MegnPrice

PLEASE HELP! Being Sued by PORTFOLIO RECOVERY ASSOCIATES LLC IN TEXAS

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1. Who is the named plaintiff in the suit?  Portfolio Recovery Associates, LLC

2. What is the name of the law firm?  Rausch Sturm – George Colby Scherer (Main Attorney)

3. How much are you being sued for?  $3,540.21 plus court costs

4. Who is the original creditor?  Comenity Bank (Victoria's Secret)

5. How do you know you are being sued?  Summons delivered to my door 

6. How were you served?  A male dropped off the Summons to my front door (saw on door cam).

7. Was the service legal as required by your state?   Texas, I believe so?

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  Possibly letters I dont open if it looks like junk mail, I trash it.  I als don't answer spam calls so I have not had any correspondence with anyone.

9. What state and county do you live in?  Bowie 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):  March 29, 2018 according to the summons.

11. When did you open the account (looking to establish what card agreement may be applicable) October 26, 2014 according to the summons.

12. What is the SOL on the debt? 4 years in Texas I believe.  

13. What is the status of your case?  It appears the Summons is the "Plaintiff's original petition & first discovery requests".   I am hoping someone here can help me craft a response to this summons, it is asking for "Plantiff's first request for discovery includes Plantiff's request for disclosure, request for production, requests for admissions and interrogatories".  I don't even know what this means.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  I do not believe so.

15. Did you request debt validation before the suit was filed?  No.

16. How long do you have to respond to the suit?  Monday next following the expiration of 20 days after you were served.  I was served May 25th, 2020 so I believe I have until June 15th, 2020.  I know this is a tight deadline to ask for help and I apologize.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits:  None.  They have attached absolutely nothing as evidence for their suit, it appears they are requesting all of that from me.

 

This is the first time I have ever had to deal with anything like this in my life, I am utterly terrified about this and would deeply appreciate any help in how to respond and handle this going forward, I know I am on a tight deadline at this point and I just found this website.  Please if anyone can offer me any assistance it would be greatly appreciated, I can not currently afford to hire a lawyer for this and I am so scared and honestly just do not know what to do.  Thank you for your time.

 

Megan

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@texasrocker Can you offer some assistance here? If @MegnPrice decides to use the arbitration strategy, does Texas require the existence of an agreement to arbitrate be listed as an Affirmative Defense on the Answer to the Complaint? 

The Comenity Bank/ Victoria's Secret Credit Card Agreement has an Arbitration Provision: 

I. Arbitration and jury trial waiver
For Covered Borrowers under the Military Lending Act (MLA)
Effective October 3, 2017 the MLA prohibits us from requiring you to submit to arbitration as a condition of extending credit. For additional information see Section J below.
A. Jury trial waiver
TO THE EXTENT PERMITTED BY LAW, YOU AND WE WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF A LAWSUIT ARISING OUT OF OR RELATED TO THIS AGREEMENT. THIS JURY TRIAL WAIVER SHALL NOT AFFECT THE ARBITRATION PROVISION BELOW (INCLUDING THE JURY TRIAL WAIVER CONTAINED THEREIN). YOU AND WE EACH REPRESENT THAT THIS WAIVER IS GIVEN KNOWINGLY, WILLINGLY AND VOLUNTARILY. 

B. Notice and cure
Prior to bringing a lawsuit or initiating an arbitration that asserts a claim arising out of or related to this Agreement (as further defined below, a "Claim"), the party asserting the Claim (the "Claimant") shall give the other party (the "Defendant") written notice of the Claim (a "Claim Notice") and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice to you shall be sent in writing to the address we have in our records (or any updated address you subsequently provide to us). Any Claim Notice to us shall be sent by mail to Comenity Bank, PO Box 182436, Columbus, Ohio 43218-2436 (or any updated address we subsequently provide). Any Claim Notice you send must provide your name, address and Account number. Any Claim Notice must explain the nature of the Claim and the relief that is demanded. You may only submit a Claim Notice on your own behalf and not on behalf of any other party. No third party, other than a lawyer you have personally retained, may submit a Claim Notice on your behalf. The Claimant must reasonably cooperate in providing any information about the Claim that the other party reasonably requests.

C. Arbitration provision
READ THIS ARBITRATION PROVISION CAREFULLY. IF YOU DO NOT REJECT THIS ARBITRATION PROVISION 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 WHICH YOU OR WE HAVE AGAINST EACH OTHER NOW OR IN THE FUTURE.
1. Your 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 the name of each Cardholder 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 thirty (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 Subject to Arbitration: Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms "we," "us" and "our" mean (a) Comenity Bank, any parent, subsidiary or affiliate of the Bank and the employees, officers and directors of such companies (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, 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 (the "Class Action Waiver"), the last sentence of 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: 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 of Arbitration: 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. Right to 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. Arbitration Result and Right of Appeal: 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. However, if the amount of the Claim exceeds $50,000 or involves a request for injunctive or declaratory relief that could foreseeably involve a cost or benefit to either party exceeding $50,000, any party can, within 30 days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the Administrator. The panel shall reconsider anew any aspect of the initial award requested by the appealing party. The decision of the panel shall be by majority vote. Reference in this Arbitration Provision to "the arbitrator" shall mean the panel if an appeal of the arbitrator’s decision has been taken. The costs of such an appeal will be borne in accordance with Paragraph C.8. above.

12. Rules of 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, on the one hand, and the applicable arbitration rules or the other provisions of this Agreement, on the other hand, this Arbitration Provision shall govern. This Arbitration Provision replaces any Prior Arbitration Agreement.

13. Severability: If any portion of this Arbitration Provision, other than the Class Action Waiver, is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force. If a determination is made that the Class Action Waiver is unenforceable, only this sentence of the Arbitration Agreement will remain in force and the remaining provisions shall be null and void, provided that the determination concerning the Class Action Waiver shall be subject to appeal.

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; 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).

 

>>>To learn about using the arbitration provision to get the case out of court, please read Fisthardcheese's pinned thread on this strategy.

 

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Unless things have change, I believe every Texas case starts with a "General Denial" as the initial Answer - like there's a form with a big General Denial box to check. Everything else is then handled through motions. Interesting case, as this law firm is the one that one than folds to pretty much any answer and PRA is currently following to arb in a couple of cases.

 

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16 hours ago, Brotherskeeper said:

@texasrocker Can you offer some assistance here? If @MegnPrice decides to use the arbitration strategy, does Texas require the existence of an agreement to arbitrate be listed as an Affirmative Defense on the Answer to the Complaint? 

It is not a requirement but there is nothing wrong with claiming such a defense.   They must file a general denial immediately then decide how they want to handle their case.  

 

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. PRAYER

Wherefore Defendant requests judgment of the Court that Plaintiff takes nothing from the Defendant and the Defendant be granted any further relief that <he or she> is justly entitled to.

<Your name, address and phone number>

If you want to include the affirmative defense this will do- 

 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.

File it with the court immediately and send a copy to the attorney's office that filed the lawsuit.

 

16 hours ago, Brotherskeeper said:

 

 

 

 

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3 hours ago, MegnPrice said:

When I type up my response based on what you repied @texasrocker, do I need to include anything else?  Like the court case number?  Or just what you stated above?

Sorry I forgot to tell you- Type it in the same format as the petition you were served with the court and case information at the top of the page.

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@texasrocker Hopefully  wont have any more questions, but this will suffice for all the things they asked for right?  Like the Plantiff's request for disclosure, request for production, requests for admissions and interrogatories?  This is all so confusing for me, and I'm not even sure i've formatted it correctly.  I just hope it is accepted.  What can I expect after this, any idea?  Thank you again for the help and time you've generously provided to me.

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On 6/10/2020 at 10:02 AM, MegnPrice said:

@texasrocker Hopefully  wont have any more questions, but this will suffice for all the things they asked for right?  Like the Plantiff's request for disclosure, request for production, requests for admissions and interrogatories?  This is all so confusing for me, and I'm not even sure i've formatted it correctly.  I just hope it is accepted.  What can I expect after this, any idea?  Thank you again for the help and time you've generously provided to me.

No, it will not suffice for answering their discovery.  The General Denial is the answer to just the lawsuit itself to prevent you from being slapped with a default judgment.  File the General Denial immediately then decide whether you want to defend yourself through arbitration or as a pro se in the court.  If you choose arbitration do not answer the discovery items as that could invalidate the arbitration.   Scroll up to where @Brotherskeeper posted @fisthardcheese's instructions on how to initiate arbitration.

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1 minute ago, texasrocker said:

do not answer the discovery items as that could invalidate the arbitration.

 

On 6/10/2020 at 11:02 AM, MegnPrice said:

requests for admissions

@texasrocker what about requests for admissions? Are those deemed admitted if they aren't answered? 

 

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I filed the general denial yesterday, and I included the line about arbitration.  So I guess they will respond and then it will possibly go to arbitration?  I have no idea what i'm doing, I have never felt so inept in my life.

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5 hours ago, Brotherskeeper said:

 what about requests for admissions? Are those deemed admitted if they aren't answered? 

Of course they are deemed admitted if one decides to fight the case in court and does not answer them.  I was under the impression that this OP wanted to use arbitration.  What little I know about arbitration I have always understood that if they participate in discovery then arbitration could be rendered null and void.  They should answer each item with "Objection- Defendant has elected private contractual arbitration per credit card agreement"  or something along that line.

 

4 hours ago, MegnPrice said:

I filed the general denial yesterday, and I included the line about arbitration.  So I guess they will respond and then it will possibly go to arbitration?

No it will not just automatically go to arbitration.  As I said follow @fisthardcheese's instructions that @Brotherskeeper posted earlier.

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