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Lawyer is trying to screw me !!


shanx
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Hi All,

To cut a long story short,

JDB Lawyer sued me, Filed a fraudelent document that i was served personally when i was never served. I found out about the case after he filed the Motion for Default.

I filed an answer right away based on help from this forum. The summons has a Request for Admissions and I am already behind on the 50 day limit.

This is in the state of TX.. Does this mean that I am screwed already? Will the judge consider my late answer? BTW the account is within SOL.

Thanks a lot for your help!

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As long as the judge has not ruled, the case is still open.

I would file a counterclaim for violation of the FDCPA in the use of deceptive means to collect. The JDB lawyer filed a false affidavit of service with the intent to use the court to obtain a default judgment as an deceptive means to collect. The $1000 offset, a pissed off judge (they hate being used as pawns), and the possibility of sanctions levied by the court for perjury may cause him to withdraw his claim completely.

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I did file a counterclaim claiming perjury and abuse of the process of the court, along with the FDCPA violations. How do I request the judge to not accept the default judgment? I havent answered the Request for Admissions yet.

Can i file continuance and state the reasons why I need time..

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The JDB filed a motion for default judgment because you did not appear. You can answer to that by filing your own motion to deny default judgment for the reasons you state. The Clerk of the court should be able to guide you to the correct form to fill out. The judge must then rule on both motions. Obviously one has to be granted the other has to be denied.

I would think the judge, based on your counter claims, would be inclined to deny plaintiff's motion for default based on your accusation...especially if you have proof to back it up.

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Thank you so much for your help!. I am going to file continuance and a motion to deny default judgement. I didnt see a sample form for TX to file a "motion to deny default" . I did read the TX rules of civil procedure and there is no motion like that.

Can I just file a document that states "MOTION TO DENY PLAINTIFF's MOTION FOR DEFAULT" and then state the reasons..

Thanks a lot again!

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Don't forget, the real culprit here is the process server. He's the one that lied about the service. A lawyer isn't going to question the process server, normally. In your motion to vacate you need to subpoena the guy and have him say to your face under oath that he served you. Then you can testify he did not. And teh judge can rule on the swearing contest.

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Here's a thread from April 2006 on the subject:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=253004&page=2&highlight=process+server

I'm trying to find the thread from 2005 that discusses a very similar case we had here locally on the same issue. I thought I'd saved copies of the newspaper articles on the case in my Favorites, but apparently not. If I find them, I will post.

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Thanks BreathingEasier,

I wonder how the guys who got defaults in such cases, argued to the Judge to vacate judgement. Basically it is your word against another right?

Luckily I have a few CC receipts that show the time and date of purchase , which I hope will convince the judge that I was not home at that time...

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Shanx, since you are dealing with a JDB, you may want to look at filing a Motion for Partial Summary Judgment based a lack of evidence.

Several months ago, member Avenger against scumbags, a fellow Texan, posted a link to a sample "Defendant's 'No-Evidence' Motion for Summary Judgment" on attorney Dean Malone's website. Malone's law firm filed this motion against Credigy after Credigy could not provide adequate documentation of its claims during discovery.

If your JDB cannot provide proper documentation during discovery, you might want to submit a motion like this, altered to fit your circumstances. Hope this helps.

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Thanks Optimus.. I made 2 mistakes in this and want to point out for anyone who is being sued.

a) Always, Always save the initial correspondence. I sent a DV letter but failed to save the Original letter from the lawyers.

B) Always, Always save the Green card. I had the confirmation receipt from USPS , but didnt save the green card.

I settled with the lawyers for 1/4th the amount.

Thanks to everyone for the support and assistance.

Now I am off to be pro-active instead of reactive.

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