Robby8900 43 Posted July 19, 2020 Author Report Share Posted July 19, 2020 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; Quote Link to post Share on other sites
A B Mann 1 Posted July 19, 2020 Report Share Posted July 19, 2020 I forgot you were in Ohio. As long as you comply with your state and local rules regarding response times, you should be ok. I'd double-check the timeline to see if you have enough time to file a MTD instead of an answer. I'm working with a 14-day time-limit in Justice (small claims court) in my jurisdiction and I don't want to miss that window or I risk being in default. 1 Quote Link to post Share on other sites
Robby8900 43 Posted July 19, 2020 Author Report Share Posted July 19, 2020 Looks like you should do an answer first. Quote Link to post Share on other sites
A B Mann 1 Posted July 19, 2020 Report Share Posted July 19, 2020 What does the rule say about the time-frame to file an answer to the Original Complaint? Quote Link to post Share on other sites
A B Mann 1 Posted July 19, 2020 Report Share Posted July 19, 2020 I think you have 28 days to file an answer per Rule 12 which might give you enough time to try the MTD, and it is not granted, file an answer. I'm afraid I'll miss it with a 14-day window. The courts are backed up here due to COVID-19. Quote Link to post Share on other sites
Robby8900 43 Posted July 19, 2020 Author Report Share Posted July 19, 2020 2 minutes ago, A B Mann said: I think you have 28 days to file an answer per Rule 12 which might give you enough time to try the MTD, and it is not granted, file an answer. I'm afraid I'll miss it with a 14-day window. The courts are backed up here due to COVID-19. when you assert arbitration as affirmative defence, maybe PRA will vol dismiss there own case. Quote Link to post Share on other sites
A B Mann 1 Posted July 19, 2020 Report Share Posted July 19, 2020 I can only hope so. I'm unemployed because of the pandemic and don't have a dime to give them. PRA has flooded county and state courts with lawsuits and sometimes judges rubber stamp default judgments that allow them to garnish bank accounts, etc. Most consumers know nothing at all about their legal rights. It's a loophole they need to close and make it harder for them to get judgments for debts which they purchased for pennies on the dollar. Quote Link to post Share on other sites
A B Mann 1 Posted July 19, 2020 Report Share Posted July 19, 2020 I just found out something interesting, as far as Texas Law is concerned. In 2019, PRA sued an individual for a credit card account under the sworn account (account stated) theory. The defendant's attorney countered in its original answer that Texas law prohibits a Plaintiff from pursuing collection of the debt under the account stated theory. The case was resolved in some manner and PRA filed notice of dismissal. Might be worth pursuing if credit line from PayPal is considered the same as a credit card account. 2019 Case PRA v Barrett - No sworn account theory on credit card debt.PDF 2019 Case PRA v Barrett - OP.PDF Quote Link to post Share on other sites
Robby8900 43 Posted July 19, 2020 Author Report Share Posted July 19, 2020 1 hour ago, A B Mann said: I just found out something interesting, as far as Texas Law is concerned. In 2019, PRA sued an individual for a credit card account under the sworn account (account stated) theory. The defendant's attorney countered in its original answer that Texas law prohibits a Plaintiff from pursuing collection of the debt under the account stated theory. The case was resolved in some manner and PRA filed notice of dismissal. Might be worth pursuing if credit line from PayPal is considered the same as a credit card account. 2019 Case PRA v Barrett - No sworn account theory on credit card debt.PDF 85.12 kB · 0 downloads 2019 Case PRA v Barrett - OP.PDF 481.03 kB · 0 downloads Nice. But neither mention arbitration. The court lacks subject matter jurisdiction to render judgment on the merits due to the PayPal arbitration clause that is final binding arbitration, rather than in court. The account stated or other is subject to an arbitrator to decide in that forum (venue) not a judge in that forum (Court venue). The court could only hear the merits if you opted out and rejected the arb clause as required by the provision. Quote Link to post Share on other sites
Clydesmom 1,218 Posted July 19, 2020 Report Share Posted July 19, 2020 2 hours ago, A B Mann said: It's a loophole they need to close and make it harder for them to get judgments for debts which they purchased for pennies on the dollar. NEVER going to happen. It is basic contract law which pre-dates the JDB industry. Contract law clearly states that any party that purchases a contract gets ALL the rights and responsibilities contained within the agreement regardless of the amount paid for the deal. So a JDB paying pennies on the dollar for a judgment or debt is legally allowed to collect on the entire amount owed at the time of purchase and post interest if allowed by the agreement and it isn't a loophole. That contract law basis is also what forces a JDB to have to abide by the arbitration clause if the consumer enforces it. 2 hours ago, A B Mann said: PRA has flooded county and state courts with lawsuits and sometimes judges rubber stamp default judgments that allow them to garnish bank accounts, etc. Judges rubber stamp default judgments because the defendant never bothered to respond. Quote Link to post Share on other sites
A B Mann 1 Posted July 19, 2020 Report Share Posted July 19, 2020 Thanks for the frank adivce, Clydesmom. I agree and will not have my name listed among those who ignored the lawsuit. Quote Link to post Share on other sites
BV80 2,796 Posted July 19, 2020 Report Share Posted July 19, 2020 6 hours ago, A B Mann said: I just found out something interesting, as far as Texas Law is concerned. In 2019, PRA sued an individual for a credit card account under the sworn account (account stated) theory. The defendant's attorney countered in its original answer that Texas law prohibits a Plaintiff from pursuing collection of the debt under the account stated theory. The case was resolved in some manner and PRA filed notice of dismissal. Might be worth pursuing if credit line from PayPal is considered the same as a credit card account. 2019 Case PRA v Barrett - No sworn account theory on credit card debt.PDF 85.12 kB · 3 downloads 2019 Case PRA v Barrett - OP.PDF 481.03 kB · 3 downloads You were not sued on a sworn account claim. You have been sued on an account stated claim which is different. Thus, we join our sister courts in holding that account stated, and not a suit on a sworn account, is a proper cause of action for a credit card collection suit because no title to personal property or services passes from the bank to the credit card holder. McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 764 (Tex. App.-Waco 2009, no pet.). In the lawsuit you referenced, the resolution and PRA’s subsequent dismissal was not necessarily due to a concession by PRA. They may have dismissed because the defendant settled. Quote Link to post Share on other sites
WillingtoFight593 5 Posted November 7, 2020 Report Share Posted November 7, 2020 How did this turn out for you? I’m being sued by PRA over a PayPal account and am trying to see how it’s been going for others. Quote Link to post Share on other sites
Robby8900 43 Posted November 7, 2020 Author Report Share Posted November 7, 2020 7 hours ago, WillingtoFight593 said: How did this turn out for you? I’m being sued by PRA over a PayPal account and am trying to see how it’s been going for others. Many on this site would oppose taking an approach to dismiss in stead of MTC. However, if you did not reject the arb clause then PRA cannot sue you in court period. My friend was a dip shyt and never filed the dismissal nor did he answer the complaint so they got a default judgement on him. That said, another lady on this site did file an objection to a summary judgement using the argument that she did not reject the arb clause and the plaintiff, dismissed their own case. Quote Link to post Share on other sites
Robby8900 43 Posted November 7, 2020 Author Report Share Posted November 7, 2020 https://www.paypal.com/us/webapps/mpp/ua/useragreement-full#s6-agreement-arbitrate Agreement to Arbitrate: You and PayPal agree that any claim or dispute at law or equity that has arisen or may arise between us will be resolved in accordance with the Agreement to Arbitrate provisions set forth below. Please read this information carefully. Among other things it: 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... Quote Link to post Share on other sites
Robby8900 43 Posted November 7, 2020 Author Report Share Posted November 7, 2020 Here is the case where summary judgment was filed, if you read it sounds like plaintiff, has a win. She filed objection and then the plaintiff, dismissed its own case. Motion for Summary Judgment_LVNV Redacted.pdf Defendants Objection to Plaintiff's Motion for Summary Judment_Redacted.pdf Dismissal - Redacted.pdf Quote Link to post Share on other sites
WillingtoFight593 5 Posted November 7, 2020 Report Share Posted November 7, 2020 Thank you! I will read over this. Quote Link to post Share on other sites
