Andy Simmons

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About Andy Simmons

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    Austin, Texas attorney
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    Scuba diving
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    Lawyer

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    Texas

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  1. I'm sorry, Lecabas, but your statement is just wishful thinking. The plaintiff only bears the burden of proof on the elements of its cause of action. The defendent bears the burden of proof on any affirmative defense. If you come into court asserting the SOL but have no evidence, you will lose. Do you have any legal authority for your claim that merely denying the plaintiff's allegations shifts the entire burden to the plaintiff to disprove the defendant's affirmative defenses? I have never heard of any jurisdiction where a party does not have the burden of proof on its affirmative defenses. I would be curious to know what jurisdiction operates that way.
  2. This is a pretty typical response to a RFD in a third party debt collection case. There is not a lot you can use there. One of the key things is the list of persons with knowledge they provided there. They aren't supposed to be able to call anyone to testify at trial who is not on this list, although they can supplement this list. I always look at this list to see if they have any real witnesses that I need to be concerned about. I think their responses are inadequate. They just refer back to their pleadings instead of answering questions. You could do a motion to compel further responses, but I usually focus on getting the info I need through interrogatories, requests for production and requests for admission. You seldom ever get all you need just from a request from disclosure. So, you could do a motion to compel but that may not be the best use of your time.
  3. "Just to play devil's advocate for a minute: You may be able to tell from your records when you last made a payment, but how does that constitute proof? Since you can't prove a negative, how do you "prove" that you didn't make a payment, say, 2 years ago?" -you don't have to prove a negative. But you do have the burden of proof. You have to prove that the breach of contract occurred more than four years before plaintiff filed suit (under Texas law). If you put forward admissible evidence of your SOL defense, the burden shifts to the plaintiff to prove you wrong. If they can't, you should win. To take your example, the plaintiff can't just say, "well how do know it wasn't just two years ago." If the plaintiff thinks it was only two years ago, they have to prove that. It's not hard to prove a statute of limitations defense. You just need admissible evidence. And a credit report is way down on the bottom of my list of things I would try to rely upon as admissible evidence. They're hearsay and not reliable. And you'll get no cooperation from the credit report agencies in trying to prove up the credit reports.
  4. I don't know about all jurisdictions, but in Texas, an attorney representing himself or herself is just as entitled to recover attorneys fees as someone who hired a lawyer. I just happen to know that, not from personal experience. Personally, I have never been a party to a lawsuit. I only represent people in lawsuits. It is said that he who represents himself has a fool for a client. Whether that is true or just an old saying, I leave to others to debate, but if it is true, it applies equally to lawyers.
  5. Look, the plaintiffs in these cases don't come into court relying upon credit reports as their evidence. Either they have business records to prove when you made your last payment, or they don't. If they don't have the business records to prove when you made your last payment, then they are unable to controvert (legal jargon for "contradict" or "dispute") your claim as to when you last paid. So you should win on the SOL if you testify under oath as to the date and they don't have a business record to prove you wrong. But wait. Your testimony can't just be a factual conclusion. You have to have a factual foundation for your testimony. One way to establish this foundation is to testify that you reviewed your bank records and they show that the last payment was more than four years before they filed suit. Of course, you'll then be required to produce those records. That is all you have to prove. But coming in with a credit report to prove all of this is just odd. Why use a third party's record instead of your own records and testimony? That is why I think the judge would give you funny looks.
  6. I think you must have misunderstood the lawyer you talked to, or perhaps I don't understand what you are trying to say. If they've already filed the lawsuit, and made it under the statute of limitations, I don't know why you or your attorney are still talking about limitations. Don't be thinking you can go to a payment plan after a lawsuit was filed, drag it out, and then blow them off once the statute of limitations has expired. They're not going to structure any payment plan deal with you that will give you that option. The way they get around you doing that is require you to sign an agreed judgment. If you default on the settlement payments, they have the agreed judgment against you, just as if you had gone to court and lost. While you should get a credit for the payments you made, they will be able to try to collect the balance. There are other defenses besides statute of limitations. I am assuming the lawyer you talked to spotted some other defense on which he thought he could get the case dismissed. Now, to answer your hypothetical question, if you have a debt that is past the SOL and no lawsuit has been filed, then, yes, you still owe the debt, but the SOL is a complete defense to any lawsuit. Therefore, they have no legal way to force you to pay it if you don't want to. They have ways to bother you, like keeping it on your credit report until it falls off, or continuing to write you and call you, but as far as lawsuits or threats of lawsuits, it's over. If you want to pay them anyhow, that is your business, but remember, as soon as you send them a payment, you just reset the statute of limitations to zero. Oops.
  7. Well, I am an attorney who represents defendants in these kinds of cases in Texas, but if I was representing the plaintiff and the only evidence you had to support your statute of limitations defense was a credit report, I am confident I would clobber you. Why am I so sure? Well, credit reports are hearsay. Even if you could get around the hearsay problem by proving an exception to the hearsay rule, which I doubt, and which would be a lot of trouble and beyond the skill of a pro se defendant, what does the report prove even if you could get it into evidence? Does it prove the date on which you breached the contract by defaulting on the debt? Maybe, but probably not. Charge off dates shown in a credit report are irrelevant. The charge off date is not likely to be the date on which you last made your payment or breached the contract. Since the credit report usually just shows the charge off date, how is it relevant to proving the statute of limitations? It isn't. The easiest way for a defendant to prove the statute of limitations defense is through his own bank records. Go back and look at your bank records to see when you last made a payment. Was it more than four years before they filed suit? Now we are getting somewhere. Don't want to go that route? Require them in discovery to produce copies of all of the relevant credit card monthly statements, to see when their records show you having made your last payment. But I still think you should cross check this with your own bank records, to make sure they didn't move the date up with some payment you never made. Either way, you as the defendant have the burden of proving the statute of limitation defense. This means you must come up with admissible evidence showing that you breached the contract more than four years before they filed suit (Texas has a 4 year SOL). Maybe the only evidence you will have on this issue is your own testimony. Well, that might work. If they can't refute it and if you can provide a foundation for your testimony, it should work. You'll have to get your testimony before court, either in a competent affidavit in a hearing or at trial. So I'm thinking of you standing in front of a judge, waving the credit report. And the judge is going to be thinking and probably asking, "why don't you have any other evidence as to when you last made a payment?" And if you don't have a good answer, I see the judge ruling against you right at that moment. Now, I am not saying that a credit report is never relevant or admissible for any purpose. And in some courts, like a justice of the peace court in a small town, the judge might not be a lawyer or might not follow the rules of evidence anyhow. But a defendant ought to be able to prove his statute of limitations defense with something better than that. So that is my tip of the day. Good luck.
  8. Some of you are putting a lot of words in my mouth. I never said I am personally offended by any remarks made about lawyers here. What I said was that lawyer bashing is unproductive, I see a lot of that going on this forum, and I do not wish to be a part of it or associated with it in any way, whether it is directed at all lawyers or just one or two lawyers in particular. In either case, it is unprofessional. If people wish to do engage in it, that's their First Amendment right, but it's counterproductive to defending your cases and I felt it was time to say something about it. The Texas Lawyer's Creed, to which I try to adhere, requires that lawyers not disparage each other or otherwise act in an unprofessional manner towards each other. So regardless of what I might think about the practices of some debt collection lawyers, I am not going to participate in name calling. I also discourage the non-lawyers from doing it because it is unproductive and harmful. Once you adopt the attitude that the opposing lawyer is bad, evil, stupid, corrupt, etc., then it starts to cloud your perceptions and it lets your emotions cloud your judgment. I can tell you from having praticed law since 1995 that this is a dangerous trap for anyone to fall into, lawyer or non-lawyer. It can lead to serious errors of judgment. It's just human nature to fall into this, but it is a real trap and a big mistake. I think most of you pro se, do-it-yourself defendants have enough hard work cut out for youselves without further hamstringing yourselves by feeding off of each other on how evil and awful the debt collection business and its lawyers are. Even if they are evil and awful, that's irrelevant to the issue of how are you going to mount a winning defense. That's my advice. I didn't post this because I am offended or because my feelings are I hurt. I posted it because I think it is useful advice and needed to be said.
  9. If there are people in Texas who are looking for a lawyer, sure, I would want them to contact me, and I would give them a free consultation with no obligation. I think a lot of people are here in desperation because they can't find a lawyer who will take their case at an affordable fee and they think that none exist. Then I read their questions and the answers and can only think that they're going in for the slaughter. The blind leading the blind. Many of these people really do need a lawyer and instead are settling for very bad advice from people who have no business dispensing it. As far as getting business from this place, I have helped one person for free. As a result, one of you made a complaint against me for using this site for commerical purposes. Another person contacted me and hired hired me to do one hour of legal work, for which I charged my hourly rate of $200. I did not contact that person or ever converse with them here, this is just how they found me. I did not solicit them. The title of this forum is "Is there a lawyer in the house." I am a licensed lawyer who has successfully defended many of these cases and who has never lost a third party credit card case. So, I have an interest in this forum. But what exactly is it that you think I should do, take all of your cases for free, or hide the fact that I am a lawyer? The owners of this website make money from its operation, and no one resents that. The way they are able to make money is by all the internet traffic that is generated by these forums. Yet, if a lawyer who wants to help people for a very very modest fee might possibly get a client or two from partipating here, it clearly bothers a number of you. I give away a lot of my time for free already, so I don't see the basis for the resentment. I think there are some non-lawyers who greatly enjoy playing lawyer and resent a real lawyer telling them when they are wrong. I don't have time for dealing with their complaints about my presence here.
  10. It is customary that the client pays all of the court costs, such as filing fee, process server fee, etc. Usually, the contingency fee lawyer takes his or her cut off the top of what is recovered. Off of the gross, in other words. If the lawyer advanced the court costs, the lawyer still takes it off the top, then recoups the costs, and whatever is left goes to the client. But it is all governed by the attorney fee agreement, which can vary according to what the lawyer and client have agreed upon.
  11. I'm not going to participate in any lawyer bashing, sorry. It's not productive. This forum is entitled "Is there a lawyer in the house" and purports to offer free legal advice from legal experts, but as far as I can see, only a very small portion of the posts are from licensed attorneys. All the rest of you who are offering very specific (and usually wrong or misleading) legal advice in real cases are engaged in the unauthorized practice of law, which is a crime in every jurisdiction that I know of. But I digress. Look, debt collectors are often aggressive. They have to be. Being nice and passive seldom gets a debt paid. Now, there is a line they are not supposed to cross. When they cross it, there are remedies such as the Fair Debt Collection Practices Act and sanctions. That is how the legal system works. If venting and calling them all dirt bags makes you feel better, that's okay, but I'll be bugging out of this forum if it turns into a lawyer bash. Maybe the moderators can start a separate forum for lawyer bashing. If you want actual lawyers to participate (for free!) in a forum called "Is there a lawyer in the house?" it would not be too much to ask to refrain from lawyer bashing.
  12. "According to Education Resources Institute(TERI) v Piazza and Education Resourses Inst. v Czarnk, the plaintiffs lost due to the ruling that the "statute of limitations is a procedural, not substantive law issue and therefore not bound to contractual choice of law" and "Under common law rules matters of procedure are governed by the law of the forum." Even though the issue in both was WHERE the suit could take place and not when the SOL ran as in my question, the SOL obviously does apply here." --you are in Florida, right? Is this case you are citing a Florida case? You need to look at both Florida law and Ohio law. There was another thread on this very subject that involved a Florida court applying the statute of limitations of another state. As I said in my other post, this all varies from state to state. This is a chore to answer because you have to look at the laws of both states, and not just the statute of limitations, but also whether they are substantive or procedural, which may vary from one cause of action to another, and you have to look at the choice of law doctrine of your state. That is a lot of research to do. Have fun.
  13. I addressed this issue at length in another thread. This is a very complicated question. You have to look at both states' laws on the issue of statutes of limitations, whether they are procedural or substantive, and their choice of law doctrines. You also have to look at the contract. That makes it hard for me to answer off the top of my head. A choice of law provision in a contract only applies to the substantive laws of the state. You can't force the procedural rules of one state upon another. Statutes of limitations are usually considered procedural and not substantive, but sometimes they are substantive. If they are substantive, then they might be applied. If not, your home state's statute of limitation will apply. The only way to find this answer is to do some legal research. No one who does not already know the answer will be able to figure it out without doing the research, though that won't stop some people here from making wild guesses. If this was a student loan, then the statute of limitations issue is moot, as someone else already pointed out.
  14. You ask two questions about Texas law. The first is how can they refile after the case was dismissed? Well, if it was dismissed without prejudice, then they have every right to refile. If it was dismissed with prejudice, then they have no right to refile. But you will have to bring that to the court's attention. You will need to raise that in your answer and in a motion to dismiss. The second question is how can they file after the statute of limitations has run? Easy. The statute of limitations is just an affirmative defense. If you don't raise and prove that defense, then there is nothing to stop them. The statute of limitations doesn't mean you don't owe a debt. It just means they waited too long to bring suit. If properly raised and pursued, a statute of limitations defense will get the case dismissed. Usually that is done by way of a motion for summary judgment. Now, if they filed the lawsuit knowing it was past the sol, or if they should have known it was past the sol, then you can include a counterclaim in your answer, for violation of the Fair Debt Collection Practices Act. If you hire an attorney like me to represent you, you can also recover your attorney's fees. If you are representing yourself and are not an attorney, you cannot recover any thing for your time, but you can recover damages. And they get nothing because of the sol. Sweet! Now, your other question was can they file a lawsuit and not serve you? Yes. And in theory, until they serve you, you don't have to answer. You have to be careful, though. Just because you haven't received the papers doesn't mean they are not claiming you have been served. Sometimes they serve the wrong person or serve you with substituted service and you never get the papers. So of course you don't file an answer and then they take a default. So you have to watch this file constantly, or maybe go ahead and answer. That's a dilemma. When people in Texas hire me in your situation, I am often able to make the case go away with a letter. If they haven't even been able to find you to get you served and then they get a letter from me telling them that if they do serve you, I am going to countersue for FDCPA and get their case dismissed, they throw in the towel. Everytime, so far. They haven't actually violated the FDCPA by filing a lawsuit past the sol until they serve you, according to the cases I have read. That is, because until you are served, you haven't suffered a legal harm. The mere filing of the lawsuit doesn't harm you. You are harmed when you are served. So, if they drop it before they serve you, they can cut their loses if they know I am going to countersue. However, if they sent you a letter or called you threatening to file a lawsuit when it was past the sol, then they did violate the FDCPA, because the mere threat causes you harm. Isn't that interesting? If you wish to discuss your case with me privately, you can contact me with a private message. I'll then give you the link to my attorney website and you can contact me that way with assurance that I am who I say I am. If you are thinking of hiring an attorney, I don't charge for a consultation on these kinds of cases. Even if you are not planning on hiring an attorney, I still don't mind giving you a brief consult on a Texas case. I like to hear from defendants in Texas. That way, I am always gathering more info about their practices that I can use in my cases. We can trade info. I am curious as to how long ago they filed the suit and what attempts they are making to serve you. You really have to watch these guys, as I explained. Good luck.
  15. The reason you see the unjust enrichment claim in credit card lawsuits is that it is a fall back position they rely upon in the event they can't prove they had a binding, enforceable contract with you. Even if there was no contract, if they can prove that you used the card and didn't pay, then they can claim you were unjustly enriched. This is based upon the assumption that even without a bindng, enforceable contract, you still knew there was an expectation that you would pay them, and they relied upon that expectation. This cause of action helps them deal with all of the over confident pro se defendants who think they can easily win one of these cases just because they never signed a contract.