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Please help! Sued by LVNV in Texas


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Hello! I am new here and totally lost. I received a strange advertisement in the mail on or about March 28 from Weston Legal offering to help me with debt collection. I dismissed it as junk mail but noticed there was a case number on the letter. Curious, so I went to the county website and found that Scott& Associates, on behalf of LVNV had filed a suit against me on March 25. I was shocked. I've seen LVNV on my credit reports but have never spoken to them or gotten paperwork in the mail from them. When I got served on April 04, the paperwork had a bright yellow note from Scott & Associates stating I could settle without going to court. I contacted them and was advised I was on a recorded line. I never admitted to the debt and instead said I had no proof of this debt. The rep stated that "Resurgent Capital would be mailing me verification shortly". I have no idea who they are either. So yesterday and today I received two different debt validation letters from Resurgent, dated April 06. One is basically the paperwork the suit had. The 2nd shows payment history from August 2018-January 2020. The letter also says I have until May 11 to dispute the debt and they will stop all collection activity while they investigate, if I choose to do so. I'm confused because they've already served me. I worked on a general denial answer that I plan on filing today. All 3 of the CRA show my account with Web Bank in good standing, closed August 2018. The LVNV is in collections.  Since this time, I have been the victim of identity theft thanks to multiple breaches with our mortgage company, loan servicer, and cell phone carrier, with fraudulent attempts to obtain a PPP loan with SBA and open a bank account with Wells Fargo. I have filed an identity theft report with FTC and have a credit freeze and fraud alert with all  3 CRA. My credit has taken a beating with hard inquiries and now this collection account. I don't have the financial means to settle, although I could probably make small payments if I had to. As I stated above, I intend to file a general denial answer with our JP court where the suit was filed, but should I consider arbitration, and if so, when do I request that?  Thank you in advance! 

 

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

2. What is the name of the law firm handling the suit? 

3. How much are you being sued for?  $5926.32 (outstanding balance was $5099 and I guess they added fees)

4. Who is the original creditor? (if not the Plaintiff) Web 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?
Nothing prior

9. What state and county do you live in? Texas

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2020, not outside of SOL

11. When did you open the account? 2016, refinanced August 2018

12. What is the SOL on the debt? To find out: Last payment 01/2020 so 01/2024?

13. What is the status of your case?  No court date set yet. I have written a general denial answer but haven't filed yet. Website shows "pending"

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes I have. The original account with Avant/Web Bank is not on any of my credit reports, only the collection acct by LVNV which shows opened June 2020 as 1 month revolving acct. 

15. Did you request debt validation before the suit was filed? Note: No but I received 2 debt validation letters from Resurgent Capital after I was served, dated April 06.  

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. 

- Bill of Sale (from Avant to Sherman Originator III LLC). It states "for value received and pursuant to the terms and conditions of the Purchase and Sale Agreement dated as of this 27th day of June, 2019" but under where it is signed it says June 24, 2020.    Is this valid if there are 2 different dates?

Transfer and Assignment from Sherman Originator III LLC to Sherman Originator LLC (SOLLC). 2nd paragraph then states SOLLC transfers to LVNV Funding LLC

Transfer and Assignment Signature page for 3 parties dated June 24, 2020

Copy of spreadsheet listing the account history and transfer.

What appears to be partial contract, showing loan agreement and promissory note arbitration clause, etc. Nothing showing when I stopped making payments. 

* After the suit was served, Resurgent sent me a small printout of payments made. This was no included with the suit

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

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@texasrocker knows the most about Texas courts. 
 

The absolutely most important thing for you to do is determine whether this really is your account.  That is not clear from your post  

They sent a payment history.  Does that correspond to payments actually made from your bank account?   

if not, file an answer stating identity theft as your defense   Include a copy of the police report and copies of your bank statements showing these payments weren’t made  

If this is your account, you need to get a copy of the card agreement ASAP.  Download one from the CFPB web site.  Check if there is an arbitration clause.  If available, arbitration may be your best bet. 

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* "After the suit was served, Resurgent sent me a small printout of payments made. This was no included with the suit"

All 3 of the CRA show my account with Web Bank in good standing, closed August 2018.  The LVNV is in collections. 

$5926.32 (outstanding balance was $5099 and I guess they added fees)

I don't see how account can be closed with outstanding balance was $5099 and be in good standing.

Unless it hasn't been updated since 2018 what is the date reported on this account in your report?

As for your credit report the highest balance may not match if they stopped reporting on account. 

if they are currently reporting they should have the field titled "charge off amount" and it should show $5926.32. 

and should also show the current balance of $0.00.

The LVNV collection amount should match the charge-off amount. 

Also you state the agreement they mailed you has arbitration clause does it have a small claims court exclusion clause ?  

Texas courts have denied arbitration over small claims court exclusion even though Texas hasn't a small claims courts.  

Before @texasrocker can help he would need to know if this was an account that you let charge off or if it was identity theft. 

 

"Since this time I have been the victim of identity theft thanks to multiple breaches with our mortgage company, loan servicer, and cell phone carrier, with fraudulent attempts to obtain a PPP loan with SBA and open a bank account with Wells Fargo. I have filed an identity theft report with FTC and have a credit freeze and fraud alert with all  3 CRA. " 

This is after the account was Closed or charged off if this account was hacked and your just finding out about it you will need to file a police report and include in your answer but only if it was identity theft. 

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Yes it is my account. I honestly cannot recall if the payment history & amounts listed are accurate and I cannot verify this because in late 2020 I had to close the bank account the payments were made from (due to fraudulent activity).  But it seems about right that I last made a payment in early 2020. After covid hit, my income was impacted and I couldn't pay my mortgage, much less a personal loan. Not an excuse, just trying to clarify the situation.   My credit reports show the original Avant account in good standing that shows it was refinanced in 2018 but I have no other record for the charged off account.  The only reference to it is the LVNV collections.  I'm not sure if that is a good or bad thing, or doesn't matter. But for the record the charged off account is not listed with any of the 3 CRA. 

The suit does have a copy of the arbitration clause attached. I don't see anything in the language about a small claims court exclusion. The suit's been filed in JP court, if that makes a difference?

Apart from being taken completely by surprise with this suit (never got a letter or even a single harassing phone call), I am also confused because the legal docs refer to LVNV as plaintiff but the DV correspondence I've received is from Resurgent and not LVNV or even Scott & Associates. Do I answer this correspondence? It says if I don't reply by May 11 they will assume the debit is valid. But since they already filed suit against me, I don't know that I should answer them directly anymore. 

I am just getting back to financial stability and cannot afford to pay off $6k in debt. This is the only collection account I have on file.  I am hopeful that arbitration would go in my favor. I'm attaching what they sent this week after I was served. Sorry that it's so light but it's just a basic spreadsheet of paid date, paid amount, etc. LVNVpayments.thumb.jpg.b24f5353c26b023ef3b082814e9a6bdc.jpg

DVform.jpg

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The good news is that that Webank never got around to making a tradeline on this account. The account you refinance will stay on your report and help you out. 

LVNV Funding outsources the management of its portfolio of accounts to a company called Resurgent Capital Services. Resurgent Capital Services is a licensed third-party debt collector specializing in the management of these types of consumer assets. 

LVNV owns account, Resurgent manages account for LVNV  e.g. they hired Scott & Associates to sue you.    

 

Read this if you haven't yet to understand what is meant by arbitration. 

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4 hours ago, Melvin said:

But for the record the charged off account is not listed with any of the 3 CRA. 

They deleted it as part of the sale to a JDB.  This is part of the sale to eliminate counter claims if/when they sue the consumer.

4 hours ago, Bulldoger said:

LVNV Funding outsources the management of its portfolio of accounts to a company called Resurgent Capital Services. Resurgent Capital Services is a licensed third-party debt collector specializing in the management of these types of consumer assets. 

LVNV owns account, Resurgent manages account for LVNV

ALL of them are part of the Sherman Group and essentially are one company.  They simply make up subsidiaries to spread the bad debt they buy out along with the liability.

 

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15 hours ago, Bulldoger said:

 

 

Read this if you haven't yet to understand what is meant by arbitration. 

This arbitration overview was so insightful! I'm updating my answer to include the arbitration statement, and filing MTC arbitration as well today. Fingers crossed this works. 

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Another question I have- I called the JP office just now to double check the location and covid protocols. The clerk told me she could also take my answer by email and would respond "received" if that was easier for me. Everything I read indicates I should have it stamped so I don't know if this is sufficient. She also said my deadline to file is 14 business days, not calendar days. Is that correct? Hate to second guess her but I don't want to do something dumb that will cause a default judgment against me. The suit states "your answer is due by the end of the 14th day after the day you were served with these papers". It doesn't say "due by the end of the 14th business day after..." 

 

 

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38 minutes ago, Melvin said:

She also said my deadline to file is 14 business days, not calendar days. Is that correct? Hate to second guess her but I don't want to do something dumb that will cause a default judgment against me. The suit states "your answer is due by the end of the 14th day after the day you were served with these papers". It doesn't say "due by the end of the 14th business day after..." 

This is correct.  When it comes to "days" in court terms it is business days not calendar days.

39 minutes ago, Melvin said:

The clerk told me she could also take my answer by email and would respond "received" if that was easier for me. Everything I read indicates I should have it stamped so I don't know if this is sufficient.

You can do this but I wouldn't.  It may just be my paranoia but I would ensure the answer is filed properly and anything AFTER that would do by email if needed and accepable.

 

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22 hours ago, Melvin said:

The suit does have a copy of the arbitration clause attached. I don't see anything in the language about a small claims court exclusion.

Since LVNV entered the contract with their complaint, @Melvin just needs to reference it and note what section has the arbitration clause? 

So there  is no need for an affidavit in his part since the Plaintiff filed it correct?  

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57 minutes ago, Clydesmom said:

This is correct.  When it comes to "days" in court terms it is business days not calendar days.

You can do this but I wouldn't.  It may just be my paranoia but I would ensure the answer is filed properly and anything AFTER that would do by email if needed and accepable.

 

Thank you! Yes I want to make sure I don't leave anything up to chance. The email option sounded too risky to me!

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1 hour ago, Bulldoger said:

Since LVNV entered the contract with their complaint, @Melvin just needs to reference it and note what section has the arbitration clause? 

So there  is no need for an affidavit in his part since the Plaintiff filed it correct?  

I don't attach a copy either?

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