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OK, helping friend in TX, sued by one of our old friends..


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OK, friend has been sued in TX. MF is plaintiff. They filed the suit in January this year. The one and only notification that my friend got that she was being sued was a certified letter from MF telling her that "Our process server has notified you that you have been served, call us to work out a settlement before trial".

So, it turns out that she was actually sued. They filed a motion to set trial before the date that the process server even claimed to have served her. Case filed 1/13, motion to set trial filed 1/19, Process server claimed to have served her on 2/1. Here's the catch, I directed her to the court clerks office to review the docket. They lied--the process server has sworn to the court that he effected service personally on her--that he personally put the summons in her hand--at 1:30 pm on 2/1. She was at work that whole day and no one else lives there, so no one else could have accepted the summons.

Next will be a motion to quash service. I do not know that this would be enough to dismiss the case, and even if it was, I can see them trying to file again. Also, with her visit to the court clerk, she was able to get copies of everything they filed. Strange....they are suing for nearly $11,000.00 plus costs, and the one and only thing they provided is a copy of an account statement from October 2009. The name is the same but the address isnt even in the state. There is nothing else at all to identify the defendant as the person connected with the account. They didnt even file the usual "affidavit of indebtedness" hearsay nonsense....thats it! Their whole complaint looks like this--

Statements 1 thru 4 are establishing proper venue, etc etc. Statements 5 thru 7 are lengthy, almost a full page together. They say nothing but fluff--about how "Midland strives to work with consumers to ensure mutually beneficial efforts" blah blah blah. I have personally dealt with these clowns and I cannot imagine that anyone who has would be able to read those paragraphs without throwing up a little.

Statement 8 is the one and only "fact" they have tried to claim. it reads exactly like this:

"Defendant opened an account with Chase Bank USA, N.A. Plaintiff purchased Defendant's debt, and now Plaintiff is owed money from Defendant."

Count 1 is breach of contract, yet they do not present any contract to validate what terms were supposedly breached. I especially liked this statement:

12. Plaintiff's injury, which is the extent of the amount owed on the account, is a natural and probable consequence of Defendant's breach.

Count 2 is Account Stated.

OK, I understand the idea of breach of contract without demonstrating that a contract actually exists. I also know that they can say that the contract exists because of use of the card. But they cannot even prove use of the card. They cannot prove SOL, as the 2009 statement shows over $2300 past due. There's no way to tell when that delinquency began. But even if they could prove use of the card, they need to show exactly what terms and conditions would have been agreed to, and they have not. Any thoughts would be helpful, as I am not as familiar with Texas laws. Thanks in advance!

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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).

ELEMENTS OF BREACH OF CONTRACT UNDER TEXAS LAW

Also see --> breach of settlement agreement, breach of promissory note, breach of warranty, breach of fiduciary duty

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

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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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Case law clearly demonstrates that a collector must show a continuous unbroken chain of assignments from the original creditor to the entity collecting on the debt. In re Leverette, 378 B.R. 793 (E.D. Tex 2007);

Wright v. Asset Acceptance C01p., 2000 WL 33216031 (S.D. Ohio Jan. 3, 2000); in re Kendall,380 B. R. 37 (Bankr. N.D. Okla. 2007); Rushmore Recoveries X, LLC v. Skolnick, 841 N.Y. S. 2d 823

(Dist. Ct. 2007); and National Check Bureau, Inc. v; Cody, 2007 WL 174762 (Ohio Ct. App. Jan; 27,

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Considering they have the usual sloppy paperwork, I would send them these:

Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

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