misbhavn

Being Sued by OC (Conns)

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So it appears that a process server has tried to have me served at my ex-wife's. I called the guy and told him he's trying to serve me at an address that I haven't lived at in two years, but he stated I could only be served there. At any rate, I have found the cases (three of them totaling a little over $5k) at the JP courts online. It states online that requests for alternate service have been approved. At this point, should I just go down to the court and get copies of the summons? This in in Houston, TX.

Since this is an OC, I'm thinking arbitration may be my best chance. My hope is that they won't want to follow me into arbitration. The problem is that I don't know if there is an arbitration clause in the contract. Any advice on how I can find this information?

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Who is the OC?  If you have 3 cases are the all by the same OC?

I would just wait to be served, but keep an eye on the website just to make sure they don't claim they served you without having done so.  Since they have the wrong address, are they suing you in YOUR current county of residence or a different county?

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@fisthardcheese I have never tried arbitration, however I did get a JDB to dismiss for nonsuit with the help of @texasrockerThe OC for all 3 cases is Conn's Appliances. I no longer live there due to divorce, however, I do still live in the same county so venue is proper.

Being the OC, I would assume that they should have no problem coming up with the necessary documentation to prove their case. I did manage to dig up a couple of the contracts and there is an arbitration clause in there for either NAF or AAA. It does state that "This arbitration clause does not apply to any legal remedies that may be pursued to collect monies owed under the Agreement".

Does this mean that I cant claim arbitration as an affirmitive defense?

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3 hours ago, misbhavn said:

Does this mean that I cant claim arbitration as an affirmitive defense?

Unfortunately that is exactly what it means.  You will not be able to leverage arbitration since it is a debt collection suit and they have already filed.

3 hours ago, misbhavn said:

Being the OC, I would assume that they should have no problem coming up with the necessary documentation to prove their case.

Correct and they do not need a witness or affidavit to attest to their own records.

 

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9 hours ago, misbhavn said:

Does this mean that I cant claim arbitration as an affirmitive defense?

That would be for an arbitrator to decide after the Judge finds that a valid agreement exists and grants your Motion to Compel arbitration and then they pay the $5000 AAA fee to get started so they can object to arbitration being proper because of this clause, although once you start AAA, that would only then apply to their counter claim (if they bring it up) and not to any of the claims you may bring against them in the first place.

9 hours ago, misbhavn said:

The OC for all 3 cases is Conn's Appliances.

Are all of these accounts a store leasing type of deal or was it their actual credit card issued by Synchrony bank?

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1 hour ago, fisthardcheese said:

That would be for an arbitrator to decide after the Judge finds that a valid agreement exists and grants your Motion to Compel arbitration and then they pay the $5000 AAA fee to get started so they can object to arbitration being proper because of this clause, although once you start AAA, that would only then apply to their counter claim (if they bring it up) and not to any of the claims you may bring against them in the first place.

From the TX Supreme Court, the 5th Circuit Court of Appeals, and the U.S. Supreme Courr:

In general, a party seeking to compel arbitration under the FAA must establish that: (1) there is a valid arbitration agreement, and (2) the claims raised fall within that agreement's scope. In re FirstMerit Bank, 52 S.W.3d 749, 753 (Tex.2001).

The two-step framework for analyzing enforcement of arbitration agreements is well established: (1) "whether the parties entered into any arbitration agreement at all," and (2) "whether this claim is covered by the arbitration agreement." Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 201 (5th Cir. 2016).

Arbitration is strictly "a matter of consent” and thus "is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration.” Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 130 S.Ct. 2857 (2010).

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3 hours ago, fisthardcheese said:

Are all of these accounts a store leasing type of deal or was it their actual credit card issued by Synchrony bank?

It was not a lease. Conn's has their own in-house financing. It's not a revolving credit line and no card is issued.

 

I appreciate everyone's input regarding this matter. It seems the arbitration route may be a non-starter. What's my best course of action here?

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44 minutes ago, misbhavn said:

What's my best course of action here?

Texas is one of the most debtor friendly states.  They cannot garnish your wages or seize personal property.  The homestead exemption on a home is very generous.  About all they could do is levy a bank account.  

There really is no defense other than the SOL being expired (which  yours is not) or identity theft.   Arbitration against an OC is not to win but force a better settlement.  Your options are to settle the account(s) with them or defend the case.  If you lose have a plan to live un-banked for a while so that you don't wake up to find your account wiped out.

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Were these appliances purchased before the divorce? If so, what does the divorce decree say about debt. If it says nothing, I would offer them start at $1500 and that they can go after your ex for the rest. Be willing to go up as much as $2500 but not higher since your ex would be 1/2 responsible for this since Texas is a Community Property State.

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A copy of the complaint was delivered by mail yesterday. It states that usual 14 days to respond. My issue is I'm unsure how to calculate the time to respond. The order for alternative service was signed on 1/3/2019. If I use that date the deadline was 1/17/2019.

 

Should I expect any kind of settlement on this. If they can prove up their case what incentive would they have to agree to a settlement. I'm assuming I should just answer with a general denial to buy some time to reach some kind of agreement. Thoughts?

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Start now by reaching out and see what they'll do. They'll probably have a "take it or leave it" offer that you'll have to weight against your own situation. If you don't mind living with a judgement, as @Clydesmom said, they can't garnish wages. If you have the time and energy to fight what is likely a lost cause, you can play it out in court and maybe get lucky if they're a no-show and judge gets irate. We've had folks here with nothing but time on their hands that enjoyed the challenge. For other's it's not worth the stress.

 

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I spoke to the attorneys (Scott & Associates) representing the OC. They confirmed that the OC still owns the debt and that they are handling the legal part. The tab on all three cases is now running at about $5500 after some legal fees have been added. They are willing to offer a settlement, albeit not a large one. Any payment plans would require me to sign off on a judgement, which I really do not want to do. The problem is that I don't have the almost $4k it would take to settle. I can get the money to settle one of the smaller ones now but that's it.

I'm really at a loss as to what I should do. Obviously, I need to answer the first complaint, which I plan to do tomorrow. Should I claim the arbitration as an affirmative defense simply as a stall tactic?

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If it were me, I would file a Motion to Compel arbitration.  Until a judge tells me that arbitration is denied, it is always an option as far as I'm concerned.  It would be up to the other side to arguer otherwise.

I would also work on a back up plan, but in the meantime I go for arbitration.

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I would file the answer and request arbitration. Since this is an OC, if the judge orders it, they might follow you but it might buy you some time. In the meantime, review the divorce decree and find out who is responsible for this debt. If you ex is, you might have a suit against her to collect what was not paid (assuming you can collect from her, if you can't, that is why they are coming after you because they know they cannot collect either). If you are responsible, then you will have to deal with this.

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So I filed my answer today along with MTC Arbitration. I don't know how much time this will buy but it's a start I guess.

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There has been a little movement in the case. The judge denied my MTC arbitration because I forgot to include a certificate of service and has scheduled a pretrial conference. I plan to resubmit my corrected MTC. My question is should I change the title to Amended MTC arbitration or just resubmit with the same title?

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19 hours ago, misbhavn said:

The judge denied my MTC arbitration because I forgot to include a certificate of service and has scheduled a pretrial conference.

For clarification, did you serve a copy of the motion to the plaintiff via the attorney of record? If yes, how did you serve it? And all according to your Texas rules and/or court rules? You only failed to file the required sworn proof of service of the motion to the plaintiff with the court? 

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On 2/23/2019 at 11:28 AM, Brotherskeeper said:

For clarification, did you serve a copy of the motion to the plaintiff via the attorney of record? If yes, how did you serve it? And all according to your Texas rules and/or court rules? You only failed to file the required sworn proof of service of the motion to the plaintiff with the court? 

This is correct. I filed my answer, the MTC and an order for the judge to sign at the same time and served Plaintiff's attorney by mail. I just forgot to include certificate of service at the bottom of the MTC.

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On 2/22/2019 at 4:35 PM, misbhavn said:

There has been a little movement in the case. The judge denied my MTC arbitration because I forgot to include a certificate of service and has scheduled a pretrial conference. I plan to resubmit my corrected MTC. My question is should I change the title to Amended MTC arbitration or just resubmit with the same title?

 

On 2/23/2019 at 12:28 PM, Brotherskeeper said:

For clarification, did you serve a copy of the motion to the plaintiff via the attorney of record? If yes, how did you serve it? And all according to your Texas rules and/or court rules? You only failed to file the required sworn proof of service of the motion to the plaintiff with the court? 

 

23 minutes ago, misbhavn said:

This is correct. I filed my answer, the MTC and an order for the judge to sign at the same time and served Plaintiff's attorney by mail. I just forgot to include certificate of service at the bottom of the MTC.

@fisthardcheese @WhoCares1000 @texasrocker Do you know the best way to handle this? It appears the judge denied the MTC based on the OP's failure to include the certificate of service. 

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I would not have a clue on this one. You might be able to file a motion to reconsider and supply the certificate of service/ I am sure if the plaintiff made that error, the would be allowed to correct it. Beyond that, the other 2 might have a better idea.

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6 hours ago, Brotherskeeper said:

 

 

@fisthardcheese @WhoCares1000 @texasrocker Do you know the best way to handle this? It appears the judge denied the MTC based on the OP's failure to include the certificate of service. 

In Texas a judge has the right, and possibly even a duty, to deny a motion for this reason.  TRCP Rule 21(d)  Certificate of Service.  The party or attorney of record, must certify to the court compliance with this rule in writing over signature on the filed pleading, plea, motion, or application.

I would suggest filing an amended motion with the certificate of service included and title it "Defendant's Amended Motion to Compel..." and hope for the best.  Mistakes frequently happen in courts just like anywhere else and rectifying them is known as "curing a defect."  See: http://www.texasbarcle.com/Materials/Events/9199/130715_01.pdf  for some examples.

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2 hours ago, texasrocker said:

I would suggest filing an amended motion with the certificate of service included and title it "Defendant's Amended Motion to Compel..." and hope for the best.  Mistakes frequently happen in courts just like anywhere else and rectifying them is known as "curing a defect." 

@texasrocker Do you think it would help if @misbhavn drafted an affidavit to state that copies of the answer, the motion and proposed order were in fact sent to plaintiff via the attorney by whatever method it was sent, on the date it was sent, but that the attached true copy of the certificate of service was omitted in error when the papers were filed with the court? The defect was not that the plaintiff was not timely sent its copies, but that the proof of that service was not filed with the court. 

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6 hours ago, Brotherskeeper said:
 

@texasrocker Do you think it would help if @misbhavn drafted an affidavit to state that copies of the answer, the motion and proposed order were in fact sent to plaintiff via the attorney by whatever method it was sent, on the date it was sent, but that the attached true copy of the certificate of service was omitted in error when the papers were filed with the court? The defect was not that the plaintiff was not timely sent its copies, but that the proof of that service was not filed with the court. 

I would do this.  In my Amended MTC, I would add a couple paragraphs in the beginning that layout the timeline:

1. ON XX date, Plaintiff filed the complaint. 

2. On XX date, Defendant filed an answer and MTC. 

3. On XX date, This Court denied Defendant's MTC due to a bonafide error of not including the certificate of service with their motion. 

4. Plaintiff was served a true and correct copy of Defendant's MTC by first class mail on XX date, however, the Certificate of Service was left off the filing in error. (See Exhibit X) - Exhibit X will be your affidavit testifying that you did serve plaintiff on XX date by first class mail

5. Defendant submits this amended MTC as follows

6. --- Start your original MTC here.

INCLUDE A CERTIFICATE OF SERVICE PAGE with this ammended MTC to show you have served a copy of this Amended MTC to the plaintiff.

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Thanks for all of the input guys. One quick question...if I file an affidavit as exhibit "x" and reference it in my amended MTC, I assume that the affidavit should have exhibit "x" on it somewhere, correct?

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