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Everything posted by cjtx2

  1. Sewer service is common everywhere. I found several articles from California, the NY attorney general, etc. Here is a link from a Texas attorney: https://www.westonlegal.com/debt-lawsuits/service-of-process-in-texas/ The law contemplates fraudulent service when it comes to extrinsic fraud in Bills of Review to fight default judgments. http://www.jtexconsumerlaw.com/V10N3/V10N3Equitable.pdf Nobody is actively monitoring process servers to ensure compliance with their code of ethics. The only remedy is to sue them and not enough people go after them (myself included).
  2. So if there was a court order and service was performed according to it, then service is legal.
  3. Your statement is inaccurate. Statistically, most debt collection cases are won by default judgment. Just look at any court's docket. Usually, the affidavit alleging personal service is not controverted because the debtor is ashamed, thinks there is no defense or is just too scared to go to court. Do you really think all default judgments happen after personal service as stated in the affidavits presented to the courts? It is much easier to lie about personal service because the chances of getting caught are extremely low. It's the cost of doing business and for them the rule is basically meaningless.
  4. The court may assume you waived your right to arbitration if you wait until trial day to try to compel arbitration. However, it is possible that after you request discovery and you get a copy of the agreement and you realize you have a right to compel arbitration, so the court must allow it (there is no discretion) or face a reversible error.
  5. If there was no discretion, the rule would say "the court must authorize service".
  6. 1) The court may or may not authorize alternative service. There is no abuse of discretion for denying it. 2) The authorization is not retroactive. So if the process server comes and claims he taped a summons to the door, published it on a newspaper, or conducted any other form of alternative service, without the court's prior approval, the service is defective and the court does not have the power to authorize it retroactively. 3) You are aware that alternative service is very uncommon. Most process servers lie about personal service in order to avoid risking a denial of alternative service that would guarantee a dismissal for lack of service.
  7. The application process is not difficult, but just because they ask for it does not guarantee it will be approved. The judge has discretion and he is in no way obligated to grant alternative service on the word of a shady process server. As you mentioned, rather than risk a denial on the record that would guarantee a dismissal for want of service, they rather lie about personal service.
  8. An affidavit by the process server... that must state what he tried, address, date, time, etc. If it were as easy as you imply, everybody would apply for alternative service and avoid real legwork.
  9. Not sure I understand. There could be evidence of multiple attempts via multiple notices. But even if you know they are trying to serve you, there is no legal obligation to contact them and make an appointment to get served or authorize them to leave it under the mat.
  10. True. However, statistically, very few process servers ever apply for it and even less judges grant it because it is hard to convince them that there were multiple, good faith attempts to serve.
  11. On the contrary, alternative service is extremely unlikely. Otherwise, someone would know if there were multiple service attempts so that it would be somehow justified or there is a possibility the court may have authorized it.
  12. They can re-file, but the clock is ticking and they may run out of SOL. So there could be a huge gain. Some time ago I had a default judgment in a different city through sewer service. I only found out about it when it appeared on my credit report. Several lawyers told me there was nothing I could do. I filed a "Bill of Review" and as part of the settlement, the judgment was vacated. The SOL had run out, btw.
  13. I do not know for sure, but I can tell with a 99.9% confidence. Because in order to justify an alternative service method, the process server must show the court that they attempted to effect service in good faith multiple times and show that the person is either hiding or somehow illegally avoiding service. This can be a very hard burden of proof and most of the times it just does not happen. A person may not be at their residence because of work travel, vacation, odd work hours, spends most time elsewhere with a partner or family, or many other valid, legal reasons. I have personal experience with PRA, and they used a private process server who taped a notice on the door. I checked the court records and there is no order authorizing alternative service.
  14. There must be a court order to authorize this type of service. A process server cannot take it upon him/herself to tape the summons to the door.
  15. Thank you for the quote, but you do not understand TRCP. The judge must authorize alternative service methods, like service by publication, etc. Without a valid order prior to service, service must be hand delivered. Public policy favors arbitration, and although if the case is too advanced, the court may assume you waived your right, this is the exception and not the rule, and most courts would err on the side of caution and grant arbitration.
  16. I think the service was bogus because it has to be hand delivered, not just left at your front door, but you already made an appearance when you filed your answer, so you subjected yourself to the court's jurisdiction. Instead of amending your answer, you file a "Motion to Compel Arbitration". I do not know if your OC agreement includes an arbitration clause, but assuming it does, you usually say something like: "Defendant's agreement with Webbank includes an arbitration clause. Defendant moves to compel arbitration and abate or dismiss this case pending arbitration resolution." If your motion is granted, you do not have to pursue discovery in court, it has to go through arbitration. You can invoke arbitration at any time, so you could deal with discovery first and then file your motion to compel. Are you being sued in a JP or county court?
  17. All your communications and copies of all documents filed in court go to the attorney of record, not directly to the Plaintiff. I have a question. About the affidavit of the custodian of records, who does he/she work for? Crap1 or PRA? Someone who works for PRA does not really know anything about the accuracy of the records of a third party (Crap1), so the affidavit is worthless.
  18. Service in Texas must be hand delivered. Taping it to your door is not an acceptable service of process. Of course, some JDBs use sewer service and they will produce an affidavit stating that they hand delivered it to you so they can obtain a default judgment. Legally, you do not have to respond to the court and make an appearance due to lack of service, but if you want to avoid all the headaches of fighting a default judgment you should file a general denial to call into question their affidavit.
  19. Do you happen to know if there is a way to know who is marking the account in dispute, the CRA or the furnisher? There are some codes to report that it is no longer in dispute, which obviously the furnisher must use. But I have always wondered, because if the CRA marks the account in dispute and there is no way to tell the furnisher agreed, there is no easy way to know that the account was not really verified at all. The case you referred to is right on point. Which supports the view that a collector does not have to report the dispute (take any action) when you contact them directly even if they already reported a collection. As long as they leave the old reporting alone, there is no problem. Which is relatively common because a collection usually tanks your score and there is no need to update. But when you dispute with the CRA, the collector needs to respond to the CRA and verify it, so they have to take action and, and according to the plain language of the statute, report it as disputed. Also, if for whatever reason they decide to update it, any new report must disclose the dispute.
  20. They give you some idea of the different factors that make up your score: Payment History 35% of FICO score. Shows how many accounts show 30+ days late Amount of Debt 30% of FICO score. Shows the percentage of available credit you are utilizing. Length of Credit History 15% of FICO score. Shows the average age of accounts Amount of New Credit 10% of FICO score. Shows the age of your most recently opened account. Credit Mix 10% of FICO score. Types of credit you are using and whether you miss something. For each of them you get a score of poor, fair, very good or exceptional. So again by process of elimination: for example, no new credit, same credit mix, same 30+ late, etc. If you score exceptional in a certain area, you could probably assume you have most or all of the percentage for that category. Then if the average age is the same across CRAs and the score did not change in all reports... But true, in the end it is just guesswork. For example: two different factors may counter each other.
  21. Usually I have several things change every month, so it would be difficult to single out one change. At least with a static report. There was no report before to compare, but it was the only account in dispute at the time and the only balance excluded from the total owed, as calculated by myfico. A few days later, another charge off was sold, so the account balance came down to $0 for the charge off and it was still not reported in collections. The total amount owed myfico re-calculated was decreased exactly by the amount reduced from the balance on the reports where it appeared, and FICO score increased a few points (very few). While not conclusive, I think it is a very good indicator. Every time there is a change, the monitor re-calculates the score, so it has given me a better perspective on the impact of changes. I will have more definite proof when the next dispute appears. There is also a FICO simulator of how your score improves as you pay off the amount you owe. While it shows the effect of making monthly payments to other debts, disputed debts balances are left alone.
  22. You are right. Unless Midland updated incomplete info after it was clear there was a dispute pending, just leaving an old trade line on your report does not count as "still reporting negative info". They are not actively still reporting, it is just an old report, which you need to challenge if you think it is inaccurate. So in either case, a dispute with the CRAs must make it clear that the account is in dispute and failing to mark the account as such would be actionable.
  23. OP responded to a lawsuit and did not admit to the debt as stated, that is why OP invoked arbitration. Otherwise, if there was no dispute, Midland would have received a judgment and not a dismissal. Therefore, the account is in dispute and an arbitrator needs to make a decision to resolve the dispute. You are right about having to dispute with the CRAs before suing for FCRA. But, since Midland has been updating the account without reporting that it is in dispute, FDCPA applies, and it counts how persistent Midland was in updating false and incomplete information. Disputing with the CRAs would make his FDCPA case even stronger.
  24. I had read about it before, but had no evidence it was in fact true. I used the myfico monitoring service. In addition to a combined 3 report and FICO scores for different purposes (credit cards, car loans, mortgages, etc.) they provide other information they used to calculate your score, such as total amount owed for each CRA. This is important in computing your debt to credit ratio to see how much you have overextended yourself and how much of a risk you are. The total amount due, which was not consistent across CRAs, included all other balances listed on the respective report, except for the one related to an account marked in dispute. I do not know for sure if collection accounts are handled the same way, but I suspect they are. The account was a charge off and was consistently marked in dispute by all CRAs.
  25. Are they reporting that the account is in dispute? It is obviously in dispute since you compelled arbitration and they failed to proceed and their case was dismissed. It makes little sense to update a disputed account, since it is not included in calculating FICO scores. Failure for a debt collector to report the dispute is grounds for both a FDCPA and FCRA lawsuit.
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