Silver1 Posted April 23, 2007 Report Share Posted April 23, 2007 Wolpoff/Abramson repping Target Bank...W&A were sending tons of dunning notices to collect against me.They've filed in small claims in TX. My pretrial hearing is coming up. I thought collection agencies/biz whose primary function is lending $ at interest couldn't sue consumers in small claims in TX:28.003. JURISDICTION. (a) The small claims court has concurrent jurisdiction with the justice court in actions by any person for the recovery of money in which the amount involved, exclusive of costs, does not exceed $5,000.( An action may not be brought in small claims court by: (1) an assignee of the claim or other person seeking to bring an action on an assigned claim; (2) a person primarily engaged in the business of lending money at interest; or (3) a collection agency or collection agent. © A person may be represented by an attorney in small claims court. (d) This section does not prevent a legal heir from bringing an action on a claim or account otherwise within the jurisdiction of the court.(e) A corporation need not be represented by an attorney in small claims courtI'm not a lawyer but I have to assume this means Wolpoff/Abramson/Target NB bungled it by filing in SCC? The amount doesn't exceed $5000, so maybe this is why they kept it in small claims. But this tells me that as a collection agency/law firm/ bank, they don't have standing to sue me in small claims TX. I want to use this as an affirmative defense when my case comes up for pretrial hearing.. (if I'm using that terminology correctly...see, I'm not a lawyer ;0) If this is true and the case is thrown out, odds are they'll turn around and file in state court, but anyway.... Link to comment Share on other sites More sharing options...
Recovering Attorney Posted April 23, 2007 Report Share Posted April 23, 2007 This has no application to W&A. Target Bank is the plaintiff? The statute is applied to them. I suppose you could ask fo rit to be transferred to the justice court. Link to comment Share on other sites More sharing options...
IHateCAs Posted April 23, 2007 Report Share Posted April 23, 2007 Well I'm pretty sure Target National Bank is disqualified because of ((3). Link to comment Share on other sites More sharing options...
IHateCAs Posted April 23, 2007 Report Share Posted April 23, 2007 So when did this account default? TX is a short SOLC state. Link to comment Share on other sites More sharing options...
answer2prayer Posted April 23, 2007 Report Share Posted April 23, 2007 yep...4 yrs SOL...could you use it in your defense too? Link to comment Share on other sites More sharing options...
Silver1 Posted April 23, 2007 Author Report Share Posted April 23, 2007 Thanks all!According to the CR, the DOLA was June 2005.I wonder if Target NB could be disqualified by ( (2): An action may not be brought in small claims court by: (2) a person primarily engaged in the business of lending money at interest; or(3) a collection agency or collection agent Link to comment Share on other sites More sharing options...
Kanman Posted April 23, 2007 Report Share Posted April 23, 2007 yep...4 yrs SOL...could you use it in your defense too?Could you also use this in your answer with move to dismiss hoping the judge will just dismiss the case and no pretrial is needed? New here, so just wondering... Link to comment Share on other sites More sharing options...
Silver1 Posted April 23, 2007 Author Report Share Posted April 23, 2007 Well, I filed a general denial in response to the summons and small claims court has set the pretrial hearing which is coming up shortly. I wonder if I could wave this around at pretrial and get a dismissal.I just wonder why it is that if this statute applies, I'm the only one taking it into consideration? That can't be - I'm not a lawyer, no legal training, and I found this pretty quickly online after getting a summons. I mean, the justice court people have got to know (don't they?) who can and who can't file small claims, right? Maybe the JP will say at pretrial to Target NB lawyer, you don't have standing, so bug off? If so, why go to all the trouble of having both parties show up at pretrial hearing just to hear the JP say that?And if this statute does apply and the justice of the peace and W&A lawyers repping Target NB don't know this...sheesh! Link to comment Share on other sites More sharing options...
SecretAgentWoman Posted April 23, 2007 Report Share Posted April 23, 2007 They are hoping you don't know the law.Answer the summons with the revelant law regarding venue and SOL and ask for a dismissal.Edit: you posted at the same time! hehe. Good for you. Link to comment Share on other sites More sharing options...
Silver1 Posted April 23, 2007 Author Report Share Posted April 23, 2007 SecretAgentWoman! My heroine! ;0)True enough; I'm sure Wolpoff/Abramson would be more than happy to run roughshod over me on behalf of Target NB, but I'm truly baffled at why the small claims court in TX would bother setting a pretrial hearing date if they know Target NB has no standing to file against me in SCC.Okay, I believe it's still within SOL but I have to gather from the statute I found that the venue is improper and Target NB has no legal standing to claim against me in SCC.Presumably, if the JP takes my info into consideration and dismisses, W&A could potentially turn around and move this right the heck into state court, no? Link to comment Share on other sites More sharing options...
cjtx Posted April 23, 2007 Report Share Posted April 23, 2007 For purposes of the Texas Debt Collection Act , both an OC and a CA/JDB are considered debt collectors.Collection attorneys are not supposed to file in small claims in TX, but they count on getting away with it through a default judgment. Link to comment Share on other sites More sharing options...
Kanman Posted April 23, 2007 Report Share Posted April 23, 2007 I believe they could do that...as someone suggested this to me. Also, someone remarked on another thread to ask and make sure you have a court reporter present. It is your right to do so. It keeps the judges on the up-and-up, ie they usually uphold the law because everything is on record and can be challenged, otherwise they shill for the lawyers. Link to comment Share on other sites More sharing options...
SecretAgentWoman Posted April 23, 2007 Report Share Posted April 23, 2007 Depends on the amount, I suppose.Small claims is "cheap" and easy and doesn't require lawyers.If they think it's still profitable to go the more expensive route, they may do so.So - the question is how much the claim would be. Link to comment Share on other sites More sharing options...
SecretAgentWoman Posted April 23, 2007 Report Share Posted April 23, 2007 I believe they could do that...as someone suggested this to me. Also, someone remarked on another thread to ask and make sure you have a court reporter present. It is your right to do so. It keeps the judges on the up-and-up, ie they usually uphold the law because everything is on record and can be challenged, otherwise they shill for the lawyers.Texas Small Claims does not allow court reporters, and you need the judge's permission to record proceedings.If you are talking about the bigger courts, then yes, it's a good idea. Link to comment Share on other sites More sharing options...
Kanman Posted April 23, 2007 Report Share Posted April 23, 2007 Texas Small Claims does not allow court reporters, and you need the judge's permission to record proceedings.If you are talking about the bigger courts, then yes, it's a good idea.Oh I see...good to know. thanks so much! Link to comment Share on other sites More sharing options...
answer2prayer Posted April 23, 2007 Report Share Posted April 23, 2007 Thanks all!According to the CR, the DOLA was June 2005.I wonder if Target NB could be disqualified by ( (2): An action may not be brought in small claims court by: (2) a person primarily engaged in the business of lending money at interest; or(3) a collection agency or collection agentSilver1...do you really actually know when your DOFD is...not the DOLA from your CR!?! You can't always go by the dates on your CR....especially from a CAs or JDBs....I have several TLs on my CR that the DOLA is not the same as my DOFD...When did you first become delinquent was it in fact June 05 if it was then you are still within the SOL BUT if it was before 04/03 I'd say you are out of your SOL....Have you checked all 3 CRs? Look it up, it's worth finding out! Link to comment Share on other sites More sharing options...
Silver1 Posted April 23, 2007 Author Report Share Posted April 23, 2007 The amount in question is not quite $3,000.So, I filed a general denial response on time, so no default for them. I will show at pretrial, so no default there, either. I'll wave around my statute and ask for a dismissal.Answer2, I was going off memory there, in all honesty. I will double-check a new copy of my CR to be sure, although I'm fairly certain that it is probably June 2005.edited to add:You all are the best. You all have gotten me through so much of this stuff and I've come a long way from cowering in fear at those nasty CAs to going toe-to-toe with them and challenging them to their faces. I have y'all to thank for helping me do this. Link to comment Share on other sites More sharing options...
Silver1 Posted April 23, 2007 Author Report Share Posted April 23, 2007 For purposes of the Texas Debt Collection Act , both an OC and a CA/JDB are considered debt collectors.Collection attorneys are not supposed to file in small claims in TX, but they count on getting away with it through a default judgment.Good to know! Thank you!! Link to comment Share on other sites More sharing options...
answer2prayer Posted April 23, 2007 Report Share Posted April 23, 2007 ah too bad!Luckily, I pay all my bills online and have done so for several years so I know exactly when I made my last payments on all my accts., which would make it very easy if I need to get a copy of transaction from my bank!!And amazing enough, I also kept filing away my statements that I received which actually show when last payments were notes in my statements and when starting that following month they began to start charging me late payment fees, etc....of course this was before the letters also began to start flooding in!!! LOLKeep us posted as to your outcome will be anxious to see what this JP Judge does! Link to comment Share on other sites More sharing options...
IHateCAs Posted April 23, 2007 Report Share Posted April 23, 2007 I meant ((2), not 3. Link to comment Share on other sites More sharing options...
direred Posted April 23, 2007 Report Share Posted April 23, 2007 Target Bank (in Utah) or Target National Bank (in South Dakota)?They are different. Link to comment Share on other sites More sharing options...
Silver1 Posted April 23, 2007 Author Report Share Posted April 23, 2007 I believe it's TNB in South Dakota.Thanks! Link to comment Share on other sites More sharing options...
direred Posted April 23, 2007 Report Share Posted April 23, 2007 Both are owned by the retailer, but Target Bank does business accounts only and Target National Bank does the consumer credit. Thus my confusion. Link to comment Share on other sites More sharing options...
Silver1 Posted April 23, 2007 Author Report Share Posted April 23, 2007 Both are owned by the retailer, but Target Bank does business accounts only and Target National Bank does the consumer credit. Thus my confusion. Thanks!Since my pretrial is coming up pretty soon, I'm thinking I'll concentrate on trying to get a dismissal out of this. I've printed copies of the TX government code directly from the Legislative website; the pages outline the TX Small Claims statutes, and I'll bring a nice clean copy for the justice when I go to hearing. I'll post the outcome after my pretrial hearing. I'm representing myself. I have an atty but I'm saving the consult hours (legal plan) for the inevitable (well, at least I'm pretty sure it'll get refiled elsewhere if I get a dismissal here) subsequent case to come.So, though I've got legal advice I'm showing up at pretrial alone. Ouch! Link to comment Share on other sites More sharing options...
Silver1 Posted April 25, 2007 Author Report Share Posted April 25, 2007 Went through my stuff in prep for pretrial, and when I sent the DV to W&A last year, they responded about three months later with Xerox copies of billing statements. That's it.I wonder if this is all they've got. Link to comment Share on other sites More sharing options...
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