UPDATE: I'm back... being sued again, but this time for a debt that isn't mine!?! WWYD?TX

[SeeUinCourt]

I'm back 2yrs later I am being sued for a debt that isn't mine!?! ?

I got served two days ago for a debt that isn't mine. The citation is for a CITIBANK card which I have never owned one, but there were no statements attached to it showing my name or the account statements like the last JDB that tried to sue me. So I am completely in the dark as to what they have (it's not mine either way). The citation claims I own the debt and gives an account number with only the last 4 showing and the total of 4k+ and that's it. I called the lawyer and spoke with them and they said it was for a Sears Mastercard by CITIBANK. I told him I have never owned a Sears credit card (because I haven't) and I have never had a card issued by CITIBANK. I told them I remember 3+ years ago they reached out to me saying the debt was mine and asked me to respond. Which I did and I still have my response on my computer from 2019 I saved it. I told them I denied their claim and told them the same thing I never owned a CITIBANK account. I told him I even pulled my credit reports and there is nothing on them with Citibank/ Sears nor matching that amount. He oh you sent a response to them before? Hmm.. then was like I'll reach out to my client and let them know and let them know you're going to file an answer. 

My question is how do I proceed? Do I call them back and ask them to motion to dismiss the case? Do I file my own motion to dismiss the case? Or do I file an answer? I have read you have to file a motion to dismiss before you file an answer, that if you file an answer you can't file a MTD. I would want to go the arbitration route (to scare them out of collecting like the last JDB), but they didn't give me any statements so I cant see what arbitration clause to use. PLUS ITS NOT MINE! 

I drafted up an answer, but I'm not sure if my affirmative defenses are correct. I had been reading if I don't list my affirmative defenses then I can't use them later on. Also, below my answer is the validity dispute I sent them back in 2019. I added the Unclean Hands to the dispute since they are trying to sue me after I disputed the validity and they never sent me anything in return showing me it was mine. The bad thing is I don't think I sent it certified mail so how do I prove that I sent it. ? 

(Oh! and I no longer live in Texas so I am going to have to mail all of this.)

------------------------------------------ 

2. Answer

 General Denial: 

Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the plaintiff's allegations. 

3. Affirmative Defenses

• Defendant mailed a validity dispute on October 3rd 2019, disputing the validity of owning the account to PCA ACQUISITIONS.

• Defendant has never owned a CITIBANK account, nor any card associated with CITIBANK.

• Defendants credit report shows no such account exists, past or present. 

• Lack of subject matter due to private arbitration agreements

• Statute of limitation

• Unclean hands

Respectfully submitted,

 Defendant's Signature: __________________________ Date: January 27th, 2022

 

Validity Dispute

To whom it may concern:

I am writing you to let you know I received a letter stating I owe on an account by Citibank for 4,789.49. I have never owned a Citibank card nor have I ever had an account with them. I have checked my credit report and there is no reporting on a Citibank account nor do I have any account with the sum of 4,789.49 due. Sorry to inform you that you have the wrong person. I am disputing the validity of this account and letting you know this account is not mine.  

Sincerely,

-----------------------------------------

Ugh! This is already stressing me out since it's the same, but different then what I already went through. 

 

As always your help is appreciated! 

[BackFromTheDebt]

Saying that account isn’t yours is necessary but not sufficient. 
 

Your first step is to call or go to the police department and file a police report for identity theft.  Do that today.  As in, today. 
 

In the police report, specifically mention this account as identity theft.  
 

As soon as possible, get copies of the police report.  Mail a copy in with your answer.  Of course, send a copy of the answer to their attorney. 
 

The thing is, if you filed this police report and the account really is yours, you would have committed a crime.  By filing the report, you are claiming to be the victim of a crime.  Your chances of having the case dismissed are suddenly much higher. 

The ONLY affirmative defense is that the account is not yours   The  evidence is your police report and your previous denial  

In addition to your answer, file a MTD with prejudice on the grounds the the account is not yours and you are the victim of identity theft. 
 

You also need to figure out if there is some way to fight this case remotely.  Such as, could you appear by telephone, in case their attorney doesn’t agree to dismissal. 
 

You have not given enough information to let us know if they violated the FDCPA by continuing to pursue the case after your letter of a few years ago.  

[BackFromTheDebt]

I will also mention:  you list SOL as an affirmative defense.  Is this really SOL?   If so, include that as a defense and show in your answer that this really is SOL.  Such as, they claim the last payment was such and such a date and the SOL has already passed.  
 

If they sued after SOL, you have a solid FDCPA case against them.  
 

If it isn’t SOL, don’t include that.  

[Clydesmom]

8 hours ago, SeeUinCourt said:

I cant see what arbitration clause to use.

CITI has a carve out for debt cases filed in small claims court.  While Texas abolished using the description "small claims court" years ago many of the Justice Courts consider themselves "small claims" venue and do not allow the motion for arbitration.  The burden would be on you if the case is in Justice Court to convince the court based on Texas legal principles and precedent that the clause does not apply to JP court.

8 hours ago, SeeUinCourt said:

My question is how do I proceed? Do I call them back and ask them to motion to dismiss the case? Do I file my own motion to dismiss the case? Or do I file an answer?

NO law firm is going to dismiss a case based on a phone call from you saying the account isn't yours even if you did dispute it 3 years ago.  If that worked everyone would do it.  You ALWAYS file an answer to preserve your rights then file motions that you need to.

8 hours ago, SeeUinCourt said:

3. Affirmative Defenses

• Defendant mailed a validity dispute on October 3rd 2019, disputing the validity of owning the account to PCA ACQUISITIONS.

• Defendant has never owned a CITIBANK account, nor any card associated with CITIBANK.

• Defendants credit report shows no such account exists, past or present. 

• Lack of subject matter due to private arbitration agreements

• Statute of limitation

• Unclean hands

Remove the first one:  it is not a defense under the law.  

Clarify the 2nd one to include Sears Roebuck.

Remove the credit report:  it isn't a defense and credit reports are hearsay.  It also isn't uncommon for accounts to be deleted when sold to eliminate counter claims in lawsuits.

Leave arbitration.  The worst that happens is the court denies it.

On the SOL when do they allege the last payment was?  The complaint should state that.  The SOL in Texas is 4 years.  If that expired BEFORE you moved then it is SOL.  If you moved before it expired and the new state has a longer SOL then you are out of luck on this one because the new SOL prevails based on where they are suing you.  Where are they suing you by the way?  If it is in Texas you would need to add improper jurisdiction since you no longer live there.

Remove the unclean hands.  If you feel they violated the FDCPA then file a counter claim to the case based on that.

8 hours ago, SeeUinCourt said:

I added the Unclean Hands to the dispute since they are trying to sue me after I disputed the validity and they never sent me anything in return showing me it was mine.

The problem is they do not have to prove you RECEIVED It only that they sent one.  The good news is you can use the same argument about the letter you sent:  you are not required to prove they received it but that you disputed.  Producing a copy of the letter should be enough.

[shadow99]

8 hours ago, SeeUinCourt said:

(Oh! and I no longer live in Texas so I am going to have to mail all of this.)

Should he have a right to switch the venue to state of residence?

I'm in Virginia - I think they have a special motion with a pre-printed form if you're sued in the wrong venue. As in, you've moved and the plaintiff doesn't have your correct address. I've never needed to use it, but have seen it on our court's website.

[BV80]

1 hour ago, shadow99 said:

Should he have a right to switch the venue to state of residence?

I'm in Virginia - I think they have a special motion with a pre-printed form if you're sued in the wrong venue. As in, you've moved and the plaintiff doesn't have your correct address. I've never needed to use it, but have seen it on our court's website.

Yes, one can motion to change venue to the appropriate court in one’s county of residence.

I would like to know how the OP was properly served if they filed the lawsuit in another state and did not have his current address.

[SeeUinCourt]

I do not know how they found my address credit report? I live on a military base and they couldn't get on the gate guards called me at work and asked me to come to the gate. So I had to go to the gate and get it.... which was embarrassing as it is since the debt isn't even mine.

I remember them trying to serve me back in April and I told them I no longer lived in Texas. Then I never heard from them until now. I tried to stay on top of it by calling the courts and they said there were no cases pending against me, clearly false. I even asked the process server who tried to serve me what company it was and he said he would asked if he could tell me and then I never heard from him again and i even followed up but nothing.

 

I emailed the court district clerk and asked if they are still doing hearing through zoom. If so I'd like to keep the venue in Texas since SOL is 4 years and here in WA SOL is 6 years hopefully they don't assume the WA SOL. I assumed SOL because they last contacted me 3yrs ago and for the case to default and them to finally get it through their JDB ways it would usually be a year. I am going to call them and asked the last payment date on this so called account. 

Also, no account documents were attached. I am seeing that when filing they have to attach either an account agreement or something linking me to the account or explain why they do not have documentation. They did not do either. I'm so in the dark because they gave me nothing about this account I supposedly own. 

 

[nobk4me]

If this is not your debt, you may have a FDCPA claim against them.  I would advise contacting a consumer attorney.  

[SeeUinCourt]

Just talked to their attorney and he said last payment date was 

5 /14/2017 

SOL Applies! That was 4 yrs 8 months and 10 days ago.

[BV80]

26 minutes ago, SeeUinCourt said:

I do not know how they found my address credit report? I live on a military base and they couldn't get on the gate guards called me at work and asked me to come to the gate. So I had to go to the gate and get it.... which was embarrassing as it is since the debt isn't even mine.

If you can show they knowingly filed the lawsuit in the wrong state, you have an FDCPA counterclaim against them.  As advised by @nobk4me, contact a consumer attorney. 

[BV80]

1 minute ago, SeeUinCourt said:

Just talked to their attorney and he said last payment date was 

5 /14/2017 

SOL Applies! That was 4 yrs 8 months and 10 days ago.

When was the lawsuit filed?  Filing a lawsuit tolls (stops) the SOL clock.

[SeeUinCourt]

Shoot, I believe April of last year, thats probably why they filed because SOL was coming due in 30 days or less. Fkers! ha! Ugh!

[SeeUinCourt]

When they filed they still believed I was at my old address in Texas. It wasn't until the process server called me and I told him I no longer lived in Texas

[BV80]

12 minutes ago, SeeUinCourt said:

When they filed they still believed I was at my old address in Texas. It wasn't until the process server called me and I told him I no longer lived in Texas

I’d still contact a consumer attorney just for the heck of it.  You might be able to make a claim based upon the fact that they did not change venue on their own.  I don’t know if that’s actually the case because the process server may not have let them know about the change of address, but it’s worth a try.  It might be claimed that it is their attorney’s job to keep up with the paperwork (due diligence) and know where you were served. 

[SeeUinCourt]

Their attorney gave me the full account number that has followed this debt and I pulled my credit report and that account number is not on my credit report anywhere. He said if it is my account it should still be on my credit report. He even admitted the whole thing looked "weird" in his words. 

[SeeUinCourt]

I was thinking maybe it is my debt and they had the wrong name like maybe it was SCYB or Capital One account, but none of the accounts I've ever had have that account number. Also, I can see in Dec they pulled my credit (has the same address for them as in the citation I was served) that is for sure how they found my address. 

[BackFromTheDebt]

You say you live in a military base.  Are you in the military, or a dependent?  There are different laws for people in the military. 
 

You need to find out the laws to see if Texas is a proper venue or not.  I honestly don’t know for people in the military where they can be sued.  Is it your “home “ state or where you are stationed?   For what state do you have a drivers license?

 

If this can be dismissed without prejudice for improper venue, file ASAP.  Depending on the SOL for your new state, you may wish to pre emptively file in JAMS.  
 

Two reasons:

1.   Once they re-file in small claims in the new state you lose the right to arbitration 

2. It is not a good idea for someone in the military to have a court case against them.  Especially if you lose.  

[SeeUinCourt]

2 minutes ago, BackFromTheDebt said:

You say you live in a military base.  Are you in the military, or a dependent?  There are different laws for people in the military. 
 

You need to find out the laws to see if Texas is a proper venue or not.  I honestly don’t know for people in the military where they can be sued.  Is it your “home “ state or where you are stationed?   For what state do you have a drivers license?

 

If this can be dismissed without prejudice for improper venue, file ASAP.  Depending on the SOL for your new state, you may wish to pre emptively file in JAMS.  
 

Two reasons:

1.   Once they re-file in small claims in the new state you lose the right to arbitration 

2. It is not a good idea for someone in the military to have a court case against them.  Especially if you lose.  

I am a dependant, but I work for the DoD on base. Last time I went through this I wasn't employed, but this time I am and I don't want it getting back to my job. Super embarrassing. I honestly do not see how I can lose... the debt isn't mine if it was I would honestly admit it here.

Home state for my military spouse is Texas, I don't know if that would apply for me since we purchased and sold a home together in Tx. My driver's license is for Arizona (where I am originally from) though.

[Bulldoger]

1 hour ago, SeeUinCourt said:

Home state for my military spouse is Texas, I don't know if that would apply for me since we purchased and sold a home together in Tx. My driver's license is for Arizona (where I am originally from) though.

Got to love those AZ driver's license that expire when your 65.

 

[BackFromTheDebt]

What state is the base?

[Clydesmom]

5 hours ago, SeeUinCourt said:

Shoot, I believe April of last year, thats probably why they filed because SOL was coming due in 30 days or less. Fkers! ha! Ugh!

WHEN did you leave Texas?  If the SOL expired BEFORE you left Texas it cannot be revived by moving to a longer SOL state and you have a gold plated defense in that.

If the SOL was still alive when you moved then the longer SOL in WA applies now.

You need to get off the entire "they didn't attach any documents to the complaint"  almost no states require that.  You have to get that information in discovery if you want it.

[Clydesmom]

1 hour ago, BackFromTheDebt said:

2. It is not a good idea for someone in the military to have a court case against them.  Especially if you lose.  

Used to be true.  The OP is a dependent and the military has ZERO authority on this and no CO or government contracting office is going to get involved.

[SeeUinCourt]

24 minutes ago, Bulldoger said:

Got to love those AZ driver's license that expire when your 65.

 

Yep! Mine doesn't expire until 2053. haha

[SeeUinCourt]

12 minutes ago, BackFromTheDebt said:

What state is the base?

Washington 

[SeeUinCourt]

15 minutes ago, Clydesmom said:

WHEN did you leave Texas?  If the SOL expired BEFORE you left Texas it cannot be revived by moving to a longer SOL state and you have a gold plated defense in that.

If the SOL was still alive when you moved then the longer SOL in WA applies now.

You need to get off the entire "they didn't attach any documents to the complaint"  almost no states require that.  You have to get that information in discovery if you want it.

I left Texas January '21, but they filed the lawsuit April 27th 2021. The last payment was made May 14th 2017. So they filed the suit 17 days before the SOL would have applied. That's why I laughed about it... 

I'm not on the "they didn't attach any documents complaint" as in I keep wanting to go after them for that as a sole reason in court. I simply stated it because I read about it and thats it.

But stating the obvious they gave me no documentation so I have nothing to go on and I was in the dark about what to do until talking to their attorney and he gave me some good leads.