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Everything posted by cjtx2

  1. You are right, it was Pintos. According to Merriam Webster, there are at least two definitions of transaction. - an exchange or transfer of goods, services or funds. - a communicative action or activity involving two parties or things that reciprocally affect or influence each other. So the second definition could easily involve a fine. Maybe a fine could be stated in terms of an exchange of services and funds.
  2. Thank you. I guess I need to look up caselaw for the 5th circuit. I remember there was an old case about a car that was wrongly towed for city fines and the consumer prevailed using FDCPA. but I don't recall in which circuit it was. The consumer never agreed to some of the charges (possibly storage fees). There is nothing in FDCPA about a consensual relationship. So it comes down to how the circuit interprets FDCPA. There was never consent to call the number. It was captured when I called an 800 number for an unrelated matter from the same city department.
  3. Clearly a credit card transaction is debt. But the definition does not state who initiates the transaction. In a city code violation the money subject of the alleged obligation is for household purposes. So the question is whether a fine is a transaction.
  4. This looks to me like overshadowing the right to request validation: And then the address for payments is the municipal court and/or the marshall's office (not their own). So is the municipal court misrepresenting whoi is in fact collecting the debt?
  5. A City in TX contracted with them to collect on a debt related to city code violations. The most the city can do is file a lien. However, in a dunning letter, MSB claims there could be arrest warrants for non-payment. The name of the company seems to suggest (to me, a least sophisticated consumer) it is some sort of government agency, but even if that's not the case, the city could not have approved a threat of arrest, which is not even a remedy for city code violations. MSB also called many times. Obviously, the city code inspectors never had consent to call my number, so they
  6. 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.
  7. 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 inab
  8. 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.
  9. 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 boug
  10. 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.
  11. 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.
  12. 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 assum
  13. I wish I could but the credit card agreement did not include arbitration.
  14. 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).
  15. 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.
  16. 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 explanatio
  17. 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 gon
  18. 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.
  19. 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.
  20. 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.
  21. 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
  22. 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. Als
  23. 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), wh
  24. 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