hsakee

Being sued for $1200

Recommended Posts

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.) Rodenburg Law Firm

3. How much are you being sued for? $1,219.77

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

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) They delivered it to my dad who lives with me.

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? Scott, Minnesota.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Mid-late 2017.

11. When did you open the account (looking to establish what card agreement may be applicable)? Late 2016.

12. What is the SOL on the debt? 6 years.

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). They served me, but nothing has been filed with the court.

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').

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? 20 days, I'm down to 10.  They said "1, Prior to the commencement of this action the defendant owed $1,219.77 for credit on a Comenity Bank - Express account.  2. Said claim was assigned, for good consideration, to the plaintiff and the aforementioned balance remains due and owing.  WHEREFORE, plaintiff demands judgment against the defendant for the sum of $1,219.77, and costs to judgment."

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. - Nothing, they sent a Summons & Complaint with no attachments

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

Share this post


Link to post
Share on other sites

@hsakee Welcome. Here is a current Express Next card agreement's arbitration clause. We need to find one from 2017 when the account was last in good standing to compare. Have you read the pinned thread on arbitration by fisthardcheese? Doing so will give you an understanding of what the arbitration strategy is. 

 

 

EXPRESS NEXT Credit Card account, Comenity Bank

C. Arbitration provision

READ THIS PROVISION CAREFULLY.  IF YOU DO NOT REJECT IT IN ACCORDANCE WITH PARAGRAPH C.1. BELOW, IT WILL BE PART OF THIS AGREEMENT AND WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY YOU OR WE WILL RESOLVE ANY CLAIM YOU OR WE HAVE AGAINST EACH OTHER NOW OR IN THE FUTURE.

  1. Right to Reject:  If you don't want this Arbitration Provision (and any prior arbitration agreement between you and us ("Prior Arbitration Agreement")) to apply, you may reject it by mailing us a written rejection notice which gives your name and contains a statement that you (both of you, if more than one) reject the Arbitration Provision of this Agreement. The rejection notice must be sent to us at Comenity Bank, PO Box 182422, Columbus, Ohio 43218-2422. A rejection notice is only effective if it is signed by you (all of you, if more than one) and if we receive it within 30 calendar days after the date we first provide you with a credit card agreement or written notice providing you a right to reject this Arbitration Provision. Your rejection of this Arbitration Provision will not affect any other provision of this Agreement or your ability to obtain credit.
  2. Parties:   Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms "we," "us" and "our" mean (a) Comenity Bank and its successors and/or assigns, as well as any parent, subsidiary or affiliate of theirs and their employees, officers and directors (the "Bank Parties"); and (b) any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party.
  3. Covered Claims:   "Claim" means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program, and/or any prior agreement or account. "Claim" includes disputes arising from actions or omissions prior to the date any Card was issued to you, including the advertising related to, application for or approval of the Account. "Claim" has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). "Claim" does not include disputes about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, the prohibition against class proceedings, private attorney general proceedings and/or multiple party proceedings described in Paragraph C.7 ("Class Action Waiver"), Paragraph C.13 and/or this sentence); all such disputes are for a court and not an arbitrator to decide. 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.
  4. Starting an Arbitration:   Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state's equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration.
  5. Choosing the Administrator:   "Administrator" means the American Arbitration Association ("AAA"), 120 Broadway, 21st Floor, New York, NY 10271, www.adr.org ; JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com ; or any other company selected by mutual agreement of the parties. If both AAA and JAMS cannot or will not serve and the parties are unable to select an Administrator by mutual consent, the Administrator will be selected by a court. The arbitrator will be appointed by the Administrator in accordance with the rules of the Administrator. However, the arbitrator must be a retired or former judge or a lawyer with at least 10 years of experience. You get to select the Administrator if you give us written notice of your selection with your notice that you are electing to arbitrate any Claim or within 20 days after we give you notice that we are electing to arbitrate any Claim (or, if you dispute our right to require arbitration of the Claim, within 20 days after that dispute is finally resolved). If you do not select the Administrator on time, we may do it. Notwithstanding any language in this Arbitration Provision to the contrary, no arbitration may be administered, without the consent of all parties to the arbitration, by any Administrator that has in place a formal or informal policy that is inconsistent with the Class Action Waiver.
  6. Court and Jury Trials Prohibited; Other Limitations on Legal Rights: IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM. ALSO, YOUR ABILITY TO OBTAIN INFORMATION FROM US IS MORE LIMITED IN AN ARBITRATION THAN IN A LAWSUIT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
  7. Prohibition Against Certain Proceedings (Class Action Waiver):  IF YOU OR WE ELECT TO ARBITRATE A CLAIM: (1) NEITHER YOU NOR WE MAY PARTICIPATE IN A CLASS ACTION IN COURT OR IN CLASS-WIDE ARBITRATION, EITHER AS A PLAINTIFF, DEFENDANT OR CLASS MEMBER; (2) NEITHER YOU NOR WE MAY ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; (3) CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND (4) THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION.
  8. Location and Costs:   Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys' and experts' fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to.
  9. Governing Law:   This Arbitration Provision involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA"), and not by any state arbitration law. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. The arbitrator may award any remedy provided by the substantive law that would apply if the action were pending in court (including, without limitation, punitive damages, which shall be governed by the Constitutional standards employed by the courts). At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.
  10. Discovery:   In addition to the parties' rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request.
  11. Result and Appeals: Judgment upon the arbitrator's award may be entered by any court having jurisdiction. The arbitrator's decision is final and binding, except for any right of appeal provided by the FAA and/or the rules of the Administrator. Any finding, award or judgment from an arbitration of any Claim shall apply only to that arbitration. No finding, award or judgment from any other arbitration shall impact the arbitration of any Claim.
  12. Interpretation:   This Arbitration Provision shall survive the repayment of all amounts owed under this Agreement, the closing of the Account, any legal proceeding and any bankruptcy to the extent consistent with applicable bankruptcy law.  In the event of a conflict or inconsistency between this Arbitration Provision and the applicable arbitration rules or the other provisions of this Agreement, this Arbitration Provision shall govern. This Arbitration Provision replaces any Prior Arbitration Agreement.
  13. Severability: If any portion of this Arbitration Provision is held to be invalid or unenforceable, the remaining portions shall nevertheless remain in force, subject to two exceptions. First, if a determination is made that the Class Action Waiver is unenforceable, and that determination is not reversed on appeal, then the Arbitration Provision shall be void in its entirety. Second, if a court determines that a public injunctive relief Claim may proceed notwithstanding the Class Action Waiver, and that determination is not reversed on appeal, then the public injunctive relief Claim will be decided by a court, any individual Claims will be arbitrated and the parties will ask the court to stay the public injunctive relief Claim until the other Claims have been finally concluded.
  14. Special Payment:   If (1) you submit a Claim Notice in accordance with Paragraph B above on your own behalf (and not on behalf of any other party); (2) we refuse to provide you with the relief you request before an arbitrator is appointed; and (3) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $5,100 (plus any fees and costs to which you are entitled).

Share this post


Link to post
Share on other sites

@Brotherskeeper I absolutely get the concept, however, how do I get to this point?  I am supposed to serve them with an answer... I did find papers on the Minnesota court website.  Are those the papers I should be using?  What do I write?  

Share this post


Link to post
Share on other sites
3 hours ago, hsakee said:

@Brotherskeeper I absolutely get the concept, however, how do I get to this point?  I am supposed to serve them with an answer... I did find papers on the Minnesota court website.  Are those the papers I should be using?  What do I write?  

i, believe, that you can file MTC before answering the complaint pursuant to: Minnesota Civ. R. 12.02(a) lack of subject matter jurisdiction:  [ A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more defenses or objections in a responsive pleading or motion...]. 

Share this post


Link to post
Share on other sites

First off, is there a case number on the papers you were served? If not, they plaintiff is using pocket docket and you will need to send your answer to the plaintiff, not the court house. This needs to be done within 20 days from the day you were served. If there is a case number on the papers, then you file with the courts but be prepared to pay the court fees which might be quite high for $1200 case if they are using civil court rather than conciliatory court.

You indeed use the state form to file an answer and under affirmative defenses, you check "Lack of Jurisdiction" and in the reasoning part, you state that the contract contains an arbitration clause and that you elect to use arbitration. The arbitration clause has a small claims exemption but that is only if you sue. Again, see above as to where you send the form. If you have to file in the court, conciliatory court will be about $75 and civil court will be $0 if they used pocket docket (just make sure you send your answer to the plaintiff attorney using CMRRR postal method). If they ever do file in civil court, those fees are about $350. You have 20 days to prepare and file this with the appropriate person.

You then need to prepare a MTC arbitration. We can help you with that too. What I would do is take as long as possible to answer the summons and complaint and then a week later, either send the plaintiff attorney the MTC (if pocket docket) or file it with the court (if filed in court). I don't know the cost of filing a motion in conciliatory court but it is $175 in civil court. We will help you get further if need be.

Since the fees are so high, if you are in pocket docket, what I might do is once I send the MTC to the plaintiff attorney, I would offer them the $600 I would pay in court and arbitration fees as a settlement as long as they do not file in court (with the understanding that once they file, the deal is off).

  • Like 3

Share this post


Link to post
Share on other sites
3 hours ago, WhoCares1000 said:

First off, is there a case number on the papers you were served? If not, they plaintiff is using pocket docket and you will need to send your answer to the plaintiff, not the court house. This needs to be done within 20 days from the day you were served. If there is a case number on the papers, then you file with the courts but be prepared to pay the court fees which might be quite high for $1200 case if they are using civil court rather than conciliatory court.

You indeed use the state form to file an answer and under affirmative defenses, you check "Lack of Jurisdiction" and in the reasoning part, you state that the contract contains an arbitration clause and that you elect to use arbitration. The arbitration clause has a small claims exemption but that is only if you sue. Again, see above as to where you send the form. If you have to file in the court, conciliatory court will be about $75 and civil court will be $0 if they used pocket docket (just make sure you send your answer to the plaintiff attorney using CMRRR postal method). If they ever do file in civil court, those fees are about $350. You have 20 days to prepare and file this with the appropriate person.

You then need to prepare a MTC arbitration. We can help you with that too. What I would do is take as long as possible to answer the summons and complaint and then a week later, either send the plaintiff attorney the MTC (if pocket docket) or file it with the court (if filed in court). I don't know the cost of filing a motion in conciliatory court but it is $175 in civil court. We will help you get further if need be.

Since the fees are so high, if you are in pocket docket, what I might do is once I send the MTC to the plaintiff attorney, I would offer them the $600 I would pay in court and arbitration fees as a settlement as long as they do not file in court (with the understanding that once they file, the deal is off).

There is no case number on the papers and I can’t find it when I do a search for my name on the MN Court website.  I really appreciate the information, I’ll be working on this today so I might be back with questions!  Thanks a lot!

Share this post


Link to post
Share on other sites

OK, you send the answer to the plaintiff attorney. Make sure that you send it Certified Mail Return Receipt Requested (CMRRR) green card style so that you have proof that they received it (and that you mailed it). Again, in the answer, make sure to check lack of jurisdiction for the affirmative defense and state that the contract has an arb clause.

A week later, send the MTC to the plaintiff attorney in the same manner. Once you know that the MTC was received, you can call the plaintiff attorney and just state that you will settle today for the $600 it would cost you to proceed in the court and force the case into arbitration but that the offer is valid only until they file on court. You will spend $600 on this no matter what anyways and odds are they will take the offer after seeing the MTC if they attorney deals with consumer debt because they should know that the arbitration route is an expensive dead end for them and 50% is better than spending 1000s of dollars to get $1200.

Share this post


Link to post
Share on other sites
3 minutes ago, WhoCares1000 said:

You will spend $600 on this no matter what anyways

It still boggles my mind that the people in these few states allow this type of crazy stuff to happen.  $600 just to defend yourself in a lawsuit that for all we know could be baseless.  That costs more than filing as a Plaintiff in Federal Court.  Ironically the Defendant in Federal Court would pay $0 to defend themselves.

Share this post


Link to post
Share on other sites

In an effort to balance the budget, who knows how many years ago, the legislature practically defunded the courts and made them rely on filing fees. That is why both parties have to pay and they are so expensive here. That is also one of the reasons for pocket docket. It allows both sides to see each others hands before paying money to the courts (otherwise there would be pitchforks and torches at the State Capitol when people realize how expensive justice is in Minnesota). I say give it a week (or even up to the first meet and confer) before offering because they might fold by seeing the MTC and the OP would only be out the CMRRR fees. Otherwise, it will cost the OP $300 just to file their answer, $75 to file the motion, and $250 for the JAMS fee for a consumer case. That is why if they refuse to budge at first, offer that up as a way to break the log jam. Either the OP will pay that to stop the case or pay that get to arb. You can agree with it or not but that is how things are done in Minnesota.

Share this post


Link to post
Share on other sites

Also, if the lawsuit was baseless and you did not need arbitration to make the other party go away, you could demand your filing fees as part of you claim for relief in your answer. You do not have to countersuit for that. I looked into that just in case a certain medical provider here decided to stand their ground on certain medical charges even though their charging me was in violation of the consent decree the medical provider signed with the Minnesota Attorney General's Office.

Share this post


Link to post
Share on other sites

Finally, for small claims cases between individuals, the court fees are lower $60 BUT the plaintiff cannot use the pocket docket process (which until a few years ago was rife with abuse by JDBs and their attorneys). Many JDB attorneys are used to the pocket docket process however and file in civil court. That is how @LaneBlane was able to beat a small claims clause in her contract.

Granted even after the pocket docket abuses were removed, the amount of defaults stayed the same so.....

Share this post


Link to post
Share on other sites

@Brotherskeeper - I got paperwork back from them saying that I didn't serve them in time.  I have tracking information that says that it was delivered on August 21st @ 9:06am.  I was served on August 1st between 3:00-5:00pm... how do they calculate?  They said I have 14 days to mail a written Answer or written response contesting the debt.  What are my next steps?

Share this post


Link to post
Share on other sites

After I got off the floor from laughing at that letter, I would send a letter back to them citing Rule 12.01 of the Minnesota Rules of Civil Procedure (https://www.revisor.mn.gov/court_rules/cp/id/12/)

Quote

Defendant shall serve an answer within 20 days after service of the summons upon that defendant unless the court directs otherwise pursuant to Rule 4.043. A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within 20 days after the service upon that party. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs. The service of a motion permitted under this rule alters these periods of time as follows unless a different time is fixed by order of the court: (1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after service of notice of the court's action; (2) if the court grants a motion for a more definite statement, the responsive pleading shall be served within ten days after the service of the more definite statement.

If they received it on the 21st, you served them on time since the postmark date (when mailed it out) is the date of service, not when they received it. I would suggest bringing whoever mailed it out for you to the courthouse and filling out an affidavit of mailing ASAP if this is what the law firm is going to do. That should stop them in their tracks (and maybe make them realize you are not an average Pro Se defendant).

I also have to add, when you send this letter, include the motion to compel arbitration and inform them of you demand and that you will not partake in discovery until your motion has been heard. Again, have your friend mail it out and make them sign for it. That will force them to either get this into the court or drop the case.

  • Like 1

Share this post


Link to post
Share on other sites

Also, if they do file a motion for summary judgement on this basis, you need to reply to that motion (and pay the fee) with a copy of your affidavit and citing rule 12.01. I would also demand in the reply in opposition to their motion a sanction where the opposing attorney pays your motion filing fees to oppose this motion if this is their basis.

If you, as a Pro Se defendant, are expected to know the rules of civil procedure, an attorney that is part of the Minnesota Bar and licensed to practice law in Minnesota should know those rules forwards and backwards. Makes me wonder how many other defendants they said this to and the defendants gave up without a fight.

  • Like 1

Share this post


Link to post
Share on other sites
13 hours ago, WhoCares1000 said:

If they received it on the 21st, you served them on time since the postmark date (when mailed it out) is the date of service, not when they received it. I would suggest bringing whoever mailed it out for you to the courthouse and filling out an affidavit of mailing ASAP if this is what the law firm is going to do.

If it was mailed CMRRR, would the certified receipt and signed green card be very solid evidence for this?  Also perhaps something to attach to the response telling them they are full of it?

Share this post


Link to post
Share on other sites
12 hours ago, fisthardcheese said:

If it was mailed CMRRR, would the certified receipt and signed green card be very solid evidence for this?  Also perhaps something to attach to the response telling them they are full of it?

A Green Card is good BUT if this law firm is putting forth this type of argument, the next thing they will say is that the OP mailed it out himself which is against the Rules of Civil Procedure. By doing up the affidavit and send that in as a copy along with the green card, you get rid of any other argument this firm might have.

I did some more research on this firm and apparently they recently moved from Bismarck ND to Fargo ND, possibly to try to grab the lucrative Minnesota business. It could be possible that the OP is the first person to offer up an answer with a reasonable to win defense and they are freaking out. Their paralegals also employ Buffalo NY style collection tactics when you call them so the OP should be prepared for that if they ever plan on offering a settlement in lieu of going to court. It could be possible that the attorney does not know the Minnesota Rules of Civil Procedure and the OP might have to be the one to teach them with the courts help should it get to that.

  • Like 1

Share this post


Link to post
Share on other sites
On 8/30/2019 at 2:00 PM, hsakee said:

@Brotherskeeper - I got paperwork back from them saying that I didn't serve them in time.  I have tracking information that says that it was delivered on August 21st @ 9:06am.  I was served on August 1st between 3:00-5:00pm... how do they calculate?  They said I have 14 days to mail a written Answer or written response contesting the debt.  What are my next steps?

@WhoCares1000

Where did the plaintiff get 14 days?   The OP could have an FDCPA violation and his arbitration claim.

Share this post


Link to post
Share on other sites
3 hours ago, BV80 said:

@WhoCares1000

Where did the plaintiff get 14 days?   The OP could have an FDCPA violation and his arbitration claim.

Might be worth calling a couple consumer attorneys and see if they feel it is a good enough violation to take on and not charge OP to defend this case with the addition of the counter claim.

Share this post


Link to post
Share on other sites

OC is Capital One. Honestly don't know about this account. I need help understanding what should happen next. Do I request discovery from the court or plaintiff? Who makes the next move?

Share this post


Link to post
Share on other sites
5 hours ago, Noreturn said:

OC is Capital One. Honestly don't know about this account. I need help understanding what should happen next. Do I request discovery from the court or plaintiff? Who makes the next move?

Are you sure you have the correct thread?

Share this post


Link to post
Share on other sites
On 9/1/2019 at 12:44 AM, fisthardcheese said:

If it were me - and this is just me - I would reply with "LOL ok" and attach a copy of my JAMS case filing.  :)

What is the JAMS case filing?

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.