Being Sued by FNB Omaha in Texas

[bartos]

1. Who is the named plaintiff in the suit?   First National Of Omaha 
2. What is the name of the law firm?   Eric S Peterson - Javitch Block & Rathbone LLP
3. How much are you being sued for? $22k + plus court costs
4. Who is the original creditor? First National Of Omaha 
5. How do you know you are being sued? Served in person
6. How were you served? In person.
7. Was the service legal as required by your state? Yes?
8. What was your correspondence (if any) with the people suing you before you think you were being sued? Just a letter stating the account was closed for delinquency
9. What state and county do you live sued? Texas, Llano County
10. When is the last time you paid on this account? July, 2020
11. When did you open the account?  2013
12. What is the SOL on the debt?  4 years?
13. What is the status of your case? I was served 2 weeks ago. Need to Answer.
14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency? N/A
 15. Did you request debt validation before the suit was filed? No
16. How long do you have to respond to the suit?  1 week
17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
They submitted a past due statement (dated 03/2021) from First National Of Omaha  with the summons.

Just want to know my best options.

Thanks in advance.

[BackFromTheDebt]

I hate to be the bringer of bad news, although not all is bad.

FNBO generally doesn't lose.  Ever.  I don't know anyone on this forum who has beaten them.  

FNBO doesn't have an arbitration clause, so you can't use arbitration (unless they put an arbitration clause in since I dealt with them).  They keep very good records.  They don't sell to JDBs.  They usually use the best debt litigation law firms, although I have little knowledge of the firm in this particular case.  

I settled with them.  I would suggest making a low ball settlement offer, and see what their reaction is.  I settled for less than I expected, although that was a long time ago, and before the account was written off.  

For an amount this high, it would be very difficult to pay if off all at once.  You will probably have to agree to a stipulated judgment.  That is, you agree to a monthly payment plan, and if you miss your payments, they won't have to go to court.  They will already have a judgment.  

So make sure you agree to a payment plan you can actually afford.

If you can't get a payment plan you can afford, consider bankruptcy. 

The only good thing is -- in Texas it is more difficult for them to collect on a judgment.  There have been some situations where Texans have simply let a judgment be placed against them, which the creditor could not collect.  That is a dangerous strategy, and should only be used if you really know what you are doing, and they really CAN'T collect against you.  

 

There are some Texans on this forum, @texasrocker being the most active.  He is knowledgeable about specific Texas  laws, procedures and strategies.  If anything he says contradicts anything I say, listen to him. 

[bff]

The other approach than settling, is submit an answer, and prepare a discovery plan to demand evidence. The first order of business is demanding if they have standing by investigating the documentation that does the 'chain of assignment'. Next, you should demand a full accounting of the debt. And you should find out who they will use for the affidavit and supporting documentation.

There are many other areas to poke holes in their case. Dont just hand them a win without a fight. 

Or pay them to go away..i guess it depends on your means, personality, and philosophies. 

I recommend you read this very thoroughly

https://library.nclc.org/ca/020101

 

[Clydesmom]

3 hours ago, bartos said:

3. How much are you being sued for? $22k + plus court costs
4. Who is the original creditor? First National Of Omaha 

Here is the major problems:  you are being sued by the original creditor.  The defenses you read about on sites like this one are based upon being sued by a JDB not the OC.  They won't work in this suit.  You are being sued for a LOT of money in State Court.  Unlike Small Claims/JP/dog bite court where the rules are more relaxed for pro-se defendants State Court will expect you to follow ALL the rules of civil procedure.  At that court level in Texas those are the 100 section rules.  While Texas is very debtor friendly in not allowing garnishment of wages they do allow levying your bank account and unlike a garnishment they are not limited to how much they can seize.  Texas also allows for post judgment interest.  So while they are limited in how they can collect the amount can easily balloon with post judgment interest and hamstring credit for years to come.

I would do a consult with a bankruptcy attorney regarding how much debt you have and whether that is a reasonable solution to the issue.  If it isn't an option based on the amount of debt then settling is likely the best choice.  The chances of defeating an OC suit are not good.  They have all the evidence they need to win and do not need affidavits or live witness to attest to their own business records in court.

 

[Clydesmom]

1 minute ago, bff said:

The other approach than settling, is submit an answer, and prepare a discovery plan to demand evidence. The first order of business is demanding if they have standing by investigating the documentation that does the 'chain of assignment'.

NO.  The OP is being sued by the ORIGINAL CREDITOR.  There is no chain of assignment in a case like that.  They automatically have standing as they ARE the creditor.

2 minutes ago, bff said:

Next, you should demand a full accounting of the debt.

NO.  Texas does not require that for a debt collection suit.  Especially in an OC suit.

3 minutes ago, bff said:

And you should find out who they will use for the affidavit and supporting documentation.

There won't be an affiant or a live witness.  The original creditor in Texas courts can submit their own records without them.  

3 minutes ago, bff said:

I recommend you read this very thoroughly

https://library.nclc.org/ca/020101

I recommend you learn the difference between a suit by a JDB and an OC.  The only thing your advice is going to do is hand walk the OP straight to a large judgment.  The laws in TX are very different from CA and you are clearly unfamiliar with TX law.  

[nobk4me]

I think they do have an arb clause.

[bff]

From what ive reviewed from your post history, it seems you always come off as very aggressive and frankly rude. Why is that? In other words, chillllll baby!

The point on standing is this. OP has no idea what is being claimed is true and they are entitled to proper documentation. For example when you say this, it is just a claim. nothing more

Quote

NO.  The OP is being sued by the ORIGINAL CREDITOR.  There is no chain of assignment in a case like that.  They automatically have standing as they ARE the creditor.

These are all assertions that you are making. And you are not even involved in the case lol! So OP has all the right in the world to demand this documentation of standing. Perhaps the collector's license has expired? Perhaps they dont even have an agreement for suing before the 'original creditor' started it. Etc etc. 

The defense is to demand evidence.

These are not my ideas btw, its in that book. Read the book and you will see just how shady and untransparent this collection business is. 

You can fight for your right, or surrender to a piece of paper with claims. Surely a true texan knows all about the history of how shady legal deals is peppered all over their history. 

to OP: As one in the actual think and thin against an original creditor, i can tell you ALL the odds are against me. But you know what, im winning. Cause the more ive exposed the holes, the more i build my case for a summary judgement to dismiss the case!

[BV80]

5 minutes ago, bff said:

These are all assertions that you are making. And you are not even involved in the case lol! So OP has all the right in the world to demand this documentation of standing. Perhaps the collector's license has expired? Perhaps they dont even have an agreement for suing before the 'original creditor' started it. Etc etc. 

 

The OP can challenge standing, but all the plaintiff will do is provide an affidavit stating that the OP owes FNB Omaha and the court will accept It.

When an original creditor (OC) sues, there is no “collector’s license” because an OC is not a debt collector.

What do you mean by “Perhaps they dont even have an agreement for suing before the 'original creditor' started it”?

[bartos]

Thanks for the answers.

I think Nobk4me is correct, assuming I'm reading this correctly https://www.fnbo.com/terms/cardmember-agreements/

I have filed the Defendant's Answer using the https://selfhelp.efiletexas.gov/SRL to produce the Answer in PDF form (it didn't give me the option to file directly, even though I was registered and logged in)

Quote

2. General Denial
I enter a general denial.
I request notice of all hearings in this case.

I then electronically signed and File into an existing case using
https://efile.txcourts.gov/ofsweb

And did the certificate of service via email. 

It was accepted by the Llano County District Clerk about 30min later, so hopefully I didn't screw it up.

Should I wait for a response or file the Motion to Compel Arbitration?

 

 

[bff]

3 minutes ago, BV80 said:

The OP can challenge standing, but all the plaintiff will do is provide an affidavit stating that the OP owes FNB Omaha and the court will accept It.

When an original creditor (OC) sues, there is no “collector’s license” because an OC is not a debt collector.

What do you mean by “Perhaps they dont even have an agreement for suing before the 'original creditor' started it”?

The plaintiff can submit whatever affidavit stating whatever it wants. The defendant has a right to challenge that affidavit specifically seeking to question the witness at trial.

Defendant has every right to make these discoveries. Defendant has every right to cross examine any affidavit and supporting documentation.

What the court will 'accept' is AFTER both sides get to argue and present their case. Keep in mind there is a trial starting to start, and these conclusions of fact can not come until due process.

I can not ever recommend a defeatist attitude ESPECIALLY when it comes to my life, liberty, and property.

[bff]

8 minutes ago, bartos said:

Thanks for the answers.

I think Nobk4me is correct, assuming I'm reading this correctly https://www.fnbo.com/terms/cardmember-agreements/

I have filed the Defendant's Answer using the https://selfhelp.efiletexas.gov/SRL to produce the Answer in PDF form (it didn't give me the option to file directly, even though I was registered and logged in)

I then electronically signed and File into an existing case using
https://efile.txcourts.gov/ofsweb

And did the certificate of service via email. 

Should I wait for a response or file the Motion to Compel Arbitration?

 

 

Did you include any affirmative defenses? If you didnt you should be able to amend your answer for free (what this means is you redo the entire thing with addition stuff, and redo the filing)

You need the affirmative defenses stated up front, as its the case YOU will be presenting in defense. So as ive posted above, if you try to demand evidence for their standing , it is to support this affirmative defense claim of 'no standing'. You have to prove your affirmative defenses by well making a case..with evidence.

I highly suggest you read the book link i posted above, and also get one on civil litigation process. 

[BV80]

7 minutes ago, bff said:

The plaintiff can submit whatever affidavit stating whatever it wants. The defendant has a right to challenge that affidavit specifically seeking to question the witness at trial.

Defendant has every right to make these discoveries. Defendant has every right to cross examine any affidavit and supporting documentation.

What the court will 'accept' is AFTER both sides get to argue and present their case. Keep in mind there is a trial starting to start, and these conclusions of fact can not come until due process.

I can not ever recommend a defeatist attitude ESPECIALLY when it comes to my life, liberty, and property.

You do know that all the OP has to do is check his credit report?  If the account has been sold to a debt buyer, the OC’s entry will show a $0 balance owed.  However, if the OC’s entry still shows a balance, that means the OC still owns the account.

[BV80]

46 minutes ago, nobk4me said:

I think they do have an arb clause.

Even if there is an arbitration clause, the bank would probably agree to arbitrate considering the amount in question.  Whether or not it would be useful in this case is anyone’s guess.  

[bff]

7 minutes ago, BV80 said:

You do know that all the OP has to do is check his credit report?  If the account has been sold to a debt buyer, the OC’s entry will show a $0 balance owed.  However, if the OC’s entry still shows a balance, that means the OC still owns the account.

If a walking into a court with a credit check is all it takes to determine if there was a business transaction as you describe it, then what a very weak case that is!  All hail the credit check report and their trustworthy overlords! Hey here is an idea, lets depose of THAT witness too. Pro se got all the time in the world for discovery. 

Defendant should instead learn exactly how this shady business works, by properly staging a discovery to expose it. Interrogatories would be useful here. 

 

[BV80]

Just now, bff said:

If a walking into a court with a credit check is all it takes to determine if there was a business transaction as you describe it, then what a very weak case that is!  All hail the credit check report and their trustworthy overlords!

Defendant should instead learn exactly how this shady business works, by properly staging a discovery to expose it. Interrogatories would be useful here. 

 

I did not state that the plaintiff would offer a credit report as evidence.  I said the OP could check his own credit report to determine if the plaintiff still owns the account.

I issued a warning to you before under your other screen name.  That warning applies to whichever screen name you use.

[BackFromTheDebt]

1 hour ago, bartos said:

Thanks for the answers.

I think Nobk4me is correct, assuming I'm reading this correctly https://www.fnbo.com/terms/cardmember-agreements/

I have filed the Defendant's Answer using the https://selfhelp.efiletexas.gov/SRL to produce the Answer in PDF form (it didn't give me the option to file directly, even though I was registered and logged in)

I then electronically signed and File into an existing case using
https://efile.txcourts.gov/ofsweb

And did the certificate of service via email. 

It was accepted by the Llano County District Clerk about 30min later, so hopefully I didn't screw it up.

Should I wait for a response or file the Motion to Compel Arbitration?

 

 

Well, they changed the card over the years.  They didn't have an arbitration agreement when I had their card.  I guess they do now.

 

You should have put in improper venue because of arbitration for as an affirmative defense.  If you can amend it, do so.  Otherwise, just file the MTC ASAP.

Here is the thing.  MOST of the time the OCs will go through arbitration, especially for that large an amount. 

The point of arbitration is NOT to win the case, but to give yourself some leverage to try to negotiate a better settlement.  

At this point, you can still negotiate.  Arbitration may give you the chance for a better settlement.

Your two best windows for negotiating a settlement are:

1. Between the time you file in arbitration and when they pay the fees. 

2. Much later in the case, just before the hearing.  This especially works if the COVID restrictions are lifted, and there is an in-person hearing.  Those can be expensive, so that puts some pressure on them.

 

It is possible, but not likely, that they will walk away from this debt in arbitration.  As I said, not likely,

It is possible, and somewhat more likely, that you will be able to use arbitration as leverage for a settlement you can live with.

Arbitration is not a magic bullet.  It is a useful tool.   

[Clydesmom]

6 hours ago, BV80 said:

I issued a warning to you before under your other screen name.  That warning applies to whichever screen name you use.

I was just about to ask if the last knucklehead had created a new screen name to continue posting their garbage after being blatantly told they were out of line and not to post in Texas threads.  I thought I recognized that horse manure.  Mystery solved.

@bartosfollow this clown's advice at your own risk.  NONE of it applies to Texas or a suit by an OC but you choose what you wish to do.