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Mongosmash's Achievements


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  1. I guess my point is if the TRCP and TRE don't apply in Justice Court, then how can anyone possibly defend the lawsuit? If a Plaintiff can just come up with 3 or 4 pieces of "evidence" and everyone assumes the account was assigned, then the only way to find out is to appeal to district court. I'm not trying to get out any debts I allegedly defaulted on. I'm just trying to determine if PRA actually owns the account and has the right to collect on it. If PRA pursued the judgement and got their money (which is tough because I'm broke and it's Texas) and then the rightful owner comes along next year and sues me, then I'm doubly screwed. Or the rightful owner is screwed out of their money. Justice court is supposed to be so regular people can get justice, but I really don't feel it's setup to perform that way. And I don't feel that justice was done today. I'm gonna go pout some more and figure out what to do next.
  2. It would still have to fall within an exception to hearsay wouldn't it? They only way it would is under the business records exemption and it wouldn't meet any of those requirements.
  3. The affidavit of sale could be compelling, but under ordinary rules of evidence is hearsay. Especially considering that it was signed and dated more than year after the bill of sale took place they attest to and prepared 1 month before trial indicating lack of trustworthiness since it was prepared in anticipation of litigation. The credit card statements do show my name and address but still don't show assignment. I can't contend that I didn't have a credit card with the original creditor but PRA should still have to prove assignment.
  4. Well that was a waste of time. The judge ruled against my motion to compel stating that the TRCP doesn't apply to justice court and the case has gone on long enough. The case immediately went to trial and the judge ruled in favor of a judgement for PRA. The motion and trial lasted less than 5 minutes. PRA produced the affidavit and account statements. He didn't even produce the bill of sale, he produced an affidavit of sale from the OC, although I know they did have a bill of sale. I attempted to object with the rules of evidence and argue the assignment but was immediately shot down because they don't apply. I stated that the account was not mine and i have never had any dealing with PRA or been notified it was sold to them. The judge said unless I intended to go across the street to the police department and file for identity theft he'll be ruling in favor of the plaintiff. It was clear based on the trials that went before mine and that once my motion was denied that it was going down hill from there. Of the 20 or so cases that went before me, most were default judgements due to no show. The others were judgements because the Defendants agreed to the default judgements. There was one dismissal because Plaintiff didn't show. There were two cases defended by lawyers. One was shot down in a similar manner to mine. The other was non-suited because the Plaintiff didn't actually have the bill of sale or affidavit of sale showing the complete assignment, but that one entailed 3 different assignments. What irks me is you could tell all the Plaintiff's lawyers were buddies. They were all smirking and joking to each other the whole time. And that the judge is at least familiar with the attorneys undoubtedly because he sees them on a regular basis in court. I'm not saying there is any colusion going on, only that the Plaintiff's know that the rules of the justice courts favor them. There was about a dozen PRA lawsuits there that day, all but mine were represented by a third party lawyer. My lawyer was actually employed by PRA. I don't if he just took a personal liking to my case or that was just luck of the draw. I did play a jedi mind trick of my own and as we were leaving asked the clerk of the court for the paperwork to file de novo to the district court and did so in a way that the lawyer heard me. I most likely will file the appeal and let a court decide that will actually rule on the evidence, either on my own or if I can find a lawyer that will take pity and give a payment plan. My advise in Dallas County JP 2-1 is to go ahead and defend your lawsuit, but don't expect TRE or TRCP to apply and expect to have to appeal the decision. You will some sort of evidence that is very compelling to get the judge to listen to you. Or attempt to force contractual arbitration, but based on what I witnessed today I don't know that would do any good either.
  5. One additional question. The TRCP for Justice Courts 500(3)(e) states that "The other Rules of Civil Procedure and the Rules of Evidence do not apply except: (1) when the judge hearing the case determines that a particular rule must be followed to ensure that the proceedings are fair to all parties; or (2) when otherwise specifically provided by law or these rules." That being said, do Justice Court judges typically allow TRE to be used or what is the best way to swing him in your favor? Being that he permitted my discovery I'm inclined to believe TRE will be allowed but I don't know.
  6. Trial is actually on Tuesday. There should be a hearing immediately prior to the trial where I'm confident the judge will rule in favor of my Motion to Compel Discovery and believe the Plaintiff will ultimately fold if that's the case. I definitely would like to keep this out of trial it at all possible but I'm preparing for a trial contingency on Tuesday as well. I've got a basic outline completed but need to put it into something legible I can follow during a trial and reread all the great advice on these forums and from @texasrocker. I'm gonna try and get that posted here this weekend for some last minute input. I'm finally getting my head around the hearsay exemptions and feel pretty confident in my ability to prove that the affidavit and attached records don't fall within the business records exemption. Even if I can't do that, they have provided nothing to show assignment of the alleged debt and therefore can't show standing. Question for everyone. If this does go to trial, obviously, I need to have case law on hand to backup my arguments if needed. Being as this is Justice Court though, when arguing my points to the judge should I readily bring the case law up or should I keep it my back pocket for the most part. I don't want to rub the judge the wrong way with him thinking I'm trying to throw out "legalese" I don't know anything about. Or is best to always offer up the case names and relevant points anyways. What is ya'll experience?
  7. That's an excellent point. If it's not admitted into evidence, then there is no preponderance. What do you consider winning?
  8. I can leave that out of my argument. My point was that the printout is not labeled and there is nothing linking it to the "Bill of Sale" or vice versa. It is simply a document. All the BRA can attest to is that is an original or copy of an original. It can not lay foundation as to what it is. The preponderance of evidence doesn't show that the printout is the Purchase Agreement or Notification Files referenced in the Bill of Sale. Jackson v. CACH and Jenkins v. CACH back that up.
  9. Actually I did find Jenkins v. CACH, LLC and will add it to my case law file as well. It has some elements I can argue in my case, but the Jackson v. CACH fits my situation to a tee and was from last year. Thanks again!
  10. actually, I think the case you are referening is Jackson v. CACH, LLC (State of Texas in the Fourteenth Court of Appeals·NO. 14-15-00648-CV (Tex. App. Aug. 2, 2016)). I'm not finding a Jenkins v. CACH.
  11. The document PRA attached to their BRA is essentially what that case references, however this document is in no way marked as to indicate what it even is. It appears to just be a formatted computer printout from Excel or some database program with cryptic codes and the same information they could have copied from the billing statements they attached. This case law is perfect, thank you. I will definitely be using that one if it comes to it.
  12. Even if i couldn't successfully attack the affidavit for reliance upon validity and untrustworthiness, unless I'm mistaken, a business records affidavit still does not allow the affiant to provide testimony, it's to authenticate documents solely. Testimony by affidavit is still considered hearsay. The evidence attached to the business records affidavit could be self-authenticated under 902(10) and admisable as an exception to hearsay under 803(6). But, the affidavit itself is not evidence nor proof of anything. Any conclusatory statements in the business records affidavit, beyond what is specified in TRE 902(10), would be inadmissible as hearsay and I should object to them, which is all of paragraphs 3,4,5, possibly even 2. The submitted documents still have to prove assignment, and that burden rests on the Plaintiff. I would need to show the judge they do not. Ortega v. Cach, LLC, 396 S.W.3d 622 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Accordingly, when an ex parte affidavit presents evidence beyond the simple authentication requirements of rule 902, the extraneous portions of the affidavit constitute inadmissible hearsay.
  13. Keep these questions and comments coming. This really helps me prepare for a possible trial. I'm still confident that the judge will grant my motion to compel discovery and this will all be moot. That being said.... Actually, I would argue that the preponderance of evidence submitted is that the OC owns the debt. They haven't shown anything that proves it was assigned to PRA. I intend to wear this one out. I agree, their whole case is predicated on assignment. If I can shoot that down, the case falls apart. I would submit to the judge that 200 pages of account statements do not prove that the debt was assigned and that the JDB has standing to sue, which is really the root of the issue. It only allegedly proves that I had an obligation to pay the OC, and doesn't prove that the documents are accurate. The statements could have been erroneously transmitted in the bulk sale. They could have been sent from a completely different sale of debts, than what is referenced in the case. When 1000s of accounts are sold at pennies on the dollar, there is a good chance that mistakes will be made and speaks to the validity and trustworthiness of the documents. The "Purchase Agreement" and "Notification Files" the Bill of Sale reference would not only specifically reference the alleged account that was sold to PRA, but would also state any warranties and disclaimers that the OC promised PRA, which I'm confident would be no warranties (sold as is). Proper objections would be Incomplete and Best Evidence. Additionally TRE 107 (Rule of Optional Completeness) states that if the the opposing party introduces a partial document that I'm entitled to inquire about the missing information and introduce anything relevant that allows the judge to fully understand the partial document provided (not sure what I could introduce). Case law surrounding the generic bill of sale (i've found so far): Kenny v. PORTFOLIO RECOVERY ASSOCIATES, LLC, 464 SW 3d 29 - Tex: Court of Appeals 2015 One of the exhibits offered and admitted into evidence was an "Assignment and Bill of Sale" from HSBC Bank Nevada to Portfolio Recovery. This assignment assigned the rights to certain accounts 34*34 from HSBC Bank Nevada to PortfolioRecovery. The assignment does not identify which accounts were transferred, however. Instead, the assignment identifies another document that contains the information. That document is not a part of the record. Accordingly, the assignment cannot be a basis for finding the evidence legally sufficient to show Kenny's account was assigned to Portfolio Recovery. Typically those datasheets have nothing on them indicating what they are or where they originated. Anyone with access to a basic word processor could generate the document solely from the information contained in the 200 pages of alleged account statements. It still doesn't prove assignment. There is nothing tying the Bill of Sale to the data sheet. The fact that they choose to submit an affidavit, rather than live testimony, gives me the upper hand. You can't ask an affidavit questions, so they can't prove what the document is. Proper objection would be Lack of Foundation. That's my fear is that the justice court judge will be biased against me, although so far I've not seen anything to warrant that. But, even if he is, I've still got trial de novo in Texas justice court.
  14. I apologize if this has been brought up before, but a lot of the debts going to litigation at this time, including a case I'm currently involved in, are for debts allegedly defaulted on around the time of this action, Sep 2015. Whether or not the debt they bought applies to your case, I should think this could be used to show in your proceedings that these companies attempt to collect on unsubstantiated and inaccurate debts. https://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/
  15. So as of right now, I've filed my motion to compel discovery responses with the court. I still haven't received any response from the PRA lawyer in regards to my meet and confer letter or my motion to compel. What I did receive was a "Plaintiff's Notice of Filing of Business Records Affidavit", attached. Included is a generic bill of sale, the standard printout from the PRA computer system with name, amounts, account number, etc..., and 200 or so pages of billing statements from Synchrony Bank. Speaking with the court clerk, the motion to compel won't be heard until the day of the trial, right beforehand. So in the unfortunate event the motion to compel doesn't go in my favor, I'll need to be prepared to have a bench trial on the same day. Not sure if a motion for continuance would be in order if the motion to compel is turned down. The trial is set for 4/4. So for the next 7 days I'm going to prepare to defend my motion to compel and work up my trial brief and basic trial strategy. First and foremost is to have the business records affidavit thrown out which would make the documents attached inadmissible (due to hearsay), and the Plaintiff would have no evidence to prove their case. Here's some general questions and my thoughts on the affidavit that I would love to get some input on, sorry for the length: In justice court, is filing a trial brief with the court necessary or even recommended? Should I file my objections to the evidence as motions prior to the trial, or just object to them the day of? Would that be a "Motion in Limine"? Does anyone have a good YouTube video or two of debt collection cases tried in justice court. Curious how a typical trial plays out. Regarding the business records affidavit, referencing Simiens v. Unifund, I primarily need to attack the fact that: The records were not incorporated and kept in the ordinary course of business This is a tough one, but from what I've researched, the thing to point out is that PRA and Synchrony Bank have no ongoing business relationship, so how could the records be kept or transmitted during the course of an ordinary or regularly conducted business activity. The activity is just a one shot sale, they have no ongoing interest with each other. There was no reliance by PRA on the accuracy of the documents This would be easier with the Forward Flow Agreement, which I don't have (yet), which would most likely indicate that the files transmitted with the bill of sale contained errors and that Synchrony offers no warranties, but the Bill of Sale itself states "Seller hereby transfers.....without recourse...". The fact that no warranties were offered would indicate the documents contained inaccuracies. Would TRE 106 and 107 (Rule for Optional Completeness) be appropriate for bringing up the Forward Flow Agreement? The affidavit in no way indicates that the accuracy of the documents were relied upon. There are circumstances indicating the documents are untrustworthy This one seems like the easiest to argue. PRA is in the business of buying debt at steep discounts with the sole purpose of collecting that debt. PRA doesn't have "customers" with whom it is important to maintain accurate and correct records or their business with suffer and fail. They are in the business of maximizing the return on their investment by collecting the maximum claim possible with a minimum of overhead. Being that Simiens v. Unifund, that established the three pronged test for business records affidavit was from the Houston court of appeals, I could bring up Powell v. Vavro from the Dallas court of appeals which would be the same district as this justice court that rules that the "witness signing a business records affidavit must have personal knowledge of the other company's record keeping to support admissibility under Rule 803(6)". It's from 7 years prior to Simiens, but being from Dallas, not sure if it would have more precedence. Items specific to each paragraph in the Affidavit: Paragraph 3: they reference 207 pages but I only count 206. This speaks to the trustworthiness of the affidavit. The paragraph is conclusatory as well because there is no evidence attached to back up this statement Paragraph 4: This has conclusatory statements as well. There is nothing attached showing the account was issued to defendant or that defendant was obligated to pay it, or that defendant breached the terms of the account. What terms? Paragraph 6: How can the PRA custodian of records possibly know that the attached documents were made or near the time of each occurrence? They state they were transmitted by a "person with knowledge" but don't say who? I'm not sure if they need to or not. Should I use TRCP 201 (Judicial Notice of Adjudicative Facts) to bring light to robo-signing, any FTC fines, or class action lawsuits, or buying debt at a steep discount....prior to the trial? Or is that just going to annoy the judge? In some of the previous limited discovery items they did submit per TRCP 194.2 they included an "Affidavit of Sale" from the original creditor and several alleged demands for payment from PRA after they were supposedly assigned this debt. I'm curious why they didn't attach these to this Business Records Affidavit. They can't submit them at trial because they would be overrules as hearsay with out testimony or a business records affidavit. Also, the business records affidavit they are submitting as evidence is from a different custodian of records than the one they submitted with the Original Complaint. That seems odd. Why not use the same person? Business Records Affidavit_redacted.pdf
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