CJ8

Sued By Equable Ascent Financial - Texas (Need Help)

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I'm getting this out there now just because we are overwhelmed with everything in this "packet" my wife was served with. I'm also currently reviewing everything I can possibly find on this site, "the defendant's package", and Credit Infocenter which is linked by admin on this site. Basically, I'm not posting in hopes that someone will hold my hand and do the leg-work for me (although it'd be nice :) )

My wife was "served" on Sept. 8th by what looked like a teenager in a pizza delivery car. The "packet" contains 4 documents, a cover (Justice Civil Citation), and Rules of Attire and Conduct for the courtroom.

Document #1 - Plaintiff's Original Petition & Request For Admissions

Document #2 - Plaintiff's First Request for Disclosure

Document #3 - Plaintiff's First Request for Admissions

Document #4 - Plaintiff's First Interrogatories To Defendant

These 4 say that the defendant has 30 days to respond except when served with the request before the defendant's answer is due. In that case it's 50 days (which would be my case I imagine)

The citation states that she has until 10 AM on the Monday immediately following 10 days after being served. (If this is not business days, it's due by Sept. 19th.) It also says it was filed in court about a month ago.

1. Who is suing you? Equable Ascent Financial LLC Assignee of Chase Bank (WAMU)

2. For how much? $5000

3. Who is the original creditor? Wamu

4. How do you know you are being sued? "Served" by a guy who handed her the paperwork and said "All the information is there". then left.

5. How were you served? Were you served? At home by a young kid.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? none

7. Where do you live? Texas

8. When is the last time you paid on this account? mid 2009 maybe

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). Don't know yet

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? Will post summons in it's entirety below. Also have the other 4 documents mentioned above.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? None

14. What is the SOL on the debt? 4 years

Below is the original petition/request for admissions, verbatim. If anything has been changed or admitted, I've placed it in (brackets) I'm having a hard time understanding how to respond to this and finding information on whether this is different because it's in a justice court rather than small claims. We were just bombarded with paperwork and there's probably 15+ paragraphs requiring response per document. I was hoping that in lieu of an answer I could file a motion to dismiss since there's no attached contract or anything for that matter but that might be high hopes.

Plaintiff's Original Petition & Request For Admissions

A. Discovery-Control Plan

1. Plaintiff intends to conduct discovery under level 1 of Texas Rule of Civil Procedure 190.2 because this suit involved monetary relief totaling $50,000 or less, excluding court costs, prejudgement interest, and attorney fees.

B. Parties

2. The address for plaintiff (Equable Ascent...) is 1120 W. Lake Cook Rd Ste B, Buffalo Grove IL 60089.

3. Defendant (wife) may be served with process at (home address) or such other place as the defendant may be found.

C. Jurisdiction

4. Plaintiff asserts that the above named court has jurisdiction over the subject matter of this case and the person(s) of Defendant(s).

D. Venue

5. Venue of this action is proper in the county named above because Defendant(s) is/are individual(s) believes to be residing in said county at the time of commencement of suit.

E. Facts

6. Chase Bank N.A. issued a credit card in the defendant's name under its account number. Plaintiff is the current owner of this account; Defendant(s) received and used the card and thereby became obligated to pay for the charges incurred with the card.

7. Defendant defaulted on the obligation to make monthly payments on the card account, and the card was subsequently cancelled. The credit card account was subsequently charged off to profit and loss. The entire balance on the credit card account is presently due and payable in full.

8. Defendant defaulted in making the payments on the account. After all just and lawful offsets, credits, and payments have been allowed, the total balance due Plaintiff on the account is $5000 plus interest.

9. The Plaintiff has made demand upon the defendant for payment of the amount due and payable in full. The Defendant(s) have failed, neglected, and refused to pay that amount, plus interest accrued, less all lawful offsets, credits, or payments, is still due and owing.

10. Plaintiff has performed all conditions precedent to the filing of this action or all such conditions precedent have been performed or have occurred.

F. First Cause of Action - Breach of Contract

11. The issuance of a credit card constitutes the offer of a contract. See e.q. Bank One, Columbus, N.A. v. Palmer, 63 Ohio App. 3d 491, 492, 579 N.E. 2d 284, 285 (Ohio Ct. App. 1989). Use of a credit card constitutes acceptance of terms of the cardholder agreement, which accompanied the card when issued to the defendant(s). See e.g. Grasso v. First USA Bank, 713 A.2d 304 (Del. 1998); Read v.v Gulf Oil Cooperation, 114 Ga. App. 21, 150 S.E. 2d 319, 320 (1966); Magnolia Petroleum Co v. McMillan, 168 S.W. 2d 881 (Tex Civ. App. 1943). Even in the absence of such an agreement the issuance of the credit card constitutes an offer of credit, and the use of the credit card constitutes the acceptance of the offer of credit. Feder v. Fortunoff, 474 N.Y.S. 2d 937 (N.Y. 1984), citing Empire Nat'l Bank v. Monahan, 82 Misc. 2d 808, 370 N.Y.S. 2d 840 (N.Y. County Ct. 1975).

12. By using and/or authorizing the use of the credit card Defendant(s) accepted the credit card contract and became bound to pay fr all charges incurred with the credit card. Defendant(s) also became subject to all of the terms and conditions of the original creditor's cardholder agreement.

13. The issuer of the card fully performed the contractual obligations by reimbursing merchants who accepted Defendant(s) credit card payment. Prior to the date of charge-off monthly bills were sent to the Defendant(s) reflecting inter alia, all charges incurred with the credit card, the monthly payment due, and the total balance due. The Defendant(s) had a duty to submit any disputes of the charges set forth in such statement, in writing, within sixty days from the date of the statement. Plaintiff asserts that Defendant(s)' failure to submit such disputes should be treated as an admission of the account balance, since Defendant(s) was/were given both a method and an opportunity to raise such disputes.

14. Defendant(s) breached the contract by defaulting on the payment obligation of the credit card agreement. In violation of the Defendant(s) promises and obligations under the aforementioned written contract, the Defendant(s) breached the agreement by wrongfully failing and refusing to pay for the credit advances actually made to the defendant(s) as well as unpaid interest.

15. Defendant(s) breach was a proximate cause of actual damages of $5000 plus interest. All just lawful, credits, and payments have been applied to the account.

G. Damages

16. Plaintiff seeks damages on its liquidated claim in the amount of at least $5000 plus interest, which is within the jurisdictional limits of this court.

H. Conditions Precedent

17. All conditions precedent to Plaintiff's claim for relief have been performed or have occurred.

I. Miscellany

18. The undersigned attorneys hereby give notice that they and Plaintiff are attempting to collect a debt and any information obtained will be used for that purpose. Plaintiff's attorneys are debt collectors.

J. Prayer

19. For these reasons, Plaintiff asks that the court issue citation for the Defendant to appear and answer, and that Plaintiff be awarded a judgement against Defendant for the following:

a. Actual damages in the amount of $5000

b. Prejudgement and post-judgement interest.

c. Court costs.

d. All other relief to which plaintiff is entitled.

Respectfully submitted;

(Firm Name - Debt Collectors),LLC

By: Original copy signed (then the names of 9 more lawyers, a Texas address, phone number) Attorney for Plaintiff

So, as you can see, this is just overwhelming compared to some of the 4-5 paragraph examples I can find. Any help is appreciated while I try to find the proper way to answer all 19 of these paragraphs.

Edited by CJ8

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So basically 19 denials for the appropriate reason (or as close as I can get) and a list of affirmative defenses?

Do I need to be concerned that there is:

A. No signature or date on the Citation (there is a signature on the summons but the server literally threw the paperwork @ my wife and ran for his car)

B. No actual date to show in court anywhere?

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There would be no date because you have not responded. Once your respond, then they will start setting dates.

Affirmative defenses to use against Midland:

1. Lack of Standing to Sue;

2. Lack of Consideration between Plaintiff and Defendant;

3. Failure to Mitigate Damages - plaintiff knowingly purchases defaulted debt

Also, you may want to consider arbitration...you're right at the threshold where it will not be cost effective for them to pursue.

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Filed an answer today and will start working on the other paperwork. Thanks everyone who sent PM's (I can't reply yet because I have less than 10 posts).

For anyone following this or dealing with the same thing, please see the thread Midland Funding LLC suit? by kakarat99 (Again, I can't link due to post #). There are some great examples there, it looks like he's on the right track, and it's the same Firm representing Midland so the paperwork he was sent is EXACTLY the same as mine.

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marking to check back on your case. My cases wording is almost exactly the same.

I filed plea to the Jurisdiction with my original answer to the court ( thanks to texasrocker for helping withthe wording and citations!)

Im being sued by equable, same OC and all though.

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Wamu was bought up by chase in 2008,They would have to prove you defaulted under wamu,then defaulted under chase,then anybody else in the chain of title."Equable Ascent Financial LLC Assignee of Chase Bank (WAMU)"

I think some Discovery,Interrogatories and Admissions should be used to make them go away.

Typical JDB complaint they call it "the card"They dont even know if this a visa or mastercard or your prepaid credit card.

You should post the Interrogatories and Admissions,If you need help denying them members of the board will chime in,if you dont answer them they will be deemed admited and you will lose.

http://www.law.gonzaga.edu/academic-program/Files/cle/Folder/Jarzombek_Defending_Debt_Collection_Suits.pdf

http://5636.pd.lawyers.com/~/media/Firm%20Galleries/Organizations/1/3/0/6/1306405/crcauses200809.ashx

http://www.utcle.org/eLibrary/preview.php?asset_file_id=26228

http://www.supreme.courts.state.tx.us/rules/trcp/rcp_all.pdf

Edited by racecar

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Wamu was bought up by chase in 2008,They would have to prove you defaulted under wamu,then defaulted under chase,then anybody else in the chain of title."Equable Ascent Financial LLC Assignee of Chase Bank (WAMU)"

I think some Discovery,Interrogatories and Admissions should be used to make them go away.

Typical JDB complaint they call it "the card"They dont even know if this a visa or mastercard or your prepaid credit card.

You should post the Interrogatories and Admissions,If you need help denying them members of the board will chime in,if you dont answer them they will be deemed admited and you will lose.

I have some of the docs in this thread http://www.creditinfocenter.com/forums/there-lawyer-house/316716-texas-answering-suit-debt-attorney-equable.html

post 27 and 28 deal with the stuff above, with my questions... and Im working on the disc/rogs now. I ll be adding to that thread tonight at latest. I dont know if I answer any of the "facts" though... cus there is plenty I dont agree with!

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Grounds for Dismissal for Lack of Standing

This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff, is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges “The credit account has been assigned to Plaintiff and Plaintiff is current owner of this account. Plaintiff owns all right, title and interest in the credit account.“ See Plaintiff's Original Petition, paragraph 6.

There is no allegation or statement as to who was the seller, and there is no way from these pleading to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit.

A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Ceraminc Tile Intern., Inc, v. Balusek, 137 S.W3d 722, 724 (Tex. App, – San Antonio 2004, no pet.); Delaney v. Davis, 81 S.W.3d 445, 448-49 (Tex. App, – Houston [14th district] 2002, no pet.). Plaintiff has not done either.

If Plaintiff is the assignee and rightful owner of the debt, this should be very easy for Plaintiff to allege and prove, yet Plaintiff avoids and dodges the issue, when such issues cannot wait until trial. Without a pleading of an assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and this case must be dismissed. Whether plaintiff has standing to bring this lawsuit is a threshold issue that should be resolved at the onset, and the instant plea to the jurisdiction is a proper means by which to address this threshold question.

Legal Standards for a Plea to the Jurisdiction

The purpose of a plea to the jurisdiction is to dismiss a cause of action without regard to whether the underlying claim has merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the court's power to adjudicate the subject matter of the controversy. Texas DOT v. Arzate, 159 S.W.3d 188, 190 (Tex.App. – El Paso 2004, no pet.), Axtell v. University of Texas, 69 S.W.3d 261, 263 (Tex.App. – Austin 2002, no pet.).

Standing is a basic requirement of the judicial system and goes directly to the court's subject matter jurisdiction over a case. It may be raised at anytime and, unlike a challenge to a party's capacity to sue, cannot be waived or presumed. Nootsie Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 661-662 (Tex. 1996), Continental Coffee Products v. Cazarez, 937 S.W.2d 444 n.2 (Tex, 1996). A plea to the jurisdiction is the proper way to challenge a party's lack of standing. Waco ISD v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000).

The plaintiff must come forward with sufficient evidence to demonstrate that there is at least an issue of fact as to the existence of jurisdiction. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227-228 (Tex. 2004). The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the plaintiff is not the original creditor, which therefore puts standing at issue and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit.

Add that you hereby certify that you sent the plaintiff's attorney via USPS certified mail (his/her name, address, date) a true and correct copy of your answer and plea to the jurisdiction, sign it and print your name, address, and phone number.

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http://pdf.legalformsfortexas.com/PDFs/Civil/CIVLIT_CP.2700.pdf

Standing is a component of subject matter jurisdiction. DaimlerChrysler Corporation v. Inman, 252 S.W.3d 299, 309 (Tex. 2008); Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 443 (Tex. 1993). A court has no jurisdiction over a claim pursued by a plaintiff who lacks standing to assert the claim. DaimlerChrysler, 252 S.W.3d at 304. When a plaintiff lacks standing, the proper resolution is to dismiss the lawsuit. Id.

It is well established that a party's standing may be challenged by a plea to the jurisdiction as well as by other procedural vehicles, such as a motion for summary judgment. Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A lack of standing can be raised by a motion to dismiss but the motion is treated as a plea to the jurisdiction because standing is a component of subject matter jurisdiction. See Brown v. Todd, 53 S.W.3d 297, 305 n.3 (Tex. 2001); Clifton v. Walters, 308 S.W.3d 94, 98 (Tex.App.--Fort Worth 2010, pet. denied); see also Lacy v. Bassett, 132 S.W.3d 119, 122 (Tex.App.--Houston [14th Dist.] 2004, no pet.)(holding that motion to dismiss for lack of jurisdiction is functional equivalent of a plea to the jurisdiction). The trial court did not err by considering the standing issue raised by Caldwell in his motions seeking dismissal of the suit. Issue One is overruled.

Edited by racecar

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I dont know if that was for me , but it bears repeating anyways..

I used that Plea to the jurisdiction in my answer to the court for my service.. from Texasrocker ( hes so great). I m hoping to hear a dismissal from them or from court before messing with all the answers ( we have 50 days to answer here in Houston).

Yall are great. This Plea would help anyone dealing with Wamu/chase crapola IMO.

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Texasrocker is a graduate of cic bootcamp,He makes Texas a better place one junk debt buyer at a time.

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Texasrocker is a graduate of cic bootcamp,He makes Texas a better place one junk debt buyer at a time.

Well, they need a flamethrower in the downtown areas of DFA and Houston... Lots of Debt Collector attorneys.

eeew one needs a shower.

I just heard from Legal Aid. I am meeting with a Consumer Lawyer Wed morning. So any case law or statutes I get,I will pass on to the gang..

Any questions yall want answered ??

(I may not kow what to ask, and since its free I might as well stock up on info)

Edited by dwalt2400
my atrocious spelling

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Their case law for breach of contract is a riot, not one case from Texas except for one from 1943, which is idiotic, there were no credit cards in 1943, they can't use this. I would motion to strike that count as legally insuficient, as they have failed to support their position with any Texas statute or case law. (probably isn't any, that's why they used this other garbage) There goes their complaint if the motion is granted. Try this, bring the pain and make them spend money.

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Their case law for breach of contract is a riot, not one case from Texas except for one from 1943, which is idiotic, there were no credit cards in 1943, they can't use this. I would motion to strike that count as legally insuficient, as they have failed to support their position with any Texas statute or case law. (probably isn't any, that's why they used this other garbage) There goes their complaint if the motion is granted. Try this, bring the pain and make them spend money.

ok Ill bite.. Im used to looking stupid lately.

As I m reading these things from the appellate stuff they site it says 2007 and 2009, those arent breach of contract stuff? or you mean its not from Texas?

I do know I ve been told by attorneys that texas is very consumer friendly. Maybe that is why there is no case law. Makes me wonder why they bother down here. Our wages arent even garnishable. We have homestead allowances too. * And that lottery argument is BS. If some people dont play the lottery, fat chance they will collect.

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To prevail on a breach-of-contract claim, a plaintiff must prove (1) a valid contract existed between the plaintiff

and the defendant, (2) the plaintiff tendered performance or was excused from doing so, (3) the defendant

breached the terms of the contract, and (4) the plaintiff sustained damages as a result of the defendant's

breach. West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.-Houston [14th Dist] 2008, no pet.).

In order to prevail on a breach of contract claim, a plaintiff must establish: "(1) the existence of a valid

contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the

defendant; and (4) damages sustained by the plaintiff as a result of the breach." Valero Mktg. & Supply Co. v.

Kalama Int'l, LLC, 51 S.W.3d 345, 351 (Tex.App.-Houston [1st Dist] 2001, no pet.); see also Bridgmon v. Array

Sys. Corp., 325 F.3d 572, 577 (5th Cir.2003); Henderson-Smith & Assocs., Inc. v. Nahamani Family Serv. Ctr.,

323 Ill.App.3d 15, 256 Ill.Dec. 488, 752 N.E.2d 33, 43 (2001).

The elements of a breach of contract claim are (1) the existence of a valid

contract between plaintiff and defendant, (2) the plaintiff's performance or

tender of performance, (3) the defendant's breach of the contract, and (4) the

plaintiff's damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.

W.3d 631, 636 (Tex. App.--Houston [1st Dist.] 2002, pet. denied).

Simplified Development Corp. v. Garfield (Tex.App. - Houston [14th Dist.] Feb. 14, 2008)(subst. op. by

Anderson) (breach of contract, jury trial, admission of evidence, damages)

AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Anderson

Before Chief Justice Hedges, Justices Anderson and Seymore

14-06-00526-CV Simplified Development Corp. and James P. Cashiola v. Jon Garfield

Appeal from 295th District Court of Harris County (Judge Tracy Kee Christopher)

The essential elements in a suit for breach of contract are: (1) the existence of a valid contract; (2) the plaintiff

performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was

damaged as a result of the breach. Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 677 (Tex. App.--Houston

[1st Dist.] 2008, pet. denied). Furthermore, a party seeking to recover under a contract bears the burden of

proving that all conditions precedent have been satisfied. CDI Eng'g Group, Inc. v. Admin. Exch., Inc., 222 S.W.

3d 544, 548 (Tex. App.--Houston [14th Dist.] 2007, pet. denied) (citing Associated Indem. Corp. v. CAT

Contracting, Inc., 964 S.W.2d 276, 283 (Tex. 1998)). In an option contract, strict compliance with the

provisions of the option contract is required. Besteman v. Pitcock, 272 S.W.3d 777, 784 (Tex. App.--

Texarkana 2008, no pet.); Tex. State Optical, Inc. v. Wiggins, 882 S.W.2d 8, 10-11 (Tex. App.--Houston [1st

Dist.] 1994, no writ).

Mensa-Wilmot v. Smith International, Inc. (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Alcala) (breach of

contract, option contract, untimely amendment of pleadings prior to summary judgment hearing, finality)

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala

Before Justices Keyes, Alcala and Hanks

01-08-00481-CV Graham Mensa-Wilmot v. Smith International, Inc.

Appeal from 165th District Court of Harris County

Trial Court Judge: Hon. Elizabeth Ray

The elements of a breach of contract claim are: (1) the existence of a valid

contract; (2) performance or tendered performance by the plaintiff; (3) breach

of contract by the defendant; and (4) damages sustained as a result of the

breach. Valero Mktg. & Supply Co. v. Kalama Int’l, L.L.C., 51 S.W.3d 345, 351 (Tex. App.—Houston [1st

Dist.] 2001, no pet.).

Hill v. Hoelke (Tex. App.- Houston [1st Dist.] Mar. 12, 2009)(Taft)

(investment dispute, breach of fiduciary duty, breach of contract, fraud, and promissory estoppel)

AFFIRM TC JUDGMENT: Opinion by Justice Tim Taft

Before Justices Taft, Bland and Sharp

01-07-00702-CV John Hill v. Frederick F. Hoelke and Frederick F. Hoelke, P.C.

Appeal from 151st District Court of Harris County

Trial Court Judge: Hon. Caroline E. Baker

The elements of a breach of contract claim are (1) the existence of a valid contract between plaintiff and

defendant, (2) the plaintiff’s performance or tender of performance, (3) the defendant’s breach of the

contract, and (4) the plaintiff’s damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.

W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). 01-03-00034-CV

CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | TEXAS COURT OF APPEALS OPINIONS

Edited by racecar

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DEFENSES TO BREACH OF CONTRACT CLAIM - HOUSTON CASE LAW

http://www.cooperscully.com/Files/Seminars/Lesser%20Used%20Contractual%20Defenses.pdf

Williams v. Unifund CCR Partners Assignee of CitiBank 264 S.W.3d 231 (2008)(Tex.App.- Houston [1st Dist.]

Feb. 7, 2008)(Keyes) (consumer credit card debt suit, judgment reversed, sworn account not proper for credit

card debt collection, attorney's fees)(debt claim not barred by statute of limitations)

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice

Keyes

Before Justices Taft, Keyes and Alcala

01-06-00927-CV Edward Williams v. Unifund CCR Partners Assignee of CitiBank

Appeal from County Civil Court at Law No 3 of Harris County (Judge Lynn Bradshaw-Hull)

In his second issue, Williams argues that the statute of limitations barred Unifund's right to recovery. A party

relying on an affirmative defense to defeat summary judgment must come forward with summary judgment

evidence establishing a fact issue on each element of the affirmative defense. Suttles v. Thomas Bearden Co.,

152 S.W.3d 607, 614 (Tex. App.-Houston [1st Dist.] 2004, no pet.). The statute of limitations on a claim for

debt based on breach of contract is four years from the time the cause of action accrues. TEX. CIV. PRAC.

& REM.CODE ANN. § 16.004(a) (Vernon 2002). Williams made his last payment on October 15, 2001, and this

action commenced on August 19, 2005, which is within the four-year window. Williams did not present any

summary judgment evidence contradicting these facts.

Williams v. Jackson (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(opinion on rehearing by Radack)

(attorney fee litigation, legal excuse as defense against breach of contract claim, breach not excused)

AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack

Before Chief Justice Radack, Justices Nuchia and Higley

01-07-00850-CV Charlie C. Williams v. Freddie N. Jackson

Appeal from County Civil Court at Law No 4 of Harris County

Trial Court Judge: Hon. Roberta A. Lloyd

Casarez v. Alltec Construction Co., Inc. (Tex.App.- Houston [14th Dist.] Nov. 6, 2007)(Anderson)(construction

law, breach of contract, prior breach by plaintiff, excuse, DTPA)

REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Anderson

Before Chief Justice Hedges, Justices Anderson and Seymore

14-07-00068-CV Rueben and Nicole Casarez v. Alltec Construction Co., Inc.

Appeal from 55th District Court of Harris County (Hon. Jeff Brown)

Nova Info Systems v. Nidhi (Tex.App.- Houston [14th Dist.] Mar. 29, 2007)(Anderson)[claims relating to

convenience store credit card processing system, special appearance, MNT, motion to compel arbitration,

breach of contract, prior breach, measure of damages)

AFFIRMED: Opinion by Justice Anderson

(Before Justices Anderson, Hudson and Guzman)

14-05-00845-CV Nova Information Systems Inc., Et Al v. Nidhi and Roneil Inc. d/b/a PIC N PAC

Appeal from County Court at Law No 3 & Probate Court of Brazoria County

Gilbane Building Co. v. Two Turner’s Electric Co. (Tex.App.- Houston [14th Dist.] Feb. 27, 2007)(Anderson)

(construction law, subcontractor, breach of contract, proof of damages, costs, defense of waiver))

AFFIRMED: Opinion by Justice Anderson

(Before Justices Anderson, Hudson and Guzman)

14-05-00908-CV Gilbane Building Company v. Two Turner's Electric Co. dba Turner Electric Co.

Appeal from 151st District Court of Harris County (Hon. Katie Kennedy)

Lively v. Henderson (Tex.App.- Houston [14th Dist.] Nov. 13, 2007)(Anderson)

(breach of contract, BoC, BoFD, fiduciary duty, standing, release)

AFFIRMED: Opinion by Justice Anderson

Before Justices Brock Yates, Anderson and Hudson

14-05-01229-CV Bruce R. Lively v. J. Randle Henderson, Individually and as a Partner in Henderson & Hammon,

L.L.P.

Appeal from 151st District Court of Harris County (judge's name not shown)

Williams v. Unifund CCR Partners Assignee of CitiBank 264 S.W.3d 231 (2008)(Tex.App.- Houston [1st Dist.]

Feb. 7, 2008)(Keyes) (consumer credit card debt suit, judgment reversed, sworn account not proper for credit

card debt collection, attorney's fees)

REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice

Keyes

Before Justices Taft, Keyes and Alcala

01-06-00927-CV Edward Williams v. Unifund CCR Partners Assignee of CitiBank

Appeal from County Civil Court at Law No 3 of Harris County (Judge Lynn Bradshaw-Hull)

In his second issue, Williams argues that the statute of limitations barred Unifund's right to recovery. A party

relying on an affirmative defense to defeat summary judgment must come forward with summary judgment

evidence establishing a fact issue on each element of the affirmative defense. Suttles v. Thomas Bearden Co.,

152 S.W.3d 607, 614 (Tex. App.-Houston [1st Dist.] 2004, no pet.). The statute of limitations on a claim for debt

based on breach of contract is four years from the time the cause of action accrues. TEX. CIV. PRAC. & REM.

CODE ANN. § 16.004(a) (Vernon 2002). Williams made his last payment on October 15, 2001, and this action

commenced on August 19, 2005, which is within the four-year window. Williams did not present any summary

judgment evidence contradicting these facts. We overrule Williams's second issue.

CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | TEXAS COURT OF APPEALS OPINIONS

Edited by racecar

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CAUSE OF ACTION FOR "ACCOUNT STATED"

An account stated has been defined as an agreement 1) between two persons who

have had previous transactions, 2) fixing the amount due in respect of such

transactions and 3) promising payment.

Neil v. Agris, 693 S.W.2d 604 (Tex.App.- Houston [14th Dist.] 1985, no writ)

(citing H.G. Berning, Inc. v. Waggoner, 247 S.W2d 570 (Tex.Civ. App.- Beaumont 1952, no writ)

NOTE: This antiquated common-law theory of recovery is being revived credit card debt collectors to

avoid the need to proof up the original written card agreement (contract) which is often not available,

particularly for accounts opened more than seven years prior, or accounts that were sold and assigned

by the original creditor (i.e., the credit card issuer) to a debt collector.

Stated Account

A party is entitled to relief for a stated account where (1) transactions between the parties give rise to

indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an

amount due, and (3) the one to be charged makes a promise, express or implied, to pay the

indebtedness. Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex.App.-Dallas 2008, no

pet.); Neil v. Agris, 693 S.W.2d 604, 605 (Tex. App.-Houston [14th Dist.] 1985, no writ); McFarland v.

Citibank (South Dakota), N.A., 293 S.W.3d 759, 763 (Tex.App.-Waco 2009, no pet.) (not yet reported).

RECENT APPELLATE CASE LAW (PETITION DENIED BY TEX. SUP. CT)

08-0425

KENNETH J. MAGNUSON v. CITIBANK (SOUTH DAKOTA) N.A.; from Denton County; 2nd district

(02-06-00465-CV, ___ SW3d ___, 02-14-08, pet. denied Aug 2008) (suit on credit card debt by original

creditor, card issuer, Rule 12 motion, hearing by submission, failure to appear)

Arnold D. Kamen & Co. v. Young, 466 S.W.2d 381, 388 (Tex. Civ. App.- Dallas 1971, writ ref'd n.r.e.)

(“The essential elements of an 'account stated' are transactions between the parties [that] give rise to

an indebtedness of one to the other; an agreement, express or implied, between the parties fixing the

amount due; and a promise, express or implied, by the one to be charged, to pay such indebtedness.”);

Cent. Nat'l Bank of San Angelo v. Cox, 96 S.W.2d 746, 748 (Tex. Civ. App.- Austin 1936, writ dism'd)

(determining whether the amounts shown by a company's books as due to an employee's wife after his

death constituted a stated account between employer and employee where the books showed no

agreement by the employer as to the correctness of the amount due, and holding that employer's

payment of various sums to the employee's wife over a two-year period “was clearly sufficient to

constitute an implied assent to the correctness of said account” and was conclusive of the amount still

due to the employee's wife).

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AFFIRMATIVE DEFENSES

Affirmative defenses are claims by one party that defeat a cause of action or claim established by another party. Cook Composites Inc. v. Westlake Styrene Corp., 15 S.W.3d 124 (Tex. App.- Houston [14th Dist.] 2000, pet dism’d). Affirmative defenses operate to limit or excuse or avoid a party’s liability and/or limit the amount of another party’s damages for which the party is responsible, even if the factual allegations of the other party’s claims are admitted or proven. To assert an affirmative defense to another party’s claim in a lawsuit, the party must plead or describe the facts that constitute the defense.

Click on above link,pick a topic below to learn what facts or elements must be proved to establish the defense.

1. Accord and satisfaction;

2. Collateral estoppel;

3. Discharge in bankruptcy;

4. Duress;

5. Equitable Estoppel;

6. Failure of consideration;

7. Failure to mitigate damages;

8. Failure to satisfy a condition precedent

9. lllegality;

10. Judicial estoppel;

11. Laches;

12. Mistake;

13. Novation;

14. Proportionate Responsibility;

15. Quasi-estoppel;

16. Ratification;

17. Release;

18. Setoff and recoupment;

19. Statute of frauds;

20. Statute of limitations;

21. Waiver;

22. Express Assumption of Risk

__________________________________________________

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Magnolia Petroleum Co v. McMillan, 168 S.W. 2d 881 Tex Civ. App. 1943

This is the only Texas case they cite, from 1943, about ten years before credit cards were in existence. Then the final actoof desperation:

Even in the absence of such an agreement the issuance of the credit card constitutes an offer of credit, and the use of the credit card constitutes the acceptance of the offer of credit.

Says who? Where is the Texas use and acceptance statute? In other words, we have crap, so please legislate from the bench and make some new case law for us out of thin air so we can win.

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Magnolia Petroleum Co v. McMillan, 168 S.W. 2d 881 Tex Civ. App. 1943

This is the only Texas case they cite, from 1943, about ten years before credit cards were in existence. Then the final actoof desperation:

Even in the absence of such an agreement the issuance of the credit card constitutes an offer of credit, and the use of the credit card constitutes the acceptance of the offer of credit.

Says who? Where is the Texas use and acceptance statute? In other words, we have crap, so please legislate from the bench and make some new case law for us out of thin air so we can win.

that last part is exactly what I am struggling to frame an answer with. I actually have the wording sez you. hehe. I know that has to change LOL

I see the Legal aid attny wed morning, so I am writing this one on my list of questions...

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Grounds for Dismissal for Lack of Standing

This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff, is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges “Plaintiff is the current owner of this account.“ See Plaintiff's Original Petition, paragraph 6.

There is no allegation or statement as to who was the seller, and there is no way from these pleading to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit.

A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Ceraminc Tile Intern., Inc, v. Balusek, 137 S.W3d 722, 724 (Tex. App, – San Antonio 2004, no pet.); Delaney v. Davis, 81 S.W.3d 445, 448-49 (Tex. App, – Houston [14th district] 2002, no pet.). Plaintiff has not done either.

If Plaintiff is the assignee and rightful owner of the debt, this should be very easy for Plaintiff to allege and prove, yet Plaintiff avoids and dodges the issue, when such issues cannot wait until trial. Without a pleading of an assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and this case must be dismissed. Whether plaintiff has standing to bring this lawsuit is a threshold issue that should be resolved at the onset, and the instant plea to the jurisdiction is a proper means by which to address this threshold question.

Legal Standards for a Plea to the Jurisdiction

The purpose of a plea to the jurisdiction is to dismiss a cause of action without regard to whether the underlying claim has merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the court's power to adjudicate the subject matter of the controversy. Texas DOT v. Arzate, 159 S.W.3d 188, 190 (Tex.App. – El Paso 2004, no pet.), Axtell v. University of Texas, 69 S.W.3d 261, 263 (Tex.App. – Austin 2002, no pet.).

Standing is a basic requirement of the judicial system and goes directly to the court's subject matter jurisdiction over a case. It may be raised at anytime and, unlike a challenge to a party's capacity to sue, cannot be waived or presumed. Nootsie Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 661-662 (Tex. 1996), Continental Coffee Products v. Cazarez, 937 S.W.2d 444 n.2 (Tex, 1996). A plea to the jurisdiction is the proper way to challenge a party's lack of standing. Waco ISD v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000).

The plaintiff must come forward with sufficient evidence to demonstrate that there is at least an issue of fact as to the existence of jurisdiction. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227-228 (Tex. 2004). The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the plaintiff is not the original creditor, which therefore puts standing at issue and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit.

Add that you hereby certify that you sent the plaintiff's attorney via USPS certified mail (his/her name, address, date) a true and correct copy of your answer and plea to the jurisdiction, sign it and print your name, address, and phone number.

Yes that is the first blow you deliver if they fail to attach anything to their original petition to attempt to "prove" they own the debt. CJ8, copy it word-for-word and file it with the court as soon as possible. I already edited the part (in the quoted area above) that needed to be edited to fit the Original Petition you were served. Somehow I overlooked your thread before you sent in your answer- I always tell everyone to file this at the same time you send in your answer so the JDB gets it at the same time. File it in the proper court format as "Defendant's Plea to the Jurisdiction" with the paragraph headings centered etc. and send a copy to the JDB attorney via certified mail.

I see Equable Ascent is starting to get wise to not putting "Account Stated" as a cause of action lately. If the Plea to the Jurisdiction doesn't scare them off you can definitely get them in discovery. It is highly unlikely that they have anything at all pertaining to the alleged account. Keep us posted here in your thread as to what you hear from them next.

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Filed an answer today and will start working on the other paperwork. Thanks everyone who sent PM's (I can't reply yet because I have less than 10 posts).

For anyone following this or dealing with the same thing, please see the thread Midland Funding LLC suit? by kakarat99 (Again, I can't link due to post #). There are some great examples there, it looks like he's on the right track, and it's the same Firm representing Midland so the paperwork he was sent is EXACTLY the same as mine.

Hi there -

Not sure if this is applicable in Texas, but hitting them with a Bill of Particulars request could be quite beneficial. Since they are a JDB, if they can't provide the documents, they can't use them as proof. And, they only have 10 days to answer your request here in California.

Good luck.

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Texasrocker is a graduate of cic bootcamp,He makes Texas a better place one junk debt buyer at a time.

LMAO.

Credit 50% bootcamp and 50% what I learned from an outstanding JDB slaying lawyer.

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