Desperate in Texas!!!

[mwhizz]

All,

I will be attending a second hearing on a summary judgment against me and a JDB named Dodeka on Feb. 14.

At the last hearing, the Judge gave the plaintiff 30 more days for discovery. The Judge did not allow the affidavits as evidence, nor did he allow copies of CC statements.

I truly do not recognize the account number that is allegedly mine. I don't have any information in regards to this account.

What should I do now as I am waiting for the 2nd hearing?

How should I proceed with the next step in my defense?

The Plaintiff's attorney is supposed to serve discovery. I have not received anything to date. Jan. 24 will be 21 days before the hearing. It is my understanding the Plaintiff is supposed to serve discovery 21 days before the hearing.

Any help is greatly appreciated.

[cjtx]

In Texas, discovery ends 30 days before trial.

Just because the evidence for a summary judgment was not accepted, it doesn't mean the judge will disallow it at trial. The burden of proof is different.

File a motion (and an order) to dismiss, along with an affidavit denying any knowledge of the account.

Did you send your discovery requests? admissions? requests for disclosures?

[mwhizz]

Thanks for the advice.

The next court date is just a continuation of the original hearing. The Judge gave the Plaintiff an additional 30 days for discovery.

I have an attorney who has been gracious enough to consult with me on the case. I am going to contact him next week to see what to do now since I have not heard back from the Plaintiff's attorney.

I am praying for a dismissal.

Thanks again.

[mwhizz]

All,

I am seeking your advice and assistance in writing up a motion for sanctions and dismissal.

I am nearing the end of a lawsuit with JDB Dodeka. I have submitted my answer to the court, request for disclosures, submitted admissions, etc. I have compelled discovery and the judge allowed plaintiff 30 more days. My next summary judgment hearing is 2/14. To date, plaintiff has not served discovery.

This is what I want to submit to the court:

Defendant moves the Court for its order imposing sanctions upon plaintiff, Dodeka LLC for failure to comply with the court order to produce discovery materials. In support hereof, Defendant states as follows:

1. Defendant on three separate occasions requested that the Plaintiff, Dodeka LLC, provide complete and detailed discovery materials.

2. Defendant filed a Motion to Compel Discovery and a hearing was set on January 3, 2008. Additional time was provided by the Court, and still there has been no response. Defendant requests that Plaintiff be sanctioned by having his pleadings struck.

3. As of this date, the Plaintiff has shown an history of dilatoriness and still has failed to provide the detailed items of Defendant’s discovery: the original signed loan agreement or credit card application; the complete history of the account with the original creditor; the amount of the debt with the original creditor; identify what fees/interest have accrued on the account; and signed sales transactions posted to the account.

4. Defendant urges the Court to not consider previous evidence submitted because Plaintiff has failed to cooperate in discovery.

Based on the above and foregoing, Defendant prays that the Court is in agreement that since the Plaintiff has not cured the problems the Court earlier found, then it is still not sufficient for the Motion for Summary Judgment.

Is this sufficient for a dismissal? any suggestions?

Thanks to everyone so far who has offered his/her assistance! I'd like to mail this off in the next day or two. Please respond as quickly as possible.

[Amerikaner83]

Not up on TX law...but what you have there are some good reasons (IMHO)...but I don't quite understand something.

Your next SJ hearing is on 14 Feb...you want to send this before then? The Court granted the extention...I think you may want to have this as your ace in the hole for that date. If they still have nothing then, that is where you'd whip this out and say "your honor....blah blah blah"

JMHO

OH - change # 4 to read "alleged evidence".

[mwhizz]

Thanks so much for your response. I'll make the change that you suggestd to "alleged evidence".

I guess that I am gettin' antsy and want to reply as quickly as the court will allow. You think I should wait until Feb. 14, the date of the hearing or maybe a week before?

[mwhizz]

excuse me, but what is IMHO and JMHO??? sorry, still a newbie

[Amerikaner83]

IMHO is In My Humble Opinion

JMHO is Just My Humble Opinion

Here's a page to go to for a explanation of the common acronyms we use here

http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=247970

[cjtx]

Some judges won't hear any motions that were not scheduled in advance. Others will accept anything as long as all the parties are present... So have your papers ready but know that the judge may or may not accept them on the spot.

A motion for sanctions is a little more complicated than what you have. You need to cite the authority (what rule) and usually that the court has considered lesser sanctions before granting a "death penalty" sanction. Also depending on the authority, you may request penalties, costs of defending the "groundless pleadings", etc.

Disregarding a judge order is a sanctionable offense, but in the "boys club", judges' memories tend to be very unreliable.

[mwhizz]

ok, thanks for showin' me the ropes!

[mwhizz]

yeah, I stayed up way past my bed time to find out exactly which of the rules from the Texas Civil Rules Procedures that plaintiff's counsel violated.

I need a show of hands ... should I file my motion before I got to the hearing on Feb. 14 or submit it during the hearing? I am afraid that I will not get the opportunity to present it at the hearing. During the last hearing, I was basically ignored (or at least that's how I felt) by the Judge. I did have to assert myself but in a resptectl way ... "your Honor, may I speak??"

I am afraid of the good old boys club thing, and am afraid that the Judge will forget that he did not allow the affadavits as evidence and the he did not allow the xerox copy of a credit card statement as evidence.

Any suggestions as how to jog the Judge's memory? Does the court have transcripts of the hearing?

[mwhizz]

the rules for Civil Procedures in Texas state that you have to file a motion 7 days before the hearing or trial. that is why I have to submit it advance.

I have rewritten my motion for sanctions ... I welcome any and all suggestions.

MOTION FOR SANCTIONS

FAILURE TO COMPLY WITH DISCOVERY

Defendant moves the Court for its order imposing sanctions upon plaintiff, Dodeka LLC for failure to comply with the court order to produce discovery materials. In support hereof, Defendant states as follows:

1. Plaintiff filed a Motion for Summary Judgment on October _____ 2007 but failed to notify Defendant as outlined in Texas Rules of Civil Procedures 166 © and 166 (d). Plaintiff violated the rules for obtaining a Summary Judgment. Defendant sought a continuance of the hearing on the Motion for Summary Judgment so that she could conduct discovery on the Plaintiff’s claim.

2. Defendant on three separate occasions, Sept. 16th, Nov. _____ and Dec.

Defendant requested that the Plaintiff, Dodeka LLC, provide complete and detailed discovery materials. Plaintiff did not respond as outlined in Texas Rules of Civil Procedures 193.1. Plaintiff violated the rules for responding to written discovery.

3. Defendant filed a Motion to Compel Discovery and a hearing was set on January3, 2008. Additional time was provided by the Court, yet, still there has been no response. Plaintiff failed to respond as outlined in the Texas Rules of Civil Procedures 193.1. Plaintiff violated the rules for responding to written discovery.

4. Defendant requests that Plaintiff be sanctioned by having its pleadings struck. Plaintiff failed to respond as outlined in the Texas Rules of Civil Procedures 196.2(a) As of this date, the Plaintiff has shown a history of dilatoriness and still has failed to provide the detailed items of Defendant’s discovery: the original signed loan agreement or credit card application; the complete history of the account with the original creditor; the amount of the debt with the original creditor; identify what fees/interest have accrued on the account; and signed sales transactions posted to the account. Plaintiff violated rules for response to request for production.

5. As a further sanction, Defendant urges the Court to not consider previous alleged evidence submitted by Plaintiff because Plaintiff has failed to cooperate in discovery.

6. Defendant is seeking sanctions in reference to Texas Rules of Civil Procedures 215.2( as follows:

a. an order disallowing any further discovery of any kind or of a particular kind by the Plaintiff.

b. an order refusing to allow the Plaintiff to support designated claims, or prohibiting it from introducing designated matters in evidence.

c. an order striking out pleadings and dismissing with prejudice the action or proceedings or any part thereof.

7. Based on the above and foregoing, Defendant prays that the Court is in agreement that since the Plaintiff has not cured the problems the Court earlier found, then Plaintiff is still not in compliance with the rules for a Motion for Summary Judgment and such Motion must be denied.

8. Defendant requests that her Motion be granted and that she have such other and further relief to which she is entitled.

Respectfully Submitted,

[cjtx]

Some of the statutes under which you may request sanctions are TRCP 13 and Tex. Civ. Prac. & Rem. Code 10.002. The keyword is groundless pleadings. Rule 13 has a higher standard of proof, but it may lead to death penalty sanctions. You have to show that they knew it was groundless and that they did it to harass you. Then you have to either claim that the court considered lesser sanctions first or that the conduct is so egregious that no lesser sanction would be effective.

10.002 is much easier to establish, but the sanctions aren't as strong.

When in doubt, list both and let the judge decide.

[mwhizz]

Ok thanks. I am going to do more research on what you have suggested. When you say "death penalty sanctions", what do you mean?

[mwhizz]

What happens if this guy shows up at the hearing and introduces alleged evidence to the court w/o having served me with disvocery? Does the Judge have to allow it to stand?

[cjtx]

A death penalty sanction decides everything in your favor, like a summary judgment but for different reasons; i.e. not necessarily on the merits of the case but the misconduct of the other party.

You can object to any evidence not being provided to you in advance so you can authenticate it and prepare your response, so the judge is likely to grant a continuance if you ask for it.

[mwhizz]

Are you from Texas? If so, do you know if I can submit two motions in one document - motion for sactions and motion for dismissal? Based upon what I wrote above, is this an adequate request for dismissal? I've learned through this whole process that documents should be very specific and written in such a way that the judge will accept it.

Thanks again for all of your advice.

[mwhizz]

Everyone,

The opposing counsel left a voice message wanting me to fax the request for production that I mailed out months ago which he claims he didn't receive. We are schedule for a Motion for Summary Judgment hearing on 2/14. What are your thoughts on this? I haven't mailed out the Motion for Sanctions listed above but am going to do it on Monday.

Thoughts anyone?

[cjtx]

Fax him the request for discovery and keep the receipt. You need to show that you've tried in good faith to get the info from them... whether they misplaced the original request or never received it, you sent it again.

I would rethink the motion for sanctions. It really rattles their cage and you need to know what you are doing or it will backfire on you big time.

In addition to whatever rule they broke, a few case law supporting your claim go a long way. When a lawyer is accused of conduct deserving of sanctions, he will defend himself and attack you big time. So be prepared. I suggested before one of O'Connor's books. Get the one on Texas Rules. It will be a big help.

[mwhizz]

I agree, now that he is asking me to fax the production request, I would not be wise to continue on with the motion for sanctions. I will try to locate the book ... I only have 2 weeks!!!!

Thanks again!

[mwhizz]

I cannot locate this book anywhere! It's on back order from most online websites and it's not available until after 2/27 and my case is 2/14. Does anyone have any Texas Case Laws I can reference regarding the validity of a debt? I am beginning to panick!!

[mwhizz]

I decided not to pursue the motion for sanctions at this time.

I received a letter from the plaintiff's attorney with the Plaintiff's Responses to Defendant's First Request for Discloure. It's basically a summary of the motion for summary judgment; establishing the affadavits as evidence and the counsel is establishing himself as an expert witness.

How should I respond to this? Plaintiff has not met my request for discovery by producing responsive documents; i.e.; a signed contract by me, etc.

I appreciate any advice please.

[outtamoney]

Im being sued by DODEKA also. Keep me posted how things are going. What state are you in?

[mwhizz]

I am in Texas. I see that you are in Texas as well. I am in the DFW area. Where are you? I have a hearing on 2/28. Are you in the beginning stages?

[outtamoney]

I was just recently served. I have only answered the summons that is required within the 10 days. Ive consulted with two attorneys. One attorney specializes in bankruptcy...the other civil claims. I've been advised that I'm right at the break even point as to just file Bankruptcy or spend money to fight this. Its 6 and one half dozen or the same... The amount they are suing me for is incorrect...it's jacked up!! Id be willing to settle for about the same amount Id spend to file bankruptcy. My summons had several questions that allowed for 50 days to answer to. Im seeing another lawyer this week to do one or the other. Bankruptcy or fight them.

After doing weeks of research....Ive come to the conclusion that anyone should at least stand and fight....at least untill you get to the discovery. If you owe the debt...you want to make sure the other side actually OWNS the debt and can prove it. Otherwise...you could just not contest it and pay it...only to have some other JDB come along 6 mos later and sue for the same debt!! Junk Debt buyers are in the same catagory as Enron Executives.