Sofustrated

Being Sued by LVNV Finding, LLC-Texas

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Is anyone available to help. I just got served on this past Saturday, August 8,2020. I know that I have twenty days to respond. I am so lost, confused and overwhelmed. Any help would be greatly appreciated. I have included the information below. If you need anything else let me know. 
 
 

1. Who is the named plaintiff in the suit?  LVNV Funding,LLC

2. What is the name of the law firm?  Scott &Associates, P.C.

3. How much are you being sued for?  $1,576.10; cost of court and continuing post-judgment interest  

4. Who is the original creditor?  Credit One Bank, N.A.

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

6. How were you served?  The documents were left at my door  

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 or shred it. I am unsure if I have received any calls, because I don’t answer unknown numbers due to a lot of scams. 

9. What state and county do you live in?  I live in the state of Texas and I reside in FortBend County  

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 petition attached to the summons, the account was closed/charged off on November 13,2018. 

11. When did you open the account (looking to establish what card agreement may be applicable) September 4, 2016 according to the petition attached to the summons.  

12. What is the SOL on the debt? I think it is four years in Texas  

13. What is the status of your case?  This appears to be the first filing, and they are waiting on me to answer the summons  

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  I hired a credit dispute agency years ago and I am unsure if they disputed this particular debt.

15. Did you request debt validation before the suit was filed?  I am unsure.

16. How long do you have to respond to the suit?  The summons says fifteen (15) days after being served with the summons. If I am guessing right August 24, 2020.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits:  An original petition that lists the following claim details: The claim arises from a Visa Credit Card account entered into by Defendant with Credit One Bank, N.A.  Account number XXXX(The Account).  The account is in default and Plaintiff sues herein for actual damages, costs of court and continuing post-judgement interest.  

This is the first and I sincerely pray the only time I have to deal with something like this. I cannot afford an attorney and I have been researching like crazy. This has me very scared. I don’t know if I need to file a motion for dismissal or one for discovery. What I do know is that I need to answer this. Any help at all will be greatly appreciated. 

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On 8/9/2020 at 4:24 PM, Sofustrated said:
 
 
Is anyone available to help. I just got served on this past Saturday, August 8,2020. I know that I have twenty days to respond. I am so lost, confused and overwhelmed. Any help would be greatly appreciated. I have included the information below. If you need anything else let me know. 
 
 

1. Who is the named plaintiff in the suit?  LVNV Funding,LLC

2. What is the name of the law firm?  Scott &Associates, P.C.

3. How much are you being sued for?  $1,576.10; cost of court and continuing post-judgment interest  

4. Who is the original creditor?  Credit One Bank, N.A.

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

6. How were you served?  The documents were left at my door  

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 or shred it. I am unsure if I have received any calls, because I don’t answer unknown numbers due to a lot of scams. 

9. What state and county do you live in?  I live in the state of Texas and I reside in FortBend County  

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 petition attached to the summons, the account was closed/charged off on November 13,2018. 

11. When did you open the account (looking to establish what card agreement may be applicable) September 4, 2016 according to the petition attached to the summons.  

12. What is the SOL on the debt? I think it is four years in Texas  

13. What is the status of your case?  This appears to be the first filing, and they are waiting on me to answer the summons  

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  I hired a credit dispute agency years ago and I am unsure if they disputed this particular debt.

15. Did you request debt validation before the suit was filed?  I am unsure.

16. How long do you have to respond to the suit?  The summons says fifteen (15) days after being served with the summons. If I am guessing right August 24, 2020.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits:  An original petition that lists the following claim details: The claim arises from a Visa Credit Card account entered into by Defendant with Credit One Bank, N.A.  Account number XXXX(The Account).  The account is in default and Plaintiff sues herein for actual damages, costs of court and continuing post-judgement interest.  

This is the first and I sincerely pray the only time I have to deal with something like this. I cannot afford an attorney and I have been researching like crazy. This has me very scared. I don’t know if I need to file a motion for dismissal or one for discovery. What I do know is that I need to answer this. Any help at all will be greatly appreciated. 

You need to file a Motion to Compel Arbitration.  Do you have a copy of the template? 

Stranger things in life have happened, but I can't see any way LVNV follows you into arb. Especially not for a relatively low balance account.  

1st step is to get your MTC granted. Insist that the other party initiates.  Disclaimer: Not an attorney.  Not a Texas resident.  Every state has their own nuances of civil procedure. Hopefully someone with experience in the particularities of TX can chime in.  You'll want to know whether you can file a MTC in lieu of an Answer, or in addition to one.  In some states, filing an Answer is considered a waiver to arbitration. 

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1 hour ago, pulpfiction0 said:

 Every state has their own nuances of civil procedure. Hopefully someone with experience in the particularities of TX can chime in.  You'll want to know whether you can file a MTC in lieu of an Answer, or in addition to one.  In some states, filing an Answer is considered a waiver to arbitration. 

You are dead wrong.  One must file an answer by the stated deadline in the court papers being served upon them in any state whether or not they elect to use arbitration or to fight the case in court. In some states including Texas participating in discovery will render arbitration null and void but at the very least a general denial must be filed as soon as possible to avoid a default judgment.

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2 minutes ago, texasrocker said:

You are dead wrong.  One must file an answer by the stated deadline in the court papers being served upon them in any state whether or not they elect to use arbitration or to fight the case in court. In some states including Texas participating in discovery will render arbitration null and void but at the very least a general denial must be filed as soon as possible to avoid a default judgment.

Hence my disclaimer about  not residing in Texas, as well as every state having their own nuances of civil procedure.  In my state, a MTC in lieu of an Answer is fine. 

I was simply offering OP general advice.  C'mon. 

 

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21 minutes ago, Sofustrated said:

@pulpfiction0 thank you very much. No, I do not have the template. Do you know where I can find it? I appreciate your help. I was about to give up on anyone answering. 

The search feature in the forums is helpful.  I'd use it to further research arb in TX.

This is the template I use: 

1. On or about xx/xx/xxxx, Plaintiff filed its case against Defendant.
2. Defendant moves this court to compel Private Arbitration in accordance to the Terms and 
Conditions of the Credit Card Agreement (see Exhibit A, attached).
3. In a letter to Plaintiff’s attorneys dated xx/xx/xxxx, Defendant informed Plaintiff of its 
intent to exercise the Arbitration Clause contained in said Agreement (see Exhibit B, attached.)
4. The parties are bound by the Credit Card Agreement. The Agreement states, in part, 
(a) You or we may elect to resolve any claim by individual arbitration. 
(b) If arbitration is chosen by any party, neither you nor we will have the right to 
litigate that claim in court or have a jury trial on that claim
(c) You or we may otherwise elect to arbitrate any claim at any time unless it has 
been filed in court and trial has begun or final judgment has been entered
(d) Claims will be referred to either JAMS or AAA, as selected by the party electing 
arbitration. Claims will be resolved pursuant to this Arbitration provision and the 
selected organization's rules in effect when the claim is filed, except where those 
rules conflict with this Agreement
5. The Federal Arbitration Act (“FAA”), USC 9, Section 1-2 provides:
“A written provision in any maritime transaction or a contract evidencing a 
transaction involving commerce to settle by arbitration to settle a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an 

existing controversy arising out of such contract, transaction, or refusal, shall be 
valid, irrevocable, and enforceable, save upon such grounds as exist at law or equity 
for the revocation of any contract.”
6. The Supreme Court ruling AT&T Mobility V. Concepcion 563 U.S. 333 (2011) states that 
courts must enforce arbitration agreements according to their terms. If there is an arbitration 
clause in the contract, that clause must be honored. “We have described this provision as 
reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone, supra, at 24, and 
the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West Inc. v. 
Jackson, 551 U.S. 63 (2010) (slip op. at 3). In line with these principles, courts must place 
arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc v. 
Cardegna, 546 U.S. 440, 443 (2006), and enforce them according to their terms, Volt 
Information Sciences, Inc v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 
478 (1989).” Furthermore, “The “principle purpose” of the FAA is to “ensure that private 
arbitration agreements are enforced according to their terms.” Volt, 489 U.S., at 478; see also 
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp, 559 US 662, 130 (2010) (slip op. at 17). This 
purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, 
irrevocable, and enforceable” as written (subject, of course, to the savings clause); §3 requires 
courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with 
the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the 
terms of the agreement” upon the motion of either party to the agreement…”

7. The Defendant elects arbitration via JAMS to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration 
pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of 
Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted,

(Your name)

Defendant, Pro Se

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4 hours ago, Sofustrated said:

@texasrocker thank you very much. Do you have any advice or help that you can offer? It would be most appreciated.  

I can’t help you with arbitration but look through my posts on the forums here to find my general denial.  I just relocated to another state and my desktop computer with all of my legal notes and info on it are packed away deep in the abyss of  a storage unit until I close on my new home hopefully by the end of this month. I am on my old laptop now with very few online things on it besides my I-phone jailbreaking tools. 

@fisthardcheese will soon see this and magically appear to walk you through the arbitration process.  

 

5 hours ago, pulpfiction0 said:

Hence my disclaimer about  not residing in Texas, as well as every state having their own nuances of civil procedure.  In my state, a MTC in lieu of an Answer is fine. 

I was simply offering OP general advice.  C'mon. 

 

C’mon? Moi? Show me proof that any state has a statute stating that private contractual arbitration on a debt collection case can be forbidden solely because the defendant had already filed an answer to the lawsuit and I will send you a $100 bill. 

Use your brain- If you file said “MTC” in your state it is not in lieu of an answer, it is your answer.

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2 hours ago, Sofustrated said:

@pulpfiction0 I will continue with my research on the rules for Texas. Also, thank you very very much. I will start typing my answer and attached the credit card agreement. I really appreciate it. 

The rules for the courts can be found here:  Texas Courts  the rules of civil procedure tell you everything.  It's a lot.  If you are in Justice Court you need the 500 rules.

You only need to attach the cc agreement to your MTC for arbitration not your answer.   As @texasrocker said, you need to submit your general denial. 

Here is @fisthardcheese 's arbitration thread.  It's full of good information you will need if you are planning on arbitration. 

 

BTW:  I'm fairly certain that leaving it on your door is NOT legal service without special permission from the court.  Not sure it's worth challenging it though.

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I'm in the same boat as the OP of this thread but lesser amount and different part of Texas. So I should file the general denial using arbitration as the affirmative defense and then file a separate motion to compel arbitration?

What the OP and I both potentially face are the "exceptions" in the agreement regarding individual claims in court. But i know that would be for the JDB to raise, to make it an issue. 

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21 minutes ago, alwayswinning36 said:

I'm in the same boat as the OP of this thread but lesser amount and different part of Texas. So I should file the general denial using arbitration as the affirmative defense and then file a separate motion to compel arbitration?

What the OP and I both potentially face are the "exceptions" in the agreement regarding individual claims in court. But i know that would be for the JDB to raise, to make it an issue. 

If I recall correctly, it has been determined in previous cases that TX Justice court is not "small claims".  @texasrocker probably knows about that.

Otherwise it all depends on your card agreement. If it has arbitration in it, then yes, that is always your "affirmative defense" in your answer with an MTC to follow.

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6 hours ago, Impress said:

BTW:  I'm fairly certain that leaving it on your door is NOT legal service without special permission from the court.  Not sure it's worth challenging it though.

I think it is always worth a shot. If you know service was improper, then I would file a motion to dismiss along with my affidavit testifying to how service was incorrect.  But I would also have at least my answer ready to file immediately if my MTD fails.  They will probably simply re-serve you as soon as they can, but it can buy an extra few weeks if you need it.

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1 hour ago, fisthardcheese said:

If I recall correctly, it has been determined in previous cases that TX Justice court is not "small claims".  @texasrocker probably knows about that.

Otherwise it all depends on your card agreement. If it has arbitration in it, then yes, that is always your "affirmative defense" in your answer with an MTC to follow.

I will give it a shot. See what happens. Credit one has that wording of small claims exemption in the agreement but could be possible maybe somewhere else in it that its contradicted. My little brother is in law school but can't give any advice. All he told me was to "follow my gut" and that if he was licensed he would be all over it. 

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43 minutes ago, alwayswinning36 said:

I will give it a shot. See what happens. Credit one has that wording of small claims exemption in the agreement but could be possible maybe somewhere else in it that its contradicted.

If you ask me I’ll say it is contradicted, though vaguely,  in the wording of the new Texas rules.  We had a lengthy discussion last year on this topic.  @BV80 likely knows right where to find it.  As of then there were no known precedents set in Texas to specifically define “small claims courts” based on Texas’ new rules.                             In my opinion small claims courts in Texas are completely abolished, gone, and a relic of the past.  The wording I recall is that “small claims cases” will now be heard in Justice (JP) courts with new procedures based on the new 500 series of rules in the TRCP but nothing whatsoever designating JP courts as the “new and improved small claims courts” or anything of that sort.                                   As far as I know the small claims exemption in a credit card agreement has not had any bearing on any case that has landed on this forum.  

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14 hours ago, pulpfiction0 said:

Every state has their own nuances of civil procedure. Hopefully someone with experience in the particularities of TX can chime in.  You'll want to know whether you can file a MTC in lieu of an Answer, or in addition to one.  In some states, filing an Answer is considered a waiver to arbitration. 

Assuming there is a valid agreement to arbitrate and the parties are bound by the agreement, sometimes prejudice to the opposing party can be an issue. 

In at least one state, filing an answer that does not raise the right to arbitration as a defense can waive the right.   In any state, engaging in a certain amount of litigation can waive arbitration.  However, each state can differ on how much litigation can occur before arbitration is waived.   In some states, a defendant can answer the complaint without mentioning arbitration and even answer discovery requests, but his right to arbitrate has not been waived.  In other states, answering discovery requests or requesting discovery might waive that right.  The reason is because engaging in months of litigation without ever raising the issue of arbitration shows you didn’t really intend to arbitrate and the other party will be prejudiced due to the time and money it has already spent.

Filing an answer that includes the right to private contractual arbitration as a defense would not waive that right in any state because a complaint must be answered, either by answer or a MTC, in order to avoid a default judgment.  Therefore, filing an answer that includes the arbitration defense shows your intent to arbitrate right from the very beginning and it would not prejudice the other party.  But then, you must get busy and do what it takes to get the arbitration ball rolling either by filing a MTC or a claim with the arbitration forum. 

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18 minutes ago, texasrocker said:
 
 

If you ask me I’ll say it is contradicted, though vaguely,  in the wording of the new Texas rules.  We had a lengthy discussion last year on this topic.  @BV80 likely knows right where to find it.  As of then there were no known precedents set in Texas to specifically define “small claims courts” based on Texas’ new rules.                             In my opinion small claims courts in Texas are completely abolished, gone, and a relic of the past.  The wording I recall is that “small claims cases” will now be heard in Justice (JP) courts with new procedures based on the new 500 series of rules in the TRCP but nothing whatsoever designating JP courts as the “new and improved small claims courts” or anything of that sort.                                   As far as I know the small claims exemption in a credit card agreement has not had any bearing on any case that has landed on this forum.  

I’ll see what I can find.  I do remeber that at least one creditor’s arbitration provision includes a reference to small claims or the “equivalent” of small claims in one’s court.  In other words, just because it’s not labeled as small claims doesn’t mean it’s not considered to be (the “equivalent”) small claims.  

Before small claims was abolished, what was the monetary limit in that court?  Today, what is the monetary limit in Justice Court?

Is this he thread?   It references “equivalent” in regard to small claims but does not prevent the defendant from electing to arbitrate.  It’s the standard “WE” (creditor) won’t demand to arbitrate if a lawsuit is filed in small claims. 

https://www.creditinfocenter.com/community/topic/329264-midland-filed-motion-to-deny-my-arb-motion-please-help/#comments

 

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1 hour ago, alwayswinning36 said:

I will give it a shot. See what happens. Credit one has that wording of small claims exemption in the agreement but could be possible maybe somewhere else in it that its contradicted. My little brother is in law school but can't give any advice. All he told me was to "follow my gut" and that if he was licensed he would be all over it. 

Is this the language in the agreement?

”Claims (whether brought initially or by counter or cross-claim) are not subject to arbitration if they are filed by you or us in a small claims court, so long as the case remains in such court and only individual claims for relief are advanced in the case.”

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2 hours ago, BV80 said:

Is this the language in the agreement?

”Claims (whether brought initially or by counter or cross-claim) are not subject to arbitration if they are filed by you or us in a small claims court, so long as the case remains in such court and only individual claims for relief are advanced in 

I think that's exactly how its worded. I'd have to double check to be sure but pretty sure it's how it is written. That mean me and the OP are fubarred? 

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19 minutes ago, alwayswinning36 said:

I think that's exactly how its worded. I'd have to double check to be sure but pretty sure it's how it is written. That mean me and the OP are fubarred? 

Only if Justice Court could be considered “small claims”.  If it is not considered to be small claims, arbitration is available.  

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1 hour ago, BV80 said:

Only if Justice Court could be considered “small claims”.  If it is not considered to be small claims, arbitration is available.  

And I think this is going to be open to interpretation by the presiding judge.  I believe there was a post on here about the judge ruling that JP court was small claims so the provision didn't apply.  However, I have asked a JP judge and he said he would agree that since the smalls claims courts were abolished in 2013, the small claims court provision wouldn't apply.  Still worth trying for it.  If nothing else, it's grounds for an appeal (if the judge denies) to see what the Texas Supreme court rules.

4 hours ago, BV80 said:

I’ll see what I can find.  I do remeber that at least one creditor’s arbitration provision includes a reference to small claims or the “equivalent” of small claims in one’s court.  In other words, just because it’s not labeled as small claims doesn’t mean it’s not considered to be (the “equivalent”) small claims.  

Before small claims was abolished, what was the monetary limit in that court?  Today, what is the monetary limit in Justice Court?

Is this he thread?   It references “equivalent” in regard to small claims but does not prevent the defendant from electing to arbitrate.  It’s the standard “WE” (creditor) won’t demand to arbitrate if a lawsuit is filed in small claims. 

https://www.creditinfocenter.com/community/topic/329264-midland-filed-motion-to-deny-my-arb-motion-please-help/#comments

 

So small claims is $10,000 now.  But as an FYI, when Small Claims courts were still around, assignees were NOT allowed to file there.  I believe LVNV is an assignee of the OC so they would have been in Justice Court anyway and the small claims court provision wouldn't apply.

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8 hours ago, BV80 said:

Only if Justice Court could be considered “small claims”.  If it is not considered to be small claims, arbitration is available.  

Interesting. But what about the motion to compel arbitration? I got a package today from LVNV attorney that contained a bunch of bill of sales for the alleged debt. But the one which listed the debt being transferred from xyz company to LVNV of course isn't even dated. They seem to have included some statements from the original creditor and thats about it. No agreement with the OC in sight. So it seems this is one of those you either file the MTC arbitration and hope it gets granted or file your answer and "challenge" and waive the right to arbitration assuming you'd have that anyway? The only thing I do know is if I dont raise the arbitration issue in the answer as an affirmative defense i basically waive the right, dont i? 

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6 hours ago, Impress said:

 

So small claims is $10,000 now.  But as an FYI, when Small Claims courts were still around, assignees were NOT allowed to file there.  I believe LVNV is an assignee of the OC so they would have been in Justice Court anyway and the small claims court provision wouldn't apply.

its 10,000 in Texas until September 1st. Then it goes up to $20,000.

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13 hours ago, alwayswinning36 said:

Interesting. But what about the motion to compel arbitration? I got a package today from LVNV attorney that contained a bunch of bill of sales for the alleged debt. But the one which listed the debt being transferred from xyz company to LVNV of course isn't even dated. They seem to have included some statements from the original creditor and thats about it. No agreement with the OC in sight. So it seems this is one of those you either file the MTC arbitration and hope it gets granted or file your answer and "challenge" and waive the right to arbitration assuming you'd have that anyway? The only thing I do know is if I dont raise the arbitration issue in the answer as an affirmative defense i basically waive the right, dont i? 

You don't have to chose. You do both. Hopefully the MTC is granted and you don't worry about challenging their evidence.  If the MTC is denied, then you go that route (after an appeal of the MTC denial, of course).

19 hours ago, Impress said:

So small claims is $10,000 now.  But as an FYI, when Small Claims courts were still around, assignees were NOT allowed to file there.  I believe LVNV is an assignee of the OC so they would have been in Justice Court anyway and the small claims court provision wouldn't apply.

This is a good argument, IMO, if the other side brings up the small claims issue. I would argue that the differences in small claims is pretty significant than the rules of JP Court and say that This Court (JP) is not the same as the now defunct small claims and therefore the exemption does not apply to JP Court.

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