 

16. The undersigned attorneys hereby give notice that they and Plaintiff are attempting to collect a debt and any information obtained will be used for that purpose. Plaintiff's attorneys are debt collectors.

 

J. Prayer

 

17. For these reasons, Plaintiff asks that the court issue a citation for Defendant to appear and answer, and that Plaintiff be awarded a judgment against Defendant for the following:

a. Actual damages in the amount of $1,XXX.XX.

b. Court Costs.

c. All other relief to which Plaintiff is entitled.

 

Respectfully Submitte;

RAUSCH STURM
ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION

 

By:___ORIGINAL COPY SIGNED___

KELLY MACDEVITT, SBN 24099699

(Lists 13 more attorney names and SBN numbers)

15660 N Dallas parkway, Suite 350

Dallas, TX 75248

Toll Free - (877)215-2552 Fax -Dallas (877)492-5185

E-mail: lawfirmTX@rsieh.com

ATTORNEY FOR PLAINTIFF

3048475

 

To the left of that:

 

ATTORNEY CONTACT INFO:

Kelly MacDevitt

Phone: (262)796-7884

E-mail: KMacDevitt@rsieh.com

 

 

 

 

[janebetts]

I didn't originally include this, because I thought the above covered it all. Just in case, here's the Q&A, from the sticky post:

 

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? Rausch Sturm/RSIEH

3. How much are you being sued for? $1,XXX.XX

4. Who is the original creditor? (if not the Plaintiff) Capital One Bank (USA), N.A.

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

6. How were you served? In person, twice with same paperwork, to two different people

7. Was the service legal as required by your state? Yes, as far as who served it

8. What was your correspondence (if any) with the people suing you before you think you were being sued? We remember a few phone calls from a Portfolio Recovery about a year ago, but they wanted husband to provide SS# and date of birth, and he told them he did not feel comfortable doing so if they couldn't tell him why. Son has never been contacted.

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

10. When is the last time you paid on this account? They say Dec 2014, we have no idea if the account even existed, or if it belongs to us

11. When did you open the account (looking to establish what card agreement may be applicable)? They say May 2012, again we are unsure on what this even is

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

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

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) We did find it on my husband's credit report, and my son's credit report. Have disputed both since being served. Unknown if it was on my FILs.

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'). We have 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? 14 days, with 7 days left from this writing,

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. None

[BV80]

Calling @texasrocker

[texasrocker]

DEFENDANT'S ORIGINAL ANSWER

Comes now, (your name), the Defendant in the above styled and numbered cause and files this Original Answer in this action and would respectfully show the following:

I.  GENERAL DENIAL

Defendant generally denies each and every, all and singular, of the allegations set forth in the Plaintiff's Original Petition and demands that the Plaintiff proves same by the preponderance of credible evidence.

II. PRAYER

Wherefore Defendant requests judgment of the Court that Plaintiff takes nothing from the Defendant and the Defendant be granted any further relief that he is justly entitled to.

(Your name, address and phone number)

File it with the court and send a copy to the attorney's office that filed the lawsuit.

[janebetts]

@texasrocker That was my initial thought, but I didn't think there was anyway it could truly be that simple. Especially with the confusion on who to serve it to.

Thank you! I'll update on if they dismiss or continue forward.

[texasrocker]

8 hours ago, janebetts said:

@texasrocker That was my initial thought, but I didn't think there was anyway it could truly be that simple. Especially with the confusion on who to serve it to.

Thank you! I'll update on if they dismiss or continue forward.

A copy of anything that you file in the court must be provided to the plaintiff just as they must do the same for you. Send it via certified mail to their address found on the papers that you were served.

[Goody_Ouchless]

18 hours ago, janebetts said:

we have no knowledge of a Capital One card ever being used by my husband.

That not withstanding, do you have knowledge of any Capital One card issued to your son? Was it a case of a co-signer? While obfuscation can work when the plaintiff is confused about similar names, addresses, etc., they are also capable of correcting such errors.

 

[janebetts]

2 hours ago, Goody_Ouchless said:

That not withstanding, do you have knowledge of any Capital One card issued to your son? Was it a case of a co-signer? While obfuscation can work when the plaintiff is confused about similar names, addresses, etc., they are also capable of correcting such errors.

 

No, he's never had a credit card that we are aware of. In the past, there was a family member that used his name for utilities, and we've wondered if they didn't do the same on a card. However, if the dates on the suit are correct, he would have been 17 when this was issued.

[Harry Seaward]

16 hours ago, janebetts said:

but I didn't think there was anyway it could truly be that simple.

What was posted is only the answer to the lawsuit. It only prevents a default judgment. You still have summary judgment and possibly a trial ahead of you. 

[janebetts]

@texasrocker 

Ok. I went with my son to file his answer. Due to him being John Joe Doe III, that is what his answer is filed under. The clerk did not want to take the answer/denial for filing, as she said that's not who's named in the suit. I explained that John Joe Doe is deceased for two years now, that it had initially been served to John Joe Doe II, and then taken back and re-served on III. 

She tried to get us to take the answer back without filing it, and wanted us to call the attorney for PRA. III did go ahead and ask that the answer/denial be filed, but she did not provide us with a stamped copy, even when asked. She claimed that the suit did not require notification to the Plaintiff, from us. Instead, they would notify them, and set a trial date. 

We did take copies up there, and also offered to pay for a copy from their office.

Is this normal?

I plan to go back up tomorrow, and speak her supervisor, and see if we can't get a copy to send to PRA's attorney. Otherwise, we can only send a copy that does not carry a stamp from the court showing as filed.

[janebetts]

1 hour ago, Harry Seaward said:

You still have summary judgment and possibly a trial ahead of you. 

We completely understand this, but I realize that some may not, so thank you!

[Goody_Ouchless]

20 minutes ago, janebetts said:

wanted us to call the attorney for PRA.

Probably great advice. If this debt is not your husbands or your sons, and you explain that, they aren't going to waste their time. Be wary of old-timers that tell you debt buyers and their law firms are like dealing with the Sopranos. They are all just normal people working normal jobs.

[Clydesmom]

2 hours ago, janebetts said:

No, he's never had a credit card that we are aware of. In the past, there was a family member that used his name for utilities, and we've wondered if they didn't do the same on a card. However, if the dates on the suit are correct, he would have been 17 when this was issued.

If there is a high chance this is identity theft I would be heading for the nearest Consumer Attorney to get a free consult.  What this person is counting on is neither you nor your son wanting to cause family strife or feeling guilty and not throwing them under the legal bus.  Identity theft is an iron clad defense to the suit.  If his identity really was used by this family member they are counting on you not wanting to rock the boat and simply paying it.  The problem with doing this is they get away with it and your son lives with messed up credit for 7 years.  AND is out the money for settling or paying a judgment.  

[janebetts]

32 minutes ago, Clydesmom said:

If there is a high chance this is identity theft 

I would put this in the less than a 1% chance category, to be honest. The issues happened when he was maybe 12. Trust me, there was no issue rocking the boat. 

[janebetts]

Hold on, I just realized that two of you giving advice don't even reside in Texas. While I appreciate the input, laws are different state to state, and I need input from those in Texas who have personally dealt with our legal system on these matters.

[Harry Seaward]

15 minutes ago, janebetts said:

Hold on, I just realized that two of you giving advice don't even reside in Texas. While I appreciate the input, laws are different state to state, and I need input from those in Texas who have personally dealt with our legal system on these matters.

Using ID theft as an affirmative defense in a debt collection lawsuit is universal. Some of the specific actions you can take against the debt collector may vary by state, but there is no Texas specific method of pleading ID theft as a defense. 

That and Clydesmom lived in Texas for several years. 

[janebetts]

3 minutes ago, Harry Seaward said:

Using ID theft as an affirmative defense in a debt collection lawsuit is universal. Some of the specific actions you can take against the debt collector may vary by state, but there is no Texas specific method of pleading ID theft as a defense. 

That and Clydesmom lived in Texas for several years. 

As stated above, we believe the chance of it being identity theft to be less than 1%.

[Harry Seaward]

12 minutes ago, janebetts said:

As stated above, we believe the chance of it being identity theft to be less than 1%.

Then I'm confused by this earlier comment of yours:

3 hours ago, janebetts said:

No, he's never had a credit card that we are aware of. In the past, there was a family member that used his name for utilities, and we've wondered if they didn't do the same on a card.

Someone using someone else's name to open/use a credit account is ID theft. And fraud, for that matter. 

[janebetts]

32 minutes ago, Harry Seaward said:

Then I'm confused by this earlier comment of yours:

Someone using someone else's name to open/use a credit account is ID theft. And fraud, for that matter. 

When we were first served, we jokingly said it may have been my husband's ex wife who had taken out credit in my husband's name long after they were divorced. It would not have been the first time. This matter was taken care of by the company she had went through to secure credit, and she was charged with some kind of impersonation and fraud. Forgive me if I don't remember the details, as they've been divorced 18 years now, and the last instance was about 13 years ago, for using my husband's name.

Then the SO realized the papers had our son's birthdate on it. When they served him, we again mentioned to each other it may have been her. However, due to the date it was allegedly opened, and it being at least ten years since her last attempts at securing credit under their names, we decided the chance was not high that it was her. His bio mom had used his (son) name several years prior, to secure utilities at her house. He was maybe 11? 12? at the time, making it around 12 years ago. When it was found out, the utility companies went after her.

This debt shows up on my husband's credit report, and on our son's credit report. Unfortunately, I don't have access to my dead father in law's credit score, so I can't verify that they also got him with it.

The legal name on the debt is my father in law's name. And at any other time, the ex-wife/bio mom has ALWAYS used the designation to show which of the three it was, even when she was using them for illegal activities, and never used my FIL's name.

(Yes, it is fraud on both counts, and it was handled legally in all cases.)

[janebetts]

And now that you know how bad of  person my son was born to, can we get back to the topic at hand?

Which is the woman at the JP's office tried to talk us out of filing the answer, and refusing to provide copies to my son of the answer he insisted she file.

[BV80]

6 minutes ago, janebetts said:

And now that you know how bad of  person my son was born to, can we get back to the topic at hand?

Which is the woman at the JP's office tried to talk us out of filing the answer, and refusing to provide copies to my son of the answer he insisted she file.

I’m sure @texasrockerwill be along and can offer an opinion on that person’s actions.

The clerk of court and those who work in the clerk’s office are not supposed to provide legal advice.  It seems to me that she crossed the line.  I don’t see how she could try to prevent you from filing an answer. 

[Harry Seaward]

You never actually explained why it couldn't be ID theft, and still leave me with the impression that you think it was the son's mother. Which is ID theft. But whatever. I won't try to make you be interested in going down that road.

As far as dealing with the clerks, I've found it's much more effective 'pretending' like they know more than me and asking lots of questions that actually lead them to give me the answer i already know to be true. But this technique requires a lot of patience and humility, even if you have to swallow your pride for a few minutes to fake it. 

Otherwise, your only other recourse for dealing with an obstinate elected official is to sue them for injunctive relief or, if available, file a special action against them in one of your appellate courts. 

[janebetts]

1 minute ago, Harry Seaward said:

You never actually explained why it couldn't be ID theft, and still leave me with the impression that you think it was the son's mother. 

Is there a chance it's her? Possibly, no matter how slim that chance is. 

 

Is it likely? We do not believe so, as she's now been married/lived with half a dozen others that she moved on to. She is a creature of ease of access, and once the usefulness of someone is degraded in her eyes, she moves on.

 

In other words...at the time this card account was allegedly opened, she was already three or four new victims deep in her scams. And yes, she followed the same path with them.

[janebetts]

8 minutes ago, Harry Seaward said:

 

As far as dealing with the clerks, I've found it's much more effective 'pretending' like they know more than me and asking lots of questions that actually lead them to give me the answer i already know to be true. But this technique requires a lot of patience and humility, even if you have to swallow your pride for a few minutes to fake it. 

 

We played dumb, and polite. We asked all the questions any reasonable human wouldn't need to ask, we complimented, etc.

She seemed put out by having to get off the phone to handle our intrusion, if truth be known.

But...you be nice, because even if they aren't supposed to, we all know that clerks and judges discuss cases, and the people involved in them.

[Harry Seaward]

Okay, so you don't think it's mom, but you don't think it's your husband's or son's and you don't think it's ID theft. Do you have a plausible theory about this account? Because, unless the plaintiff's records are in complete shambles, the court will have no choice but to find that this is your son's account.