Yet Another Texan Being Sued by PRA

[Impress]

Hi all,

 

As the title says, I'm another Texan being sued by PRA.  Been doing reading on this site but could still use help.  Here's my info.  I've also attached a copy of the paperwork I received.  Thanks in advance.  

 

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 Strum

3. How much are you being sued for? $1,492.65

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

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) Notice on Door

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? mail from them, nothing from me.

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) September 2016

11. When did you open the account (looking to establish what card agreement may be applicable)? May 2014

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).

Here is the case summary as of 01/07

Style of Case:Portfolio Recovery Associates, LLC vs

Filed Date:December 14, 2018
Days Old: 24
Case Status:Active

Civil Information

Nature of Claim:Debt Claim
Claim Amount: $1,492.65

Party Information

Party Name: Portfolio Recovery Associates, LLC
Party Type: Plaintiff

Party Name: Lockhart, Jesse
Party Type: Attorney

Event Information

Event Description: Original Petition - Efile
Date Added: December 14, 2018

Event Description: Original Petition Filed
Date Added: December 14, 2018

Event Description: Citation
Date Added: December 27, 2018

Event Description: Debt Claim-Citation
Date Added: December 27, 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? 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

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    Copy of summons attached.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

18.  How did you find out about this site? Bing search

Citation.pdf

[Impress]

Hi all

So I filed my answer to this, copying and pasting another response, but amending as needed for my case.  However, in my haste to get this answered, I neglected to add anything about arbitration.  So my question is, can I amend my answer to this so that I can seek arbitration?  If so, how would I format that? 

If amending and seeking arbitration isn't the answer, could someone please help me with how to format a request for discovery?

I know this is something I should have done months ago but...well I'm not making any excuses.  Just learning from my mistakes and trying to get this taken care of. 

Thanks. 

[cjtx2]

I think the service was bogus because it has to be hand delivered, not just left at your front door, but you already made an appearance when you filed your answer, so you subjected yourself to the court's jurisdiction.

Instead of amending your answer, you file a "Motion to Compel Arbitration". I do not know if your OC agreement includes an arbitration clause, but assuming it does, you usually say something like: "Defendant's agreement with Webbank includes an arbitration clause. Defendant moves to compel arbitration and abate or dismiss this case pending arbitration resolution."

If your motion is granted, you do not have to pursue discovery in court, it has to go through arbitration. You can invoke arbitration at any time, so you could deal with discovery first and then file your motion to compel.

Are you being sued in a JP or county court?

[texasrocker]

1 hour ago, cjtx2 said:

I think the service was bogus because it has to be hand delivered, not just left at your front door

Please read, learn, and understand the Texas Rules of Civil Procedure before you try to instruct anyone.  http://www.txcourts.gov/media/1055394/trcp-20150901.pdf

I just corrected you in another thread regarding this subject and will paste it here for this OP also-  It actually could be acceptable according to the TRCP 106 (b2) but is very uncommon.  " ...the court may authorize service in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit."  and in the "new" JP court rules 501.4(5) "A copy may be delivered in any other manner directed by the court."

 

1 hour ago, cjtx2 said:

You can invoke arbitration at any time, so you could deal with discovery first and then file your motion to compel.

This too is incorrect.  If you have already begun discovery it could render arbitration null and void.

@fisthardcheese

[cjtx2]

21 minutes ago, texasrocker said:

Please read, learn, and understand the Texas Rules of Civil Procedure before you try to instruct anyone.  http://www.txcourts.gov/media/1055394/trcp-20150901.pdf

I just corrected you in another thread regarding this subject and will paste it here for this OP also-  It actually could be acceptable according to the TRCP 106 (b2) but is very uncommon.  " ...the court may authorize service in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit."  and in the "new" JP court rules 501.4(5) "A copy may be delivered in any other manner directed by the court."

 

This too is incorrect.  If you have already begun discovery it could render arbitration null and void.

@fisthardcheese

Thank you for the quote, but you do not understand TRCP. The judge must authorize alternative service methods, like service by publication, etc. Without a valid order prior to service, service must be hand delivered.

Public policy favors arbitration, and although if the case is too advanced, the court may assume you waived your right, this is the exception and not the rule, and most courts would err on the side of caution and grant arbitration.

 

[Harry Seaward]

17 minutes ago, cjtx2 said:

The judge must authorize alternative service methods

How do you know this didn't happen?

But really, more to the point, best case in your scenario is a defendant must ignore the complaint, risk default judgment on a chance the process server violated court rules, petitions the court to set aside judgment for defective service, the court agrees and then the plaintiff just refiles the lawsuit and conducts proper service the second time around.  Seems like a huge risk to take for no gain.

[cjtx2]

Just now, Harry Seaward said:

How do you know this didn't happen?

I do not know for sure, but I can tell with a 99.9% confidence.

Because in order to justify an alternative service method, the process server must show the court that they attempted to effect service in good faith multiple times and show that the person is either hiding or somehow illegally avoiding service. This can be a very hard burden of proof and most of the times it just does not happen.  A person may not be at their residence because of work travel, vacation, odd work hours, spends most time elsewhere with a partner or family, or many other valid, legal reasons.

I have personal experience with PRA, and they used a private process server who taped a notice on the door. I checked the court records and there is no order authorizing alternative service. 

[Harry Seaward]

31 minutes ago, cjtx2 said:

A person may not be at their residence because of work travel, vacation, odd work hours, spends most time elsewhere with a partner or family, or many other valid, legal reasons.

This is exactly why alternative service exists.

 

[cjtx2]

10 minutes ago, Harry Seaward said:

This is exactly why alternative service exists.

 

True. However, statistically, very few process servers ever apply for it and even less judges grant it because it is hard to convince them that there were multiple, good faith attempts to serve. 

[Harry Seaward]

3 minutes ago, cjtx2 said:

very few process servers ever apply for it and

Process servers never apply for it. Plaintiffs do. 

4 minutes ago, cjtx2 said:

even less judges grant it because it is hard to convince them that there were multiple, good faith attempts to serve.

All that's required is an affidavit that traditional service was unsuccessful, and nothing at all about "good faith" or "multiple attempts". If no one is there to controvert sworn testimony (of course there won't be), a judge has no choice but to grant the motion for alternative service.

[cjtx2]

1 minute ago, Harry Seaward said:

Process servers never apply for it. Plaintiffs do. 

All that's required is an affidavit that traditional service was unsuccessful, and nothing at all about "good faith" or "multiple attempts". If no one is there to controvert sworn testimony (of course there won't be), a judge has no choice but to grant the motion for alternative service.

An affidavit by the process server... that must state what he tried, address, date, time, etc.

If it were as easy as you imply, everybody would apply for alternative service and avoid real legwork.

[texasrocker]

11 hours ago, cjtx2 said:

Thank you for the quote, but you do not understand TRCP. The judge must authorize alternative service methods, like service by publication, etc. Without a valid order prior to service, service must be hand delivered.

How does this constitute me not understanding the TRCP?  I  posted word-for-word exactly what the rules say and you merely posted your interpretation of it as if to argue that I had posted an erroneous interpretation.        

[Harry Seaward]

8 hours ago, cjtx2 said:

An affidavit by the process server... that must state what he tried, address, date, time, etc.

Yeah, because these details would be impossible to have on a boilerplate form that they have notarized 100 at a time. (<--- sarcasm) 

8 hours ago, cjtx2 said:

If it were as easy as you imply, everybody would apply for alternative service and avoid real legwork.

They have to try traditional service first. If that's unsuccessful, they opt for alternative service. I don't get where you think there is some kind of mysterious force that prevents them from requesting alternative service. It happens all the time and if you read the rules, you'll know it's exactly as easy as I'm saying. 

What happens far more often is the process server will lie about personal service, which is much easier and way more productive than alternative service. But that wasn't the argument you were making. 

[cjtx2]

3 hours ago, Harry Seaward said:

They have to try traditional service first. If that's unsuccessful, they opt for alternative service. I don't get where you think there is some kind of mysterious force that prevents them from requesting alternative service. It happens all the time and if you read the rules, you'll know it's exactly as easy as I'm saying. 

What happens far more often is the process server will lie about personal service, which is much easier and way more productive than alternative service. But that wasn't the argument you were making. 

The application process is not difficult, but just because they ask for it does not guarantee it will be approved. The judge has discretion and he is in no way obligated to grant alternative service on the word of a shady process server.

As you mentioned, rather than risk a denial on the record that would guarantee a dismissal for want of service, they rather lie about personal service.

[cjtx2]

14 hours ago, texasrocker said:

Please read, learn, and understand the Texas Rules of Civil Procedure before you try to instruct anyone.  http://www.txcourts.gov/media/1055394/trcp-20150901.pdf

I just corrected you in another thread regarding this subject and will paste it here for this OP also-  It actually could be acceptable according to the TRCP 106 (b2) but is very uncommon.  " ...the court may authorize service in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit."  and in the "new" JP court rules 501.4(5) "A copy may be delivered in any other manner directed by the court."

 

 

3 hours ago, texasrocker said:

How does this constitute me not understanding the TRCP?  I  posted word-for-word exactly what the rules say and you merely posted your interpretation of it as if to argue that I had posted an erroneous interpretation.        

1) The court may or may not authorize alternative service. There is no abuse of discretion for denying it.

2) The authorization is not retroactive. So if the process server comes and claims he taped a summons to the door, published it on a newspaper, or conducted any other form of alternative service, without the court's prior approval, the service is defective and the court does not have the power to authorize it retroactively.

3) You are aware that alternative service is very uncommon. Most process servers lie about personal service in order to avoid risking a denial of alternative service that would guarantee a dismissal for lack of service.

[texasrocker]

4 hours ago, cjtx2 said:

 

1) The court may or may not authorize alternative service. There is no abuse of discretion for denying it.

2) The authorization is not retroactive. So if the process server comes and claims he taped a summons to the door, published it on a newspaper, or conducted any other form of alternative service, without the court's prior approval, the service is defective and the court does not have the power to authorize it retroactively.

3) You are aware that alternative service is very uncommon. Most process servers lie about personal service in order to avoid risking a denial of alternative service that would guarantee a dismissal for lack of service.

Again, how does any of this constitute me not understanding the TRCP?

I never mentioned service being or not being retroactive or anything else besides precisely what the rule says.  

Where are you getting your information of “most process servers lie about personal service...”? The vast majority of process servers indeed do serve in person.

Edit: To correct myself  I did say one thing besides posting the rule itself - "but it is very uncommon" and I base that on all of the Texas cases I have been involved with during the past seven years that I have been on this board.  

[Harry Seaward]

3 hours ago, cjtx2 said:

The judge has discretion

No he does not. Read the rule. 

[Goody_Ouchless]

Since the purpose of service to inform defendant of case, and defendant has been informed, hasn't the system worked as intended?

[Harry Seaward]

2 hours ago, cjtx2 said:

Most process servers lie about personal service

Yeah, this is completely false. Some do, but a very very small number relatively speaking. 

[Impress]

22 hours ago, cjtx2 said:

I think the service was bogus because it has to be hand delivered, not just left at your front door, but you already made an appearance when you filed your answer, so you subjected yourself to the court's jurisdiction.

Instead of amending your answer, you file a "Motion to Compel Arbitration". I do not know if your OC agreement includes an arbitration clause, but assuming it does, you usually say something like: "Defendant's agreement with Webbank includes an arbitration clause. Defendant moves to compel arbitration and abate or dismiss this case pending arbitration resolution."

If your motion is granted, you do not have to pursue discovery in court, it has to go through arbitration. You can invoke arbitration at any time, so you could deal with discovery first and then file your motion to compel.

Are you being sued in a JP or county court?

Being sued in JP court so I know I have to seek permission to do discovery.

 

20 hours ago, texasrocker said:

This too is incorrect.  If you have already begun discovery it could render arbitration null and void.

@fisthardcheese

As long as I nor the other party have requested discovery, it should be fine to ask for arbitration then, right? 

 

Thanks everyone for the posts.  I didn't mean to start an intense discussion. 

[Clydesmom]

12 minutes ago, Impress said:

As long as I nor the other party have requested discovery, it should be fine to ask for arbitration then, right?

As long as you haven't asked for discovery it shouldn't hurt your seeking arbitration. The reason to MTC arbitration first is because there are court rulings that by engaging or participating in the litigation process you waive your right to arbitration.  Asking for discovery would be participating in the trial process.  Go ahead and submit your MTC arbitration to the Justice Court.

[cjtx2]

4 hours ago, Harry Seaward said:

No he does not. Read the rule. 

Quote

TRCP 106(b) Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service (emphasis added)

(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or 

(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.

If there was no discretion, the rule would say "the court must authorize service".

[cjtx2]

1 hour ago, Impress said:

As long as I nor the other party have requested discovery, it should be fine to ask for arbitration then, right? 

The court may assume you waived your right to arbitration if you wait until trial day to try to compel arbitration.

However, it is possible that after you request discovery and you get a copy of the agreement and you realize you have a right to compel arbitration, so the court must allow it (there is no discretion) or face a reversible error.

[cjtx2]

6 hours ago, texasrocker said:

Where are you getting your information of “most process servers lie about personal service...”? The vast majority of process servers indeed do serve in person.

Edit: To correct myself  I did say one thing besides posting the rule itself - "but it is very uncommon" and I base that on all of the Texas cases I have been involved with during the past seven years that I have been on this board.  

Your statement is inaccurate.

Statistically, most debt collection cases are won by default judgment. Just look at any court's docket. Usually, the affidavit alleging personal service is not controverted because the debtor is ashamed, thinks there is no defense or is just too scared to go to court. 

Do you really think all default judgments happen after personal service as stated in the affidavits presented to the courts? It is much easier to lie about personal service because the chances of getting caught are extremely low. It's the cost of doing business and for them the rule is basically meaningless.

[texasrocker]

2 hours ago, cjtx2 said:

 

Your statement is inaccurate.

Statistically, most debt collection cases are won by default judgment. Just look at any court's docket. Usually, the affidavit alleging personal service is not controverted because the debtor is ashamed, thinks there is no defense or is just too scared to go to court. 

Do you really think all default judgments happen after personal service as stated in the affidavits presented to the courts? It is much easier to lie about personal service because the chances of getting caught are extremely low. It's the cost of doing business and for them the rule is basically meaningless.

If my statement is inaccurate then show me something more solid than just your opinion and your gross misinterpretation of the rules I posted such as another rule that could override them or a precedent or at the very least a link to an article that you read somewhere.    

I have stayed on the verge of biting my tongue and have tried to be reasonable with you but your ramblings are getting more and more ridiculous.  You can harbor any opinion you wish to but purporting such advice as credible to someone who has just come here for the first time with absolutely no knowledge of how to handle their case is not acceptable. 

Yes, there is a remote possibility that a process server could lie about something but in seven years on this board there is no doubt that I would have seen it if it were even a tiny fraction as commonplace as you want anyone to believe.   It is so highly unlikely in Texas because it is handled by the court not someone under the direction of the JDB that filed the lawsuit.  Service is performed by a constable or  a certified process server who has paid for and completed a civil process service educational course, passed a criminal background check from the DPS and FBI, and finally had their fingerprints submitted to the Judicial Branch Certification Commission.  They are subject to strict regulation and must be re-certified every two years.