LostSomewhere

Members
  • Content Count

    55
  • Joined

  • Last visited

Community Reputation

10 Good

About LostSomewhere

  • Rank
    CIC Member

Profile Fields

  • Location
    Texas
  1. I have a debt that is SOL and I sent the CA a letter indicating that the debt was SOL and that I was formally requested that they C&D. Today I get a letter from another CA for the same debt indicating that they are the assignee of the previous CA (in paragraph 1). Should I DV this new one, wait for reply and send SOL when I get the validation or should I send the SOL letter now. Also quick question does the original C&D request apply to this new CA because they are "assignees" of the CA that I sent the C&D? Thanks
  2. This is an update. Nothing happened, the court simply changed the attorney on the case with a note to the case indicating the change.
  3. I would agree with that judgement, having looked into it extensively being in Texas and the exact wording of 16.004 is: Sec. 16.004. FOUR-YEAR LIMITATIONS PERIOD. (a) A person must bring suit on the following actions not later than four years after the day the cause of action accrues. The reason I would agree with that and what I have found in my research about SOL in Texas is the SOL clock does not start with the last payment but when the "action of cause starts" and that will be at minimum 30 days after your last payment. And the reason for that is you are still in "good" standing with the creditor after you have made your payment and the creditor is only "aware of the cause" when you miss your next payment. So the SOL clock starts when you miss the first payment. I have also read that some contracts may prevent the SOL clock from starting up to XX extra days because the contract states that you will not be considered in default for x number of days. The last payment was on the 25th July 2005 and they brought suit on July 29th 2009 and again based on what I have learned on RULE 16 that is within the 4 year period.
  4. Things of this nature is always someone's interpretation. Section 2 2. Defendant agrees to pay a total settlement amount of $XXXXX to Plaintiff in full settlement of this lawsuit and debt. The settlement amount shall be paid as follows: a) The defendant shall pay $XXXXXX on or before {specified date}; The defendant shall pay Blank field on or before blank field; and c) The defendant shall pay Blank field on or before, and blank field on or before blank field day of each month tereafter until the total settlement amount is paid in full. This pretty much reads that I agree to pay xxxxx for for settlement of this lawsuit and debt. There are 3 options a/b/c and only option a was filled out as it was lump amount not payment plan. Section 8. Upon satisfaction of all of the Defendant's payment obligations pursuant to this agreement, Plaintiff shall be deemed to ahve released Defendant and his/her heirs from all causes of action and claims for any relief that relate to or concerns the account(s) at issue in this lawsuit. defendant in return, hereby presently releases Plaintiff, its attorneys, employees, officers, directors, shareholders, members and related corporation or companies from all claims and causes of action for any relief tht relate to or concern the account(s) at issue in this lawsuit, or which could have been revised as a counterclaim in this action. For me this reads when I have fulfilled my payment that Plaintiff will release me, heirs, etc. and that I will also release Plaintiff from any counterclaim, etc... Section 9. he parties agree that this agreement, together with the Final Agreed judgment, represents the full and final agreement between the parties, that it supersedes all previous agreements, whether oral or written, and that no previous agreements which are not contained herein shall be binding. Any future modifications to this agreement must be in writing and signed by both parties I read this as to mean that this agreement and final judgement (which both are on record with the court) supersedes any previous agreement (ie original contract from OC, etc..) But again in law and contract everything is open to interpretation. Thanks all
  5. I don't think they sold the account. The more I think about it the more I think it's sloppiness. We came to an agreement with their previous lawyer and completed the requirements, technically Asset as a judgement against me if I don't fulfill my part of the agreement they can move forward with the judgment (which they can't because I've fulfilled my part). So either it's sloppy work on their part or they aren't happy with the settlement and are trying to get out of it. If that's the case then I will have to sue them (or counterclaim if it comes to that). And the reason I don't think it's sold is because the return address of the letter I got Friday (1st class too) is to Asset Acceptance offices.
  6. OK I understand that logic. But what happens to the agreement which is associated with the current case? It is an agreement and I have paid the agreed amount. Thanks
  7. Here's the agreement, as mentioned the amount was paid prior to the date in the agreement and I mailed it CMRR and they signed for it 3 days prior to the agreed date. Cause No XXXXXXXXXXX Asset Acceptance, LLC Plaintiff VS ME Defendant RULE 11 SETTLEMENT AGREEMENT ASSET ACCEPTANCE, LLC ("Plaintiff") and ME ("Defendant") hereby agree to settle the above-referenced litigation as follows: 1. Plaintiff and Defendant hereby agree to the entry of the Agreed Final Judgment included with this Rule 11 Agreement, the terms of which are incorporated herein by reference. Defendant agrees to the principal amount and interest due as stated therein. However, so long as the payment terms outlined below are complied with, Plaintiff will not take any action to enforce the judgment. 2. Defendant agrees to pay a total settlement amount of $XXXXX to Plaintiff in full settlement of this lawsuit and debt. The settlement amount shall be paid as follows: a) The defendant shall pay $XXXXXX on or before {specified date}; The defendant shall pay Blank field on or before blank field; and c) The defendant shall pay Blank field on or before, and blank field on or before blank field day of each month tereafter until the total settlement amount is paid in full. 3. All payments must be payable to ASSET ACCEPTANCE, LLC. Payments may be made by phone by calling XXXXXXX. Payments must be received on or before their respective due dates by Plaintiff at XXXXXXXXXXXXXXXXX. 4. So long as all payments are made pursuant to the terms of this agreement, Plaintiff shall not execute or otherwise enforce the judgment. Once all payments have been made in the total amount referenced above, Plaintiff will execute a release of the judgement. 5. In the event that Defendant fails to make any of the payments by the due dates as above described, then Defendant will be in default under the terms of this agreement, and Plaintiff may take any and all action available under applicable law to enforce the Final Agreed Judgment. In the event of default, Defendant shall be given credit against Final Agreed Judgement for all payments made pursuant to this agreement. 6. Defendant agrees that Plaintiff, its representatives, agents and attorneys have not legally advised Defendant or represented Defendant's position during the negotiations which led to this agreement. Defendant further agrees that he/she has the opportunity to obtain or consult independent legal counsel for advice, but Defendant has chosen not to retain counsel of his/her own free will. 7. Plaintiff does not, by this agreement make any representations or warranties as to any possible tax or credit consequences Defendant may have as result of this settlement. 8. Upon satisfaction of all of the Defendant's payment obligations pursuant to this agreement, Plaintiff shall be deemed to ahve released Defendant and his/her heirs from all causes of action and claims for any relief that relate to or concerns the account(s) at issue in this lawsuit. defendant in return, hereby presently releases Plaintiff, its attorneys, employees, officers, directors, shareholders, members and related corporation or companies from all claims and causes of action for any relief tht relate to or concern the account(s) at issue in this lawsuit, or which could have been revised as a counterclaim in this action. 9. The parties agree that this agreement, together with the Final Agreed judgment, represents the full and final agreement between the parties, that it supersedes all previous agreements, whether oral or written, and that no previous agreements which are not contained herein shall be binding. Any future modifications to this agreement must be in writing and signed by both parties. ASSET ACCEPTENCE and the undersigned are debt collectors, and are attempting to collect a debt. Any information obtained will be used for that purpose. Agreed to: Signed Attorney for Asset Acceptance, LLC Plaintiff Signed Defendant Pro Se
  8. RULE 11. AGREEMENTS TO BE IN WRITING Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record. In this case it was both entered in open court and I have it in writing. So the attorney for Asset Acceptance (at that time) and I came to an agreement on what I will pay (a fraction of the suit) and had that entered into the court records and had 45 days to pay (also in agreement) which was done. After reading more on this, if they do get the case dismissed even though we have a rule 11 agreement and the case is "closed". I will have to sue them for breach of contract. Fun, I will get to sue them now. Here's what I've found: Written settlement agreements and rule 11 agreements may be enforced as contracts even if one party withdraws consent before judgment is entered on the agreement. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009); Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); see Tex. Civ. Prac. & Rem. Code Ann. ยง 154.071(a) (West 2011) ("If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract."); Tex. R. Civ. P. 11; City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 626 (Tex. App.-Fort Worth 2003, pet. denied). When consent is withdrawn, an agreed judgment based on the settlement agreement is inappropriate; instead, the party seeking enforcement of the settlement agreement must pursue a claim for breach of contract. Ford Motor Co., 279 S.W.3d at 663; Padilla, 907 S.W.2d at 461 ("Although a court cannot render a valid agreed judgment absent consent at the time it is rendered, this does not preclude the court, after proper notice and hearing, from enforcing a settlement agreement . . . even though one side no longer consents to the settlement."); Alcantar v. Okla. Nat'l Bank, 47 S.W.3d 815, 819 (Tex. App.-Fort Worth 2001, no pet.). A settlement agreement can be enforced as a contract by the trial court only after proper pleading, notice, hearing, and proof. Ford, 279 S.W.3d at 663; Padilla, 907 S.W.2d at 462; Neasbitt v. Warren, 105 S.W.3d 113, 117 (Tex. App.-Fort Worth 2003, no pet.); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) ("Where the settlement dispute arises while the trial court has jurisdiction over the underlying action, a claim to enforce the settlement agreement should, if possible, be asserted in that court under the original cause number."). Although an amended pleading is one method of raising a claim that a settlement agreement should be enforced as a contract, we have held that a motion seeking enforcement of the settlement agreement is a sufficient pleading to allow a trial court to render judgment enforcing the settlement because such a motion gives the alleged breaching party an opportunity to defend itself. Neasbitt, 105 S.W.3d at 117; see Twist v. McAllen Nat'l Bank, 248 S.W.3d 351, 361 (Tex. App.-Corpus Christi 2007, orig. proceeding [mand. denied]) (holding that an oral motion to enforce a settlement agreement was sufficient because "[a]s long as the motion recites the terms of the agreement, states that the other party has revoked its previously stated consent to the agreement, and requests the trial court to grant relief, the motion is sufficient"); Bayway Servs., Inc. v. Ameri-Build Constr., L.C., 106 S.W.3d 156, 160 (Tex. App.-Houston [1st Dist.] 2003, no pet.). If the motion satisfies the general purposes of pleadings, which is to give the other party fair notice of the claim and the relief sought, it is sufficient to allow the trial court to render judgment enforcing the settlement. Twist, 248 S.W.3d at 361; Neasbitt, 105 S.W.3d at 117
  9. Will I be able to defend against the dismissal. In my previous case the dismissal came prior to trial (which was great) but this one comes after we agreed to a Rule 11 settlement. I've met the obligation of the settlement agreement. Thanks
  10. I have a case that is closed with Asset Acceptance in Texas. Looks like AA has changed attorney offices in Texas. So today I get a letter in the mail from the new law offices indicating that they've sent a motion for the case to be dismissed without prejudice and a forthcoming change of lead council so the case can be refilled. Can they dismiss a case that's closed? Thanks
  11. I sent a validation request certified to NCC (A division of Commonwealth Financial Systems) in Winxom MI. The letter was returned today refused. What are my options? I can resend it to a different address, I can send it to the address where they want payment. The letter was originally sent to the address on the letterhead. Thanks
  12. You might be right, I just don't know. Can you explain why it would now be admissible? BTW I think there's a great chance that my motion will not even be heard, if I read the Texas Rules of Civil Procedure correctly all motions need to be filed no later than 21 days before trial and my motion was 10 days (asked the clerk and she said I could file so I went ahead). Thanks
  13. I filed my motion to compel and impose sanctions. I did it for a few reasons: 1) I want to make sure that it's on the record 2) Put them on the defensive (they might just dismiss) 3) The judge might rule in my favor 4) If the judge doesn't rule in my favor I'm no worst off 5) Any evidence that they "forgot" to mention in their discovery answer will not be admissible in court. And I think they will try to introduce something that wasn't in their discovery, the Affidavit that they filed this week was exhibit D and exhibit D contains all the documents that they provided in their Production of Document to my Discovery request. So what are exhibits a-c?
  14. Here's what I did. I sent them a letter CMRRR and received a response 30 days before trial, which in Texas is the minimum no. of days that they need to answer at 29 days they wouldn't have been able to introduce any of their evidence in court. It's important to make all the effort possible to cover your bases, send them a letter so if you need to do a compel down the road you have some proof that you kept on top of everything but was ignored.
  15. OK I received the 2 affidavits that Asset just filed in my case for trial next week. Essentially the affidavit says that the "I whomever is familiar with the record keeping...." (if anyone needs to see it I can transcribe it). The wording is familiar and not personal knowledge and the affidavit is signed by some employee at Asset. There's no identification to what this employee is on the affidavit. But they included with the Affidavits a letter (that was not meant for me but for the county clerk) and the letter was signed by the same employee who is sworn on the affidavit as being "familiar" with the records. This person's title on the letter is Legal Assistant. I know everyone's recommendations is not to worry too much about JDBs affidavits for their business records. But I'm trying to stack as much information on my side as possible, so is there anything I can do with the fact that the person swearing to being familiar with the business record keeping for the Asset is a Legal Assistant and not someone who is directly related to record keeping? Thanks all.