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And so it begins....


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I was served yesterday. A man knocked on my door, gave me paperwork, I did not sign anything. I got a packet of paperwork including the citation from the county court, original petition from the plaintiff and Plaintiff's request for admissions (no evidence or other supporting documents). I must reply to the petition within 20 days and to the request for admissions in 50 days. I'm in Texas, the Lawyer is Michael J Scott PC and the bank is FIA Card Services. As per my credit report, the debt has been charged off but not sold and is less than the four year statute of limitations in TX.

ETA: There is also a yellow card stapled to the paperwork that says not a court document, has the atty info and wants me to call to settle.

I'm a SAHM with three kids age 4 & under and I work 10 hours per week from home. We do not own a house, own two cars. My husband's name was never on this account and he is not named in the suit.

My first question is if anyone knows if they can do anything to him? I know they can't garnish wages or put a lien on our house (if we owned one) in TX. So I'm guessing the joint checking account would be fair game. Also, we had been hoping to buy a house in the next few years and I'm guessing we would want to do it with out my name.

Second question. I'm preparing my answer to the petition as well as the request for admissions. I've been searching through this site and this is what I've come up with for the formal answer to the county court where the suit was filed. Can anyone offer me some advice? Tips? Suggestions? I followed the format of the petition and the numbers correspond to those paragraphs.

CAUSE NO. 1-XXXX-2011

FIA CARD SERVICES, N.A.

PLAINTIFF

VS

{me}

DEFENDANT

COLLIN COUNTY, TEXAS

DEFENDANT’S ORIGINAL ANSWER

Defendant {me}, appearing pro se, files this Original Answer to Plaintiff’s Petition by FIA CARD SERVICES, N.A. {me} answers seeking affirmative and general relief outlined below. All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

DISCOVERY

1. Defendant intends to conduct discovery under Level 1 of the Texas Rules of Civil Procedure Rule 190.

NATURE OF CASE

2. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

PARTIES

3. Admit Plaintiff, FIA CARD SERVICES, N.A., is a national bank.

4. Admit Defendant {me}, is an individual residing at {my house} in the city of {city}, Texas, {zip}.

VENUE

5. Admit Defendant {me} resides in the county of {county} in the state of TEXAS.

FACTS

6. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

7. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

8. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

9. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

GENERAL DENIAL

Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every allegation made against her in Plaintiff’s Original Petition.

ANSWERS TO COUNT I

10. As to the incorporated reference of paragraph 1 through 3 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As to the incorporated reference of paragraph 4 Defendant admits that residence is located at {my house}, {city}, TX {zip}. As to the incorporated reference of paragraph 5 through 9 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

11. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

12. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

13. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

ANSWERS TO COUNT II

14. As to the incorporated reference of paragraph 1 through 3 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As to the incorporated reference of paragraph 4 Defendant admits that residence is located at {my house}, {city}, TX {zip}. As to the incorporated reference of paragraph 5 through 13 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

15. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

16. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

17. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

ANSWERS TO COUNT III

18. As to the incorporated reference of paragraph 1 through 3 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As to the incorporated reference of paragraph 4 Defendant admits that residence is located at {my house}, {city}, TX {zip}. As to the incorporated reference of paragraph 5 through 17 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

19. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

CONDITIONS PRECEDENT

20. Denied as Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

AFFIRMATIVE DEFENSE

Subject to and without waiving the foregoing General and Verified Denials, Defendant asserts, pursuant to Rule 94 of the Texas Rules of Civil Procedure, the following affirmative defenses which, singly or in combination, bar Planitiff’s rights to recovery, in whole or in part, the damages alleged in Plaintiff’s Original Petition:

Subject to and without waiving the foregoing General and Verified Denials, Defendant asserts, pursuant to Rule 94 of the Texas Rules of Civil Procedure, the following affirmative defenses which, singly or in combination, bar Planitiff’s rights to recovery, in whole or in part, the damages alleged in Plaintiff’s Original Petition:

As and for a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Second Defense

Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Third Defense

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

As and for a Fourth Defense

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

As and for a Fifth Defense

Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

As and for a Sixth Defense

The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

As and for a Seventh Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

As and for an Eighth Defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

As and for a Ninth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

PRAYER

Accordingly, Defendant {me}, respectfully prays that upon final disposition of this case, Plaintiff FIA CARD SERVICES, N.A. recover nothing by its claims and the court grant Defendant, {me}, such other relief to which he/she may be entitled, including but not limited to reimbursement for the costs incurred by Defendant in responding to and defending the allegations raised against him/her in Plaintiff’s Petition.

Respectfully submitted

{me}

Third question. Where do I request documents? Do I put it in this form before the prayer? Or is it a second submission? Dp I send it at the same time or separate?

Thank you so much!! My husband is very nervous about this. I am too, but I'm looking at it as my new job. To learn everything and fight it!

Edited by jenica77
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Here are the answers to the questions, though I think I answered most of them in my first post:

1. Who is suing you? FIA Card Services, Michael J Scott PC

2. For how much? $15K

3. Who is the original creditor? FIA Card Services

4. How do you know you are being sued? Received citation in person at my home

5. How were you served? Were you served? Not completely sure. A man knocked, asked for me, handed me paper work and left.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? None that I know of from the lawyer, though it says in the citation that they did send one. From FIA I've gotten random late notices.

7. Where do you live? Collin County, TX

8. When is the last time you paid on this account? 9/08

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily). It says pending on the website. Citation was issued on Aug 16th.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. no.

12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Yes, I have to answer the citation as well as a questionaire. I posted all that in the first post.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Nothing. Just an ad to settle. They have also mailed me another ad to settle this week.

14. What is the SOL on the debt? Four years. It is within the SOL.

7. What kind of debt is this? (credit car, auto loan, student loan) Credit card

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You don't want them deemed admitted.

work on your request for admissions response, prep some (5) requests for production of documents(we will help with those). Look up what other texas posters have posted for texas cases

I would take your name off accounts until this is resolved.

also prep for counter claims.

Tell your husband these cases are defensible and can be won by you. They were going for the default judgment now you have thwarted them.

texas is consumer friendly protection wise.

we will help post here for any questions you can do this.

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You don't want them deemed admitted.

work on your request for admissions response, prep some (5) requests for production of documents(we will help with those). Look up what other texas posters have posted for texas cases

I would take your name off accounts until this is resolved.

also prep for counter claims.

Tell your husband these cases are defensible and can be won by you. They were going for the default judgment now you have thwarted them.

texas is consumer friendly protection wise.

we will help post here for any questions you can do this.

Thanks for your response!!

The only things I admitted to was my name, address & their name. Is that not ok?

I have started prepping my document request, I just don't know if I need to include it with this answer or file it separately? Here is what I have so far for that:

REQUEST FOR DOCUMENTS

1. The alleged credit application from Account Number (XXXXXXXXXXX9869) bearing the defendant’s signature;

2. The alleged credit agreement from Account Number (XXXXXXXXXXX9869) that states interest rate, grace period, terms of repayment, et cetera;

3. Itemized statements or credit card statements from Account Number (XXXXXXXXXXX9869) that demonstrate how the alleged amount of $15,160.31 was calculated;

4. A contract, agreement, assignment, or other means demonstrating that Michael J Scott PC had the authority and capacity, and was legally entitled to collect on the alleged debt from Account Number (XXXXXXXXXXX9869);

5. Letter(s) sent to defendant by Michael J Scott PC, demonstrating an attempt to collect on the alleged debt, Account Number (XXXXXXXXXXX9869);

6. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;

7. Any and all further documents that you believe establish that plaintiff had an outstanding account or debt related to Account Number (XXXXXXXXXXX9869);

8. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt;

9. Any and all written communication, received by the plaintiff and/or plaintiff’s attorney from the defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff’s and/or plaintiff’s attorney accessing of defendant’s credit report(s).

10. Any and all communications from plaintiff and/or plaintiff’s attorney to the defendant explaining why plaintiff and/or plaintiff’s attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining defendant’s credit report(s);

11. Any and all credit report(s) plaintiff and/or plaintiff’s attorney obtained from any credit reporting agency concerning the defendant;

12. Any and all notes, memorandum, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or Account Number (XXXXXXXXXXX9869);

13. The plaintiff’s Articles of Incorporation.

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I'm going to be honest with you. OC lawsuits are difficult to defeat. They're not impossible, just very difficult. OC's usually have relevant records.

Have you ever disputed anything related to the account such as charges, late fees, interest rates, etc? If not, and if you cannot deny the account, they have a good case.

You requested a notarized statement from a person who can testify that the debt was legally incurred. If you never disputed any charges or fees related to the account, then the judge can assume any charges were legal.

BUT, they still need to prove their case. They should prove the amount.

I'm not trying to be a wet blanket. You simply should understand that defeating an OC is not easy.

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BOLD TEXT IS MINE

I'm going to be honest with you. OC lawsuits are difficult to defeat. They're not impossible, just very difficult. OC's usually have relevant records.

Will they have the original signed stuff even if the account is very old? Also, the plaintiff is FIA but on my credit report the owner is Bank of America. Does that make a difference?

Have you ever disputed anything related to the account such as charges, late fees, interest rates, etc? If not, and if you cannot deny the account, they have a good case.

I don't think so, not that I remember anyway. Its been a long time.

You requested a notarized statement from a person who can testify that the debt was legally incurred. If you never disputed any charges or fees related to the account, then the judge can assume any charges were legal.

So should I remove that part? Or leave it in anyway?

BUT, they still need to prove their case. They should prove the amount.

I'm not trying to be a wet blanket. You simply should understand that defeating an OC is not easy.

No worries, I thank you for your input!

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BOLD TEXT IS MINE
Will they have the original signed stuff even if the account is very old? Also, the plaintiff is FIA but on my credit report the owner is Bank of America. Does that make a difference?

If I'm not mistaken, FIA Card Services is the servicer of BofA accounts. If the last time you paid on the account was 9/08, it's possible they have past cc statements. If your court rules allow, you could send a Request for Production of Documents and request all account statements showing all charges, payments, interest, and fees.

So should I remove that part? Or leave it in anyway?

That's up to you. They'll probably object anyway. I'll be surprised if they don't include an affidavit from an FIA employee stating the balance is correct.

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BOLD TEXT IS MINE

The Records are going to be very important. Fia may not have authenticateable records.

Ask for admissions first to see what they have. then ask for for 1,2,3,and 4. make sure you append that if they assert an objection that they list ALL documents presently in their possesion by title, date of creation, and that the documents be placed in the privilege log for determination of the court of production.

then you can ask for:

The merger paperwork concerning employees, records transfer, and state of incorporation of new entity.(BoA was originally in Deleware 3 year SoL for credit card accounts).

request all records electronic or paper for the alleged account.(request filename, date of creation, dates of modification, access logs, )privilege log stuff also

Full transaction history for alleged account.

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The Records are going to be very important. Fia may not have authenticateable records.

Ask for admissions first to see what they have. then ask for for 1,2,3,and 4. make sure you append that if they assert an objection that they list ALL documents presently in their possesion by title, date of creation, and that the documents be placed in the privilege log for determination of the court of production.

then you can ask for:

The merger paperwork concerning employees, records transfer, and state of incorporation of new entity.(BoA was originally in Deleware 3 year SoL for credit card accounts).

request all records electronic or paper for the alleged account.(request filename, date of creation, dates of modification, access logs, )privilege log stuff also

Full transaction history for alleged account.

Why would FIA not have authenticatable records? FIA is part of Bank of America. Just wondering.

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The key is the actual records handling during all these transitions. Recent revelations onBoA records keeping in mortgage divisions can be brushed broadly.

OC's usually don't retain records for long because new accounts need server space. People haven't gone far enough into the electronic files admissibilty issues. a good case is In RE: Vinhee he didn't even appear and he won because the judge realized that the electronic records authentication was important.

The OC's are aware of these processes but haven't changed. ESI is very expensive for them. They can't just get any goober to authenticate electronic files.

You can get very specific in your document requests. This will make their objections unheard of.

I see alot of people just going along with their objections. What you should be doing at trial is using them against them. When they make objections based on irrelevance, burdensome, you can show that if the alleged account is yours they have a duty under several statutes to give them to you. If they don't then it means that they acknowledge that the account is not yours and you have no right to the records. It also is a violation as a request for validation. Refusal to give the validation is a violation.

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The key is the actual records handling during all these transitions. Recent revelations onBoA records keeping in mortgage divisions can be brushed broadly.

OC's usually don't retain records for long because new accounts need server space. People haven't gone far enough into the electronic files admissibilty issues. a good case is In RE: Vinhee he didn't even appear and he won because the judge realized that the electronic records authentication was important.

The OC's are aware of these processes but haven't changed. ESI is very expensive for them. They can't just get any goober to authenticate electronic files.

You can get very specific in your document requests. This will make their objections unheard of.

I see alot of people just going along with their objections. What you should be doing at trial is using them against them. When they make objections based on irrelevance, burdensome, you can show that if the alleged account is yours they have a duty under several statutes to give them to you. If they don't then it means that they acknowledge that the account is not yours and you have no right to the records. It also is a violation as a request for validation. Refusal to give the validation is a violation.

I agree with all you said. We know that the "personal knowledge" claimed by any affiant, even an employee of an OC, is iffy. But unless the rules of evidence are very specific about requirements of personal knowledge, an affidavit from an OC is compelling simply because the OC originated the account.

Again, I'm not trying to be a wet blanket. I simply feel the poster needs to be prepared in every way. She needs to have a plan in place if things are not going her way.

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The first step is the discovery beginnings. Make sure that you answer those admissions. The CA abuse those alot.

It is good to inform that OC cases are tough. I know that are going to be many hurdles.

But the fact remains The OP has elected to fight and is thus worthy of our best efforts to help in any way possible.

please post the request for admission questions and we can crack this pecan and get to it.

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The first step is the discovery beginnings. Make sure that you answer those admissions. The CA abuse those alot.

It is good to inform that OC cases are tough. I know that are going to be many hurdles.

But the fact remains The OP has elected to fight and is thus worthy of our best efforts to help in any way possible.

please post the request for admission questions and we can crack this pecan and get to it.

Request for admissions (abbreviated by me):

1. Admit you entered into an agreement, they extended credit and you agreed to repay.

(there is no #2 ??)

3. Admit you accepted & utilized credit.

4. Admit the account has not been paid.

5. Admit the balance owing on Jul19, 2011 was $15k

6. Admit that described account is the same as account Plaintiff is seeking to collect.

7. Admit account is based on written agreement signed by you.

8. Admit FIA is the owner of all claims related to the account

9. Admit that Plaintiff presented to Defendant a demand for payment.

10. Admit that you regularly received statements form FIA informing you of all charges & credits.

11. Admit you never disputed any charge.

Does my original response look alright? Should I take out any of the admits (see my response as to exactly what I was admitting)? Also, I just looked at my credit report that was pulled this month and FIA inquired on my credit in March, April, May & June of this year. Why is that and is it ok?

I appreciate everyone's time!!

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Look at #7. They ask you to admit the account is based upon a written agreement signed by you. They alleged it...you point it out. If they ask you to admit to an agreement with your signature, they should be able to provide it.

That being said, you must be prepared if this case ends up in front of a judge. He may ask questions such as "Did you have an account with XXXX?"

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