PRA Lawsuit in Texas. In Desperate Need of Help.

[TexasNanny]

I am in a mess and need help please. I am a single grandmother and I've had posession of my grandchild for over a year now. She is six, nonverbal and autistic. For the past few months I have been persuing custody of my grandchild due to her parents drug addiction. I don't have the money for a lawyer and CPS dumped everything in my lap to handle alone and told me to file for custody so without any help  I am attacking this pro se. This is my grandbaby and I am doing what I have to do for her. That being said this is a horrible time to be sued, not that there is ever a good time. I was served on 02/22/19 and I am terrified to be dealing with two seperate court cases pro se at the same time. I have read the forums for many hours the past couple of days and it seems the more I read, the more confused I get. I would greatly appreciate any help and advice I can get. I know already that I am judgement proof in Texas due to my income being Social Security Disability and SSI. I live off less than 800.00 a month and I don't have money for legal fees. I know PRA could care less about my situation but this is the best place I have found on the internet for help. Thank you for even taking the time to read this.

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  (Attorney listed is Jesse Dow Lockhart)

3. How much are you being sued for?

7251.80 plus court cost, interest, and attorney's fees. 

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

Synchrony Bank (Wal-Mart)

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

Served at Residence

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?

Rains County, Texas

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

December 2016

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

October 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? 

 Served

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?

14 days (March 8, 2019) I'm not sure since it was after 5 pm on Friday if I would have until the following Monday.

Did you receive an interrogatory (questionnaire) regarding the lawsuit?  NO

17. What evidence did they send with the summons?

None. Served with Original Petition only.

18.  How did you find out about this site?

Internet search.

 

 

 

[texasrocker]

@fisthardcheese 

 

[BV80]

@TexasNanny

Please be patient.   Sundays are sometimes slow on the boards.  

Synchrony’s cardmember agreement contains a great arbitration provision.  Debt buyers do not like arbitration and will usually dismiss the lawsuit once the court grants a defendant’s motion to compel arbitration.

Please read the following thread. 

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

[TexasNanny]

Thank you for responding. I will try to stay calm and not be freaking out. I will read over the link you sent me. I greatly appreciate it. 

[BackFromTheDebt]

There have been a number of threads on this forum about people being sued in Texas by Rausch.

Do a little digging and you can see what they did.

In the meantime, look at the arbitration links.

[TexasNanny]

@fisthardcheese

I have spent almost every waking hour reading through all the information I can. I am in the process of typing my paperwork and filing an answer WITH a Motion to Compel Arbitration (MTC) and Proposed Order. I will include a copy of the Syncrony CC agreement and nortorized affidavid. 

I realized I must send a copy of all this to the lawyer and I have read in a couple of posts that an Arbitration Request Ltr is sent to Plaintiff. I have searched and have not found what needs to be included in an arbitration request letter to Plantiff. Does anyone have any suggestions or where I can find this information? I have searched for a few days and come up with nothing yet. 

 

[TexasNanny]

Here is the Answer I hope will work. Feedback is greatly appreciated. Also, do I need to sign the Answer or just print my name, address and phone number? Thank you.

 

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. Affirmative Defense

“Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”.

III. PRAYER

WHEREFORE, Defendant prays that the Court dismiss any and all relief sought by Plaintiff, and any and other just an equitable relief this Court deems appropriate.  Defendant respectfully requests that this Court order this case to private contractual arbitration per the credit agreement in this action.

 

(Your name, address and phone number)

 

 

[Goody_Ouchless]

A simpler approach might be contacting PRA to inquire about a hardship waiver. Other creditors and debt buyers are realistic and have policies in place to not harass people in your situation, especially when there's no money for them ever to collect.

 

[TexasNanny]

Thank you, I didn't know that was even an option. Would you suggest I contact PRA directly or the lawyer they have assigned to my case?

[Goody_Ouchless]

Probably start with the lawyer, and then try PRA if lawyer is no help  - I think they'll just want some proof and they should go away. 

[TexasNanny]

I will get on that today and hope for the best but keep preparing for the worst. Thank you so much for your help. 

[Goody_Ouchless]

Good luck. Yes - try reaching out. If they are jerks, you can always beat them with arbitration, but it's better if they just drop the whole thing.

[TexasNanny]

I have been working on my answer and MTC. I have changed up my answer a little but will post that for suggestions soon. I have looked over my Synchrony agreement which offers JAMS or AAA. I have found many on the forum who suggest JAMS and others AAA. I am not sure which one would be best since many of the threads are older. Which one would be more in my favor to win? I don't remember getting anything from Portfolio Recovery through mail or phone calls prior to them filing suit. I don't know what I have to fight with. I just know I don't have the money to settle.

Also, I have put the text in red of a portion that I don't fully understand and would greatly appreciate some clarity.

#2 talks about small claims court and if I understand it correctly it follows through in #3 by meaning that I can ask for arbitration? 

On #4, to me, what I get of the reading is they will pay the cost of arbitration IF I win. 

Time is not on my side, I must get this finished this weekend if at all possible. ?

Synchrony Bank Agreement/Wal-Mart Mastercard

What claims are subject to arbitration
1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affliates, agents and/or Wal-Mart Stores, Inc. if it relates to your account, except as noted below.

2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

• How to start an arbitration, and the arbitration process
1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers fled in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION  DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, (800) 352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.

2. If a party fles a lawsuit in court asserting claim(s) that are subject to arbitration and the other party fles a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.

4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on  claims you assert against us in an arbitration proceeding which you have commenced. 

• Governing Law for Arbitration
This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.

[TexasNanny]

Is there anyone out there who could help with my questions? I feel I am at a stand still. I have so many open tabs on my browser trying to clerify the answer my head is spinning. 

[fisthardcheese]

On 2/27/2019 at 5:37 PM, TexasNanny said:

Here is the Answer I hope will work. Feedback is greatly appreciated. Also, do I need to sign the Answer or just print my name, address and phone number? Thank you.

 

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. Affirmative Defense

“Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”.

III. PRAYER

WHEREFORE, Defendant prays that the Court dismiss any and all relief sought by Plaintiff, and any and other just an equitable relief this Court deems appropriate.  Defendant respectfully requests that this Court order this case to private contractual arbitration per the credit agreement in this action.

 

(Your name, address and phone number)

 

 

This answer looks fine to me.

On 2/27/2019 at 5:33 PM, TexasNanny said:

I have read in a couple of posts that an Arbitration Request Ltr is sent to Plaintiff

In most cases, I disagree with sending this letter.  I am pretty sure it is not required by TX law and your card agreement clearly states it is not required if a lawsuit has been filed.  Sending copies of your MTC that you are filing in court IS a notice of arbitration letter in and of itself.  Don't worry about adding extra steps.

On 3/1/2019 at 9:29 PM, TexasNanny said:

2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

You skipped over the key element in #2.  "We will not REQUIRE YOU".  Since you are not being required, but rather you are CHOOSING arbitration, the remaining portion of that paragraph is moot.

On 3/1/2019 at 9:29 PM, TexasNanny said:

4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on  claims you assert against us in an arbitration proceeding which you have commenced. 

The only thing that matters here is this: "If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith".  You don't need to even worry about this until after the court grants your MTC and you are filing the arbitration case.  When you file the Demand form you will include a cover letter that says you have asked PRA to forward the consumer portion of the filing fee to AAA per the card agreement contract.

On 3/1/2019 at 9:29 PM, TexasNanny said:

I have found many on the forum who suggest JAMS and others AAA. I am not sure which one would be best since many of the threads are older. Which one would be more in my favor to win?

You win with both.  In this case, I suggest AAA because PRA is known to flee from arbitration quite quickly and AAA has an easy to use online filing page, so the other factors between them and JAMS don't matter much.

On 3/1/2019 at 9:29 PM, TexasNanny said:

Time is not on my side, I must get this finished this weekend if at all possible.

Your answer is ready to file and that is the ONLY thing you need to file by your deadline.  All of the arbitration stuff can wait a week or two or three if you need more time.  Just get your answer filed if you run close on time for the MTC.

[TexasNanny]

20 minutes ago, fisthardcheese said:

This answer looks fine to me.

In most cases, I disagree with sending this letter.  I am pretty sure it is not required by TX law and your card agreement clearly states it is not required if a lawsuit has been filed.  Sending copies of your MTC that you are filing in court IS a notice of arbitration letter in and of itself.  Don't worry about adding extra steps.

You skipped over the key element in #2.  "We will not REQUIRE YOU".  Since you are not being required, but rather you are CHOOSING arbitration, the remaining portion of that paragraph is moot.

The only thing that matters here is this: "If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith".  You don't need to even worry about this until after the court grants your MTC and you are filing the arbitration case.  When you file the Demand form you will include a cover letter that says you have asked PRA to forward the consumer portion of the filing fee to AAA per the card agreement contract.

You win with both.  In this case, I suggest AAA because PRA is known to flee from arbitration quite quickly and AAA has an easy to use online filing page, so the other factors between them and JAMS don't matter much.

Your answer is ready to file and that is the ONLY thing you need to file by your deadline.  All of the arbitration stuff can wait a week or two or three if you need more time.  Just get your answer filed if you run close on time for the MTC.

@fisthardcheese

Thank you so much for your help. I have been spending HOURS trying to write things I didn't need. I appreciate your help more than you could ever know. I hope I am posting this reply correctly, I'm still learning this forum. 

So in the SAMPLE MTC, I would delete line #2-. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached). correct?  Common sense says yes, but I have been way over thinking everything. 

[fisthardcheese]

16 hours ago, TexasNanny said:

@fisthardcheese

Thank you so much for your help. I have been spending HOURS trying to write things I didn't need. I appreciate your help more than you could ever know. I hope I am posting this reply correctly, I'm still learning this forum. 

So in the SAMPLE MTC, I would delete line #2-. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached). correct?  Common sense says yes, but I have been way over thinking everything. 

Correct.

[TexasNanny]

Hopefully I have CORRECTLY done my paperwork and it's ready to move to the next step. If you could look over them to make sure I have everything and it is correct and give feedback I would GREATLY appreciate it. 

I have:

#1 Answer with Certificate of Service

#2 MTC with Proposed Order

#3 Copy of Agreement with the Notarized Affidavit

 

DEFENDANT ORIGINAL ANSWER and Certificate of Service.pdf MTC and Proposed Order.pdf Synchrony Bank - Walmart MasterCard Account Agreement and Pricing Information.pdf AFFIDAVIT for credit card agreement.pdf

[TexasNanny]

I filed my Answer with Certificate of Service, MTC with Proposed Order attached, Agreement with notarized Affidavit. I sent everything to the attorney CRRR and they should get it tomorrow. Now time to wait and see where this goes. I want to thank everyone how took the time to help me get this figured out. I will update as I hear more. I want to stay active all the way through with this so hopefully my experiance can help someone else. A court date was set for the end of April, but if the MTC is granted I'm not sure if the court date will stay the same. I am in uncharted territory. Without giving anything away I have good reason to believe the MTC will be granted. 

[TexasNanny]

Update on my court date. For some reason the court date was set back a few weeks. I finally went to court on Tuesday and I was told they dropped the case the Friday before. The lawyer did not send me notification. They don’t like arbitration, that’s for sure. I will take the win. ❤️ Thanks everyone who helped me!

Also an update on the case with my granddaughter. May 10th I represented myself in court and won full custody of my granddaughter. ❤️ 

Edited May 21, 2019 by TexasNanny
Added information

[Debtguy393939]

Congrats on your win, what you are doing for your grandchild is admirable.

I will say you are very fortunate this went to a debt buyer. You essentially opened this card up, maxed it out, made a few payments then stopped paying, prior to the one year ago period your hardship began.  Hopefully no more credit cards and focusing on whats important with this win! Good luck to you in the future

[fisthardcheese]

9 hours ago, TexasNanny said:

Update on my court date. For some reason the court date was set back a few weeks. I finally went to court on Tuesday and I was told they dropped the case the Friday before. The lawyer did not send me notification. They don’t like arbitration, that’s for sure. I will take the win. ❤️ Thanks everyone who helped me!

Good job on seeing this through and getting them to drop the case!!

[TexasNanny]

17 hours ago, Debtguy393939 said:

Congrats on your win, what you are doing for your grandchild is admirable.

I will say you are very fortunate this went to a debt buyer. You essentially opened this card up, maxed it out, made a few payments then stopped paying, prior to the one year ago period your hardship began.  Hopefully no more credit cards and focusing on whats important with this win! Good luck to you in the future

Thank you. Also thank you for trying to point out to everyone, “You essentially opened this card up, maxed it out, made a few payments then stopped paying, prior to the one year ago period your hardship began.“ 

That might be how you see things, in black and white but you have no idea when the hardships actually began. People come here for help and not to be degraded and feel bad about themselves. My “hardship” began a year and a half before I started taking care of my granddaughter. I moved in with my mom to be a full time care giver for the last year and a half of her life. Do you honestly think I wanted a hit to my credit? The answer is absolutely not, but for my mother I would do it all over again  

Thank you for congratulating me but in the future please don’t try to congratulate someone and then criticize them in the same post, especially if you don’t know their situation. 

Have a great day!

[fisthardcheese]

14 hours ago, TexasNanny said:

Thank you. Also thank you for trying to point out to everyone, “You essentially opened this card up, maxed it out, made a few payments then stopped paying, prior to the one year ago period your hardship began.“ 

That might be how you see things, in black and white but you have no idea when the hardships actually began. People come here for help and not to be degraded and feel bad about themselves. My “hardship” began a year and a half before I started taking care of my granddaughter. I moved in with my mom to be a full time care giver for the last year and a half of her life. Do you honestly think I wanted a hit to my credit? The answer is absolutely not, but for my mother I would do it all over again  

Thank you for congratulating me but in the future please don’t try to congratulate someone and then criticize them in the same post, especially if you don’t know their situation. 

Have a great day!

Just let it slide off your shoulders and not take up your time.  Some people like to judge other people's lives without knowing anything about them.  Usually they tend to be former or current debt collectors who enjoy lecturing people around here for "being bad" financially.   You notice that this person offered no help with any laws, procedure or facts that led to you winning and improving your situation. They only have a "lesson" for you after the fact.  That should really tell you all you need to know.