Improperly Served by Portfolio Recovery Associates + more Questions...

[LilBoricua103]

Hi there, y'all have been amazing in helping in the past and I need to come up to you again for guidance.  Due to a hump in my employment in 2017, it caused a domino effect of having 3 lawsuits filed against my husband for debts around the same time.  Two of them have been resolved (partly thanks to this group).  The last one that was filed in March 2019 by Portfolio Recovery Associates (original creditor being Members Choice Credit Union in Houston but ultimately US Bank) is barely going to a courtdate via ZOOM this coming month!  Three years later.  Here's the problem.  As we were preparing for his defense, I logged into their new records search system and noticed the "return of service" and realized just yesterday that they served him improperly.  I'm killing myself I didn't notice sooner!  There's also other discrepancies and I was hoping for your 2 cents on it to see if it's even worth it to fight during our defense (which I have included my questions at bottom of this post)

Timeline (the court filing is from Harris County, Texas)

• MCCU credit card account opened MAR2014
• MCCU credit card account final payment before default made JULY2016
• MCCU account charged off on NOV2016 $3.6k
• MCCU sold account to Portfolio Recovery Associates DEC2016
• made a payment plan with them sometime in 2017 for $30/month.
• They continued to harrass my husband with multiple phone calls throughout the day despite said payment plan, so...
• I said eff it...we aren't paying them anymore.  final payment made MAR2018
• Suit filed by PRA MAR2019
• We filed Answer MAR2019.
• Proposed order filed AUG2020.
• They never made another filing to set a court date until there was a MOTION TO DISMISS FOR WANT OF PROSECUTION AUG2020.
• Suddenly, they did a PROPOSED ORDER that same day and a court date was set for mid-FEB2021.
• They filed a motion for continuance stating they still needed time to prove their case.  Which is a crock of ****.  They never discussed it with us anyway.  Local JP rules state Motions of continuance must be conferred with the parties involved before the motion can be filed.  Regardless...it wasn't meant to be because...
• What do you know?  That was the week of the famous TEXAS FREEZE OF 2021. Court cancelled all week.
• The case sat for almost an entire year AGAIN...they filed a BUSINESS AFFIDAVIT and then suddenly it moved the case again and...
• Finally a court date was set for mid MAR2022.

So, I go online to prepare and refamiliarize myself with the case, refresh my memory, and I noticed something I wish I had noticed sooner.  We were improperly served.  The papers were left at the door.  The server submitted to the court under penalty of perjury saying he gave the papers personally to my husband, made him way skinnier in weight than he really is in the description, and what cracked me up the most is that he automatically assumed that he was not only hispanic, but that he has "an accent."  My husband was born and raised in the states and speaks perfect English.  Luckily, I was able to dig up old doorbell video footage and thankfully it caught the server not even knocking on the door.  Being I didn't discover this until now, can I still file a motion to dismiss due to improper service on basis of fraud?  It violates a few different rules written in the Texas Rules of Civil Procedure.

Additional questions:

1.  The lawsuit literally only has a copy of my last statement in which we defaulted with MCCU (didn't even acknowledge the payment arrangement where we made about 3 payments before we got fed up with their antics), and a copy of a letter that shows that they sold the account to PRA on date shown above.  Nothing else.  When I got sued by Midland, they showed MUCH MORE proof.  They barely even tried.  What can I ask for as burden of proof the account is really theirs or will that suffice for the courts?

2.  Can we argue with them over violating time standards since the case is still open nearly 3 years later?

3.  They filed a proposed order AUG2020, but then later turn around and request a motion for continuance on basis of "obtaining and filing proof of evidentiary evidence."  Their evidence?  It was that business affidavit.  SMH.  Given they already gave a proposed order, they didn't need to obtain for evidence so they only filed a motion to buy time.  Am I able to fight them on that or no?

Sorry for long post.  Hope someone can help.

[Clydesmom]

15 minutes ago, LilBoricua103 said:

Being I didn't discover this until now, can I still file a motion to dismiss due to improper service on basis of fraud?

You can but it will be denied.  You and your husband were in no way limited by the deception in defending the case.  Improper service gets a default judgment dismissed when the Defendant proves they had NO clue about the case at all because service wasn't done according to the rules.  You have known about the case for the entire time since he left the papers.  The judge will not dismiss it.  The best thing that would happen is they would dismiss and immediately reserve you there in court and proceed ahead to trial.  I would call it to the attention of the court and file a formal complaint against that process server.  Bringing it up as a defense in that if they were willing to use deception to serve the papers then how much else are they making up to "prove" their case.  Then move on to the fact they kept delaying over not having evidence.

17 minutes ago, LilBoricua103 said:

What can I ask for as burden of proof the account is really theirs or will that suffice for the courts?

The time to ask for discovery was in the 3 years BEFORE trial.  Not at trial.  You can ask for anything you want but whether the court will agree it is necessary to prove the case or that it is too late to ask now is another issue.

18 minutes ago, LilBoricua103 said:

2.  Can we argue with them over violating time standards since the case is still open nearly 3 years later?

The time to do that was over the past 2 years.  You can try to argue that their constant delays prejudiced your defense but have good solid TX case law to back up your argument.

19 minutes ago, LilBoricua103 said:

3.  They filed a proposed order AUG2020, but then later turn around and request a motion for continuance on basis of "obtaining and filing proof of evidentiary evidence."  Their evidence?  It was that business affidavit.  SMH.  Given they already gave a proposed order, they didn't need to obtain for evidence so they only filed a motion to buy time.  Am I able to fight them on that or no?

WAY too late.  The time to oppose that was when they filed it.  If you didn't oppose it then you can't now.

[LilBoricua103]

Thank you so much ClydesMom.  You helped me in the past too.  Thank you for volunteering your knowledge and helping others.

[LilBoricua103]

28 minutes ago, Clydesmom said:

WAY too late.  The time to oppose that was when they filed it.  If you didn't oppose it then you can't now.

We actually filed an objection not to the PROPOSED ORDER, but to the MOTION FOR CONTINUANCE.  We were ready for court.  Which is the honest truth.  Our objection mentioned how the motion of continuance should have been denied due to the discrepancy of when copies were sent to me (almost a whole week's difference from what they said and I even mentioned the postmark).  In same objection, we called them out about needing more time for evidence but how it took for the court to do an INTENT TO DISMISS FOR WANT OF PROSECUTION that suddenly they filed the motion and it's clear the continuance was filed for purposes of delay.

I efiled it on 02/08/2021, and it was accepted the same day... just 2 days after I got mailed notice of the continuance.  We got crickets...both from the court and from the Plaintiff.  In all fairness, the following week was the crazy Texas Freeze where the entire state lost power for a while and the courts were closed.  But the fact that our filing got accepted, do you think it could remotely help our case?

[Clydesmom]

11 hours ago, LilBoricua103 said:

But the fact that our filing got accepted, do you think it could remotely help our case?

I would use it.  I would fight based on prejudicial favoring of the plaintiff and challenge ALL their evidence and delays.

[nobk4me]

@texasrocker, do you have any insights here?