Andy Simmons

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About Andy Simmons

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  • Biography
    Austin, Texas attorney
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    Scuba diving
  • Occupation
    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 defens
  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 response
  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 w
  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
  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
  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 y
  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 La
  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
  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
  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
  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 t
  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 no
  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