Friend being sued by PRA

[Robby8900]

My friend was served today being sued by PRA over a Paypal account. There is an arb clause, this should be good.

[A B Mann]

I got served here in Texas over the same account, but can't find my original agreement. Would it be too much trouble to share?

[Robby8900]

4 hours ago, A B Mann said:

I got served here in Texas over the same account, but can't find my original agreement. Would it be too much trouble to share?

https://www.paypal.com/us/webapps/mpp/ua/useragreement-full#s6-agreement-arbitrate

[A B Mann]

Thanks a lot Robby8900! I just got served yesterday and have prepared my answer. PRA's petition had nothing attached, just the amount it says I owe. 

[Robby8900]

8 hours ago, A B Mann said:

Can you post a redacted copy of the complaint filed against you? 

 

Thanks a lot Robby8900! I just got served yesterday and have prepared my answer. PRA's petition had nothing attached, just the amount it says I owe. 

 

[A B Mann]

Sorry for the late reply. I logged off early last night. Here is the complaint I received on Friday. Interestingly, I found at least one error. My complaint states I breached contract with Paypal through an account underwritten by Webbank. I found an electronic statement email indicating my account was underwritten by Synchrony.  I'll dispute that it my answer, but that will probably only buy me time as they amend their pleading. If they're wrong about where the loan came from, I might be able to get out of this thing like PRA - for a few cents on the dollar! LOL

PRA Original Petition_Redacted.pdf

[Robby8900]

38 minutes ago, A B Mann said:

Sorry for the late reply. I logged off early last night. Here is the complaint I received on Friday. Interestingly, I found at least one error. My complaint states I breached contract with Paypal through an account underwritten by Webbank. I found an electronic statement email indicating my account was underwritten by Synchrony.  I'll dispute that it my answer, but that will probably only buy me time as they amend their pleading. If they're wrong about where the loan came from, I might be able to get out of this thing like PRA - for a few cents on the dollar! LOL

PRA Original Petition_Redacted.pdf 1.07 MB · 1 download

Did you open a business account?

[A B Mann]

8 minutes ago, Robby8900 said:

Did you open a business account?

No. It was a Bill Me Later account which PayPal later called PayPal Credit.

 

[Robby8900]

Just now, A B Mann said:

No. It was a Bill Me Later account which PayPal later called PayPal Credit.

 

We offer two types of PayPal accounts: personal PayPal accounts and business PayPal accounts, both covered by this user agreement. Good to go with the arb clause in the above agreement. 

[A B Mann]

Do you work for PayPal?

[Robby8900]

1 minute ago, A B Mann said:

No 

 

Do you work for PayPal?

 

[Robby8900]

That was a quoted line from the paypal written agreement the link above

[Robby8900]

if you did not opted out or reject the arbitration clause within 30 day of opening the account; here is the most important  part of the clause to get it dismissed from court: 

You and PayPal each agree that any and all disputes or claims that have arisen or may arise between you and PayPal, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory, shall be resolved exclusively through final and binding arbitration, rather than in court,

[A B Mann]

Ok. My mistake.

In my answer, I'm pleading the following affirmative defenses:

1. PayPal arbitration clause
2. PRA contributed to its own injury by purchasing defaulted debt
3. Account was never underwritten by WEBBANK
4. PRA has presented no evidence verifying the amount owed
5. PRA has presented no evidence of its legal ownership of debt through a chain of custody, and therefore lacks standing to bring the suit
6. No consideration was offered to PRA in exchange for a contractual relationship

I'll file a Motion to Compel arbtiration at that time I file my answer.

 

 

[A B Mann]

I'll include the language in my affirmative defense for arbitration. Thanks!

Does you know if AAA is still accepting cases from PRA?

[A B Mann]

Sorry, I mean does anyone know! LOL

 

[Robby8900]

1 minute ago, A B Mann said:

 

 

Ok. My mistake.

In my answer, I'm pleading the following affirmative defenses:

1. PayPal arbitration clause
2. PRA contributed to its own injury by purchasing defaulted debt
3. Account was never underwritten by WEBBANK
4. PRA has presented no evidence verifying the amount owed
5. PRA has presented no evidence of its legal ownership of debt through a chain of custody, and therefore lacks standing to bring the suit
6. No consideration was offered to PRA in exchange for a contractual relationship

I'll file a Motion to Compel arbtiration at that time I file my answer.

 

 

if it were me personally, i wouldn't put all that in, and would focus on dismissal over MTC  because it clearly states if ya didnt reject arb then the clause to arbtrate is final and bindng rather in court. They should have filed arbitration instead of a lawsuit. 

[Robby8900]

I would file MTD 

[A B Mann]

I thought about that, but if the judge rejects my motion to compel arbitration, I'll have waived my rights to plead the other affirmative defenses and may be barred from raising them later.

[A B Mann]

The Motion to Dismiss might be worth a try, but when I researched my court's rulings, I didn't see many dismissed cases, but lots of default judgments. I'll think it over and probably go that route.

 

[Robby8900]

If a dismissal is denied the court would grant you the opportunity to file an answer. Short concise statements in fact to the point regarding the arb clause in fact, that you didn't reject it therefore waiving right to go to court.  However, its up to you 

[A B Mann]

From my work as a paralegal, you must always file an answer to appear after service of the complaint to avoid being in default. The MTD should can be filed after that.

[Robby8900]

Just now, A B Mann said:

 

 

From my work as a paralegal, you must always file an answer to appear after service of the complaint to avoid being in default. The MTD should can be filed after that.

Some defenses can be by motion under 12(B) such as lack of subject matter jurisdiction, correct? 

[Robby8900]

I understand your in Texas, for example here in Ohio Civ. R. 12(B) states: (B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A motion making any of these defenses shall be made before pleading if a further pleading is permitted.

[A B Mann]

Rule 12b is from the Federal Rules of Civil Procedure. You'll need to look at Texas Rule of Civil Procedure 91a which governs dismissal of baseless causes of action.

 

91a.1 Motion and Grounds. Except in a case brought under the Family Code or a case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. 91a.2 Contents of Motion. A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both. 91a.3 Time for Motion and Ruling. A motion to dismiss must be: (a) filed within 60 days after the first pleading containing the challenged cause of action is served on the movant; (b) filed at least 21 days before the motion is heard; and (c) granted or denied within 45 days after the motion is filed. 91a.4 Time for Response. Any response to the motion must be filed no later than 7 days before the date of the hearing. 91a.5 Effect of Nonsuit or Amendment; Withdrawal of Motion. (a) The court may not rule on a motion to dismiss if, at least 3 days before the date of the hearing, the respondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the motion. (b) If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed to the amended cause of action. (c) Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or the cause of action has been nonsuited in accordance with (a) or (b). In ruling on the motion, the court must not consider a nonsuit or amendment not filed as permitted by paragraphs (a) or (b). (d) An amended motion filed in accordance with (b) restarts the time periods in this rule. 91a.6 Hearing; No Evidence Considered. Each party is entitled to at least 14 days' notice of the hearing on the motion to dismiss. The court may, but is not required to, conduct an oral hearing on the motion. Except as required by 91a.7, the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59. 91a.7 Award of Costs and Attorney Fees. Except in an action by or against a governmental entity or a public official acting in his or her official capacity or under color of law, the court may award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court. Any award of costs or fees must be based on evidence. 91a.8 Effect on Venue and Personal Jurisdiction. This rule is not an exception to the pleading requirements of Rules 86 and 120a, but a party does not, by filing a motion to dismiss pursuant to this rule or obtaining a ruling on it, waive a special appearance or a motion to transfer venue. By filing a motion to dismiss, a party submits to the Court's jurisdiction only in proceedings on the motion and is bound by the court's ruling, including an award of attorney fees and costs against the party. 91a.9 Dismissal Procedure Cumulative. This rule is in addition to, and does not supersede or affect, other procedures that authorize dismissal.

Tex. R. Civ. P. 91a

Amended July 11, 2019, effective September 1, 2019.

Comment to 2013 change: Rule 91a is a new rule implementing section 22.004(g) of the Texas Government Code, which was added in 2011 and calls for rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence. A motion to dismiss filed under this rule must be ruled on by the court within 45 days unless the motion, pleading, or cause of action is withdrawn, amended, or nonsuited as specified in 91a.5. If an amended motion is filed in response to an amended cause of action in accordance with 91a.5(b), the court must rule on the motion within 45 days of the filing of the amended motion and the respondent must be given an opportunity to respond to the amended motion. The term "hearing" in the rule includes both submission and an oral hearing. Attorney fees awarded under 91a.7 are limited to those associated with challenged cause of action, including fees for preparing or responding to the motion to dismiss. Comment to 2019 change: Rule 91a.7 is amended to implement changes to section 30.021 of the Texas Civil Practice and Remedies Code. The amendments to Rule 91a.7 apply only to civil actions commenced on or after September 1, 2019. A civil action commenced before September 1, 2019 is governed by the rule as adopted in Misc. Docket No. 13-9022.

Rule 91a - Dismissal of Baseless Causes of Action, Tex. R. Civ. P. 91a