lowes

PRA in New Mexico - Help with Answer & MTC

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I tried my best to search threads with similar cases but the more I read the more overwhelmed I get.

I have learned a lot and the arbitration route I should try and go, but I have a few questions of my own, as well as things I would like to confirm. I really don’t want to mess this up. I don’t know how different New Mexico laws are regarding this compared to the other cases I’ve read like from Texas and Georgia.


 

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.) Machol & Johannes LLLP

3. How much are you being sued for? $3,803.04

4. Who is the original creditor? (if not the Plaintiff): CITIBANK, N.A.

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

6. How were you served? (Mail, In person, Notice on door): In person to my roommate. I was not home.

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? State of New Mexico. County of Socorro.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations): According to them my last payment was September 6, 2016.

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? 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.

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? I have 30 days from the date I was served. According to the summons the date I am considered served is determined by Rule 1-004 NMRA. They gave this to my roommate on April 9, 2019 and I received it that evening. However, the summons is dated March 26, 2019. I did not receive a questionnaire.
The only claim I see that they mention is "FIRST CLAIM OF RELIEF (Breach of Contract)" which says I entered an Agreement with CITIBANK, N.A., and they fulfilled it. On November 7, 2016 balance came due and/or charged off due to my failure to tender payment as agreed, the account was assigned and/or sold to PRA, and plaintiff demands judgement in the amount of $3,803.04 plus court costs and such further relief as the court deems proper.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They included an affidavit, bill of sale and assignment, one statement from citi, and a card agreement.

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


 

Regarding filing my written response,
I couldn’t find anything on my court’s website about rules on how to answer a complaint. I did find an Answer to Complaint form on the site that I’m planning to fill out, but I don’t exactly know what I should agree and deny. I’ve read to deny everything and I’ve read to deny everything but your name; should I deny everything except the first statement that states my name, address, and last 2 digits of my ssn? It makes the most sense.

Are there any consequences in me denying anything?

They say the balance came due and/or the account was charged off on or around November 7, 2016. However, the bank statement they provide states that the payment due date is 12/03/16. Can banks charge off an account before the due date of that last statement? Is this something I should point out in my answer? Maybe in section 3 of the form “I am without sufficient information or knowledge…” or should I just include it with the rest of my denials?

There’s a section on the Answer to Complaint form that says 
WHEREFORE, Defendant respectfully request that the Court:

  1. Dismiss the Complaint, or in the alternative;

  2. Set the matter for a hearing;

  3. ___________________________________________, and;

  4. Any other equitable relief that the Court deems appropriate.

What am I supposed to fill out on C?

 

 

Regarding filing my Answer and MTC,
I’m reading that I should file a Motion to Compel Arbitration WITH my Answer. Is that still a wise choice?

Is it ok for me to edit a form taken from the court’s website to add a “Affirmative Defense” section? Is there a sample of this section that I could reference? For the affidavit that needs to be filed along with my MTC, can I reference the card agreement that the lawsuit provided or would this go against my denying everything? I don’t believe I have the original card agreement anymore.

 

Regarding arbitration,
The summons says district court and not small claims court, so I should be able to file an arbitration, right?

It says on the card agreement whoever files the arbitration pays. Does that still mean that the max I would have to pay is $250 and PRA still might have to pay $5,000?


 

I apologize for any repetitive or similar questions and I really appreciate any help I receive. Thank you.

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I've been working on my Answer and MTC and I just realized, could they argue that I'm in small claims court? Citi's card agreement states that claims filed in small claims court are not subject to arbitration so long as the matter remains in such court and advances only an individual Claim. I was looking for case laws to include in my MTC and I found https://law.justia.com/cases/new-mexico/supreme-court/2016/35-101.html that has arbitration involved. In this case it states "that small claims actions are those in which the value of the claim does not exceed $10,000". However, when I was looking at a Overview of which court is which ( https://www.nmcourts.gov/Language-Access-Services/overview.aspx ) on the New Mexico Courts site it lists the Magistrate Court for "Contract (including landlord-tenant), tort and real property rights ($0-10,000) cases" but I'm almost positive I'm being sued in District Court. So now I'm confused.

Is my motion to compel arbitration pointless?

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Are you actually in small claims court?  The case file should clearly indicate that.  Note that in some states, JDBs can't use small claims court.  If in doubt, call the court clerk and ask.

Don't be confused with jurisdictional (money) limits.  It's not in small claims court unless your case specifically says it is.

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@lowes did you mean to black out your original post? 

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I tried my best to find a case law in my state but the ones I found that involved arbitration just didn't make any sense to me and I wasn't sure if it would even help my case. Maybe I'm not searching properly.. I moved on anyway and finished my Answer and MTC and I've attached the redacted versions. I was hoping the people here could look over it and make sure it looks ok to send? I would really appreciate it!!
I'm a little worried though, what are the chances the Court will deny my motion? 

redacted_ PRA Lawsuit Answer to Complaint.pdf redacted_ PRA MTC.pdf

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You never know what a court will do.  But, that said, the law favoring arbitration is very strong.  The US Supreme Court has decided that arb clauses are to be honored.  So a judge denying your MTC would be risking a certain reversal on appeal.  It should be granted.

Looking at your MTC, I think it would help if you could find some New Mexico statute and case law supporting arb.  

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I couldn't find any case laws supporting arbitration in New Mexico. I tried asking for help here but no luck... :(
So I just added a New Mexico statute that had to do with motion to compel arbitration.

 

  1. NM Stat § 44-7A-8 Motion to compel or stay arbitration states:

    1. On motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:

      1. If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and

      2. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

    2. On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

    3. If the court finds that there is no enforceable agreement, it may not pursuant to Subsection (a) or (b) order the parties to arbitrate.

    4. The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

    5. If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section must be made in that court. Otherwise, a motion under this section may be made in any court as provided in Section 28 [44-7A-28 NMSA 1978].

    6. If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

    7. If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

 

I included the whole statute, but I'm not sure if this is a wise decision and whether or not it will hurt my MTC.

Should I remove some of the statements or is this ok?

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On 4/24/2019 at 5:36 PM, lowes said:

NM Stat § 44-7A-8 Motion to compel or stay arbitration states:

This essentially mirrors the FAA's arbitration rules.  Well done finding this on your own.  No harm done in citing the whole thing in your MTC.

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I may have made a mistake.
When I sent my Answer and MTC, I sent out JAM's Demand for Arbitration form as an exhibit for my MTC to show that I elected arbitration with JAMS before the judge even granted my MTC. Is this going to screw me over?

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I'm getting a little worried now. I haven't heard anything from PRA or the court.
Was I supposed to do anything after I sent my Answer and MTC? I filed and mailed my copies on May 8th.

If PRA doesn't respond does that mean the judge will grant my MTC?
Should I start working on a MTD?
I'm so anxious and don't know what to expect now.

@nobk4me @Harry Seaward I hope it's ok if I tag you. You two are the only ones who have replied and helped so far. I really do appreciate it.

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8 hours ago, lowes said:

Was I supposed to do anything after I sent my Answer and MTC?

No.

8 hours ago, lowes said:

I filed and mailed my copies on May 8th.

Most courts give the other side 20-30 days to respond, and then usually rule within in 2-3 weeks after that.  Sometimes they take 2-3 months.  Have you looked to see if PRA has filed an objection to your MTC?

8 hours ago, lowes said:

If PRA doesn't respond does that mean the judge will grant my MTC?

Usually, but not necessarily.

8 hours ago, lowes said:

Should I start working on a MTD?

No.  A MTD is not proper in this situation.  Just be patient and wait to hear something from the court.

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37 minutes ago, Harry Seaward said:

 

Most courts give the other side 20-30 days to respond, and then usually rule within in 2-3 weeks after that.  Sometimes they take 2-3 months.  Have you looked to see if PRA has filed an objection to your MTC?

 

 

I've checked to see if there have been any changes to my case using my court's case lookup but nothing has changed so far. So they haven't filed an objection yet. The weird thing is, I saw that I missed a call from them (PRA's attorney) yesterday. No voicemail or anything just a single missed call.

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On 6/4/2019 at 1:23 AM, lowes said:

If PRA doesn't respond does that mean the judge will grant my MTC?

That should happen. but sometimes doesn't.  But, if there is a hearing on your motion, I would stress this point, that you filed a motion, the plaintiff failed to respond to it, and therefore, the motion should be granted by default.  

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