Sued by LVNV funding LLC (credit one) texas

[veedub85]

Got served 05/10/2021 with two lawsuits from LVNV. I've been down this road before and another JDB. but this one is in justice court. I have my answer ready and will file with court. My plan is to got with arbitration. The arbitration clause states small claims court doesn't apply to arbitration. however on reading through post on this site it states small claims court is non existent in Texas anymore, so I'm  hoping to argue that point. I also see SOL is 4 years and last payment on account is in 6/17 witch is coming up on its 4 years, when does SOL start? last payment made on account? any other advice is appreciated 

 

 

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

 

2. What is the name of the law firm handling the suit? Matthew W. Cooper, Attorney, Scott & Associates 

 

3. How much are you being sued for?  1,177.66, 827.55

 

4. Who is the original creditor? (if not the Plaintiff) Credit One Bank

 

5. How do you know you are being sued? (You were served, right?) Served

 

6. How were you served? (Mail, In person, Notice on door) In Person

 

7. Was the service legal as required by your state? Texas, Yes.

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? 1-2 letters from LVNV and probably calls but I dont answer unknown numbers and no messages left for return call. 
 

 

9. What state and county do you live in? Bastrop 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) 06/2017 on both accounts 

 

11. When did you open the account? 2015,2016

 

12. What is the SOL on the debt? 4 years

 

13. What is the status of your case?  I need to file an answer by May 24. 

 

Suit served? 

 

Motions filed?  Nothing yet, plan to file MTA

 

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no.

 

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

 

16. How long do you have to respond to the suit? 14 days

 

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 

Citation

Original Petition

Bill of Sales from several different JDB

Exhibit A - Copy of spreadsheet listing the account history and transfer.

Last couple Credit One bank statements.

18.  How did you find out about this site? Google

[Impress]

On 5/15/2021 at 8:30 AM, veedub85 said:

Got served 05/10/2021 with two lawsuits from LVNV. I've been down this road before and another JDB. but this one is in justice court. I have my answer ready and will file with court. My plan is to got with arbitration. The arbitration clause states small claims court doesn't apply to arbitration. however on reading through post on this site it states small claims court is non existent in Texas anymore, so I'm  hoping to argue that point. I also see SOL is 4 years and last payment on account is in 6/17 witch is coming up on its 4 years, when does SOL start? last payment made on account? any other advice is appreciated 

Arguing the lack of small claims is going to be tricky.  There was at least one poster who has stated their judge deemed justice court to be small claims.  I had the same in a case recently.  Doesn't hurt to argue though.

With regards to SOL.  According to Texas Statute (specific statute here), SOL is four years from the day after the offense occurred.  So if your default day was today, the company could sue you up until 4 years from tomorrow.  Now the trick will be figuring out if your last payment is considered when the offense occurred, or (assuming your last payment didn't bring the account current),  if it was the time you went 30 days late and never brought the account current.  The last is what is used to determine fall off date on your credit report.

Also, be aware that covid did toll SOL in Texas, but I'm not 100% clear on how long and what that will do to your defense if you go with SOL.  Though I believe that since Texas allows, and in fact encouraged, E-File for filings, there should be no reason SOL would come into play.  IANAL, that is just my opinion.  

[veedub85]

1 hour ago, Impress said:

Arguing the lack of small claims is going to be tricky.  There was at least one poster who has stated their judge deemed justice court to be small claims.  I had the same in a case recently.  Doesn't hurt to argue though.

With regards to SOL.  According to Texas Statute (specific statute here), SOL is four years from the day after the offense occurred.  So if your default day was today, the company could sue you up until 4 years from tomorrow.  Now the trick will be figuring out if your last payment is considered when the offense occurred, or (assuming your last payment didn't bring the account current),  if it was the time you went 30 days late and never brought the account current.  The last is what is used to determine fall off date on your credit report.

Also, be aware that covid did toll SOL in Texas, but I'm not 100% clear on how long and what that will do to your defense if you go with SOL.  Though I believe that since Texas allows, and in fact encouraged, E-File for filings, there should be no reason SOL would come into play.  IANAL, that is just my opinion.  

I appreciate the response! I agree on the SOL the more i looked into it the more i don't think that is going to be an defense. I will attempt the arbitration and see how it goes.

[alwayswinning36]

Scott & Associates are bottom feeders who are lazy at best. File your answer, and MTC Arbitration. You will likely receive an email by S&A to say that arbitration isn't applicable. Did they file in the actual county that you reside in?

[Impress]

@veedub85 Pull your credit report, you can get a free one every year.  See what is posted on there as far as when it was charged off and expected fall off date, and the time these accounts went 30 days past due and were never brought current.  You might still be within SOL, but it doesn't hurt to take a few minutes to verify.   Also, maybe call your court house and see if they can tell you how long SOL was extended, and how that affects cases filed since the pandemic began.  A little quick reading shows that courts have the option of whether to extend, so if you can prove these accounts are out of SOL (or would be if the pandemic hadn't happened) the judge may consider it. 

Best of luck on whichever road you choose.

[BV80]

45 minutes ago, Impress said:

@veedub85 Pull your credit report, you can get a free one every year.  See what is posted on there as far as when it was charged off and expected fall off date, and the time these accounts went 30 days past due and were never brought current.  You might still be within SOL, but it doesn't hurt to take a few minutes to verify.   Also, maybe call your court house and see if they can tell you how long SOL was extended, and how that affects cases filed since the pandemic began.  A little quick reading shows that courts have the option of whether to extend, so if you can prove these accounts are out of SOL (or would be if the pandemic hadn't happened) the judge may consider it. 

Best of luck on whichever road you choose.

The OP said the date of last payment was 6/2017.  The SOL would not be a defense.

[Impress]

On 5/19/2021 at 3:20 PM, BV80 said:

The OP said the date of last payment was 6/2017.  The SOL would not be a defense.

Last payment, yes.  But that doesn't necessarily mean that's when the offense occurred.  I would think one could argue that the moment the account went behind and was never brought current was when the offense occurred.  Also, the statute doesn't state that payments made reset/extend SOL.  My opinion only, IANAL. 

[BV80]

1 hour ago, Impress said:

Last payment, yes.  But that doesn't necessarily mean that's when the offense occurred.  I would think one could argue that the moment the account went behind and was never brought current was when the offense occurred.  Also, the statute doesn't state that payments made reset/extend SOL.  My opinion only, IANAL. 

I understand, but in most states, including TX through its courts, a payment is an acknowledgment of an obligation and resets the SOL.

Williams v. Unifund CCR (TX Court of Appeals, 2008)

“Citibank (South Dakota), N.A. (Citibank) and Williams entered into a credit agreement allowing Williams to receive cash advances and to purchase goods and services. Williams made charges and payments on the account, and interest rates between 20.15-22.4% were reported on his statements. Williams then quit making payments and the account was closed on January 12, 2001. Williams then made several more payments, and his statements reflected that Citibank granted him deferment credits and an interest rate of 5%. The statements from Citibank reported that Williams's last payment was received on October 15, 2001.”

“The statute of limitations on a claim for debt based on breach of contract is four years from the time the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a) (Vernon 2002). Williams made his last payment on October 15, 2001, and this action commenced on August 19, 2005, which is within the four-year window.”

Dodeka, LLC v. Campos (TX Court of Appeals, 2012)

“Prior to Dodeka's lawsuit, Campos had a credit card account with Chase Bank. On December 23, 2005, Campos made her last payment on the account in the required minimum amount. On April 7, 2006, Campos resumed making payments for several months, but these payments were less than the minimum monthly amount required by Chase. She made her final payment on September 15, 2006. After purchasing the account from Chase Bank, Dodeka did not file suit on this account until March 15, 2010. The trial court found Campos breached her contract with Chase on January 22, 2006 (thirty days after her last minimum monthly payment on December 23, 2005), when she failed to make her next minimum monthly payment. Accordingly, the trial court concluded Dodeka filed suit outside the four-year statute of limitations. Dodeka asserts its lawsuit was timely-filed because the breach did not occur until sometime after Campos made her final payment on September 15, 2006.“

”Instead, we conclude that, at the earliest, the date of the last payment (September 15, 2006) determined the accrual date for purposes of the statute of limitations. Because this action commenced on March 15, 2010, Dodeka brought suit within the four-year statute of limitations. Accordingly, the trial court erred in concluding Dodeka violated the FDCPA.”

Matkin v. American Express Centurion Bank (TX Court of Appeals, 2018) (citing Dodeka, LLC v. Campos)

“A claim for breach of contract based on credit card debt accrues on the date the last payment on the account is made.” See Dodeka, L.L.C. v. Campos, 377 S.W.3d 726, 730 (Tex. App.-San Antonio 2012, no pet.).

 

[veedub85]

I apologize for the late reply! Life has been hectic lately. I did submit my answers to the court and emailed copies to the lawyer. I’m gonna go with arbitration. Plan is this weekend to draw up the paper work and submit next week. It appears the suit has been filed within the SOL. So I won’t try an argue that point. 

[Impress]

I appreciate the case law lookup @BV80 .   This will be helpful for future Texas residents that come here for assistance. 

@veedub85  Good luck and keep us updated on how it goes.

[ktigs]

On 5/21/2021 at 9:21 AM, veedub85 said:

I apologize for the late reply! Life has been hectic lately. I did submit my answers to the court and emailed copies to the lawyer. I’m gonna go with arbitration. Plan is this weekend to draw up the paper work and submit next week. It appears the suit has been filed within the SOL. So I won’t try an argue that point. 

Hey veedub85! 

How did this turn out for you? I have an open case with the same office and about to file an MTC, too. 

[magali]

On 11/18/2021 at 2:15 PM, ktigs said:

Hey veedub85! 

How did this turn out for you? I have an open case with the same office and about to file an MTC, too. 

Is your credit card Credit One? Did you check your card agreement to confirm they have a arbitration clause?

[ktigs]

7 hours ago, magali said:

Is your credit card Credit One? Did you check your card agreement to confirm they have a arbitration clause?

Of course, I did.  I already have an MTC drafted and the original cc agreement printed up.

[veedub85]

Update

So between work and life i haven't filed my MTC yet, i did submit my general denial and answer. Dumb on my part i know, i honestly kinda forgot about the issue. I received a letter from the JP court setting a court date in march. i haven't heard anything form the JDB other than the acknowledgment of receipt of my answer to the suit.

My question now is it too late to submit request for arbitration?

[BackFromTheDebt]

45 minutes ago, veedub85 said:

Update

So between work and life i haven't filed my MTC yet, i did submit my general denial and answer. Dumb on my part i know, i honestly kinda forgot about the issue. I received a letter from the JP court setting a court date in march. i haven't heard anything form the JDB other than the acknowledgment of receipt of my answer to the suit.

My question now is it too late to submit request for arbitration?

There is only one way to find out.  
 

File and see what happens.   

[Bulldoger]

3 hours ago, BackFromTheDebt said:

There is only one way to find out.  
 

File and see what happens.   

If you had it as a defense then it shouldn't be to late, what is the title of the court date? is it a status, hearing, or trial date ? 

Regardless file the MTC ASAP.  

I just reread the post and you got served in March 2021 so it may just be a status date as case has not really moved in a year. 

 

[veedub85]

Final update hopefully... So the court set a date for a hearing and the attorney for LVNV filed a motion to extend the date, judge granted the motion and set the date to May 24th. Well been double checking and LVNV has filed for non suit without prejudice. online it looks like the court accepted the motion and ordered it. I received the copy of the motion from LVNV but haven't got the one from the court. on the website it still shows the case as filed but does have "order" and the hearing is canceled with the note "agreed judgement". This is for both of the lawsuits.

[Bulldoger]

filed for non suit without prejudice

your pass the SOL so if TX doesn't have a law like here in VA where they can refile up to 6 months even though SOL has passed you won. 

But in either case I don't see them refiling. good news

[alwayswinning36]

Well congratulations. If they non-suited, even without prejudice, they cannot refile the case in court again once the SOL passes, which if 6-17-22 would be the end of the SOL, they can't refile it after that date. Well excuse me, they could refile it, but you would then use the SOL as your affirmative defense.

[Bulldoger]

On 5/21/2021 at 8:01 AM, BV80 said:

I understand, but in most states, including TX through its courts, a payment is an acknowledgment of an obligation and resets the SOL.

Williams v. Unifund CCR (TX Court of Appeals, 2008)

“Citibank (South Dakota), N.A. (Citibank) and Williams entered into a credit agreement allowing Williams to receive cash advances and to purchase goods and services. Williams made charges and payments on the account, and interest rates between 20.15-22.4% were reported on his statements. Williams then quit making payments and the account was closed on January 12, 2001. Williams then made several more payments, and his statements reflected that Citibank granted him deferment credits and an interest rate of 5%. The statements from Citibank reported that Williams's last payment was received on October 15, 2001.”

“The statute of limitations on a claim for debt based on breach of contract is four years from the time the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a) (Vernon 2002). Williams made his last payment on October 15, 2001, and this action commenced on August 19, 2005, which is within the four-year window.”

Dodeka, LLC v. Campos (TX Court of Appeals, 2012)

“Prior to Dodeka's lawsuit, Campos had a credit card account with Chase Bank. On December 23, 2005, Campos made her last payment on the account in the required minimum amount. On April 7, 2006, Campos resumed making payments for several months, but these payments were less than the minimum monthly amount required by Chase. She made her final payment on September 15, 2006. After purchasing the account from Chase Bank, Dodeka did not file suit on this account until March 15, 2010. The trial court found Campos breached her contract with Chase on January 22, 2006 (thirty days after her last minimum monthly payment on December 23, 2005), when she failed to make her next minimum monthly payment. Accordingly, the trial court concluded Dodeka filed suit outside the four-year statute of limitations. Dodeka asserts its lawsuit was timely-filed because the breach did not occur until sometime after Campos made her final payment on September 15, 2006.“

”Instead, we conclude that, at the earliest, the date of the last payment (September 15, 2006) determined the accrual date for purposes of the statute of limitations. Because this action commenced on March 15, 2010, Dodeka brought suit within the four-year statute of limitations. Accordingly, the trial court erred in concluding Dodeka violated the FDCPA.”

Matkin v. American Express Centurion Bank (TX Court of Appeals, 2018) (citing Dodeka, LLC v. Campos)

“A claim for breach of contract based on credit card debt accrues on the date the last payment on the account is made.” See Dodeka, L.L.C. v. Campos, 377 S.W.3d 726, 730 (Tex. App.-San Antonio 2012, no pet.).

 

Don't know if this still holds in Texas as new law was passed in 2019: 

Texas and Federal Law

• Section 16.004 of the Texas Civil Practice and Remedies Code

  The statute of limitations on debt in Texas is four years.
• Section 392.307 of the Texas Finance Code

  This section of the law, introduced in 2019, states that a payment on the debt (or any other activity) does not restart the clock on the statute of limitations. It also requires that debt buyers provide written notice to a consumer if the limitations period has expired.

[alwayswinning36]

2 hours ago, Bulldoger said:

Don't know if this still holds in Texas as new law was passed in 2019: 

Texas and Federal Law

• Section 16.004 of the Texas Civil Practice and Remedies Code

  The statute of limitations on debt in Texas is four years.
• Section 392.307 of the Texas Finance Code

  This section of the law, introduced in 2019, states that a payment on the debt (or any other activity) does not restart the clock on the statute of limitations. It also requires that debt buyers provide written notice to a consumer if the limitations period has expired.

That is true, and it is new law that was passed in 2019. It means here in Texas at least you could admit to the debt, pay a payment on the debt, etc. If it has been passed the original 4 year SOL when you acknowledge or make the payment on the debt it DOES NOT restart the clock. So no more of this buying junk debt, you get a call about it and say yes its mine and another 4 year SOL starts. And as for the notice that the SOL has expired being required, that is actionable under the Texas Debt Collection Act, to my knowledge, if the statement or notice is not made in a communication from the debt collector or buyer and the SOL has in fact passed.

[Neri]

My turn....looks like this is going to be an annual practice and hopefully help with responding better to the likes of LVNV. Prior posts have helped calm my nerves a bit and towards taking initial steps.  So I got served 01Jun2023 with a 2-in-1 suit from LVNV. Never been down this alley, 2018 was a rough time financially, did everything to keep a trucking business afloat, ended up losing both trucks and getting evicted late 2019, finally getting back on my feet when I bought my first home late last year and then LVNV shows up in my mail.

This was an auto loan and a personal loan, I filed a general denial and noted SOL was past due. Last successful payment on both accounts was Aug2018, I have a couple of payments showing after that date but on closer examination, I had the accounts on auto pay and all those payments bounced back, they never went through. I even have payments showing on my credit report after the Repo, not sure what to make of that. Thank you, every constructive advice helps. 

 

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

 

2. What is the name of the law firm handling the suit? Randy Creager, Attorney, Scott & Associates 

 

3. How much are you being sued for?  42,000(personal loan) & 16,000(auto loan)

 

4. Who is the original creditor? (if not the Plaintiff) Navy Federal Credit Union (NFCU) Bank

 

5. How do you know you are being sued? (You were served, right?) Served

 

6. How were you served? (Mail, In person, Notice on door) Notice on door

 

7. Was the service legal as required by your state? Texas, Yes.

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  Maybe a letter from LVNV, they're stating they sent a demand letter 22Nov2022 but I don't remember receiving one.
 

9. What state and county do you live in?  Fort Bend 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) Going through my TransUnion & Experian reports, starting Dec 2018, I went 30, 60, 90, 120, 150 days and then collections on both loans. Looking at prior Bank of America statements, Sep 2018 was my last deliberate payment. Looking at my Navy Federal checking a/c which was what LVNV sent, it's showing a $2 payment on 03May2019 on the personal loan. At this time, NFCU was like garnishing anything that went into my checking and sending it straight to the loans. I wasn't making payments anymore, simply because I could not afford to. Wondering if this $2 is the leg LVNV wants to stand on and how best to defend myself moving forward. The lowest debt attorney I found wants 25%  of debt savings + initial $4k if they win the case; almost $20k when all is said and done. 

 

11. When did you open the account? Apr2017

 

12. What is the SOL on the debt? 4 years

 

13. What is the status of your case?  I filed an answer 20Jun2023, I had 20 days to respond. Under general denial, I noted upon information and belief, I'm unable to determine the debt transfer was correctly executed and is genuine. Plaintiff cannot use only parts of a document to prove it owns the debt but must introduce the entire document. I picked statute of limitations as my affirmative defense. Waiting to hear back from LVNV at this time. Is there a time limit for them to move this forward? 

 

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No I never had to, I do owe those debts and my credit has taken a beaten of a life time over these 2 accounts. I was holding my breath for this to fall off when LVNV came into the picture. 

 

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

 

16. How long do you have to respond to the suit? 20 days

 

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 

Citation - noted original petition was filed 20Jan2023 but I was never served successfully

Original Petition

Bill of Sales from several different JDB

Exhibit A - Non-Authoritative copy of agreement I signed with NFCU, Copy of spreadsheet listing the account history 

Exhibit B - Bill of sale and assignment of accounts to them from NFCU in 18Oct2018

Order on Plaintiff's motion for substitute service

18.  How did you find out about this site? Google

[BV80]

@Neri

It would be best to start your own thread.  That way, we won’t confuse your information with the information of the person who started this thread.  Thank you.  Oh, and in your new thread, please include the date the lawsuit was filed.  

[Neri]

Got it, will do....thanks.