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Showing content with the highest reputation on 11/17/2015 in all areas

  1. <I'm not a lawyer, and I don't play one on TV, but here's my story> It all started with a call from a Deputy Sheriff from the next state over. Appernatly I missed a trial for a suit filed by Calvary, by their attorney from NH, who hired a lawyer in MA. And there is a warrant out for me. Guessing he got my work # from the ex who resides in MA. I am to appear in MA Small Claims in Oct at 1pm. <What, am I part of the James Gang now? Should I be watching America's Most Wanted for a picture of myself?> So I hit the forums, read the court's self helps, read the forums some more........So I showed up on the date ready for a fight to find, that I already had a judgement against me and this MA lawyer asking me how I'd like to pay $1,049. (I use to live in MA, but this account would have been opened well after I moved to CT.) <what? Um, No!> Needless to say we appeared infront of the magistrate after I told the lawyer, "uh, no!", where I told him the magistrate I don't live in MA and this is the wrong venue. The magistrate actually said "what's the difference, you only live just down the road, don't you?". <Really? Um, No!> Then I proceeded to explain why the piece of paper he had in his hand was not evidence, just a claim that has the wrong address, and the rest may or may not be accurate. I need to see evidence of the debt. Needless to say he reversed the judgement and we set a new trial date for Dec. (check your State Laws on reversing judgement. While an appeal was 20 days, reversal based on new evidence is much longer) This site was invaluable to being able to build and file a counter claim, which I also served to the Plantiff via the NH attorney for $1,428.95, for violations of FDPCA, 811,a,2; 809, a, b; 807; 808 and 813,a,1,2 and Mass MA Ch 223A, 6 Mod of Service outside the Commonwealth, proof of service. A week goes by and and a letter comes from the NH attorney's office asking me to settle for $500. They want to GIVE me $500 to go away. "Mutual Release of All Claims and a Mutual Dismissal with Prejudice". <Huh? Um, Ok!> Guess my crash course in small claims law paid off. My new rule is to now say No twice before saying yes. Now I have to say, while I sat there in the court waiting to be heard, I lost count of the Debt Collector cases that went un answered and went to default judgement, prima facia. Basically what happened to me. I have always considered myself a fair guy, but when a company pulls this, its just wrong. Again, I want to thank all those here that are helping others out!!!
    4 points
  2. Two more cases that I believe are clients from this forum will be dismissed with prejudice. And yes, I went a little crazy with smilies because there are so many cool ones
    3 points
  3. 1 point
  4. First off, a bad debt that is settled or paid in full does not cause your score to go down anymore. FICO changed their algorithm when it was made clear to them that this was a problem (either that or someone with 2 functioning brain cells finally got a job at Fair Issac). As for collectors, they are lying if their lips are moving and they are forming words (coherent or not). The best way to pay on a debt that they hold (if you want to) is to demand a letter stating that such and such amount will settle the debt in full and that you will not pay until you receive such a letter. If they refuse, then that is enough talking to that collector because if they do not have a high enough IQ to understand that sending the letter will get them money, they do not have a high enough IQ to continue dealing with them. At this point you can call them as often as you want, making the same offer. Eventually, you will get a collector with a high enough IQ to understand what is going on. When you do pay them, use a money order and send it overnight mail. The worst that can happen is that they sue the person and at that point, she can negotiate with the attorney for a settlement.
    1 point
  5. If you know anything about them then you should know to never initiate a conversation with them at all and by all means do not offer to settle with them. I have yet to see even one case where a JDB can prove that they own the debt they are attempting to collect on. Record any phone calls you receive from them and keep a record of the date and time of each call so you can rack up a FDCPA violation. If they eventually file a lawsuit then you will have the ways and means for a dismissal.
    1 point
  6. It may not set precedent; however, the argument is solid, and hopefully the cracker-jack justices in AZ will follow suit. We've seen many different cases throughout the country, where they have found the same violative behavior, Encore, midland...et. al. have been spanked with, on this current CFPB order. There can be no presumption of authenticity, accuracy, or validity, when it comes to JDB's records. Luckily this CFPB order makes the argument for cases involving Encore, midland, AA, & PRA. On the other hand, it's up to the litigator to show that any JDB records are just as suspect.
    1 point
  7. You did great, FC.! You educated yourself, went to court, argued your case, counterclaimed and got damages and a dismissal. That ain't easy. Most defendants just default. And your judge needs a refresher course in the law.
    1 point
  8. You said you received notice plaintiff REQUESTED a trial. I take it then that the court did not grant them a new trial. Is that right? Is your MTD and the court's own MTD for lack of prosecution still ongoing?
    1 point
  9. Before sending one red cent to those bottom feeders I would make darn sure that her account is not one of the ones that they agreed to cease collecting on as part of their settlement with the CFPB over their collection tactics. I contacted the CFPB how to figure out if my case was one of the affected ones and was told that it was up to PRA (and Encore in my case) to determine and then let me know. Talk about leaving the Fox in charge of the hen house....
    1 point
  10. The NV SOL on credit cards is 4 years. Is this mandatory court arbitration or did you elect JAMS per the CC agreement? Filing after the SOL is expired is a FDCPA violation. I would file a counter claim against them. You can hire a NACA lawyer. www.consumeradvocates.org they should take the case on contingency due to the clear cut violation.
    1 point
  11. Once you have filed your answer since you are being sued in a JP court your top priority is to obtain the court's approval to begin discovery. Type the following in the same format as what you were served with (court and case info at the top) and file it with the court. Make two extra copies, one to send to the attorney's office that filed the lawsuit and copy for yourself. Ask the clerk to file-stamp it when you file the motion. Also ask the clerk if you need to schedule a hearing for the motion. I will PM you fist set of discovery if the court wishes to review it first and to send to the plaintiff's attorney's office only after approval has been granted. MOTION SEEKING COURT'S PERMISSION TO CONDUCT DISCOVERY Comes now, Defendant ______________ and files his (her) Motion to request permission from the honorable Court to begin Level 1 discovery pursuant to Texas Rules of Civil Procedure Rule 190.2 and Rule 500.9 Defendant hereby asks to send Plaintiff Request for Disclosure (pursuant to TRCP Rule 194), request for admissions, production of documents, and interrogatories relative to how Plaintiff intends to prove up the assignment of the alleged debt they claim to own which is the subject of the lawsuit. Defendant asserts that Plaintiff lacks standing to bring forth this lawsuit; therefore discovery is reasonable and necessary in order to develop his (her) defense and to minimize taking up the Court's valuable time. PRAYER Defendant prays that the honorable Court grant his (her) Motion For Permission To Conduct Discovery and grant Defendant any other relief that he (she) is entitled to. CERTIFICATE OF SERVICE I certify that on __________(date) I have sent via certified mail a true and correct copy of this MOTION SEEKING COURT'S PERMISSION TO CONDUCT DISCOVERY to ___________________________ _________________________________________ _________________________________________ (Plaintiff's attorney's name, address and phone number) ___________________________________________ ___________________________________________ ___________________________________________ ___________________________________________ (Your signature, printed name, address phone number)
    1 point
  12. Order this book and study it every day as if you were cramming for a final exam- http://www.amazon.com/OConnors-Texas-Rules-Civil-Trials/dp/1598391828/ Copy the following and deliver in person or mail it to the court via certified mail in the same format of the original petition that you were served. Edit the parts in red to match exactly how they worded their explanation that they now own the alleged debt. Make a copy of the first page and ask the court clerk to file-stamp it for you (if you are mailing it include a SASE.) Send a full and complete copy via certified mail to the attorney's office who filed the lawsuit. DEFENDANT'S ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS ANSWER 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. Defendant asserts that the claims are barred by the applicable statute of limitations. Defendant asserts that the interest rates charged by the original creditor are usurious. PLEA TO THE JURISDICTION Grounds for Dismissal for Lack of Standing This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff, is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges "Defendant's account has been assigned to Plaintiff, and Plaintiff is the current holder of Defendant's accounts" See Plaintiff's Original Petition under "Facts" paragraph 6. There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit. A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Ceramic Tile Intern., Inc, v. Balusek, 137 S.W3d 722, 724 (Tex. App, – San Antonio 2004, no pet.); Delaney v. Davis, 81 S.W.3d 445, 448-49 (Tex. App, – Houston [14th district] 2002, no pet.). Plaintiff has not done either. If Plaintiff is the assignee and rightful owner of the debt, this should be very easy for Plaintiff to allege and prove, yet Plaintiff avoids and dodges the issue, when such issues cannot wait until trial. Without a pleading of an assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and this case must be dismissed. Whether plaintiff has standing to bring this lawsuit is a threshold issue that should be resolved at the onset, and the instant plea to the jurisdiction is a proper means by which to address this threshold question. Legal Standards for a Plea to the Jurisdiction The purpose of a plea to the jurisdiction is to dismiss a cause of action without regard to whether the underlying claim has merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the court's power to adjudicate the subject matter of the controversy. Texas DOT v. Arzate, 159 S.W.3d 188, 190 (Tex.App. – El Paso 2004, no pet.), Axtell v. University of Texas, 69 S.W.3d 261, 263 (Tex.App. – Austin 2002, no pet.). Standing is a basic requirement of the judicial system and goes directly to the court's subject matter jurisdiction over a case. It may be raised at anytime and, unlike a challenge to a party's capacity to sue, cannot be waived or presumed. Nootsie Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 661-662 (Tex. 1996), Continental Coffee Products v. Cazarez, 937 S.W.2d 444 n.2 (Tex, 1996). A plea to the jurisdiction is the proper way to challenge a party's lack of standing. Waco ISD v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000). The plaintiff must come forward with sufficient evidence to demonstrate that there is at least an issue of fact as to the existence of jurisdiction. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227-228 (Tex. 2004). The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the plaintiff is not the original creditor, which therefore puts standing at issue and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit. SPECIAL EXCEPTION TO ACCOUNT STATED 1. Credit Card Cases Are Based on Express Contracts and Cannot Be Brought On Implied Contract Theories Like Account Stated. The Texas Supreme Court made clear in Truly v. Austin 744 S.W. 2d 934, 936 (Tex. 1988) that a plaintiff may not avoid the terms of its express contract by seeking recovery on an implied contract theory if the damages claimed are covered by the express contract. Credit card cases brought on an account stated theory violate this Supreme Court holding. Credit Card arrangements are governed by express contracts. The only viable cause of action for breach of a credit card is breach of contract. Implied or quasi-contractual causes of action like an account stated cannot be brought on a credit card debt without violating Truly v. Austin. Texas courts will not imply the existence of contract where an express contract already exists. Fortune Production Co. v. Conoco, Inc.,52 S.W.3d 671 684 (Tex. 2000), Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex 1964), Musick v. Pogue, 330 S.W.2d 696, 699 (Tex. Civ App.- San Antonio 1959, writ ref'd n.r.e.). The reason for this rule, as described by the Supreme Court in Fortune Production, is that parties should be bound by their express agreements. When a valid agreement addresses the matter, a party should not be able to recover more than is provided for in the agreement. Id., 52 S.W.3d at 684. "Count 1" of the Original petition fails to provide fair notice as to how The Plaintiff can avoid this express contract in favor of an account stated. The principle that a plaintiff should not be able to use an implied contractual theory to recover more than his contract authorizes is particularly applicable to credit card cases. Credit card fees and interest rates are heavily regulated. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended. See e.g. 15 U.S.C. § 1637©(1)-(7), 12 C.F.R. 225.5-225.16. Credit card plaintiffs should be able to produce these disclosures or otherwise prove the interest rates and fees that their customers agreed to pay. Using an account stated theory to imply an agreement to pay the interest and fees would improperly relieve plaintiff from establishing the amount of interest and fees that were required to be disclosed to the defendant under Federal law, and must have been included in the terms of its alleged express agreement with the defendant. 2. A Credit Card Account Is Not an Account Stated A credit card account is not an "account" as that term has been used in the common law governing suits on account. A credit card account does not arise out of a course of dealing between two parties engaging in transactions in goods. A credit card account is a multiparty arrangement. Each transaction involves ata minimum, the debtor, a merchant, the merchant's bank, a clearing organization such as Visa, Mastercard, American Express, the card issuing bank and the card issuing bank's credit card processing unit. Every transaction brings a new merchant and merchant bank into the web of transactions that make up the account, with the result that over the term of a credit card account, hundreds of parties may be involved, not just two as envisioned for a common law account. Moreover, the transactions in a credit card account are not merely sales of goods. The account issuer does not sell goods to the account holder: instead, it makes extensions of credit to the account holder or to third party merchants on the account holder's behalf. For these reasons the cause of action for account stated does not apply to credit cards. An account stated is merely an open account that has been closed because the party charged has agreed that the account is correct. Whittlesey v. Spofford 47 Tex. 13, (Tex. 1877), Wroten Grain & Lumber v. Mineola Box Mfg. Co., 95 S.W. 744 (Tex Civ. App.-1906), Padgitt Bros. Co. v. Dorsey, 194 S.W. 1124, 1126 Tex Civ. App.- El Paso 1917, no writ). An open account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from one to the other. McCamant v. Batsell, 59 Tex. 363, 367-369 (Tex 1883), Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex App.----Beaumont 199, no writ). Over a century ago in McCamant v. Batsell, 59 Tex. 363, 1883 WL 9175 (Tex. 1883), a case that has never been overruled, The Supreme Court construed the word “account” as it is used in this context as limited to suits arising out of relationships in which title to goods was transferred from the plaintiff to the defendant and further excluding suits in which the rights of the parties were defined by a written agreement. In McCamant, a suit on a promissory note, the plaintiff sought to make use of the then existing statute governing suits on account, which like current Rule 185, set up abbreviated procedure for resolving disputes involving such suits. Unlike the current rule the statute did not enumerate the kinds of action that could be brought as suits on account. The Supreme Court construed the meaning of the term “account” in the statute as being consistent with the common law meaning of the term: “As used in the statutes of this state, in the act referred to, we believe that the word “account” is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon one side and purchases upon the other, the title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing.” The Court also ruled that the plaintiff’s suit against the maker of a note and his sureties could not be brought as a suit on account or an open account because it did not arise out of the course of dealings between a buyer and seller, but was based upon a written agreement in which all the terms were fixed and certain. Id., 1883 WL 9175 at 6. The Supreme Court reaffirmed the holding of McCamant in Meaders v. Biskamp, 316 S.W.2d 75 (Tex. 1958), in which The Court distinguished a suit on an account from a suit based upon an express contract for purposes of awarding attorney’s fees. The then applicable language of Tex. Civ. Stat. Art. 2226, the predecessor to Tex. Civ. Prac. & Rem. Code Ch. 38 permitted an award of attorney’s fees for a suit upon a sworn account but did not include the present language authorizing fees in a breach of contract case. The Meaders court, citing McCamant held that a suit founded upon a written contract for the drilling of an oil well was not a suit on account because the relationship of debtor and creditor did not arise from a course of dealing but from a contract. Id., 316 S.W.2d at 78 The classic statements of the elements of the account stated cause of action expressly draw a distinction between suits that grow out of a course of dealing and suits that grow out of an express agreement. For example, in Central Nat. Bank of San Angelo v. Cox, 96 S.W.2d 746, 748(Tex. Civ. App.—Austin 1936, writ dismissed), the court said: “The cases are legion on what constitutes an account stated. In general the essential elements involved are: Transactions between the parties which give rise to an indebtedness of one to the other; an agreement, express or implied, between them fixing the amount due; and a promise, express or implied, by the one to be charged, to pay such indebtedness. 1 Tex.Jur. p. 371 et seq.; 1 C.J. 678; 1 Am.Jur. 272; 1 C.J.S., Account Stated, p. 693.” The first and defining element of the claim is existence of a debtor-creditor relationship that arises from a series of transactions—from a course of dealing, not a contract. This element is identical across all suits on account, whether open, sworn or stated. While the other elements of the claim do reference an agreement, the subject matter of the agreement is not the creation or terms of the debtor-creditor relationship, but the acknowledgement, after the transactions that gave rise to the relationship have occurred, of the amount due and the obligation to pay. Recent court of appeals decisions allowing a stated account on a credit card have overlooked these Texas Supreme Court authorities and instead are based upon mere dicta from a footnote in a decision out of the Dallas court of appeals. In a footnote in that case, Dulong v. Citibank (South Dakota) N.A., 261 S.W.3d 890 (Tex.App.----Dallas 2008) the court stated that a sworn account requires the passage of title and is thus not a proper tool for a credit card case but noted that it differs from an account stated in this regard. But neither that decision nor any of the other appellate decisions that have followed it have explained how they reached this conclusion. These decisions are utterly devoid of any analysis or legal authority on the issue, and none of them discuss McCamant v. Batsell. These decisions are simply contrary to Texas Supreme Court authority. PRAYER Wherefore, premises considered, Defendant prays that the Court grant his Plea to the Jurisdiction, grant his Special Exceptions, enter judgment in his favor and against Plaintiff, that Plaintiff take nothing, that the Court assess costs against Plaintiff and award Defendant all other relief to which he is entitled. Respectfully Submitted, Signed_________________________________ Name: Address: Phone: CERTIFICATE OF SERVICE I do hereby certify that I will mail a true and correct copy of this ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS to the Plaintiff on the _____ day of ____________________, 20____. Signed____________________________________ Name: Address: Phone:
    1 point
  13. I just wanted to thank everyone for the great advice! Yesterday, I received a notice in the mail that my motion to compel arbitration was granted.
    1 point
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