Finally served. Attached summons info

[bch2424]

Thank you in advance for any help/advice. My spouse is being sued and thinks if we ignore it, it'll go away, which has a lot to do with my high anxiety/stress level over waiting to be served. Please let me know if you need more info or if I included something I shouldn't (identifiable).

1. Who is the named plaintiff in the suit? EQUABLE ASCENT FINANCIAL LLC ASSIGNEE OF CHASE BANK USA, N.A. (WAMU)

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Not listed until the end under submitted; Rausch, Sturm, Israel, Enerson & Hornik, LLC

3. How much are you being sued for? Roughly $5,000

4. Who is the original creditor? (if not the Plaintiff) CHASE BANK?

5. How do you know you are being sued? (You were served, right?) Served

6. How were you served? (Mail, In person, Notice on door) Notice on door

7. Was the service legal as required by your state? Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None. The law firm sent a letter the other day but it doesn't mention the suit; just the alleged debt.

9. What state and county do you live in? TX - Denton

10. When is the last time you paid on this account? Not aware of ever having an account with them. But last date paid on any old accounts was Oct. 2009

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

12. What is the status of your case? Suit served? Motions filed? Filed/Unserved (It's Saturday, so I doubt this will be updated before Mon)

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

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No

15. How long do you have to respond to the suit? 10am Monday next following expiration of 10 days after being served

We need to know what the "charges" are. Please post what they are claiming.

PLAINTIFF'S ORIGINAL PETITION & FIRST DISCOVERY REQUESTS

A. Discovery-Control Plan

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

B. Parties

2. The address for Plaintiff, EQUABLE ASCENT FINANCIAL LLC ASSIGNEE OF CHASE BANK USA, N.A. (WAMU), is ****

3. Defendant, **** **** may be served with process at **** **** ****, or at 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 USA, N.A. (WAMU) issued a credit card in the Defendant's(s') name under its account number ending in ****. Defendant(s) received and used the card and thereby became obligated to pay for the charges incurred with the card. Defendant(s) defaulted on the obligation to make the monthly payments on the credit card account, and the card was subsequently canceled. The credit card account was subsequently closed due to nonpayment and/or charged off to profit and loss on or about ****2010. The entire balance on the credit card account 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 Defendant(s) on the Account is ***(approx $5k) plus interest.

9. The Plaintiff has made demand upon the Defendant(s) for payment of the amount due and payable in full. The Defendant(s) have failed, neglected, and refused to pay the amount, plus accrued interest, less all 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. Breach of Contract

11. The issuance of a credit card constitutes the offer of a contract. See, e.g. 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 the 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. Gulf Oil Corporation, 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 for 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 in 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 ***(approx $5k) plus interest. All just and lawful offsets, credits, and payments have been applied to the account.

G. Damages

16. Plaintiff seeks damages on its liquidated claim in the amount of ***(approx $5k) 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 will be used for that purpose. Plaintiff's attorneys are debt collectors.

J. Plaintiff's First Discovery Requests Attached

19. Plaintiff is attaching hereto Plaintiff's First Request for Discovery, which is to be served on Defendant along with Plaintiff's Petition. Plaintiff's First Request for Discovery includes Plaintiff's Request for Disclosure, Request for Production, Request for Admissions and Interrogatories. Pursuant to Texas Rules of Civil Procedure 194.3(a), 196.2(a), 198.2(a), and 197.2(a), Plaintiff may serve these discovery requests on the Defendant prior to the date Defendant(s) answer is due, in which case Defendant must serve its response within 50 days after the date of service of the discover request. See Oliphant Financial, LLC v. Julio Galaviz, 299 S. W.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 Acquisitions II, L.P. v. Garcia, 229 S. W.3d 802, 813 (Tex.App.-Waco, 2007, no pet.).

K. Prayer

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

a. Actual damages in the amount of ***(approx $5k).

b. Pre-judgment and post-judgment interest.

c. Court costs.

d. All other relief to which plaintiff is entitled.

Did you receive an interrogatory (questionnaire) regarding the lawsuit? Yes (Not sure what is what yet, but there's Plaintiff's First Discovery Request, Request for Disclosure, Request for Production, Request for Admissions, Plaintiff's First Set of Interrogatories)

16. What evidence did they send with the summons? None

[BrunoTheJDBkiller]

My spouse is being sued and thinks if we ignore it, it'll go away,

It will, but then you'll have a judgment. That's what they count on......no shows in court.

11. The issuance of a credit card constitutes the offer of a contract. See, e.g. 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 the 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. Gulf Oil Corporation, 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).

Nice case law. Too bad none of it is binding on a Texas court except the one they managed to find from 1943.

All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings, so long as the pleading containing such paragraph has not been superseded by an amendment as provided by Rule 65.

The answer of defendant shall consist of an original answer, and such supplemental answers as may be necessary, in the course of pleading by the parties to the suit. The original answer and the supplemental answers shall be indorsed, so as to show their respective positions in the process of pleading, as "original answer," "defendant's first supplemental answer," "defendant's second supplemental answer," and so on, to be successively numbered, named and indorsed.

RULE 85. ORIGINAL ANSWER; CONTENTS

The original answer may consist of motions to transfer venue, pleas to the jurisdiction, in abatement, or any other dilatory pleas; of special exceptions, of general denial, and any defense by way of avoidance or estoppel, and it may present a cross-action, which to that extent will place defendant in the attitude of a plaintiff. Matters in avoidance and estoppel may be stated together, or in several

special pleas, each presenting a distinct defense, and numbered so as to admit of separate issues to be formed on them.

[bch2424]

So I'm typing up an answer and question #6 on the Request for Admissions is "Defendant has maintained at least one checking and/or banking account within the four years preceding the date this lawsuit was filed." How is that pertinent???

[BrunoTheJDBkiller]

They want to establish payment, one of the elements of breach of implied contract or account stated. I'd object to it anyway, it sounds like post judgment stuff they'd ask at a debtor's exam. Not likely to lead to admissible evidence. The fact that you may have had a checking account doesn't prove you owe them any money. It's irrelevant to the case at this point.

[texasrocker]

Apparently they were smart enough to not plead "Account Stated" but it is laughable that they cited case law from other states. They are obviously just trying to intimidate without expecting this to end up in front of a judge!

For your answer:

Do not admit to any item pertaining to the account. The only things you should admit to are your name and address and/or one that may say something about that you are not currently in the military.

Caption your answer exactly the same as the complaint that you were served with. The caption will include the name of the Texas court, names of the parties and the cause number.

Write a brief paragraph stating "Comes now the Defendant and files his Answer in the above-entitled matter and in support thereof states as follows:

The Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of The Plaintiff's allegations.

Create numbered paragraphs correlating to each allegation found in the complaint. For each paragraph state "Defendant denies the allegation found in paragraph one of Plaintiff's Complaint" and so on for each allegation. (You should put "Admit" after one that says your name and address)

Finish the document by stating "Defendant prays that the Court deny The Plaintiff's Complaint and for all other relief just and proper in the premises".

Since they did not attach anything to "prove" that they own the debt, file a Plea to the Jurisdiction at the same time you file your answer. You can title it "Defendant's Original Answer and Plea to the Jurisdiction "

Copy the following, word-for-word, into the proper court format that I described to you earlier (paragraph headings bold and centered etc.) and file it with the court with your answer:

PLEA TO THE JURISDICTION

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 the current owner of this account. Plaintiff owns all right, title and interest in the credit account." See Plaintiff's Original Petition paragraph 7. There is no allegation or statement as to who was the seller, and there is no way from these pleadings 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 any time 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 (law firm name, address, date) a true and correct copy of Defendant's Original Answer and Plea to the Jurisdiction.

Sign it and print your name, address, and phone number.

You should have two separate pages- one for your answer and one for the Plea to the Jurisdiction

[bch2424]

Thank you so much! I have the Plea to Jurisdiction done and I'm working on the answer but I'm confused about the "allegations". Are the allegations listed in the paragraphs in the summons that I typed above, for question 15, with each paragraph starting with a letter? It just seems like the one labeled "F" is the only one that has allegations. So if that's it, are the paragraphs every # listed under F?

Also here are the questions for the Request for Admissions. They sure want you to make their case for them! There are multiple questions that seem like you're admitting ownership whether you deny or admit, unless you provide further detail. Help?

And at the bottom when you state you've sent it to their attorney, do you just name the firm or the firm and EVERY attorney that "signed" the summons? No one actually signed it but their are 10 different attorneys and SBN numbers next to their names under the firm name and it says "original copy signed" so it makes me think at 10 signed it... Don't want to have issues on a technicality.

1. As of the date Plaintiff's Petition was filed Defendant owed Plaintiff ***(approx $5k) on the Account.

Denied

2. Defendant had at least one credit card with The Original Creditor within the four years immediately preceding the date this lawsuit was filed.

Denied

3. Defendant made use of a credit card account issued by The Original Creditor to make purchases and/or obtain cash advances within four years immediately preceding the date this lawsuit was filed.

Denied

4. Defendant made use of the Account as identified in Plaintiff's Original Petition and defined herein to make purchases and/or obtain cash advances within the four years immediately preceding the date this lawsuit was filed.

Denied

5. Defendant made at least one payment to The Original Creditor within the four years preceding the date this lawsuit was filed.

Denied

6. Defendant has maintained at least one checking and/or banking account within the four years preceding the date this lawsuit was filed.

Objection???

7. Defendant was provided with a copy of the applicable terms and conditions and/or the cardholder agreement for the Account prior to making use of the Account.

Denied

8. Defendant was permitted to use the Account to make purchases and/or obtain cash advances without signing a copy of the applicable terms and conditions and/or the cardholder agreement for the Account.

Denied (I don't like the way this question is worded...)

9. Defendant is not currently in possession of any applicable terms and conditions and/or cardholder agreement for the Account.

Admitted

10. Defendant did not object to the applicable terms and conditions and/or cardholder agreement for the Account prior to making use of the Account.

???

11. Defendant has not received any demands for payment from any of the vendors or merchants where Defendant used the Account to make purchases.

???

12. The Original Creditor has paid all vendors and merchants for any purchases charged to the Account by Defendant.

???

13. The Original Creditor permitted Defendant to defer payment for purchases and/or cash advances made on the Account.

???

14. Defendant knew he/she would be assessed interest, late-fees, over-limit fees and other fees and/or penalties in exchange for the ability to defer payment for purchases and/or cash advances made on the Account.

???

15. Defendant was notified of all applicable interest rates, late-fees, over-limit fees and other fees and/or penalties that could be assessed on the Account prior to use of the Account.

???

16. Defendant did not object to any interest rates, late-fees, over-limit fees or other fees and/or penalties assessed on the Account.

???

17. Defendant regularly received monthly account statements for the Account from the time the Account was opened until the time the Account was closed.

???

18. The monthly account statements received by Defendant for the Account accurately set forth all transactions, purchases, payments, credits, debits, deductions, interest rates, late-fees and/or other fees posted to the Account.

???

19. Defendant never objected in writing to any of the transactions, purchases, payments, credits, debits, deductions, interest rates, late-fees, over-limit fees and/or other fees posted to the Account.

???

20. Defendant was notified of all changes and/or amendments to the terms and conditions and/or cardholder agreement for the Account.

???

21. Defendant was notified of any changes to the applicable interest rates, late-fees, over-limit fees and other fees and/or penalties that could be assessed to the Account.

???

22. Defendant has made at least one payment to the Original Creditor for charges incurred on the Account within the four years immediately preceding the date this lawsuit was filed.

Denied

23. Defendant ceased making payments on the Account.

???

24. At the time Defendant ceased making payments on the Account a balance remained owed on the Account.

???

25. Defendant received a demand letter for payment from Plaintiff or Plaintiff's attorney prior to the filing of this lawsuit.

???

26. All due payments, credits, deductions and/or adjustments in favor of Defendant have been applied to the Account.

???

27. Plaintiff is the current owner of the Account.

ARE YOU KIDDING ME???

28. Defendant has not received any demands for payment from The Original Credit in the 12 months preceding the filing of this lawsuit.

???

Defendant prays that the Court deny The Plaintiff's Complaint and for all other relief just and proper in the premises. The defendant reserves the right to change or add additional defenses and/or add counter claims in answers to the complaint at a later time.

I hereby certify that I have sent the plaintiff's attorney,

[texasrocker]

Yes, answering the allegations under "F" will do. The general denial will cover anything else. Just send it to the individual attorney or the name of law firm, whichever is listed above their address.

6: As Bruno said, OBJECTION. Irrelevant; Not likely to lead to admissible evidence.

10 through 24, 26, 28:

OBJECTION. Completely lacks foundation. Assumes facts not in evidence and is therefore improper in form, specifically that any account was opened.

25: If said letter was received admit, if not deny.

27: The Defendant has been given insufficient information to affirm or deny and therefore denies; leaves it to The Plaintiff to provide proof.

The answers to the requests for admissions need to be sent to the law office not the court. It probably says you have 50 days. Don't send it yet, wait until about a week before the deadline.

Send or deliver in person to the court the answer to the suit/Plea to the Jurisdiction as soon as possible, make a copy of the first page and have the clerk file stamp it for you. If mailing it include a SASE and a note to the clerk to return to you the file-stamped copy.

[BrunoTheJDBkiller]

I would use failure to mitigate damages as a defense. This account went into default in 2009, and they waited three years to sue? Why? So the interest would build up is why, at a rate they can't get anyplace else. They sat on this for three years, and now they want to make you pay all this interest? They could have sued under the cardholder agreement one day after the account went into default. Probably a third or better of the amount sued on is all this excess interest.

[BV80]

6: As Bruno said, OBJECTION. Irrelevant; Not likely to lead to admissible evidence.

10 through 24, 26, 28:

OBJECTION. Completely lacks foundation. Assumes facts not in evidence and is therefore improper in form, specifically that any account was opened.

With those responses, include "Based upon the foregoing, defendant denies."

Admissions can be deemed admitted if not denied. Include the denial because it's better to be safe than sorry.

[texasrocker]

OK, thanks. I thought your options for answers were "Admit" "Deny" or "Objection" with a short explanation of why you are objecting.

[BrunoTheJDBkiller]

198.2 Response to Requests for Admissions.

(a) Time for response. The responding party must serve a written response on the requesting party within 30 days after service of the request, except that a defendant served with a request before the defendant's answer is due need not respond until 50 days after service of the request. ( Content of response. Unless the responding party states an objection or asserts a privilege, the responding party must specifically admit or deny the request or explain in detail the

reasons that the responding party cannot admit or deny the request. A response must fairly meet the substance of the request. The responding party may qualify an answer, or deny a request in part, only when good faith requires. Lack of information or knowledge is not a proper response unless the responding party states that a reasonable inquiry was made but that the information known or easily obtainable is insufficient to enable the responding party to admit or deny. An assertion that the request presents an issue for trial is not a proper response.

[bch2424]

Here's the plea to jurisdiction.

Okay, working on the answer and obviously I don't know what I'm doing because I have to ask....do you list defenses in the original answer? Does Failure to Mitigate in any way make it seem like you're admitting to the debt or just defending yourself if the judge finds that it's yours?

Conf_Plea to Jurisdiction.doc

[bch2424]

I'm poking around online and read this "Texas law requires all notices for debt lawsuits to include copies of the contract you signed with the original creditor. This includes agreements you signed electronically for online applications. If the notice does not include the necessary paperwork, the creditor does not have a claim and you must file a motion to dismiss instead of a lawsuit answer. The creditor must provide the contract within 30 days or the court will dismiss the case."

Is this just a different way of doing things or incorrect altogether? I mean, isn't the plea to jurisdiction kind of like a motion to dismiss?

[BrunoTheJDBkiller]

"Texas law requires all notices for debt lawsuits to include copies of the contract you signed with the original creditor.

I wouldn't believe that unless they posted the statute that says so. Courts in all 50 states generally agree that credit card agreements are not signed contracts with signatures. If there is such a statute, it probably relates to the statute of frauds, which designates what types of contracts must be signed by both parties. Applications are signed, if there was one, but all that proves is that you applied for the card.

[texasrocker]

I have never heard of anything like that either. I have had credit cards that I never filled out or signed an application for.

The Plea to the Jurisdiction should result in the same action as a motion to dismiss but other than that no it is not the same thing. You are essentially showing the court that if the JDB has no evidence to prove that they own the debt then the court does not have the jurisdiction to try the case. It is a surprise attack on the JDB's attorney- they know how to handle a motion to dismiss but there is a good chance they have never had to deal with a Plea to the Jurisdiction and would rather drop the suit than have to attend a hearing to argue it. If Hell does in fact freeze over and they do come to the hearing and the judge throws out the Plea to the Jurisdiction then you can slam them for good with discovery.

If you so desire to add the affirmative defense say "The Defendant claims the affirmative defense of failure to mitigate"

after the denial of the allegations.

It is irrelevant if the judge finds out that you had the account- the issue is whether or not they can prove that they now own it. Keep your focus on that.

Edited November 20, 2012 by texasrocker

[bch2424]

Thanks, everyone. I think we might suck it up and spend the $700 on an attorney. If it was ME being sued, or US, I'd stick it out on my own with your generous help! But since it's just DH being sued, I feel like there's too much out of my control and I can't count on him to do his part when he's of the mind that if we ignore it, it'll go away.

He's set on the idea that if I just remove him from our bank accounts, it doesn't matter if there's a judgment issued. But it does matter. Besides the fact that I'm 99% sure they can go after my accounts, we're buying a new car in a few months and I don't work so I need him on the loan. A judgment won't help there. And what if I die?? He's just going to never have a bank account b/c it might get levied.

Anyway, I'll keep you posted on what we decide. He's all for getting a lawyer so I kind of feel like if he thinks it's worth the money, he must realize that it is a big deal and needs to be addressed but just doesn't want to deal with it himself. Which ties my hands since I can't represent him.

Thanks again, everyone!

[upsman40]

I'd file the answers and motions first, you make make them go running and save the $700, you can always hire a lawyer after you get a response, I felt the same way and trusted, and researched from the help on here, today i had my pre trial, the lawyer showed up about 2 minutes before the judge was going to dismiss it, thats when i got worried. Basically they had sent a bunch of somewhat firvilous affidavits, Bill of Sales, and some spread sheets, so far they have nothing attached to yours, the judge basically told them produce the signed contract in 30 days or the case is over, hasn't cost me anything excepet some time and research

[BrunoTheJDBkiller]

Lawyers don't like credit card cases, and most of them couldn't defend one anyway. $700 sounds way too low for anybody who knows his stuff. You'll probably get somebody who wants you to settle, which you could do on your own. Equable probably paid no more than $150 for your account. They usually do not have the paperwork to prove ownership, etc. Your call, but if you want somebody good, call Jerry Jarzombek.

[bch2424]

I typed $700 instead of $800. I've called a few people, including Jerry. His rate is $800. Everyone I've talked to has quoted $750-$1000. All flat fees. Trust me, I don't want to spend the money on a lawyer. But I'm not on the suit. It would be really hard on my marriage if we did this on our own (meaning I handle all of the research, paperwork, filing, etc.) and then my husband was late to court or was unprepared in court as he has no interest in doing this himself.

[Flyerfan]

I hope it works out for you, whichever way you go. Good luck.

[texasrocker]

I agree with upsman- there is a very good chance that when they see the Plea to the Jurisdiction they will drop the suit rather than show up at a hearing with their absolute zero evidence that they own the debt.

By all means how ever you decide to handle it please don't agree to a settlement!

[bch2424]

Thanks everyone. DH's dad had a stroke this morning (we think that's what it was) and we don't know his condition so I really think this is the best thing. The last thing he needs on top of that is me needling him about handling it ourselves when he's already expressed that he doesn't want to. I did my homework and the attorney we're going with has better than a 99% success rate. According to him and based on my own research of cases around the area for the last few years.

[Flyerfan]

Good luck. I hope it all works out.

[BV80]

198.2 Response to Requests for Admissions.

(a) Time for response. The responding party must serve a written response on the requesting party within 30 days after service of the request, except that a defendant served with a request before the defendant's answer is due need not respond until 50 days after service of the request. ( Content of response. Unless the responding party states an objection or asserts a privilege, the responding party must specifically admit or deny the request or explain in detail the

reasons that the responding party cannot admit or deny the request. A response must fairly meet the substance of the request. The responding party may qualify an answer, or deny a request in part, only when good faith requires. Lack of information or knowledge is not a proper response unless the responding party states that a reasonable inquiry was made but that the information known or easily obtainable is insufficient to enable the responding party to admit or deny. An assertion that the request presents an issue for trial is not a proper response.

I included the "therefore, denies" based upon information from Nascar. If your objection is deemed improper, the admission could be admitted. It's simply better to be safe than sorry.

bch2424,

Best of luck to you and your family. As long as you're doing what you feel is best, that's all that matters.