HelpInTexas

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About HelpInTexas

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  • Birthday 04/04/1967

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  1. Hey Everyone, Well, that didn't go so well. With pretty much every avenue closed to me with an OC case, my only chance was to attack the affidavit. I only received the Discovery packet from Plaintiff on August 20th for a trial date of August 30. Not much time to prepare, but I took a shot anyway. My head is reeling right now. I can post more details later, but I wanted to post a few links to the paperwork I submitted to the court. I wrote the motion as a verbal defense from 4 to 8 am this morning after compiling my research on Monday thru Wednesday. When I realized that I might have to file something with the court, I converted it to a motion to dismiss. In retrospect, I probably should have filed a motion to strike affidavit, but given the judge's affinity for 2 years of statements in front of him, I don't think that would have mattered much. The judge made some very bizarre statements during the hearing which kind of tipped me off that he wasn't understanding the motion, my explanation OR the fact that the faulty affidavit SHOULD have made the alleged evidence invisible to the Court. He claimed that the affiant worked for Crap 1 when it clearly does NOT state that anywhere on the affidavit. He also verbalized the payment address of Crap 1 as my old address in Illinois. Very strange, to say the least. It was my first time ever at trial, so I wasn't really sure what to do or say. I tried reciting my position and he stopped me because it was "all in the motion" which I don't believe he bothered to read and fully understand. Ugh... I was attempting to have all evidence struck from the case based on a faulty affidavit, and was actually commended by the judge on my motion (both he and Plaintiff's counsel asked if I was a lawyer) but allowed the evidence, nonetheless even though he agreed in principle on what I had submitted. I was shocked when he found for the Plaintiff given all of the legal room he needed to dismiss the case that I had allowed him in my motion. Below are links to both the Plaintiff's affidavit, and the motion I filed with case law and Texas Rules of Procedure to back up my claims of faulty affidavit. I plan to appeal on a "pauper's affidavit" basis since I can't really float the $13k necessary for a surety bond in Texas (twice the total of the initial judgment). Any input would be greatly appreciated. I think I'm pretty close. Yeah, the motion could have been a lot better, but it was a last minute thing. My appeal will be more solid but again, I would be grateful for any input from the community. Thanks! Capital One Bogus Affidavit Motion to Dismiss Filed in Case
  2. I was attempting to see if we could embed pdf documents from Scribd on this board. Didnt' work so I linked to them in a new thread... See new thread here. This thread is closed. Hey Everyone, Well, that didn't go so well. With pretty much every avenue closed to me with an OC case, my only chance was to attack the affidavit. I only received the Discovery packet from Plaintiff on August 20th for a trial date of August 30. Not much time to prepare, but I took a shot anyway. My head is reeling right now. I can post more details later, but I wanted to post a few links to the paperwork I submitted to the court. I wrote the motion as a verbal defense from 4 to 8 am this morning after compiling my research on Monday thru Wednesday. When I realized that I might have to file something with the court, I converted it to a motion to dismiss. In retrospect, I probably should have filed a motion to strike affidavit, but given the judge's affinity for 2 years of statements in front of him, I don't think that would have mattered much. The judge made some very bizarre statements during the hearing which kind of tipped me off that he wasn't understanding the motion or my explanation. He claimed that the affiant worked for Crap 1 when it clearly does NOT state that anywhere on the affidavit. He also verbalized the payment address of Crap 1 as my old address in Illinois. Very strange, to say the least. It was my first time ever at trial, so I wasn't really sure what to do or say. I tried reciting my position and he stopped me because it was "all in the motion" which I don't believe he bothered to read and fully understand. Ugh... I was attempting to have all evidence struck from the case based on a faulty affidavit, and was actually commended by the judge on my motion (both he and Plaintiff's counsel asked if I was a lawyer) but allowed the evidence, nonetheless even though he agreed in principle on what I had submitted. I was shocked when he found for the Plaintiff given all of the legal room he needed to dismiss the case I had allowed him in my motion to dismiss. Below are links to both the Plaintiff's affidavit, and the motion I filed with case law and Texas Rules of Procedure to back up my claims of faulty affidavit. I plan to appeal on an "pauper's affidavit" basis since I can't really float the $13k necessary for a surety bond in Texas. Any input would be greatly appreciated. I think I'm pretty close. Yeah, the motion could have been a lot better, but it was a last minute thing. My appeal will be more solid but again, I would be grateful for any input from the community. Thanks! Capital One Bogus Affidavit Motion to Dismiss Filed in Case
  3. OK, I've called the clerk and there is no MSJ on my case, so I can't file a Motion in Opposition to Summary Judgment. I have to go through trial which is something I was NOT expecting to have to do. I've been under the assumption all along that this was all done through paperwork. Suffice to say, I'm a little nervous now. I'm guessing my only option is to try and get the Plaintiff or judge to allow a continuance (too late to file a motion) and give myself a little more time to prepare. Outside of that, I think all I have is to try to file a motion to strike affidavit since this is a trial setting. Is there anyone out there who can offer any advice, who has been to trial against an OC and who has beaten one in court?!
  4. Hey everyone, Well, I've been waiting and waiting and finally received my Discovery packet on Monday, August 20th - or 10 days BEFORE trial. I had to go out of town to work for 3 of the days and the deadline to file a continuance was 3 days prior to trial. On Monday, I was pretty confident I could put all of my paperwork together in time for the trial tomorrow, but I'm not really confident it will be what I want to submit to get the case dismissed. As I said, I had seen NO evidence against me in this case until last Monday when the affidavit was signed on March 5th, or nearly 3 months before I was served. The affidavit has holes all over it, but again, I want to make sure my paperwork is rock solid before I submit it to the court. It will be in the form of a Motion in Opposition to Summary Judgment based on faulty affidavit. QUESTION: I called the court yesterday and they said it was too late to file the motion to continue or extend the trial date. She told me to just ask the judge and see what he says. What should I say or how should I phrase it so that I can have more time to prepare my defense? And, do I need to file a motion on the day of when it's already past the deadline? Is it necessary to have the paperwork anyway? This stuff in not in the Rules for Civil Procedure. Any past experience out there with this type of scenario? I really feel I can get them on the affidavit based on Texas Rules of Civil Procedure and Rules of Evidence. It's pretty vague and loaded with hearsay but they're trying to submit under the Business Records exception. Plus the affiant has a VERY unique name and a search for affiant turned up one person who lives and works in the same general area as Crap 1 in Virginia, but has no affiliation with Crap 1 itself. The only connection I can find from affiant's employment affiliations to Crap 1 are a Temp Staffing Agency that specializes in tech staffing. Is Crap 1 outsourcing their affiants!?? Where then, is the personal knowledge of the account? Very bizarre... Thanks for the input!
  5. This article might give you some insight about who you're dealing with... Michael J Scott, Bottom Feeders
  6. Read through this entire link. Linda has spelled this process out in full as well as posted a sample Motion to Compel Arbitration at the end.
  7. Thanks to DH, BV80 and racecar for your responses. Not a whole lot of great news with what you posted as it looks like any Texas court will have sufficient proof to find for an OC in a breach of contract case, but thanks of posting all of the case law for reference. It looks like I need to focus on attacking the affidavit to get this case dismissed. On yarnaholic's affidavit from RSIEH (which is the same firm suing me on behalf of Cap 1), the affiant makes very broad, general and vague affirmations such as the following: (questionable statements in bold and my questions follow in italics and bold) 1) I am an authorized agent of Plaintiff CAP 1... I am authorized by Cap 1 to testify to the matters set forth herein. As a result of the scope of my job responsibilities, I have personal knowledge of the manner and method by which Cap 1 creates and maintains certain business books and records, including computer records of defaulted accounts. - but not personal knowledge of the account in question? 2) The Cap 1 books and records are made in the course of Cap 1's regularly scheduled business activity and it is a regular practice of Cap 1 to make these books and records. Each of the Cap 1 books and records reviewed are made: -very broad and general description? 1. at or near the time the events they purport to describe occurred, by a person with knowledge of the acts and events; or -but not by sworn affiant? 2. by a computer or other similar digital means, bu which contemporaneously records an event as it occurs. -again, not by sworn affiant? No personal knowledge of events? 3)According to the books and records of Cap 1, a Cap 1 account was opened in Defendant's name for the purpose of obtaining an extension of credit. Subsequently, this account was used to acquire goods, services or cash advances in accordance with the Customer Agreement governing use of that account. Defendant's have failed to make the required periodic payments on the account. -books and records recollection, not affiant's personal knowledge? 4) The books and records of Capital One show that the Defendant is currently indebted to Cap 1 on account # xxxxxxxxxxxxxxxx for the just and true sum of $1x,xxx.xx as of xx/xx/2012, and that all offsets, payments, and credits have been allowed. The balance is comprised of Defendant's outstanding debt on the date of the charged off (including any pre-charge-off transactions, interest and/or fees) less any offsets, payments or credits applied to the account after the charge-off date. The Customer Agreement entered into between the parties also authorizes Cap 1 to recover from Defendant(s) reasonable attorneys' fees and costs to the extent permitted by law. -I guess the main question is, can an affiant swear to just understanding "methods and manners" of keeping "books and records" as personal knowledge of understanding the alleged account in question? Or is there a higher standard under law which says that affiant needs to have DIRECT personal knowledge of how the Plaintiff came to the exact amount being sued for including all interest, fees, calculations of interest, etc. I know it states this in part 4 of the affidavit, but I am wondering how Xcalibar got 3 Cap 1 suits dismissed last year by attacking an affidavit from an OC. Again, this all looks pretty vague and is loaded with sweeping generalizations. Any insight would be greatly appreciated.
  8. Is there any similarity in cases such as these, or are these two mutually exclusive types of causes of action? My case states Breach of Contract as the cause of action but then defines "account" as the "subject of this lawsuit." Still looking for a defense angle because I'm not quite sure how to attack an affidavit yet. Working on it, but not quite there yet. The affidavit I've seen in yarnaholic's case looks PRETTY vague, and I'm assuming mine will be similar. I still have received nothing from Plaintiff as far as discovery, so I'm not sure what I'm dealing with on their end. I want to be prepared for any and every angle before end of Discovery on August 10th. Any suggestions?
  9. I sense a great deal of apathy in the last few posts. Their is no true "justice" in this nation any more, or if so, very little. The rich get richer and enslave the masses. This is no longer a free republic, it has pure and simply been turned into a dictatorship of the haves v. the have-nots and it's only getting worse day by day. There is no "democracy" there is only propaganda, perception management and opinion shaping by those in power who control the media, which ultimately forms the false beliefs of the voting public who select our "leaders" based on fabricated lies. With critical thinking curriculum (the classical liberal education of the Trivium and Quadrivium) taken from our public schooling over 150 years ago, we are surrounded by a population of biological androids who's minds (biological computers) are programmed by the TV and other main stream "legitimate" (in their warped perception) media. The allegory of the Matrix (or Plato's cave if you wanna go back 2500 years) is as true as it ever was. People have no concept of reality, natural law or the difference between right and wrong. The book I have been researching for the past 5 years and writing for 2 (yes, it took 3 years just to come to an understanding of what really happened before I even attempted to begin writing) addresses the roots of the long planned and executed coup d'etat that has taken place in America. So long as people agree with the system of injustice in this nation and "go along to get along" we are doomed to be slaves forever. Pay an income tax? Pay property tax? You're a SLAVE. Period. Nothing in this world is going to change for the better as long as everyone goes along with the status quo. The "can't do this, can't do that" attitude is the antithesis of what once made this the greatest nation on earth (even though we were FAR from perfect - read Frederick Douglas' July 4th speech from 1852 (excerpts here)). How about we all just let the powers the be take all of our freedoms and say "screw it, I have my beer and my TV, so all is well! There is nothing I can do!" I'm going to continue to post updates with this case for anyone interested in reading or listening. I'm going to be focusing mainly on injury because I believe that a multi-billion dollar corporation can't claim injury for losing money they created out of nothing to begin with. I think this is my best chance at arguing to the morality of this case and I'll push for a jury trial because I know the average American knows the inherent immorality of the entire system. Maybe they'll side with someone who has the passion to explain in detail just how corrupt and wrong the system is. Like crack, the banks have gotten us hooked on credit and debt, by first creating a system by which we would have no way around living without it. Enter the income tax. How many Americans would really be in debt if they were allowed to keep that extra 20-30% of their income? Then add all the other taxes that usurp over 50% of our income and give back in so-called "services" maybe 10-20 cents on the dollar while inflating the currency and stealing more through that "hidden" tax. Maybe a jury will realize that for every judgment in favor of a multi-billion dollar corporation and against an individual who has already lost everything because of the actions of the banking industry itself is just another nail in the coffin of free humanity and another brick on the Tower of Babel from which we'll all one day be ruled from if nothing is done to stop their juggernaut. Maybe a jury will see when clearly explained to them that I am truly the injured party, but having lost everything, I have no funds or resources to go after the banks who caused this all in the first place (nobody of whom has yet been held accountable in this rigged system of "justice"). Maybe they'll understand that by giving Cap 1 the ability to come and rob my bank account at any time with no warning whatsover, that they are just aiding and abetting in more unjust crime. I never got into debt with the intention of "scamming" the system or purposely skipping out on any of my debt. I've always paid my debts and had every intention of paying off every last dime of it when my house sold. Well, it was taken from me by the orchestrated collapse of the market and so was all the debt I am now being sued for. I don't have the money. I may never have the money. And to go out and work just to know that it will all be taken from me by a criminal cartel doesn't really light a fire under anyone to go and make any effort. This is why communism is such an abject failure. There is no incentive to produce when you must give all that you earn do to someone else. So, any case law that might help me in proving that Cap 1 has not been injured would be of great help. I am looking and researching myself, but if anyone knows of any case they have come across in the past, any input would be greatly appreciated. Thanks for listening.
  10. Point taken. I agree with what you are saying and I know that judges can't legislate from the bench....oh wait, didn't the SCOTUS just do that two weeks ago with Obamacare?! I know that you know what you are talking about. And, I agree that their is no precedent that I have been able to find supporting securitization defense in CC cases, but in theory, like I have said, no one REALLY knows where the actual debt is or can show in any way that they were "injured" when they have insurance and tax incentives to cover losses. They have the game rigged in their favor to WIN no matter what happens. They did this by buying up influence in CONgress. I have a degree in finance from a major university in Illinois. When I questioned my professor on the morality and legality of the derivatives markets 20 years ago in my upper level finance classes, he told me "wealth is not created, it only exchanges hands." To put it bluntly, BS! I was lied to. The $1.4 quadrillion global derivatives market PROVES that point and I intuitively knew it even as a naive junior in college. They're making money out of money or even nothing at all. The've turned Wall Street into Las Vegas Blvd and it is destroying the very fabric of our society. It's time that SOMEONE stand up and point that out in a court of law. I don't have the money to sue any big corrupt corporation, but at least I can speak my mind in court when attacked. I recall a story about this guy named David in a fight with Goliath... I may be beat, but not to fight for what is morally right is pure cowardice. And I'm no coward.
  11. I've seen the judgments of the higher courts and read through the Idaho case legaleagle linked to yesterday. Yes, I understand I have a major uphill battle. I am not naive. I am really delving into the injury aspect of this case now as well as securitization. There are still many experts who claim that no one really knows where the actual account or funds representing it are other than ink printed on paper. It's the nature of the beast and it is destroying the economies of the world. This is the crux of the "Occupy" movement (although I'm not part of it, I understand the frustration of We, The People in demanding answers). At the end of the day, no one can really prove who owns the alleged "debt" or even where the "funds" are. They paid the merchants with money they create out of thin air. They never had it to begin with. This goes to the injury defense. It is the banking system with their securitization and derivative schemes that CAUSED millions to default on their loans. It has happened over and over throughout history and the bankers get bigger and bigger, richer and richer and all at the expense of the TRUE producers in society. Is it NOT time for a multi-billion dollar corporation to show and prove exactly HOW they were injured and not vice versa? I'm the one with the negative net worth because of the crimes committed by the banking industry. They have billions and I have virtually nothing. And they want MORE? They have already been made whole on their loss via insurance and tax write-offs, so how can they show "injury?" This is what I'm going to be researching over the next month to formulate my defense. "I have not yet begun to fight." - John Paul Jones
  12. I completely understand where you and Coltfan are coming from. I am looking at every angle possible to show they have not been injured, no one really knows where the alleged debt is (this isn't a physical entity like a car) or can show a physical value thereof. It's all just digits in space and ink on paper and like I said, there are $1.4 quadrillion of them out there bringing down the economies of the world by design. Iceland said "screw you" to the bankers who tried to bring them down and they are once again thriving. We need people to stand up to this racket and demand change in this world before it's too late...
  13. Thank you for your thoughts and support! 5+ years and nearly 14,000 hours of research and writing so far... This is the quote I have printed out and posted over the monitor I am writing the book on: Here's to the crazy ones. The misfits, the rebels, the troublemakers, the round pegs in the square holes. The ones who see things differently -- they're not fond of rules. You can quote them, disagree with them, glorify or vilify them. About the only thing you can't do is ignore them. Because they change things. They push the human race forward. And while some may see them as the crazy ones, we see genius. Because the ones who are crazy enough to think that they can change the world, are the ones who do. - Steve Jobs, Apple Inc. I'm THAT crazy...
  14. How many court cases found that slavery was "legal" in this country before emancipation? The law said that these people were merely "property" and that for representation matters involving the census, counted as only "3/5ths of a person." The entire system is fraudulent and fixed to enslave us all. If no one fights it, it will continue to perpetuate until there are only two classes once again in this world. It's all part of the system designed to trap us. I'm gonna fight it, even if I can't win. I won't appeal, but I will see this through trial and have my say in court as to what I feel about this system - the system that inflated and created the housing bubble I was caught in when they purposely collapsed it (Not Cap 1 per se, but the entire system, Goldman Sachs, specifically) and profited on the way down as well (see McClatchy Report on how GS secretly bet on housing crash to profit on securities they sold that they KNEW were going to crash). They don't CARE about the "little" people who are the actual creators of everything good in society and get hurt by their (illegal) machinations. They manipulate the markets, and create the busts which cause the defaults that INJURE the debtors, not themselves. Then they have the nerve to collect on those who have been trying just to operate within the system and make a living using debt because so much of our income is stolen via taxes and inflation (Fed Reserve and IRS paid directly to the member banks and NOT for government "services"), never knowing what was about to hit them. I'm in the boat I'm in because of this system. I lost everything when I got injured by the crimes of the banking system that created the '08 economic collapse and yet, no one's gone to prison. I still haven't recovered and these people who can afford hundreds of millions in advertising to ensare more people in their trap claim "injury" and demand restitution? Wow. Welcome to Amerika. I know this forum is about legal issues, but isn't court a place for two parties to state their cases as to the rightness and wrongness of an issue as well as legal precedent? Morality does come into play throughout history in setting precedent. All the precedent that has ever been set in this country began with someone who had been wronged. I'm not saying Cap 1 wronged me directly, but they are part of the very system which is destroying the economies of this world by creating value out of nothing (therefore, they never had anything at stake to begin with - Alchemy taken to its extreme conclusion; no base metals needed to convert to gold and buy up the world, they just use thin air!) and and making profit on it by charging interest, reselling assets and protecting themselves no matter which way the market moves through "insurance" and derivatives' markets (which were illegal up until the early 90's) and I'm not gonna roll over and let them have their way without a fight.
  15. I plan on making enough on my book to last me the rest of my life. It's a pretty powerful book that people are craving to read at this point in history... Judgments, if any, will be a drop in the bucket some day. I guess I'll just have to test it out in court. In theory, it's more than plausible. Everyone KNOWS the banks are scamming everyone in the world. It as the banks who set up the Federal Reserve and IRS as the collection agency for the debt they were about to enslave this nation with 99 years ago. They are the criminal/predator class of our species and it's about time we begin to stand up to them or they'll continue to run roughshod over humanity forever. (Can you tell what my book is about... Just a small part, though. All the dots are connected as the the nature of our enslavement and what it will take for us to finally break free.)