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Sued by LVNV funding LLC (credit one) texas


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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

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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.  

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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.

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@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.

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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.

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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. 

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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.).

 

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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. 

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  • 5 months later...
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. 

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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?

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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.

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