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Everything posted by Mistabone

  1. What an incredible thread; informative and entertaining too. I am beginning to believe a terrific sense of humor is a prerequisite to being any good at all this JDB stuff. I was laughing so hard in a couple of spots well, enough to say, a couple of you guys are way ahead of the game on that count!! The meat of my story began when I had a summary judgment ruled against me because I did not get proper notice of the hearing. I went through some pretty extensive hoops to successfully get that judgment set aside and a new trial ordered. Now I have being hit with the summary judgment again of course. That is why I am here; picking up some pointers. My entire case rests upon "standing". The debt buyer has all the statements and the contracts to boot (however none of them are authenticated by the original creditor of course). Coltfan hit the nail on the head when describing the affidavit scenario and the chain of title. My situation is a business records affidavit and one added feature not mentioned so far is--the affiant in my case claims to be the manager of the finance company that also claims to own my debt but he is actually one of the attorney partners in the legal company suing me. Oh boy! Never the less, I am pretty sure (don't want to get overly cocky here) I can prove a no "standing" situation. My confusion comes in when creating my "to do" list. I am in Texas. Here is how I see my priority list rolling out and I am really open to any suggestions anyone else may have: Submit a motion to strike: the only problem is the summary judgment hearing will probably take place before the motion to strike will be heard, Request a court reporter of the summary judgment hearing. Respond to the summary judgment. While standing based on the affidavits are my primary issue, there are a couple of other defenses I can throw in for good measure. I only have to get the court to agree that I have at least one factor in contention, Request a jury trial. Almost never happens and JDBs hate this which makes me like it. Subpoena the affiant and his background records--the affiant is in Dallas and the court is in Houston--a 150 mile rule does exist unfortunately. Fill out indigent forms and submit them to the court. Without going into too much detail, I am basically judgment proof. I want the JDB to know that even if they were to get a judgment, they would probably not get anything even in the long run. You may ask why am I even bothering to defend myself. I hope you will understand when I say, it is the principle of the thing. This whole Junk Debt industry is a horrible blight on the judicial landscape, unfairly ruining good people's lives. I wish more folks would just stand up and fight them instead of being scared into submission. Here is an unusual one/slant: a debt collector in Texas needs to have a surety bond to LEGALLY collect debt in Texas. The Secretary of State says this collection company does not have the required surety bond and this collection company has side-stepped the issue several times when I asked about this in Discovery. If this JDB cannot legally collect debt in Texas, standing may also become an issue using this concept. Also a counter suit begins to weigh heavy using TDCA which has resulted in some pretty sizable settlements. Heck I may even be able to hire a consumer debt attorney on a contingency basis if I cross my fingers long enough!! TDCA allows attorneys fee to be collected on top of any damages. Mostly I just wanted to say thanks for this thoughtful jump into this issue of "standing". I will write again to inform of my outcomes.
  2. If you want a copy of what I sent to the court, I will be glad to send it to you. But let me warn you, it is about 30 pages long!!
  3. I have been mislead a bit by some of my previous readings---I saw and appellate court comment that the granting of a new trial is like starting all over again but.....I think your take is much more accurate....it looks like it just extends the case. Your message on a Motion in Limine is something totally new to me so I had to go and study up on that...so far it appears that is a very good way to solidify my defense since my total defense revolves around getting the horrible affidavits discredited. Those affidavits all use an attorney in the law firm that claims to be a manager in the collection company. Also the chain of transfer from one company to another (4 times) is very weak. I found this PDF which I am sure you will find very interesting and something you may want to add to that great arsenal of information you have (and it has Texas application that should interest you too). http://www.bakerlaw.com/files/publicdocs/news/articles/litigation/kruse-expert_witness_update.pdf Two questions in closing: Have you seen a good example of a motion to strike debt centered affidavits or/and A good example of a Motion in Limine relating to debt case affidavits??? Sorry but I had to ask. Thank you so much for all your comments!
  4. I have over 30 years in the car business so let me interject just a little bit if I may. Scores over 600 are wonderful at the dealership level and with that much down--there is no doubt you can be financed. The question becomes what kind of deal are you going to get at the dealer. Based on what you have written so far, I would say it sounds like there is a pretty good chance you would be taken advantage of by some slick dealership finance manager. The advice your getting on here to go to a credit union first is stellar. For the credit union, your salary is going to be a bit of an issue but that will depend on the percent the car payment will represent of your total disposable income. Good luck with that! Also make sure your getting a good deal on the vehicle you are interested in. You can get so much help online as to what you should be paying for any given vehicle and what you should expect for your trade. Be sure and use this---get started with Kelly Blue Book online--that will help you bunches. If there is any one single piece of advice I could give to car buyers (that they NEVER seem to want to listen to) it would be---Never buy a car, buy the payment!!
  5. Seadragon, please forgive me for not replying sooner (on your previous post). You simply have so much great/useful/helpful information on this site, I wanted to read bunches of it before I replied and so I did. You are so right on your note here about "set aside" and forcing "witnesses to trial". Unfortunately subpoenas are only good for 150 miles here in TX and Dallas (where their witnesses are) is 240 miles from Houston. So I am left with Motions to Strike the affidavits that were used in the MSJ in the last case that I understand do not exist in this case as of yet. Sheesh!! I need to find the rules that tell how to proceed after a new trial is granted---I am not even sure those rules actually exist at this point!
  6. Thank you so much Shellie for your input. You are so right, it can be confusing. There are other places in the Texas Rules that use other number of day limits---ex: some say you have 30 days to place a motion for new trial after the SJ is signed. My big concern is that I cannot seem to find anything in writing that deals specifically with the rules for "after a new trial is granted". I truly appreciate your recommendation to the two folks who are very knowledgeable about the TX rules. I will do my best to figure out how to contact them--I am sure it can't be that hard. Thanks again and if you don't mind---I will keep you posted!
  7. Shellie, one of my favorite lines in Shakespeare is “discretion is the better part of valor” and anybody who manages to drink a good “nit” of it---is brilliantly applying this rule of thumb. LOL Your question “did the judge sign an order for a new trial, or rather an order for vacating the MSJ?” is a good one because I do not know the answer to that one. I believe when a judge grants a new trial it automatically sets aside the judgment. Here is a link that I think adequately explains the situation http://www.ehow.com/info_8082579_reasons-vacate-judgment-texas.html I will go into the rules again based on the information in this link to see if I can define exactly what “set aside” is supposed to mean. For instance does it mean the SJ is still out there and can raise its ugly head at any time in the new trial? If that is the case I need to check to see if I can institute a Motion to Strike the affidavits at this point?? I believe a new trial means that a summary judgment must be introduced again but I am definitely not sure of that one. You’re so right about Sea Dragon. I have read a lot of his stuff and often stand in awe due to the high quality content of his shared information and his obvious unselfish commitment to helping others; pretty amazing actually. Looking forward to…”talk more tomorrow”.
  8. I can tell my efforts not to over burden you (or others) in an attempt to keep it simple and avoid confusion is not going to work---my fault---I should know that the more simple I try to keep it, inquiring/intelligent minds are going to have questions---so here we go with the explanations to your questions (and I want to thank you again for having questions)! Here are the answers and some statements to the questions you have posed. This is not a credit card debt. It is a business debt. They (the plaintiffs) have all the statements since day one (including the charge off statement) and they have a signed agreement with the borrowing company signed by me AND they have a Guarantor agreement signed by me which is supposed to be secured by a UCC1. Yes it does appear (on the surface) they have all the goods to win however where they fall way short is in their affidavits for ownership (and that chain of ownership) that you do mention (from original creditor to debt buyer/three times). This is pretty much my only hope for winning—but my chances are good for reasons I can detail later if you would like. In short, my stance is they lack standing on this matter. I believe I would be successful using a Motion to Strike (their ownership affidavits). If I am successful with that, their other affidavits will crumble too (like attorney’s fees). And I should win as a result. I have studied the Civil Procedure Rules for Texas extensively and sometimes they do become a little confusing because some rules seem to run contradictory to other extremely similar rules. Please note: my main question is I HAVE BEEN GRANTED A NEW TRIAL. NOW WHAT? But to address your questions I can only give answers as if this was round one (the original trial) and not round 2 (the new trial) which is where all my confusion is coming from): Yes there is a disclosure rule: this is one of those rules that show up in two different places—one place in the Civil Procedures Manual addresses all the types of questions you are asking here. Then way down in the procedures manual around rule 500 it gets much more complicated and states something like if you don’t get your request for disclosure signed by a judge first—you could get hit with sanctions??????? I need to study this further which I will do. I am aware of all the procedures to Compel. I asked for all the information you noted plus quite a bit more for that matter. And in the admissions—if a person does not answer these it is considered admitted. I think I have a pretty good handle on this sort of thing but the GRANTING OF A NEW TRIAL and the WHERE DO I GO FROM HERE is what is sending me into a tailspin because I can find nothing on it. One of the responses I got on this site stated something like getting a judge to grant a new trial is similar to defying gravity (talk about making me feel good about self) which would mean this situation seldom happens so there is not much for me to read and learn from. If I search the forums on this site and others for “new trial granted” nothing comes up. So let me cut to the chase with the questions confusing me: Should I expect to be served again?? I don’t think so. I am assuming that the new trial is based on the original petition. That is why I prepared a 29 page response (outlined above) as if I had just been served. Am I right or wrong in this approach? Should I again answer the discovery questions presented to me by the plaintiff along with the original petition (this time I would answer them with more detail and understanding)? I have read a couple of decisions from Texas appeal courts where the appealing party lost (after a new trial had been granted) for failure to answer the questions. I can only assume at this point those “questions” were the questions posed during discovery. Should I break out those old disclosure documents from the plaintiff and answer them again only better this time??? Can I file a motion to strike the chain of ownership affidavits now? I do not believe I can at this point because those affidavits showed up in the last trial in a MSJ so I do not believe they actually exist yet in this trial. However I will say, my discovery questions are aimed at the holes in their claim to ownership as a backup plan. Do the plaintiffs even have to answer my discovery question this time around? I am not sure one way or the other and nothing in the Civil Procedures address this in a New Trial scenario to the best of my knowledge. Does anybody else have any insights as to the finer points in matters relative to “how to approach a new trial granted”? If I could know the answers to these four questions above, I believe I could get on to the path of the righteous (trying to add some humor here). If this entry was not so long already I would throw in a rather humorous antidote the judge elaborated on right after he granted me the new trial but I will spare you this time. And as you may be able to tell Shellie I am not lucky like you….I obviously have no OTHER life. LOL
  9. So glad to see you taking a look at this shellie---I have seen many of your other writings and they were all great! My outline above details everything I have sent so far (I put additional comments in the parenthesis) 1. yes I served discovery on them as noted above but they have not answered 2. As noted in #5 above I did send a request for disclosure----I sent it both to the court and to the plaintiff---I could be in trouble over this--the Texas Code of Civil Procedure (around 500) says I am supposed to get permission to send discovery first from the judge and if I don't I could be faced with sanctions whatever that means???) This note in the procedures manual runs contrary to all the previous notes in the procedures relative to discovery that pretty much states you are free to send it. 3. The only evidence they came up with on the MSJ was the affidavits which supposedly proved their ownership of my account---my discovery was aimed at the big holes is this transfer of ownership from one debt collector to another. I thinks that answers your questions....let me know if there is anything else please!!!
  10. Hello -- I am a newbie here so if I am in the wrong place please let me know and I will make the correction immediately.My question is simple I am pretty sure---I am in Texas and I had a debt collector get a summary judgment on me (they were tricky--they hid the hearing date from me so I was not in attendance). I made a motion for a new trial and it was granted. I have looked everywhere and cannot find anything about what my next move is. I found one appeals court case that said getting a new trial granted is like starting all over again however---I doubt the debt collector is going to serve me again with an Original Petition. So what should my next move be....The actual trial is set for sometime in April of next year. I don't think it would be wise to wait for this date knowing how aggressive this collector is. I was not going to list what I have done so far in an effort to keep this simple but after some thought, I have decided to go ahead and include the contents of a Certified Mailing I just sent to the court and to the debt collector (attorneys) a couple of days ago. The mailing included:1. Defendant's (my) Answer to Plaintiff’s Original Petition (denying all and including a bunch of applicable affirmative defenses)2. Plea to the Jurisdiction (The original petition only says the plaintiff owns the debt--but not how they came to own it--a lack of standing issue). 3. Exhibit A Plaintiff’s Original Petition (3 Pages) (as a courtesy to the judge -- trying to make it easier on him)4. Order for Dismissal/Non-Suit (probably wishful thinking on my part but just in case)5. Request for Disclosure (In the Summary Judgment the plaintiff had 4 affidavits that are all pretty weak---most of my discovery centers around denouncing the affidavit information even though I know they don't exit legally yet) which also included the following:a. Defendant’s Request for Admissions,b. Defendant’s Request for Production of Documents andc. Defendant’s Request for Interrogatories.d. Affidavit: Plaintiff’s Answers to Defendant’s Interrogatories (Notarized)(for the Plaintiff to sign) Hopefully what I have done so far does not over complicate the issue for some person who answers---my question is simply...if I had done nothing so far, what would my first move be?? What would you do?? I want to thank you in advance for any information that comes my way---I am so impressed with many of the folks who make up this forum!
  11. Hello -- I am a newbie here so if I am in the wrong place please let me know and I will make the correction immediately. My question is simple I am pretty sure---I am in Texas and I had a debt collector get a summary judgment on me (they were tricky--they hid the hearing date from me so I was not in attendance). OK I have removed it and placed it under "is there a lawyer in the house" == hope that's right and sorry for the inconvenience!
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