cjtx2

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Everything posted by cjtx2

  1. The filter seems to be posting a bond or inability to pay document. The bond for a defendant is twice the amount of the judgment. Plaintiff's bond if they decide to appeal is $500. When you post an inability to pay document, the other party may challenge it and if they are successful, you get no appeal.
  2. From JP court there is still a long way to the appeals court. Right now I am shooting for a new trial, which is limited by the JP's lack of a legal degree (and knowledge). When you appeal a judgment from JP, it goes to county court and it is tried de novo (with a real judge). I am not sure what is the difference with a writ of certiorari. It has the same effect (trial de novo), but the deadlines are much more laxed (90 days instead of 21 from judgment date). An appeal bond or inability to pay has to be approved by the JP. But if you go with a writ of certiorari, the bond or inability to pay is approved in county court.
  3. You are absolutely right about how subjective JP rules are. However, the fact that so many plaintiffs file a business affidavit with JP courts at least a month in advance suggests there is a reason for doing so. For sure, it is not done out of the goodness of their hearts. There must be some local precedent requiring it.
  4. Good guesses, btw. The complaint was on a JP form, so it was extremely brief (3 sentences or so). "Plaintiff's claim is for account stated. The claim arises from a XXX credit card account entered into by defendant(s) with XXXX bank, Account No. XXXXX (the Account). The Account is in default and plaintiff sues herein for actual damages, costs of court". They attached a copy of last statement, bill of sale and worksheet with account info to the petition. At trial, their business records affidavit included a worksheet with info about the account (dated a year after they bought it), copy of the agreement, bill of sale and a year of account statements. Aside from the usual claim of personal knowledge of the assignee's records (but nothing about the original creditor's recordkeeping practices), and that the records were integrated and are maintained under the ordinary course of business, it states that there are "no known un-credited payments, counterclaims or offsets against it as of the date of sale". I introduced proof that the account was disputed with both the OC and the JDB with copies of the disputes and return receipts but the judge did not admit it into evidence. I also had proof that they were reporting to the credit bureaus that the account was in dispute and the lawyer admitted to it. So there was no way they could prevail on an account stated claim.
  5. I stated that I prepared a defense for the cause of action described in the petition (account stated) and that the elements for the non-plead breach of contract are different and I did not have advance notice to prepare for it.
  6. True. But lack of discovery goes both ways, so there was no excuse not to admit my proof of dispute, which was also introduced at trial. There was an abuse of discretion (and bias). Also, a change in pleadings at the last minute is unfair surprise by definition.
  7. A week or so after I filed my response, the court scheduled trial, leaving very little time for discovery. Other cases filed on the same date as mine with the same court (and served around the same time) have not been scheduled for trial yet. I thought about requesting discovery, but I had seen that it was customary for plaintiffs to file a business record affidavit even when there was no discovery request. I just did not know exactly how widespread the practice was (now I know for a fact that over 90% of plaintiffs file a business affidavit 30 days in advance with this court). So I assumed that because they never filed it, either they did not have anything or were not going to show up at trial. I also considered the option they would try to surprise me at trial, but I never thought the judge would let them get away with it over my objections of unfair surprise and prejudice. And of course I stated that I had a right to confront the affiant and cross examine.
  8. I wish I could but the credit card agreement did not include arbitration.
  9. I have found several cases that apply TRCP 193.5(b) regarding disclosing discoverable evidence at least 30 days before trial to avoid unfair surprise. So that explains why so many plaintiffs file business affidavits at least a month before trial. More specifically for JP courts, there is nothing as far as rules of evidence, (except whatever the judge feels like applying) but as far as pleadings, they can only be amended no less than 7 days before trial for the same reason, to avoid unfair surprise. TRCP 502.7(a).
  10. He did not specify. Only stated "judgment for plaintiff". But during arguments he made it clear that it was ok for the plaintiff to pursue breach of contract. The attorney's opening statement was all about breach of contract (mentioned it a dozen times). My opening statement was a rebuttal referencing the petition and that it would be unfair surprise to allow a different cause of action than what was plead. I was put on notice to defend from account stated, not anything else.
  11. For one, I would subpoena the affiant to cross examine some of the assertions in the robo affidavit form, including the amount of time spent specifically on my account that qualified the affiant to claim she had personal knowledge of the records, the number of (robo) affidavits signed that day, whether the notary public was physically there when it was signed or whether it was part of a batch that was notarized somewhere else, along with specific knowledge of the record keeping practices of the OC's custodian of records, whether she verified somehow the accuracy of the records, her explanation of how they bought the account at a deep discount because the records were not guaranteed to be accurate/reliable/collectable, but somehow without any investigation into it, they magically became accurate just because she alleges so .
  12. I had a bad experience with a JP judge in Texas who ruled for a JDB plaintiff despite my objections. I objected to a last minute Business Records Affidavit as unfair surprise that would prejudice the result against me. The court denied my objection and admitted the evidence. I also objected on grounds that it was hearsay, but my objection was overruled. The JDB's attorney stated that rules of evidence do not apply to JP court. At first I thought this non lawyer judge did not require a business records affidavit so nobody filed it. After reviewing all the cases that have gone before this court in the last few months, over 90% filed a business records affidavit at least one month before trial even when there was no motion for discovery. That includes both OC's and JDBs. Other precincts in the same county, where the judge is a lawyer have both a business records affidavit and an affidavit of no military service filed in advance. Also, according to the petition, the case was for account stated, which has a much lower burden of proof than a breach of contract. However, at trial, the JDB attorney claimed breach of contract. Again, I objected because of unfair surprise. An account stated assumes that the balance is right because there was never a dispute. But I introduced a declaration stating that I had disputed the account with both the OC and the JDB and even provided the dispute letters and return receipts. The judge did not admit the evidence. It looked like he did not know about declarations. I think this was another abuse of discretion. As I am writing my motion for new trial, is it valid to pursue a different cause of action at trial after specifically pleading something else? I imagine there is some leeway for pro se's but this petition was drafted by a lawyer and it was specific. I mean, it did not request "any other relief to which plaintiff may be entitled" or something general like that. Is it possible the judge does not know why most plaintiffs file a business records affidavit in advance to avoid unfair surprise claims?
  13. Several JDBs use a scoring algorithm using AI to try to predict which consumers are most likely to lose / result in a default judgment. They use it to choose from their portfolios which ones are worth pursuing. So if for whatever reason, the algorithm is giving you a high score (recent dismissals or settlements may not have been updated yet), you may feel like you have been targeted, but it has nothing to do with your fights in court/arbitration but your likelihood to lose score.
  14. You need to start your own thread. But in answer to your question, having your efiling pleadings accepted only means that they were reviewed by a clerk and they appear to comply with the procedural requirements for the specific pleading. There is no guarantee that the judge has even looked at them and obviously he has not made any rulings unless there is a separate entry indicating so specifically.
  15. True. But it is not uncommon for a JDB to claim they do not have records of the original date of first delinquency and report it based on their business records reflecting payments.
  16. Are they reporting the payments to the credit bureaus? If so, this is a blatant attempt to damage your FICO score and force you to settle/pay up. A collection with no activity for 2 years has a lower negative impact than the same account with a recent payment.The payments re-age the account and extend the reporting period for an extra 2 years, which is a violation of both FCRA (605(c) running of the reporting period) and FDCPA (807(2)(A) misrepresenting the character, amount or legal status of a debt). They can use the bona fide error defense (FDCPA 813(c))and then you have to request discovery to find out exactly how "reasonable" are their procedures to avoid such errors. As Harry suggested, your best bet is to file a motion to compel arbitration.
  17. That must be it. You referred to a long time member still advising to use the Finance Code, which in the context was bad advice. I see his point. There is no mention of debt validation in Finance Code 392, but there is no time limit to dispute the account under 392.202 after their first communication/dunning letter. Many collectors will ignore a validation request if not sent within 30 days. You can dispute the account as "not mine", which would force the JDB to provide the equivalent of validation and probably much more than just a verification of the name of the OC and the balance. Also, with validation, during the time they take to investigate and until they respond to you about a completed investigation (for which they have 30 days), they are not allowed to continue collection activity (reporting to the CRAs).
  18. I have been successful in the past as well, but I was away for some time and lately I am in the process of re-learning what works now. Simien seems to complicate things for defendants and give JDBs an easy win without proper records. I have been looking at your strategy and it looks promising, but I am concerned about hick JP non-lawyer judges who may fail to understand the nuances in Simien. In looking at robo signed affidavits and their admissibility, I found the case from the attorney general against PRA in 2011 (which was Abbott back then and was filed in Harris county, btw), where he made the case that debt collection is a service under the Deceptive Trade Practices Act (DTPA). He also sued them under the Debt Collection Act (TDCA) as a tie-in statute to DTPA and ended up in a consented order. This is interesting to me because I am dealing with a business account, so FDCPA and TDCA do not cover non-consumer debt. But the DTPA applies to all consumers whether businesses or individuals. I have read your comments about TDCA not working anymore. How about DTPA? I like that the standard of proof is one of the lowest if not the lowest.
  19. I was doing some research on business records admissibility in Texas based on Simien v. Unifund CCR Partners, 321 S.W. 3d 235, 240-45 (Tex . App. -- Houston [1st Dist.] 2004, no pet.), which basically allows debt collectors to magically turn a debt with incomplete, possibly inaccurate/unreliable records into a valid debt as long as they incorporated the business records for everyday use as stated in an affidavit. Check out: https://www.johnstontobey.com/are-your-business-records-admissible/ According to the author, depending on where you live in Texas, the courts may be influenced by the Simien opinion, especially in the Houston area. In Dallas, they use Powell v. Vavro,, McDonald & Assocs,., LLC, 136 SW3d 762, 765 (Tex. App. -- Dallas 2004, no pet.) In El Paso, they use Riddle v. Unifund CCR Partners, 298 SW3d 780, 783 (Tex. App. -- El Paso, 2009, no pet.) Both of which require the affiant to have personal knowledge about the way the records are maintained (not created) by the original creditor. I checked out the Powell case and it was referenced in Castillon v Morgan, No. 05-13-00872-CV (Tex. App -- Dallas 2015). It references the Simien opinion but the outcome is based on Powell.
  20. As long as you file your answer within the deadline, it makes no difference if you send it in advance. You need to create an account to e-file your response or other pleadings. Once you have it, you can e-serve the attorney through the system at no charge. https://efile.txcourts.gov/ofsweb Any other correspondence you have with the attorney (discovery after the court authorizes it, settlement offer, etc.), you should send it via certified mail. In theory you can e-mail it, but that is not recommended.
  21. TCPA has been undermined big time by the decision in ACA International v. FCC https://scholar.google.com/scholar_case?case=7140589698627765519&q=aca+international+v+fcc&hl=en&as_sdt=6,44 Basically the FCC made it extremely easy for caller violators to claim they are not using an ATDS. Some courts still use the old FCC orders, where almost any device qualified as an ATDS, but they are the exception and not the rule and a lot of cases now are relying on the above opinion and ruling in favor of robocallers.
  22. Is this for a small claims court? If so, check out: https://www-media.floridabar.org/uploads/2017/04/small-claims.pdf Rule 7.090 describes what to expect at a pre-trial conference. Basically, you must show up or your lawyer must have authority to enter into an agreement unless you and the other party waive the pre-conference. Filing an answer does not excuse you from showing up at the pre-conference. Unless the court requires it, there is no need to file an answer in advance. You do not deal with a judge, but one may be there to supervise. They may decide if additional discovery is necessary, including admissions, production of documents and witnesses and set a trial date. They may try mediation to reach a settlement without a trial.
  23. Not sure how it works in justice courts in Collin county and whether there is an extra charge. I know some county courts used to require you agree with the other party to your own mediation services or use the one the court proposed at whatever cost was set by the mediator, but lately, these county courts offer this service for free. When a court orders mediation they usually accept other mediation venues, as long as you and the plaintiff agree. For example, SMU offers mediation services in Plano and they cost $100 per party. https://www.smu.edu/simmons/Community/MediationClinic/Mediation
  24. Thank you for the case reference. Does it make any difference that some CRAs report something along the lines of "consumer disputed account, furnisher investigated and found it accurate, consumer disagrees". There are enough codes in the Metro-2 format to include this information when furnishing. They are supposed to be compliance codes. Not many judges fully understand all the nuances of compliance. Unfortunately, disclosing that info would make it extremely easy for the JDB to identify me and have an unfair advantage by knowing my work product.