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Everything posted by Mongosmash

  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.
  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
  16. Calling @texasrocker I sent the PRA lawyer a letter advising them that if I didn't receive the discovery items in 7 days I intended to file a motion to compel them to. It's been 10 days and no word. Can you point me to the motion to compel language I need to file with the court?
  17. UPDATE...I received from the plaintiff responses to the generic requests for disclosure under TRCP 194.2. I also received all the original items attached to petition (affidavit and generic bill of sale), along with a computer print out of the alleged account details and a stack of past credit card statements. They have not provided any of the interrogatories, requests for production, or requests for admission I submitted to them (with the help of @texasrocker). I did have verbal approval from the judge before submitting them. 30 days is coming up very soon since I submitted them to the Plaintiff. My current plan of action is to send them a letter in the next few days giving them a week to produce the discovery items I requested and advising them that if they do not I will be submitting a motion with the court to compel them to. I have a question though. In regards to the stack of documents they provided, do I need to object to any of this evidence in writing with the court (particularly the affidavit), or is that handled at the trial? In the event this does end up going to trial, I don't want to forgo my right to object to any of it. If I need to do this in writing, is there a cutoff prior to the trial date on when this needs to be submitted?
  18. I sent my discovery requests to the Plaintiff as I had a verbal okay from the clerk that the judge approved them. The case has since been set for trial. Then today I get an objection from the PRA lawyer to the discovery. The judge has already verbally agreed to the discovery items I submitted so I hope/expect he'll just deny the objection, but the case has already been set for trial, so I'm not sure the objection is valid (except they state they received it on 1/27 and they requested the trial date on 1/26, so I guess that's a loophole). Funny part is they claim i'm wasting the court's time but they are the one asking for a hearing. In any case, do I need to respond to this or just wait and see what the judge responds with?
  19. UPDATE...the attorney did show up and I bombed the hearing. I wasn't nearly prepared as I should have been (honestly didn't know what to expect) and I picked up the Plaintiff's response to the plea and special exceptions on the way to the courthouse that morning, so i certainly hadn't had time to review and prepare for those. I suspect that was the attorney's plan (mailing it so soon before the hearing). The judge ruled against my plea to jurisdiction and special exceptions. Attached is the 14 page response he filed. He claimed "he had seen a lot of these and finally decided to take some time and prepare a response". Whether that is true or if this is a canned response they have used in the past, I don't know. On the same hearing, the opposing attorney got the judge to sign the attached "order granting limited discovery". I had already filed my motion for permission to conduct discovery, so I expressed my concern that was fine as long as it didn't preclude my discovery items. The judge requested to see my discovery items before he okay'd them, which I did that same afternoon and got a verbal from the clerk a few days later (although I still don't have a signed order, hopefully I didn't jump the gun) saying the judge approved them. So I sent my discovery items, and we'll wait and see what they respond with. A trial date has been set for April. (1) As far as submitting all the items in TRCP 194.2 w/in 30 days from the date of the signed Motion granting limited discovery, I'm kind of at a loss as to what evidence I could muster at this point since the fact that I owe the money or that PRA owns the debt is still in question. Does anyone have any advice as to what the Defense typically provides in this scenario? I don't want to miss anything and then lose the ability to submit it if I figure out a week before trial I need it. Perhaps the Lowe's/Synchrony cardholder agreement? Are you supposed to submit only the items you will submit as evidence, or just anything you might? (2) Assuming the plaintiff replies with all the discovery items requested and this does go to trial, when, or by when, does the objection to their robo-affidavit need to occur? Is there a TRCP or TRE code governing that? Do I need to file a motion to strike the affidavit well before the trial, or does that get objected to and hopefully thrown out on the trial date? Plaintiffs_Response_to_Plea_and_Special_Exceptions_redacted.pdf Order Granting Limited Discovery_redacted.pdf
  20. I filed my Answer and Motion for Permission to Conduct Discovery (attached in posts above), last week, based on @texasrocker templates, and today I checked the mail and received the attached Order Setting Hearing Date today. I guess I was hoping the judge would grant my request to conduct discovery before any hearing took place, so I'm not entirely sure what to expect from this hearing. This won't be the trial part right? It's just to address my plea to jurisdiction, special exceptions, and motion to conduct discovery? I'll need to read up on the cases I cited in my Answer so I can discuss them intelligently, but does anyone have any other advise or opinions on this? Is it wishful thinking to think the plaintiff's lawyer won't show up or dismiss the case prior to the hearing? Court Hearing_20170120_redacted.pdf
  21. Plaintiff's Original Complaint and Evidence attached to original post. I have prepared, and attached, my Answer and Motion for Permission to conduct discovery based on @texasrocker 's templates. I plan to file my Answer and Motion on Monday with the clerk, and I have a few questions for now. (1) Do I need to file an affidavit with the Answer and/or Motion? Does it need to be notarized? (2) Can I file the Answer and Motion at the same time?
  22. 1. Who is the named plaintiff in the suit? Portfolio Recovery Associates Assignee of Synchrony Bank (Lowes) 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Portfolio Recovery Associates, LLC 3. How much are you being sued for? little over $2,500 4. Who is the original creditor? (if not the Plaintiff) Synchrony Bank (Lowes) 5. How do you know you are being sued? (You were served, right?) I was served 6. How were you served? (Mail, In person, Notice on door) Notice taped to door in a Ziploc bag 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Dallas County, TX, Justice of the Peace Court PR 2 PL 1 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Don't believe to be w/in SOL 11. What is the SOL on the debt? To find out: 4 years 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit served, nothing filed by me yet 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No 15. How long do you have to respond to the suit? 14 days starting 12/8 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Affidavit, Bill of Sale, and a Credit Card Statement Plaintiffs_Original_Complaint_redacted.pdf Defendants Original Answer_redacted.pdf Motion for Permission to Conduct Discovery_redacted.pdf
  23. That's why I was wondering if it would be better to submit a motion for dismissal/summary judgement with only an affidavit stating that it's outside SOL. I was thinking that by submitting bank statements or credit reports it basically admits that the account exists. Although I would think if my SOL argument failed, I could still argue that the amount was incorrect, forcing them to produce the original signed contract and statement of charges showing that I agreed to pay interest and how it was all calculated. Being an OC though, they could probably do that. Here's the suit, truncated: -------------------------------------------------------------------- Nature of Case 2. Plaintiff seeks recovery for damages arising from Defendant breach of credit account agreement entered into by Defendant, which Defendant utilized and for which Defendant became obligated to repay, Plaintiff sues herein for breach of contract and for monies owed pursuant to the well as it's attorney's fees. Facts 6. In the usual course of business, Plaintiff advanced money on account,xxxxxx (all x'd out other than last 4 digits), which defendant utilized and for which became bound to repay. 7. Defendant ceased making payments, creating default 8.On or about, x/x/xxxx (about 4 months ago), plaintiff sent letter to defendant, demanding payment in full and despite delivery, no further payments have been made. 9. As of x/x/xxxx (about 1 month ago), there continues to be owed an unpaid balance of xxxx and accrued interest of xxxx. Interest continues to accrue at 0.0%. (why list 0%) COUNT 1 - Suite on Debt/Account Stated 11. Plaintiff is owner and beneficiary of claims related to account opened by defendant with plaintiff. The amount that is due and owing is xxxxx, said amount being just and true after all lawful offsets, payments and credits have been allowed. 12. Plaintiff is entitled to recover on the account because (1) transactions between P and D gave rise to an indebtedness, (2) there existed an agreement between the P and D which established the amount that was due to P, and (3) the D promised to pay P on the debt which was incurred, but failed to do so. 13. P has presented its claim to Defendant for payment, but D has failed and refused to pay amount owed. COUNT II - Breach of Contract 15. P is the owner and beneficiary of all right under account opened by D with P. The account is a contractual agreement under Texas law. D has breached the agreement by failing to pay all amounts due and owing in accordance with terms of agreement. 16. As of x/x/xxxx, xxx remained due and owing on the account. 17. P has presented it's claim to D for payment, but D has failed and refused to pay the amount owed. COUNT III - Attorney's Fees 18. P has presented it's claims for the recovery of amounts herein sought to the D pursuant to 38.001 of the TCPRC, yet no amounts have been paid in response to the claim. P is entitled to recovery of its attorney's fees and costs incurred in the prosecution of these claims Conditions Precedent 19. All conditions precedent to P's right of recovery have been fulfilled. WHEREFORE P prays D be cited to appear and answer and that P have judgement against D for a. damages of xxxx b. prejudgement interest of 0.0% (again why list 0%) c. reasonable and necessary attorney's fees of xxxx d. costs of court e. post-judgment interest at maximum allowed by law f. such other relief as P may be entitled Also admitted was Plaintiff's Request for Admissions, but no other evidence or information I'm planning to submit the following 3 documents at the same time: ---------------------------------------------------------------------- SWORN DENIAL ON ACCOUNT Comes the Defendant, after being duly sworn according to law, and says that he does not owe the account on which the Plaintiff has sued him and that the same is not true, just, nor correct for the following reasons(s): This is not a valid debt. If I am responsible for this debt, the amount sued for is incorrect. If I am responsible for this debt, it is barred by any applicable statute of limitations. Signed and Notarized. --------------------------------------------------------------------- DEFENDANT’S ORIGINAL ANSWER TO THE HONORABLE JUDGE OF THE COURT: Comes the Defendant, xxxxxxxxx, Pro Se, and in answer to the Petition by the Plaintiff, xxxxxxxxxx, and any subsequent amendments thereto, files the following answer pursuant to the Texas Rules of Civil Procedure; I. As allowed by Rule 92 of the Texas Rules of Civil Procedure, the Defendant hereby enters a general denial of matters pleaded by Plaintiff. II. As allowed by Rule 93 of the Texas Rules of Civil Procedure, the Defendant specifically pleads that Plaintiff does not have the legal capacity to sue. III. As allowed by Rule 93 of the Texas Rules of Civil Procedure, the Defendant specifically pleads that Plaintiff is not entitled to recover in the capacity in which he sues. IV. Pleading affirmatively, the Defendant alleges the affirmative defense of the statute of limitations. V. Pleading affirmatively, the Defendant alleges the affirmative defense of laches. VI. Pursuant to Rule 54 of the Texas Rules of Civil Procedure, the Defendant specifically denies that conditions precedent to recovery have been performed or have occurred WHEREFORE, PREMISES CONSIDERED, Defendant, xxxxx, Pro Se, prays that upon trial hereof Plaintiff take nothing, that Defendant recover his costs, and for such other and further relief to which Defendant may be justly entitled, either in law or equity. And finally..... ----------------------------------------------- MOTION TO DISMISS - STATUE OF LIMITATIONS Comes the Defendant, xxxxxx, and moves the Court to dismiss plaintiff’s complaint and would state unto court the following, to wit: Plaintiff, xxxxxxxxxx, has sued Defendant, xxxxxxxxxxx, for alleged breach of contract, open account and past due debt. The debt plaintiff has sued upon is barred by the Texas Civil Practice and Remedies Code Sec.16.004. The Statute of Limitations for this action in this jurisdiction is 4 years. The alleged default upon which this action is based occurred on xxxxxxx(date before citation issued). More than 4 years have passed since the alleged default. WHEREFORE, premises considered, Defendant respectfully requests this court dismiss, with prejudice, this complaint as barred by the Statue of Limitations. If I submit evidence with my motion, i'll also submit a "AFFIDAVIT IN SUPPORT OF MOTION FOR DISMISSAL containing the evidence. What do ya'll think? Do I need to plead in my motion to recover my costs as well? ------------------------------------------------------------------
  24. I will definately read that PDF. I think the Stine v. Stewart is key. Even though I made a payment in January, that did not bring my account current, as evidenced by a credit report showing my account past 30 as of January 08 and going downhill from there.
  25. Doing some more research on this, I came across a blog post on the forums website stating that Debt Collectors are suing consumers naming Capital One as Plaintiff (I can't post links yet, I don't have enough posts). The letters I received from this attorney match the details in this post. So now I'm wondering if the lawyer is correctly representing the Plaintiff in the petition. Would I still need to file FDCPA violations in a separate lawsuit if I could prove that the lawyer was the actual Plaintiff? Would I be able to counter-sue this law firm for fraud by alleging the OC was still the correct Plaintiff if indeed I could prove that they were not and they knew it?