Help! Being sued by Equable Ascent Financial in Texas

[Salsadancer817]

I was served papers that were left on my door last Tuesday.  Paper work states that this is legal because they have been unsuccesful at delivering to me in person.  I am completely confused as to how to respond to this, so ANY help would be appreciated!!! 

 

First thing I am confused about it WHEN to respond.  It states that I have 50 days to answer the third party collector, but then it states that "I am commanded to appear by filing a written answer to the plaintiff's petition at or before 10 o'clock a.m. of the Monday next after the expiration of ten days after the date of service of this citation before the justice court then lists the courts address.  So I'm confused if I have 50 days to respond, or how many days is this stating?  (I was served on March 19th 2013.)  Please help!

 

. Who is the named plaintiff in the suit? EQUABLE ASCENT FINANCIAL LLC ASSIGNEE OF GE CAPITAL CORPORATION

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) MICHAEL R. CASTRO, FROM LAW FIRM RAUSCH, STURM, ISRAEL, ENERSON & HORNIK, LLC

3. How much are you being sued for? $2,086.66 PLUS INTEREST AND ANY COURT COSTS

4. Who is the original creditor? (if not the Plaintiff) GE CAPITAL CORPORATION

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

6. How were you served? (Mail, In person, Notice on door) GUY CAME SEVERAL TIMES WHEN I WAS AT WORK, THEN FINALLY ENDED UP LEAVING PAPERS TAPED TO MY FRONT DOOR.

7. Was the service legal as required by your state? I BELIEVE SO....

8. What was your correspondence (if any) with the people suing you before you think you were being sued? THEY SENT ME PAPERS IN THE MAIL TRYING TO GET ME TO PAY.

9. What state and county do you live in? TARRANT COUNTY, TEXAS

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)FROM WHAT I UNDERSTAND IN THE PAPERWORK THEY SENT, IT IS IN 2010.

11. What is the SOL on the debt? I'M NOT SURE.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). I'M NOT SURE, COULD NOT FIND INFO ONLINE.

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. I DID WHEN I RECIEVED PAPERS FROM LAWYERS SAYING I WAS BEING SUED BY EQUABLE ASCENT FINANCIAL TO SEE WHAT IT WAS ABOUT, BUT OBVIOUSLY THAT WAS TOO LATE.

15. How long do you have to respond to the suit? (This should be in your paperwork). 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? It states "Monday next after the expiration of (10) days after the date of service of this citation" was served 3/19/2013.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. NOTHING THAT I COULD TELL. IT'S ASKING ME FOR A "REQUEST FOR DISCLOSURE, REQUEST FOR PRODUCTION, AND REQUEST FOR ADMISSIONS" AND THEN A VERIFICATION WITH A NOTARY. DO I SEND THE VERIFICAITON TO THE COURT OR TO THE DEBT COLLECTOR?

 

THIS IS WHAT I WAS SERVED:

 

*****ALIAS CITATION WfDISCOVERY ATTACHED*****

THE STATE OF TEXAS

TO: NAME

DEFENDANT, GREETINGS:

YOU ARE HEREBY COMMANDED TO APPEAR BY FILING A WRITTEN ANSWER TO THE PLAINTIFF'S

PETITION AT OR BEFORE TEN O'CLOCK AM. OF THE MONDAY NEXT AFTER THE EXPIRATION OF TEN DAYS

AFTER THE DATE OF SERVICE OF THIS CITATION BEFORE THE JUSTICE COURT, PRECINCT THREE AT 1400 MAIN

STREET, STE. #220, SOUTHLAKE, TX 76092, SAID PLAINTIFF BEING

EQUABLE ASCENT FINANCIAL LLC ASSIGNEE OF GE CAPITAL

CORPORATION

AND SAID:

NAME

PLAINTIFF(S)

DEFENDANT(S)

FILED ON THIS THE 16TH DAY OF AUGUST, 2012, FILE NO, JP03-12-JS00031123 SUED UPON: SEE ATTACHED

PETITION, PLUS COURT COSTS

PLAINTIFF RESERVES THE RIGHT TO PLEAD FURTHER ORALLY AT TIME OF TRIAL

**********************************************************************************

NOTICE TO DEFENDANT

YOU HAVE BEEN SUED, YOU MAY EMPLOY AN ATTORNEY. IF YOU OR YOUR ATTORNEY DO NOT FILE A

WRITTEN ANSWER WITH THE CLERK WHO ISSUED THIS CITATION BY 10:00 A M. ON THE NEXT MONDAY,

FOLLOWING THE EXPIRATION OF TEN DAYS, AFTER YOU WERE SERVED THIS CITATION AND PETITION; A

DEFAULT JUDGMENT MAY BE TAKEN AGAINST YOu. .

**********************************************************************************

THE OFFICER EXECUTING THIS WRIT SHALL PROMPTLY SERVE THE SAME ACCORDING TO

REQUIREMENTS OF LAW, AND THE MANDATES HEREOF, AND MAKE DUE RETURN AS THE LAW DIRECTS,

GIVEN UNDER MY HAND ON THIS THE 5TH DAY OF MARCH, 2013,

RUSSELL B. CASEY

A JUSTICE OF THE PEACE IN AND FOR

PRECINCT THREE

T~. . TCOUNT~ ~

CL~E~ OF THE JUSTICE COURT

 

CASE NO. JP03-12-JS00031123 -" ;

Our File No. 1486999

Case No. JP03-12-JS00031123

v.

§

§

§§§§§§

EQUABLE ASCENT FINANCIAL LLC ·In the Justice Court PR 3 PL 1

ASSIGNEE OF GE CAPITAL CORPORATION

Plaintiff

MY NAME

Defendant(s).

of

TARRANT County Texas

PLAINTIFF'S FIRST AMENDED PETITION & FIRST DISCOVERY REQUESTS

A. Discovery-Control Plan

1. Plaintiff intends to conduct discovery under Levell 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 GE CAPITAL

CORPORATION, is 1120 W.LAKE COOK RD STE B, BUFFALO GROVE, IL 60089.

3. Defendant, MY NAME  may be served with process at MY ADDRESS

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 subj ect 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. GE CAPITAL CORPORATION (PREFERRED VISION) issued a credit card in the Defendant's(s') name under

its account number ending in ************5253. 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 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 June 14,2010. 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 $2,086.66 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 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. Breach of Contract

11. The issuance of a credit card constitutes the offer of a contract. See, e.g. Bank One, Columbus, NA. 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. FortunofJ, 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 ofthe 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 $2,086.66 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 at least $2,086.66 plus interest, which is within

the jurisdictional limits of this court.

H. Conditions Precedent

17. All conditions precedent to Plaintiffs claim for relief have been performed or have occurred.

I. Miscellanv

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. Plaintiff's First Discoverv Requests Attached c

19. Plaintiff is attaching hereto Plaintiff's First Request for Discovery, which is to be served on Defendant along with

Plaintiff's Amended Petition. Plaintiff's First Request for Discovery includes Plaintif:t:,s Reques_~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 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 discovery 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 IL 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 $2,086.66.

h. Pre-judgment and post-judgment interest.

c. Court costs.

d. All other relief to which plaintiff is entitled.

Respectfully submitted;

RAUSCH,STURM,ISRAEL,ENERSON& HORNIK,LLC

By:

ORIGINAL COPY SIGNED

MICHAELR. CASTRO,SBN 24065025

SEUNGW. CHAE,SBN 24047837

SHAUNG. BROWN,SBN 24068023

FALLONHAMILTON,SBN 24059202

JEFFREYS. KRAMER,SBN 24057950

YVONNEMIKULIK,SBN 24070271

MELVINTHATHIAH,SBN24048837

JAMILAB. LLOYD;SBN 24045529

NATHANIALD. KHZ, SBN 24080988

15851 N. Dallas Parkway, Suite 245

Addison TX 75001

Toll Free - (877) 689-7966 Fax - Dallas (877) 492-5185

ATTORNEY FOR PLAINTIFF

1486999

Defendant Copy

 

PLAINTIFF'S FIRST DISCOVERY REQUEST

To: NAME

ADDRESS.. .

Plaintiff, EQUABLE ASCENT FINANCIAL LLC ASSIGNEE OF GE CAPITAL CORPORATION, hereby

serves its First Discovery Requests on Defendant, NAME , along with its Original Petition in the abovestyled

lawsuit. Plaintiffs First Discovery Requests include, Plaintiffs 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), Defendant(s) is directed to serve written responses to Plaitniff's First Discovery Requests and produce all

requested documents to Plaintiffs counsel of record at RAUSCH,STURM,ISRAEL,ENERSON&HORNIK, LLC, at

15851 N. Dallas Park-way, Suite 245, Addison TX 75001 (Fax: 214-453-0974 within 50 days after the date of serice

of the discovery request.

I. NOTICE REGARDING FAILURE TO TIMELY

RESPOND TO REQUEST FOR ADMISSIONS

In the event Defendant(s) fails to respond in writing to Plaintiffs Request for Admissions within the time

period required under Texas Rule of Civil Procedure 198.2(a), Plaintiffs Request for Admissions shall be deemed

admitted without the necessity of a court order as permitted under Texas Rule of Civil Procedure 198.2©, and

such Deemed Admissions may be relied upon by Plaintiff in support of its claims against Defendant(s).

rr. INSTRUCTIONS

1. For any document that no longer exists or that cannot be located, identify the document, state how and when it

passed out of existence, or when it could no longer be located, and the reasons for the disappearance. Also,

identify each person having knowledge about the disposition or loss of the document.

2. When identifying a document, you must state (1) the nature of the document (e.g., fax, letter, memorandum); (2)

the title or heading that appears on the document; (3) the date the doucment was created and/or executed; and (4)

the identity of the author and of the signer of the document.

3. When identifying a person, you must state (1) the person's full name and (2) the present or last known address and

telephone number for the person.

ill. DEFINIT~ONS

The following terms contained in Plaintiffs First Discovery Request shall have the following meanings, unless the

context requires otherwise:

l. "Plaintiff' shall mean EQUABLE ASCENT FINANCIAL LLC ASSIGNEE OF GE CAPITAL CORPORATION

as well as any of its authorized agents, representatives, officers, directors, employees, attorneys, partners,

corporate agents, subsidiaries, affiliates and/or parent companies.

2. "Defendant", "you" and/or "your" shall mean NAME  as well as any of his authorized agents,

representatives, officers, directors, employees, attorneys, partners, corporate agents, subsidiaries, affiliates, parent

companies, and/or any other person or entity acting on behalf of and with the permission of NAME

In the event there are multiple defendants in this lawsuit, "Defendant" shall be construed to refer to both the

singular and plural version and shall be inclusive of all named defendants.

3. "Document" means all written, typed or printed matters, and all magnetic, electronic, or other records or

documentation of any kind or description in your actual possession, custody, or control, including those in the

possession, custody, or control of any and all present or former directors, officers, employees, consultants,

accountants, attorneys or other agents, whether or not prepared by you, that constitute or contain matters relevant

to the subject matter of this action.

4. "Possession", "custody", and/or "control" of an item means that the person either has physical possession of the

item or has a right to possession equal or superior to that of the person who has physical possession of theem.

5. "Person" means any natural person, corporation, firm, association, partnership, joint venture, proprietorship,

governmental body, or any other organization, business, or legal entity, and all predecessors or successors in

interest.

l J

6. "The Account" shall mean the credit account bearing The Original Creditor account number ending in

************5253 made the subject of this lawsuit.

7. "The Original Creditor" shall mean GE CAPITAL CORPORATION (PREFERRED VISION).

Respectfully submitted;

RAUSCH,STURM,ISRAEL,ENERSON& HORNIKLLC

ATTORNEYSINTHEPRACTICEOFDEBTCOLLECTION

By: ORIGINAL COPY SIGNED

MICHAEL R. CASTRO, SBN 24065025

SEUNGW. CRAB, SBN 24047837

SHAUN G. BROWN, SBN 24068023

FALLON HAMILTON, SBN 24059202

JEFFREY S. KRAMER, SBN 24057950

YVONNE MIKULIK, SBN 24070271

MELVIN THATHIAH, SBN 24048837

JAMILA B. LLOYD, SBN 24045529

NATHANIAL D. KITZ, SBN 24080988

15851 N. Dallas Parkway, Suite 245

Addison TX 75001

Toll Free - (877) 689-7966 Fax - Dallas (877) 492-5185

ATTORNEY FOR PLAINTIFF

REQUEST FOR DISCLOSURE

Pursuant to Texas Rule of Civil Procedure 194.3 Defendant is requested to disclose within 50 days of service of this

Request, the information or material described in Texas Rule of Civil Procedure 194.2(a)-(l).

(a) the correct names of the parties to the lawsuit;

( the names, address, and telephone numbers of any potential parties;

© the legal theories and, in general, the )"ctual bases of the responding party's claims or defenses (the

responding party need not marshal all evidence that may be offered at trial);

(d) the amount and any method of calculating economic damages;

(e) the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement

of each identified person's connection with the case;

(f) for any testifying expert:

(1) the expert's name, address, and telephone number;

(2) the subject matter on which the expert will testify;

(3) the general substance of the expert's mental impressions and opinions and a brief summary of the

basis for them, or if the expert is .not retained by, employed by, or otherwise subject to the control

of the responding party, documents reflecting such information;

:...., ;.

(A) all documents, tangible things, reports, models, or data compilations that have been provided

to, reviewed by, employed by, pr prepared by or for the expert in anticipation of the expert's

testimony; and

( the expert's current resume and bibliography;

(g) any indemnity and insuring agreements described in Rule 192.3 (f);

(h) any settlement agreements described in Rule 192.3 (g);

(i) any witness statements described in rule 192.3 (h).

REQUEST FOR PRODUCTION

Pursuant to Texas Rule of Civil Procedure 196, Defendant is directed to provide written responses to the following

Request for Production and to produce the documentation requested therein to Plaintiff through its attorney of record within

50 days after the date of service.

1. Please produce all documents in your possession relating to the Account, including copies of any account statements,

copies of any cards issued on the Account, credit applications, signed contracts, and/or any terms, conditions,

cardholder agreements or any amendments to same.

2. Please produce all communications made between you and Plaintiff and/or The Original Creditor within the four years

immediately preceding the date this lawsuit was filed. Please include in your response a copy of any request for

verification or validation of the Account.

3. Please produce copies of any written notices sent by Defendant to Plaintiff and/or The Original Creditor objecting

to or disputing any terms, conditions, amendments, charges, purchases, cash-advances, interest rates, late-fees, over-

Iimit fees and/or any other fees applied to the Account.

4. Please produce copies of any documents reflecting any payments made by Defendant or on behalf of Defendant to

Plaintiff or The Original Creditor within the four years immediately preceding the date this lawsuit was filed. Please

include in your response copies of any checks, payment confirmations, and/or banking account statements that reflect

payments made to Plaintiff or The Original Creditor.

5. If you contend that Defendant does not owe the amount claimed by Plaintiff in this lawsuit and/or that all due

payments, offsets, credits and/or deductions in favor of Defendant have not been applied to the Account, please

produce all documents in support of such contention, including copies of any payments made and/or bank account

statements reflecting payments made.

6. If you contend that Defendant did not owe a balance on the Account to The Original Creditor at the time the Account

was closed, please produce all document in support of such contention.

7. If you contend that Defendant does not owe the amount claimed by Plaintiff in this lawsuit as a result of identity theft

and/or fraud, please produce all documents in support of this contention.

8. If you contend that Plaintiff has violated the Fair Debt Collection Practices Act, The Fair Credit Reporting Act, the

Texas Debt Collection Act, the Texas Finance Code, the Texas Deceptive Trade Practices Act or any other Federal

or State statute, including the Texas Rules of Civil Procedure and or the Texas Civil Practice and Remedies Code,

in connection with the Account, please produce all documents in support of your;6tmtention-:

9. If you contend Plaintiff has made any misrepresentations regarding the Account and/or taken any false or deceptive

actions with respect to the Account, please produce all documents in support of your contention.

10. If you contend that Plaintiff has engaged in improper, abusive, and/or harassing collection efforts with respect to the

Account, please produce all documents in support of your contention.

11. If you have or intend to assert any counterclaims against Plaintiff in this lawsuit, please produce all documents upon

which you base such claims.

12. If you have asserted counterclaims against Plaintiff in this lawsuit, please produce all documents reviewed and/or

relied upon at the time you filed the counterclaims. If an investigation was performed by Defendant's counsel prior

to filing the counterclaim, please provide all documents that were reviewed as part of the investigation that are not

subject to privilege.

13. If you contend that Plaintiff's claims in this lawsuit are barred by the applicable statute of limitations, please produce

all documents in support of your contention, including any documents showing when you contend the last payment

was made on the Account or when the last purchase/charge was incurred on the Account.

14. If you have asserted any affmnative defenses in response to this lawsuit, please produce all documents in support of

each affmnative defense asserted.

15. If you contend that Plaintiff is not the current holder of the Account or does not have standing to bring this lawsuit,

please produce all documents in support of your contention, including specifically, any demands or notices received

by you from any other party seeking to collect on the Account.

REQUEST FOR ADMISSIONS

Pursuant to Texas Rule of Civil Procedure 198, please respond in writing to the following Request for Admissions

by admitting or denying the truth of the following statements and serve such written responses on Plaintiff through its counsel

of record within 50 days after the date of service. In the event Defendant(s) fails to respond in writing to Plaintiff's Request

for Admissions within 50 days after the date of service of this Request, Plaintiffs Request for Admissions shall be deemed

admitted without the necessity of a court order as permitted under Texas Rule of Civil Procedure 198.2( c), and such Deemed

Admissions may be relied upon by Plaintiff in support of its claims against Defendant( s).

Admit or Deny the following Requests:

1. As of the date Plaintiffs Petition was filed Defendant owed Plaintiff $2,086.66 on the Account.

2. Defendant had at least one credit card account with The Original Creditor within the four years immediately

preceding the date this lawsuit was filed.

3. Defendant made use of a credit card account issued by The Original Creditor to make purchases and/or obtain

cash advances within the four years immediately preceding the date this lawsuit was filed.

4. Defendant made use of the Account as identified in Plaintiff's Original Petition and defmed herein to make

purchases and/or obtain cash advances within the four years immediately preceding the date this lawsuit was filed.

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

lawsuit was filed.

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

this lawsuit was filed. : 3

,1

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.

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.

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

the Account.

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, over-limit 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.

Defendant was notified of all changes and/or amendments to the terms and conditions and/or cardholder

agreement for the Account.

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.

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.

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.

iv ••

25. Defendant received a demand letter for payment from Plaintiff or Plaintiffs 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.

28. Defendant has not received any demands for payment from The Original Creditor in the 12 months preceding the

filing of this lawsuit.

PLAINTIFF'S FIRST SET OF INTERROGATORIES

1. If you deny that you owe the amount claimed by Plaintiff in its Petition, please state the factual basis for your denial.

2. Please state the factual basis for any affirmative defenses you have asserted in this hb~****. --j

3. Please state the factual basis for any counterclaims you have asserted against Plaintiff in this lawsuit. Plaintiff is not

requesting a detailed narrative. Plaintiff is requesting to know the actions or omissions allegedly committed by

Plaintiff that serve the basis of the counterclaim(s), when they were allegedly committed, and the name(s) of the

person who committed them.

4. If you have filed a counterclaim( s) against Plaintiff in this lawsuit, please state the steps taken and/or investigation

conducted to determine the validity of the such claims prior to filing such counterclaim(s).

5. If you contend that you have received any demands for payment on the Account from any entity other than the

Plaintiff and/or its attorneys within the 12 months preceding the filing of this lawsuit, please identify such entity, the

approximate date the demand was made, and how the demand was made (ie - in writing via mail, over the telephone,

etc.). If you have not received any demands for payment from any entity other than Plaintiff and/or its attorneys

within the 12 months preceding the filing ofthis lawsuit, please answer "NONE".

STATE OF TEXAS )SS.

)

COUNTY OF TARRANT )SS.

VERIFICATION

By signing this document, I hereby swear or affirm, subject to the penalty of perjury, that the answers and responses

included in the foregoing document are true and correct. My signature affixed hereto also confirms that I have personally read

each answer or response and personally affirm them as my own.

NAME , Defendant

Before me, a notary public, on this day personally appeared the above named authorized person known to me to be

the person whose name is subscribed above in connection with the foregoing document and, being by me first duly sworn

declared that the statements therein contained are true and correct.

Sworn to and subscribed before me by Defendant, NAME , on _

Notary Public in and for

The State of Texas

My commission expires:

Defendant Copy

[racecar]

https://docs.google.com/viewer?a=v&q=cache:mY_uF2yJX-4J:www.consumerlawoffice.com/Answer.pdf+&hl=en&gl=us&pid=bl&srcid=ADGEESiod4JGbZyJB5nCuCroEozBaRRQVYJTlGzRPFUe-Eu4roIghwA6Xg6Cd-mSmpw-ZKI6rbcbzVXRWzats0vb-IPBCg8t8GyCWgQxuSON8isjWiceIfyj_mfTbUCmCWtLrO6OHwLi&sig=AHIEtbQ4zxIFSgPaldcSHV8BqIVlhtVXtw

http://www.supreme.courts.state.tx.us/rules/trcphome.asp

These were made by attorneys

http://babyinthecake.wikispaces.com/z_%28Sample%29-Admisssion+Response This is how you respond to admissions.

http://babyinthecake.wikispaces.com/z_%28Sample%29-Disclosures this is how you answer disclosure

http://babyinthecake.wikispaces.com/z_%28Sample%29-Interrogatory+Response response to interrogatories

http://babyinthecake.wikispaces.com/z_%28Sample%29-Production+Response this is how you respond to production requests

https://docs.google.com/viewer?a=v&q=cache:qTyHtixHohcJ:www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf+&hl=en&gl=us&pid=bl&srcid=ADGEESjNQT-ZqFsB6WSCSzJmItxn5CqMBXBQAGegV8SZiIs5nhYj-w8w_WjZ5YT4-OKvjcou9Ivt7PR7wAe5S98AVHzPRsC07eI8Yp1CfodKYqjPL2em7P9odnOzUgpSWv6hpLVNIBCC&sig=AHIEtbTAYWcSya3Xo55eFOcn6-UVlOC7eQ How to Defend A Credit Card Case

 

Craig Jordan
Texas Bar No. 11006050

Jessica Lesser
Texas Bar No. 24001974

Lesser & Jordan
990 S. Sherman Street
Richardson, Texas 75081
Dallas, Texas 75201
(214) 855-9355 (phone)
(214) 855-9389 (fax)
 

[racecar]

No. DC-13-06843

American Express Centurion Bank,
Plaintiff,

vs.

John Dewey,
Defendant.

In the District Court of Dallas County 68th Judicial District

 

 

DEFENDANT’S RESPONSE TO REQUESTS FOR DISCLOSURE

To: American Express Centurion Bank, through its attorney, Alan R. Scheinthal, Sheinthal & Kouts, 4635 Southwest Fwy, Suite 720, Houston, TX 77027.

The Defendant makes the following response to the Requests for Disclosure included in the Plaintiff’s Original Petition:
A. The correct names of the parties to the lawsuit.
Response: The Defendant’s name is John Dewey
B. The name, address and phone numbers of any potential parties.
Response: The Defendant does not know the name, address or phone number of any potential parties.
C. The legal theories and, in general, the factual bases of your claims and defenses;
Response:
The Plaintiff’s claims are barred by the statute of limitations because to the extent that the Defendant may have defaulted on the credit card agreement that is the subject of this lawsuit, that default occurred more than 4 years prior to the date the lawsuit was filed.
The Plaintiff has failed to state and cannot prove a claim on an account, either open, stated or under TRCP Rule 185, because the Defendant never received, personally or for the benefit of any other person, any goods, wares or merchandise, personal services, labor, or labor and materials from the Plaintiff or its assignor(s).
The Plaintiff cannot prove a claim for breach of contract because it does not have evidence of offer, acceptance and consideration given for the original contract between the Defendant and the card issuer and any amendments to that contract.
D. The amount and any method of calculating economic damages.
Response: None at this time.
E. The name, address and phone numbers of persons having knowledge of relevant facts, and a brief statement of each person’s connection with the case.
Response: The following persons have knowledge of relevant facts:
John Dewey, who may be contacted through the undersigned counsel
American Express Centurion Bank, who may be contacted through the Plaintiff’s attorney.
F. For any testifying expert:
1. The expert’s name, address, and telephone number.
Response:(if you dont have an expert Response would be "None at this time.")

Craig Jordan
Lesser & Jordan
990 S. Sherman Street
Richardson, Texas 75081
(214) 855-9355

2. The subject matter on which the expert will testify.
Response: The amount and reasonableness of the attorneys’ fees requested by the plaintiff and/or the defendant.
3. The general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by , employed by, or otherwise subject to the control of the responding party, documents reflecting such information.
Response: An analysis of the attorneys’ fees requested will be performed at a future date. The impressions and opinions formed based upon that analysis will be communicated as required by the Rules of Civil Procedure.
4. If the expert is retained by, employed by, or otherwise subject to the control of the responding party:
a. All documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony, and
Response: None at this time.
b. The expert’s current resume and bibliography.
Response: see attached.
G. Any indemnity and insuring agreements described in Rule 192.3(f)
Response: No indemnity or insuring agreements are known to the Defendant at this time.
H. Any settlement agreements described in Rule 192.3(g).
Response: No settlement agreements are known to the Defendant at this time.
I. Any witness statements described in Rule 192.3(h).
Response: No witness statements are known to the Defendant at this time.
J. In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills.
Response: Not applicable to this suit.
K. In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party.
Response: Not applicable to this suit.
Respectfully Submitted,

 

Craig Jordan
Texas Bar No. 11006050

Jessica Lesser
Texas Bar No. 24001974

Lesser & Jordan
990 S. Sherman Street
Richardson, Texas 75081
Dallas, Texas 75201
(214) 855-9355 (phone)
(214) 855-9389 (fax)

Attorneys for Defendant

Certificate of Service
On March 26, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:

counsels name here
By Certified U.S. Mail, Return Receipt Requested By U.S. Mail




 

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For production requests

 

Defendants response to Plaintiffs first discovery request

 

1. Please produce all documents in your possession relating to the Account, including copies of any account statements,copies of any cards issued on the Account, credit applications, signed contracts, and/or any terms, conditions,cardholder agreements or any amendments to same.

 

Response:After a diligent search and reasonable inquiry, No such documents are within respondent's possession, custody or control.

or

Following a diligent search and reasonable inquiry into discovery of the request, the responding party has no such documents.

or

RESPONDING PARTY has conducted a diligent search and reasonable inquiry and is currently unable to comply with this demand because no such documents exist or ever existed.

 

 

 

 

2. Please produce all communications made between you and Plaintiff and/or The Original Creditor within the four years immediately preceding the date this lawsuit was filed. Please include in your response a copy of any request for verification or validation of the Account.

 

Response:RESPONDING PARTY has conducted a diligent search and reasonable inquiry and is currently unable to comply with this demand because no such documents exist or ever existed.

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http://www.creditinfocenter.com/community/topic/314231-texas-justice-civil-citation-please-help/page-2

DEFENDANTS RESPONSE TO PLAINTIFFS REQUEST FOR ADMISSIONS

1. As of the date Plaintiff’s Petition was filed Defendant owed Plaintiff $2,086.66 on the Account.
DENIED: Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's query and must respectfully DENY Plaintiff's allegations. Defendant holds the Plaintiff to provide the strictest proof thereof.

2. Defendant had at least one credit card account with The Original Creditor within the four years immediately preceding the date this lawsuit was filed.
DENIED. Responding Party lacks sufficient information and belief in order to admit or deny this request and on that basis denies same.

3. Defendant made use of a credit card account issued by The Original Creditor to make purchases and/or obtain cash advances within the four years immediately preceding the date this lawsuit was filed.
DENIED. Responding Party lacks sufficient information and belief in order to admit or deny this request and on that basis denies same.

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 year immediately preceding the date this lawsuit was filed.
DENIED. Responding Party lacks sufficient information and belief in order to admit or deny this request and on that basis denies same.

5. Defendant made at least one payment to The Original Creditor within the four years preceding the date this lawsuit was filed.
Objection. Responding Party lacks sufficient information and belief in order to admit or deny this request and on that basis denies same.

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

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.

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

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.
OBJECTION Compounded and lacking in foundation, specifically that Defendant made use of the account, an unproven allegation.



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

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

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

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.
DENIED.

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.
DENIED.

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

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

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

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.
Admitted. Defendant made objections via telephone.



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

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.
DENIED.

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.
Objection. Repetitive #5

23. Defendant ceased making payments on the Account.
OBJECTION Vague and lacking in specificity.


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

25. Defendant received a demand letter for payment from Plaintiff or Plaintiff’s attorney prior to the filing of this lawsuit.
Admitted to the extent that Plaintiff has made a wholly unsupported demand for payment.



26. All due payment, credits, deductions and/or adjustments in favor of Defendant have been applied to the Account.
Objection. The information sought is equally available to the Plaintiff through its business records.


27. Plaintiff is the current owner of the Account.
DENIED: Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's query and must respectfully DENY Plaintiff's allegations. Defendant holds the Plaintiff to provide the strictest proof thereof.

28. Defendant has not received any demands for payment from The Original Creditor in the 12 months preceding the filing of this lawsuit.
Objection: Immaterial and irrelevant. The original creditor is not the Plaintiff. Additionally, The information sought is equally available to the Plaintiff through its business records
 

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DEFENDANT’S RESPONSE TO PLAINTIFF’S FIRST SET OF INTERROGATORIES

 

1. If you deny that you owe the amount claimed by Plaintiff in its Petition, please state the factual basis for your denial.

 

Answer: Denied to the extent that Defendant, after a diligent search, can find no such proof of the alleged debt in his records. 

 

 

2. Please state the factual basis for any affirmative defenses you have asserted in this action.

 

Response:Defendant has not asserted any special or affirmative defenses at this time, defendant reserves the right to assert additional special or affirmative defenses in the event discovery indicates that they would be appropriate. 

 

3. Please state the factual basis for any counterclaims you have asserted against Plaintiff in this lawsuit. Plaintiff is not requesting a detailed narrative. Plaintiff is requesting to know the actions or omissions allegedly committed by Plaintiff that serve the basis of the counterclaim(s), when they were allegedly committed, and the name(s) of the person who committed them.

 

Response: None at this time. Defendant reserves the right to amend as information becomes available through discovery.

 

4. If you have filed a counterclaim(s) against Plaintiff in this lawsuit, please state the steps taken and/or investigation conducted to determine the validity of the such claims prior to filing such counterclaim(s).
RESPONSE: None at this time. Defendant reserves the right to amend as information becomes available through discovery.

 

5. If you contend that you have received any demands for payment on the Account from any entity other than the Plaintiff and/or its attorneys within the 12 months preceding the filing of this lawsuit, please identify such entity, the approximate date the demand was made, and how the demand was made (ie - in writing via mail, over the telephone,etc.). If you have not received any demands for payment from any entity other than Plaintiff and/or its attorneys within the 12 months preceding the filing ofthis lawsuit, please answer "NONE".

 

RESPONSE: OBJECTION The information sought is assumedly already known to the Plaintiff through its business records, to the extent that Plaintiff claims to have standing to sue, which is logically based upon all required forms of admissible evidence, which Plaintiff obviously claims to have. Requesting information from Defendant that would prove Plaintiff's case is improper. If Plaintiff does not have the information sought, which is required to prove up Plaintiff's case, Plaintiff should not have brought suit.