Sofustrated

Being Sued by LVNV Finding, LLC-Texas

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On 8/14/2020 at 6:47 AM, fisthardcheese said:
 ...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.

Well said.  I certainly share this opinion.   Does not the wording on credit card agreement state "small claims court" instead of "small claims cases"?

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On 8/14/2020 at 8:47 AM, fisthardcheese said:
 

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).

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.

So just file the general denial answer with arbitration as affirmative defense and then file a motion to compel arbitration? I could be wrong but I think if they end up denying the motion, the court would have to dismiss it anyway. The alleged transfer of the debt via bill of sale isn't even dated. Several other bills of sale from one collector to another are dated but the one transferring rights to Lvnv isn't dated. Seems like they can't prove when it was transferred or sold to them. They can say a certain date all they would like but cant prove it on any paper. At least not any they sent. And their accounting for the debt consists of a few statements. None of them ever even show the balance being at $0 before reaching the alleged debt amount it was transferred to them at. 

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15 hours ago, texasrocker said:
 
 

Well said.  I certainly share this opinion.   Does not the wording on credit card agreement state "small claims court" instead of "small claims cases"?

That is very true. It does say small claims court. One thing I never received is a copy of the cardholder agreement. In 2015 the CFPB didnt obtain any of them either. So I dont know which to present with a MTC arbitration. 2016? I'm sure its the same as it probably was fourth quarter of 2014, as far as arbitration is concerned. 

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4 hours ago, alwayswinning36 said:

So just file the general denial answer with arbitration as affirmative defense and then file a motion to compel arbitration? I could be wrong but I think if they end up denying the motion, the court would have to dismiss it anyway. The alleged transfer of the debt via bill of sale isn't even dated. Several other bills of sale from one collector to another are dated but the one transferring rights to Lvnv isn't dated. Seems like they can't prove when it was transferred or sold to them. They can say a certain date all they would like but cant prove it on any paper. At least not any they sent. And their accounting for the debt consists of a few statements. None of them ever even show the balance being at $0 before reaching the alleged debt amount it was transferred to them at. 

Yes, file your answer with the general denial and affirmative defense.  Then file your motion.  The court isn't going to automatically dismiss based on what you said.  Judges robo sign all the time.  All they need to see is an affidavit and a bill of sale. You would have to go to trial and argue their docs aren't enough to prove their debt.  They may have more they haven't provided you. Arbitration is really the best defense here. 

Just so you have an example, I recently had a case where all that was presented was an affidavit, a bill of sale, and a credit card statement.  I pointed out the affidavit wasn't trustworthy and the bill of sale didn't have my info to prove it was my debt.  I still lost.  I'm currently in the appeals process.

You choice, trial or arbitration.  But don't assume what the judge will have to do.

 

As for the agreement, just include the one closest to when you went into delinquency.  If LNVN doesn't challenge it, then you are fine. 

 

 

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4 hours ago, Impress said:
 

Yes, file your answer with the general denial and affirmative defense.  Then file your motion.  The court isn't going to automatically dismiss based on what you said.  Judges robo sign all the time.  All they need to see is an affidavit and a bill of sale. You would have to go to trial and argue their docs aren't enough to prove their debt.  They may have more they haven't provided you. Arbitration is really the best defense here. 

Just so you have an example, I recently had a case where all that was presented was an affidavit, a bill of sale, and a credit card statement.  I pointed out the affidavit wasn't trustworthy and the bill of sale didn't have my info to prove it was my debt.  I still lost.  I'm currently in the appeals process.

You choice, trial or arbitration.  But don't assume what the judge will have to do.

 

As for the agreement, just include the one closest to when you went into delinquency.  If LNVN doesn't challenge it, then you are fine. 

 

 

What state are you in? Hopefully your appeal is successful. Should I mention anything about the small claims exception in the arbitration agreement, citing that in Texas the venue they are suing in is Justice Court? Or save that for appeal if the motion to compel is denied?

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And what about service? Plaintiffs attorney says on the petition that email service is authorized. Does this mean I can simply serve them electronically by sending an email with the answer and motion attached?

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Here is something - they did include a card agreement in the stuff they sent, that LVNV sent, but it's from 2017? They allege the card to have been opened in 2015, so wouldn't whatever was in force in 2015 be the effective agreement? Searching 4th quarter of 2014 and first quarter of 2016 in the CFPB agreements record they both have AAA and JAMS as arbitrators. Guess they tried to pull a fast one making it out like the 2017 agreement is what would be applicable? The wording of that particular 2017 agreement states "claims are not subject to arbitration if they are filed by you or us in a small claims court or your state's equivalent court, so long as the matter remains in such court and advances only on an individual claim for relief." I was under the impression they did not include a card agreement in the package they sent me claiming I requested DV, but my fiancee didn't know what to look for I guess. I travel a lot for work and was not home when the package came in the mail. It was in there, though. Just probably the wrong and irrelevant copy, right? Or does the card agreement change accordingly year to year for everyone that has a card with them when it is updated, with credit one bank that is?

I did not intend to hi-jack the OP thread here. I apologize for anyone who may be a little upset with it seeming that way. Just he and I are both in the same boat and we both benefit from the information provided by all you folks here. I am assuming that I would not complete any arbitration demand until my motion to compel arbitration is granted? I am looking at the form right now, and not sure if I should complete and send it or not. Since there is not a current granted MTC, it seems like I would be jumping the gun sending this right at this juncture.

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I prepared my answer, the MTC, and everything to go file. I did discover one thing with the Rules of Civil Procedure, there are a lot of things the petition must state for a debt claimant to get ongoing interest. And surprisingly, it doesn't state what it is required to. I will keep that under my hat though and not say anything until my motion is denied, and it looks like it will be going to trial. I don't want to tip them off to their woes and give them the chance to timely file an amended complaint. I am just going to do file both the answer and MTC at the same time I guess.

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8 hours ago, alwayswinning36 said:

What state are you in? Hopefully your appeal is successful. Should I mention anything about the small claims exception in the arbitration agreement, citing that in Texas the venue they are suing in is Justice Court? Or save that for appeal if the motion to compel is denied?

In Texas and yeah I hope it's successful too.  :)  No you do not mention the exception.  Let the other side bring that up.  You just need to prepare your argument for why it wouldn't apply in case they do. 

8 hours ago, alwayswinning36 said:

And what about service? Plaintiffs attorney says on the petition that email service is authorized. Does this mean I can simply serve them electronically by sending an email with the answer and motion attached?

If they authorized it, then yes you can email them.  You can also e-file and have them e-served that way.  You just need to provide their email and stuff if they haven't already included it.

6 hours ago, alwayswinning36 said:

Here is something - they did include a card agreement in the stuff they sent, that LVNV sent, but it's from 2017? They allege the card to have been opened in 2015, so wouldn't whatever was in force in 2015 be the effective agreement? Searching 4th quarter of 2014 and first quarter of 2016 in the CFPB agreements record they both have AAA and JAMS as arbitrators. Guess they tried to pull a fast one making it out like the 2017 agreement is what would be applicable? The wording of that particular 2017 agreement states "claims are not subject to arbitration if they are filed by you or us in a small claims court or your state's equivalent court, so long as the matter remains in such court and advances only on an individual claim for relief." I was under the impression they did not include a card agreement in the package they sent me claiming I requested DV, but my fiancee didn't know what to look for I guess. I travel a lot for work and was not home when the package came in the mail. It was in there, though. Just probably the wrong and irrelevant copy, right? Or does the card agreement change accordingly year to year for everyone that has a card with them when it is updated, with credit one bank that is?

I did not intend to hi-jack the OP thread here. I apologize for anyone who may be a little upset with it seeming that way. Just he and I are both in the same boat and we both benefit from the information provided by all you folks here. I am assuming that I would not complete any arbitration demand until my motion to compel arbitration is granted? I am looking at the form right now, and not sure if I should complete and send it or not. Since there is not a current granted MTC, it seems like I would be jumping the gun sending this right at this juncture.

If I'm not mistaken, it's typically whatever agreement was in place at the time of default.  However, there are some agreements that state the one you were given at the time of opening your account will be the one that governs your account, regardless of any updates made to the agreement. 

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21 minutes ago, Impress said:

In Texas and yeah I hope it's successful too.  :) No you do not mention the exception.  Let the other side bring that up.  You just need to prepare your argument for why it wouldn't apply in case they do. 

If they authorized it, then yes you can email them.  You can also e-file and have them e-served that way.  You just need to provide their email and stuff if they haven't already included it.

If I'm not mistaken, it's typically whatever agreement was in place at the time of default.  However, there are some agreements that state the one you were given at the time of opening your account will be the one that governs your account, regardless of any updates made to the agreement. 

Thanks for the reply. Good idea to file both the answer and MTC in one whack? I have both ready to file. I plan on just going to file it tomorrow then mail the stamped copies to plaintiffs attorney. 

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On 8/15/2020 at 11:34 PM, alwayswinning36 said:

That is very true. It does say small claims court. One thing I never received is a copy of the cardholder agreement. In 2015 the CFPB didnt obtain any of them either. So I dont know which to present with a MTC arbitration. 2016? I'm sure its the same as it probably was fourth quarter of 2014, as far as arbitration is concerned. 

@fisthardcheese should know of a good place to look for one or someone else in the arbitration dept. will chime in.

Most likely the plaintiff doesn’t have a copy of the agreement either.

 

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On 8/16/2020 at 2:30 AM, alwayswinning36 said:

So just file the general denial answer with arbitration as affirmative defense and then file a motion to compel arbitration?

Yes.

On 8/16/2020 at 2:30 AM, alwayswinning36 said:

I could be wrong but I think if they end up denying the motion, the court would have to dismiss it anyway

You are wrong.  You will be surprised what flimsy evidence the courts will side with collectors on these days.  This is why we always hammer arbitration here. Arbitration has a much higher success rate than arguing even the strongest cases on the merits in court.

 

On 8/16/2020 at 2:34 AM, alwayswinning36 said:

One thing I never received is a copy of the cardholder agreement. In 2015 the CFPB didnt obtain any of them either. So I dont know which to present with a MTC arbitration. 2016? I'm sure its the same as it probably was fourth quarter of 2014, as far as arbitration is concerned.

Did the account go into default in 2015? You need the agreement from the year you stopped making payments.  If there is no 2015 agreement it is because they did not make changes and issue a new agreement that year, which means the last one from 2014 was still in effect. That is the one I would use.  Your affidavit testifying to your first hand knowledge of the accuracy and "true and correct copy" of this agreement isn't something they can overcome in court anyway unless they are going to get their own witness from the bank to say otherwise, which they won't.

 

On 8/16/2020 at 11:43 AM, alwayswinning36 said:

Should I mention anything about the small claims exception in the arbitration agreement, citing that in Texas the venue they are suing in is Justice Court? Or save that for appeal if the motion to compel is denied?

I would never bring up any "issue" that could run against my own case.  That seems like a terrible idea.  It only need to be addressed IF or when the other side brings it up.  Then you file a response to any objections or opposition arguments they may make.

 

On 8/16/2020 at 11:47 AM, alwayswinning36 said:

And what about service? Plaintiffs attorney says on the petition that email service is authorized. Does this mean I can simply serve them electronically by sending an email with the answer and motion attached?

I would refer to my local court rules for this.  If the court rules say this is an acceptable way of service, then I would email. However, if the rules don't mention it is a proper service, I would go by the rules.  Either way, a "Certificate of Service" page should be added with your Answer and Motion - and ANYTHING you file in court - stating that you served them and how.

 

On 8/16/2020 at 1:39 PM, alwayswinning36 said:

Here is something - they did include a card agreement in the stuff they sent, that LVNV sent, but it's from 2017?

If they provided a card agreement AND HAVE INCLUDED IT IN COURT AS AN EXHIBIT, then I would absolutely use that agreement.  It saves an entire argument about the "correct" agreement if they already filed the exhibit.

On 8/16/2020 at 1:39 PM, alwayswinning36 said:

I am assuming that I would not complete any arbitration demand until my motion to compel arbitration is granted? I am looking at the form right now, and not sure if I should complete and send it or not. Since there is not a current granted MTC, it seems like I would be jumping the gun sending this right at this juncture.

Yes, that would be jumping several steps ahead and not a good idea.

On 8/16/2020 at 8:54 PM, alwayswinning36 said:

Good idea to file both the answer and MTC in one whack?

Yes

On 8/16/2020 at 1:39 PM, alwayswinning36 said:

I did not intend to hi-jack the OP thread here.

I didn't even realize this is not your thread.  It's best to start your own or we will end up giving you and the OP both bad advise by mixing up your cases.  I can't keep my own name straight half the time, there is no way I'm keeping 2 cases in one thread straight.

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On 8/9/2020 at 3:24 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. 

how did your situation turn out for you?

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