LVNV FUNDING - Johnson Mark- Served petition citation - ZOOM-Texas

[TexasLara]

Hello All!

 

Just found the list of questions.

 

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

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for? $7k

4. Who is the original creditor? (if not the Plaintiff) WEBBANK

5. How do you know you are being sued? (You were served, right?) I was served papers with a docket number on them and I can see the case in the Harris County case listings

6. How were you served? (Mail, In person, Notice on door) In person

7. Was the service legal as required by your state? I am not sure

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? I do not recall anything.

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) I am not sure. It says the account was charged off 11/2019. I believe that is the same year I stopped paying. 

11. When did you open the account (looking to establish what card agreement may be applicable)? June 2018

12. What is the SOL on the debt? To find out: 4 years I believe

Statute of Limitations on Debts

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). The status is opened.

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: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 20 days to respond.  breach of contract

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Loan agreement and promissory note which includes 1-21 additional provisions and an electronic signature of my name and identifying info including customer ID and a non-military declaration.

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

[Bulldoger]

Read this post as @Melvin has had same issue recently.

look at the advice given see if you have a arbitration clause in  promissory note which includes 1-21 additional provisions 

Although Texas does not have a small claims court, Texas Judges have denied MTC ove small claims court clauses.  

Arbitration has worked  for many to get rid of JDB debt suits or to settle for very low amounts.   

Since they have a sign contrast you don't want to go to trial. 

@texasrocker is resident Texas expert he will may know about Johnson Mark LLC law firm. 

 

[texasrocker]

No, I am not familiar with that law firm.  What court is it in?

A lot more judges have agreed with the small claims court clause being irrelevant in Texas than those who have disagreed.   

[TexasLara]

@Bulldoger Thank you! I will review that thread this weekend.

 

Does JDB stand for Junk Debt Buyer?

[TexasLara]

@texasrockerIt is in Harris County(houston.) County Civil Court 4. 

 

And I apologize for my ignorance. What you do you mean that lots of judges have agreed with the small claims court clause being irrelevant? Will I have a better idea of what you mean after I read through the thread that @Bulldoger directed me to?

[Bulldoger]

You need not worry if you have the same Arbitration clause as melvin.  There was not a small claims exception clause in that promissory note I assume yours is same. 

In short some arbitration clauses have a small claims court carve outs, where it says if they file in small claims court you cannot move case to arbitration as long as it stays in small claims court.  Texas House Bill 79 repealed chapter 28 of the Texas Government Code effective May 1, 2013,  abolished small claims court as of that date.  However some less than most Judges have read that the "small claims court" as being the same as the current small claims cases in Justice Court and therefor denying MTCs.  Again your contract does not have a small claims carve out if it's the same as Melvins. 

read this post on how to file a MTC.  Remember to file answer in time even if you  don't have the MTC ready by due date.  If that happens then list arbitration as an affirmative defense.  Basically state that your are electing private arbitration per contract and that this venue lacks subject matter jurisdiction. 

 

[texasrocker]

21 hours ago, TexasLara said:

@texasrockerIt is in Harris County(houston.) County Civil Court 4. 

 

And I apologize for my ignorance. What you do you mean that lots of judges have agreed with the small claims court clause being irrelevant? Will I have a better idea of what you mean after I read through the thread that @Bulldoger directed me to?

 Since yours is in a county court there is even more reinforcement that the small claims clause shouldn't be an issue to begin with.  I wish Bulldogger would stop telling people about this from the get-go.  If they wish to compel arbitration just do it and in most instances it won't ever be brought up.  If it eventually is brought up then it can be discussed at that time.

In 2013 small claims courts were abolished in Texas.  The blanket wording in the law suit says the arbitration clause does not have to be applied as long as the case remains in a small claims court.  The issue is that since there are no longer any small claims courts in Texas then it does not apply to Texas and the defendant can elect to compel arbitration.  The TRCP defines a small claims case, meaning a law suit for under $20,000, is to be handled in a JP court since small claims courts no longer exist.  It does not elaborate any further.

If the wording in the law suit stated "small claims case" instead of "small claims court" there would be no grey area needing to be filled in by an appeal.  What needs to be sorted out is that a small handful of JP court judges have ruled that since small claims cases are now tried in their court therefore it makes them a small claims court and the verbiage applies.  In my opinion nothing short of drawing up another set of new rules can make them a small claims court because they are essentially extinct in Texas.