Sign in to follow this  
dwalt2400

Texas Answering suit to Debt Attorney for Equable

Recommended Posts

dwalt....since you filed your answer with the court....hopefully you will hear nothing else from them and mediation time will come and go. Once I filed my answer with my Plea to the Jurisdiction, I never heard another thing until I received my Case Dismissed letter in the mail this week.

I will keep my fingers crossed that you can be so lucky!

from your mouth to God's ears!

I waffle between elation and depression on handling this and it is soooo stupid. I faced much worse than this carp in real life. If I can survive an assualt, attempted murder and a firebomb and homelessness for months, this is easy peasy...

Nothing worth worrying over anyhow. Worse case I lose, worser case I get a judgement. big whoop.

seriously. Course they are vultures...

I am going to open a new bank acct just to have for my Benefits protection, I hate my bank anyway. I m afraid of them snooping into my financial background. But IF I cant find back financial records, then surely they cant either ( wamu lost all our documents/checks, chase purges regularly. so Neither has much info to be winnowed that I can find.

Cowgirl Up!

Cindy

Edited by dwalt2400
personal info

Share this post


Link to post
Share on other sites

ORIGINAL Fact by me... It was aalledgedly a WAMU card, sold to chase, sold to equable, now being sued by Big Bad Dallas Law Firm. Im in Houston. last paymt showing on credit report 5/2010. I cant remeber any of it.

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 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 ending in XXXXXXXXXXXXXXXXX7777 Defendant received and used the card and thereby became obligated to pay for the charges incurred with the card. Defendant defaulted on the obligation to make monthly payments on the credit card account, and the card was subsequently cancelled. The credit card account was subsequently closed due to non payment and/or charged off to profit and loss on or about Dec. 31,2010. the entire balance on the credit card is presently due and payable in full.

7. The credit account has been assigned to plaintiff and Plaintiff is the current owner of this account. Plaintiff owns all right , title and interest in the credit account.

8. After allowing for all just and lawful offsets, credits, and payments on the credit account, the total balance due to Plaintiff by the Defendant is XX00. 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 $XX00 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.

PLAINTIFFS FIRST DISCOVERY REQUESTS ATTACHED

19. ( here is where my boilerplate looks different from the others I found)

Plaintiff is attaching hereto Plaintiffs First Request For Discovery, which is to be served on Defendant along with Plaintiffs Petition. Plaintiffs First Request for Discovery includes Plaintiff's Request for Disclosure, Request for Production, Request for Admissions and Interoggatories. Pursuant to Texas Rules of Civil Procedure 194.3(a), 196.2 9a), and 197.2(a)Plaintiff may serve these discovoery Requests on Defendant prior to the date Defendants answer is due, in which case Defendant must serve its response within 50 days after the date of service of disoveryrequest. See Oliphant Financial LLc v. Julio Galaviz, 299 SW 3d 829, 838 ( Tex App-Dallas[5th dist.],2009)( for the proposition that plaintiff may attach requests for admissions to its petition); see also Sherman AcqusitionsII, LP v Garcia,299 S.W. 3d 802, 813 ( Tex App-Waco,2007, not pet).

K. Prayer

20. 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 $XX00

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

My question is, I dispute some of the above as I read it. DO I answer these as well as my discovery stuff which I will post soon.

They did not include any documentation of the acct. no bill of sale, CCA, no payment records, ( because the merger of Wamu/chase was a nightmare we lost all check records, online access etc.) Let me know what else I need to post to help me get help

Thanks

Share this post


Link to post
Share on other sites

this is where I have trouble with their suit

E. Facts

6. Chase Bank N.A. issued a credit card in the defendant's name under its account number ending in XXXXXXXXXXXXXXXXX7777 Defendant received and used the card and thereby became obligated to pay for the charges incurred with the card. Defendant defaulted on the obligation to make monthly payments on the credit card account, and the card was subsequently cancelled. The credit card account was subsequently closed due to non payment and/or charged off to profit and loss on or about Dec. 31,2010. the entire balance on the credit card is presently due and payable in full.

HOW DO I KNOW THIS>>? They didnt send any proof. I want to tell "sez you." But in proper language to the court.

7. The credit account has been assigned to plaintiff and Plaintiff is the current owner of this account. Plaintiff owns all right , title and interest in the credit account.

< they need to show how they did this right??>

8. After allowing for all just and lawful offsets, credits, and payments on the credit account, the total balance due to Plaintiff by the Defendant is XX00. plus interest.

I need the worksheets for the calculations?

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. What is the demand? this lawsuit? I dont remember them ever sending me anything cept a settlement letter after filing suit to which I sent a DV, bc the suit hadnt been served on me yet. ( was not aware of it)

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

How do I know that they did all of the actions, I dont know what they need to do, I cant just take their word for it ?

F. First Cause of Action - Breach of Contract

How can I breach a contract if I dont have a contract, Bill of sale, CCA or signed up with chase? I allegedly signed up with Wamu in 08.

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.

Which Original Creditor? they have mentioned wamu and chase, but mainly chase.

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.

How can I dispute statements or bils if I didnt get the cca, didnt get statements, didnt use the card, dont see proof that I used the card. again Sez you, prove it.

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 interesthow can I answer if I dont have CCA, Bills, statements, payments credits etc.

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. [I]Need to show me proof of these supposed payments, balances, charges and so on. Since I cannot access my own bank records to wamu because of their merger/sale to chase I cant defend this stance of payments

G. Damages

16. Plaintiff seeks damages on its liquidated claim in the amount of at least $XX00 plus interest, which is within the jurisdictional limits of this court.

I denied because I dont know how do you arrive at this amount?

H. Conditions Precedent

17. All conditions precedent to Plaintiff's claim for relief have been performed or have occurred. What conditions? What does this mean

Edited by dwalt2400
formatting

Share this post


Link to post
Share on other sites

If I can survive an assualt, attempted murder and a firebomb and homelessness for months

Good grief, this sounds like one of Coltfan's court appearances. I believe I pointed out the flaws in their case law, paragraph 11. This could be a point of attack eventually.

Share this post


Link to post
Share on other sites

Bruno i think it is one of coltfans court appearances by proxy.

Question for Mr Bruno what about capacity to contract in her situation?

"They won't look very good in front of a judge pursuing someone in your condition, esepcially since your condition makes it almost impossible for you to defend yourself."

http://www.whitehead-elderlaw.com/sitebuildercontent/sitebuilderfiles/mentalcapacity.pdf

http://www.klgates.com/files/tempFiles/1bb8289d-5c8a-4d29-9972-466f16d89b87/Alert_Arbitration_MentalCapacity.pdf

Corbin on Contracts. This treatise states: “It is

generally held that incapacity exists when a party does

not understand the nature and consequences of what is

happening at the time of the transaction.” Corbin on

Contracts § 27.10 (2003). Corbin further explains that

contracts formed by a person lacking mental capacity

should be treated as voidable: “According to older

authority, transactions of the mentally infirm are void,

but under the overwhelming weight of modern

authority, the contracts and executed transactions of

the mentally infirm are, with one exception, merely

voidable.” Corbin comments that the Restatement test

for capacity to contract (a two-part, either/or test)

allows parties to renege when they “understand what

they are doing but cannot control their behavior in a

rational manner.”

In a case of first impression the Texas Supreme Court recently held that the issue of whether a party has the mental capacity to contract is an issue for courts, not arbitrators. The Court traced the history of the so-called "separability" spawned by the United States Supreme Court's decision in Prima Paint Corp. v. Conklin Manufacturing Co., 388 U.S. 395, 404 (1967), that held that challenges to an entire contract should be decided by arbitrators and challenges to an arbitration agreement itself should be decided by courts.

The separability doctrine proved problematic in a third category of cases; those in which a party challenged the very existence of a contract in the first place, so-called "contract formation" issues. Relying on dicta in Buckeye Check Cashing, Inc. v Cardegna, 546 U.S. 440, 444 n.1 (2006), and numerous other state and federal decisions, the Texas Supreme Court held that contract formation issues, specifically mental capacity, are for courts, not arbitrators. Accordingly, the Court denied Morgan Stanley's attempt to compel arbitration by mandamus. Justice Hecht dissented and would have treated lack of capacity as "closer to fraudulent inducement than to lack of signature." The Court's opinion in In re Morgan Stanley & Co., Inc. can be found at this link.

Edited by racecar

Share this post


Link to post
Share on other sites

ahh. that would be me. Whwere would I put that into my answers?

I actually have documents to that effect from the neurologists and review docs for SSA.

Bad thing is, I sound articulate and intelligent, but the mood is labile and if questioned I cannot focus or remember things even from yesterday .

( my car rear gears broke last night, I told someone to get some advice and then called the same person today, less than 10 hours later. She pointed this out, very concerned for me. I dont remember to eat or bathe unless I write it down. But I sound great. haha)

Share this post


Link to post
Share on other sites

Bruno has forgot more than i will ever know,but i would like him to look at it anyway.Might be a way out from the lawsuits.

Edited by racecar

Share this post


Link to post
Share on other sites

The only problem I see is that she was not non compos mentis at the time she formed the contract. That raises an issue of liability that needs to be resolved by the court. She could petition the court for some help based upon her condition. I would try this rule:

RULE 44. MAY APPEAR BY NEXT FRIEND

Minors, lunatics, idiots, or persons non compos mentis who have no legal guardian may sue and be represented by "next friend" under the following rules:

(1) Such next friend shall have the same rights concerning such suits as guardians have,

but shall give security for costs, or affidavits in lieu thereof, when required.

(2) Such next friend or his attorney of record may with the approval of the court

compromise suits and agree to judgments, and such judgments, agreements and

compromises, when approved by the court, shall be forever binding and conclusive

upon the party plaintiff in such suit.

Kind of moot, since she has nothing they can take.

Bruno makes a mean Shrimp Scampi for his spouse, but does not eat seafood, Bruno has the allergic reaction. Bruno does not have the tolerance for shellfish. Bruno does not have the Ric Flair Ultimate Collection, either. Some people.

I would suggest dwalt contact the law offices of Jerry Jarzombek, probably the best in Texas if you don't count George Strait.

The Law Office of Jerry Jarzombek, PLLC

Share this post


Link to post
Share on other sites

Are you guys serious? One would obviously need to have been clinically diagnosed and receiving treatment for said disorder before the suit was filed or a whole lot of defendants would be claiming this mental incapacity just to get dismissals. The plaintiff's attorney would have a field day- how could you even have a job or cash a social security check or drive or know where to get off the bus or anything if that were the case?

Share this post


Link to post
Share on other sites

er, actually texas, my last review was decidely downhill from the original in 2000. I allegedly got a 5k balnce card with a 700.00 income from wamu. ( they are the ones who were crazy.)

but the SSA has to review ppl periodically, and the reviews are deteriorating. ( dont feel as sick as the docs say though) the one I sent the attny was from 09. the letter from neuro is from 8/12. progression is apparent. Wonder if that does help suit.?

I dont cash checks anymore . My family has to run my finances alot.

I have to have people watch my groceries, drs visits, I forget to eat or bathe, cant drive/... my driving beause I cant find my way home sometimes, I cant speak at times, I forget words, spelling, stutter badly, faint often and so on ( those are new symptoms in last year) some days I m just fine. Others I wont leave house because of the shame of losing who I used to be. ( I m barely 48)

But I started Alzheimers meds only 9months ago... so that of course is a prgressive disease. it would not have been showing in 08.

Edited by dwalt2400

Share this post


Link to post
Share on other sites

Legal Aid said I was articulate today. Thats good, although It took me 30 minutes to drive around the block to find the entrance to the parking garage LOL

She said to be simple in the denials to their Admisions and Productions. No long explanations. She also said they will study suit and will decide if taking suit.

I m supposed to wait to file answers and then to ask for discovery. in Plain inenglish. I didnt feel like I got much help personally.

I did learn that they can garnish anything over 2 x my social security in my bank acct ( as if I could save that much) so the trick is not to have savings over 2k.

Share this post


Link to post
Share on other sites

She is dead-on right just as I said, simply "Deny" (or if an objection is in order just "Objection" and a very brief explanation of the objection)

Share this post


Link to post
Share on other sites

I think that is safest. Ive been searching threads ( alot are locked so Icant ask in them)

I know we arent to say 'I cant remember" To the judge,

but what if we have a true inability/medical condition that makes it where you cant remember?

I know denial will cover me in the Discovery and Interrogs. and it will be truthful. Plus I dont want to open the door to anything that they can use. I do know my name LOL but beyond that I have lots of gaps. (but documentation and diagnosis of dementia and all) so I guess cant help in own defense. Therefore no meeting of the minds, how can I help in defense etc.

Share this post


Link to post
Share on other sites
The only problem I see is that she was not non compos mentis at the time she formed the contract. That raises an issue of liability that needs to be resolved by the court. She could petition the court for some help based upon her condition. I would try this rule:

RULE 44. MAY APPEAR BY NEXT FRIEND

Minors, lunatics, idiots, or persons non compos mentis who have no legal guardian may sue and be represented by "next friend" under the following rules:

(1) Such next friend shall have the same rights concerning such suits as guardians have,

but shall give security for costs, or affidavits in lieu thereof, when required.

(2) Such next friend or his attorney of record may with the approval of the court

compromise suits and agree to judgments, and such judgments, agreements and

compromises, when approved by the court, shall be forever binding and conclusive

upon the party plaintiff in such suit.

Kind of moot, since she has nothing they can take.

Bruno makes a mean Shrimp Scampi for his spouse, but does not eat seafood, Bruno has the allergic reaction. Bruno does not have the tolerance for shellfish. Bruno does not have the Ric Flair Ultimate Collection, either. Some people.

I would suggest dwalt contact the law offices of Jerry Jarzombek, probably the best in Texas if you don't count George Strait.

The Law Office of Jerry Jarzombek, PLLC

am I reading this right? Does this mean that the friend becomes responsible for my debt/? I m sure I m wrong.

Share this post


Link to post
Share on other sites

I received A letter from the Judge regarding the mediation that was sent out after our answers to the suit. Both parties had to agree to mediate ,(I did Plaintiff didnt.) So now the court will set a date after our discoveries are due Dec 7.

I m really surprised the Attorney is going to drag this out and not go for mediation.

On a happier note, Legal aide has taken my case and an attorney is taking over. They also will get me any damages, but will keep any awards for attorneys ( which I have no problem since they are free for low income folks.) I d prefer for them to nail the JDBs.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this