MC court date set - what next?

[enginama1]

My wife was recently(2 months ago) served with a Plaintiffs complaint, we answered the complaint 2 month's ago and now have a court date advised by normal mail.

The Answers were denied as 'defendant is without knowledge to form a belief of any truth to statement' to all their accusations, but we didn't dismiss the copy of the credit card statement as hearsay we just answered to all their complaints... should we have dismissed evidence at that point?... and is it too late to do anything about it?

The main complaint which we know not to be true is they stated as a section under

8. Facts

Defendant opened an account with Chase Bank USA .. which she knows for sure she did not ... now it is possible Chase bought a bank which she had a credit card with ... but thats not what the complaint states.

 

So court date coming up, I understand they may just call for second trial when we turn up just to see if they can get a default judgement.

But if they don't, I'm guessing we would ask the judge to throw out the copy of the credit card statement as hearsay and ask for evidence of standing ... at the court hearing ... or do we do something before hand?

 

Thanks

 

 

 

1. Who is the named plaintiff in the suit?

Midland

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Andrew Herreth - Lawyer

3. How much are you being sued for?
$3900
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?)
Complaint was served by 'Professional Civil Process and now letter from JP court delivered via mail advising of court date

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

See above

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

Not sure ... Texas

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

Montgomery County, TX

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Only evidence provided shows from a July 25th 2010 statement, but not whan a payment was made ... just shows latest activity of late fees, etc

11. What is the SOL on the debt? To find out:

Probably another year left on SOL ... TX is 4 yrs

Statute of Limitations on Debts

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).

Bench Trial Court date set

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? (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?

Already responded to Complaint

 

[BV80]

You don't just "dismiss" evidence.  You might motion to strike or motion to exclude, but you have to give the judge a valid reason for granting your motion.  Your motion must be supported by either state statutes, court rules, or case law.

 

The discovery process is probably coming up next.  Read your rules about Interrogatories, Production of Documents, and Admissions.

[enginama1]

so the 'motion to dismiss' the credit card statement, that is done at the court hearing right?

 

So is there any additional advise to this for what i/we should be preparing for the bench trial.

[shellieh98]

find your texas rules of civil procedure, and search out discovery.  You need to get going on discovery before your court trial.  Read some of the threads here by other people from texas, it will help direct you where you need to go.

So they haven't sent you any other documents except that one statement? When is your trial?

 

I would start by sending them discovery with a request for production of documents.  Find a list here on what documents to request.  Read your rules and see how long before they have to answer, and if they don't answer, or object, come back and we will direct you to how to make them answer, or get anything you asked for precluded. start there, then come back with questions.

[enginama1]

Thanks for the advise on discovery.

 

The complaint had the copy of credit card statement which had the account number redacted apart from last 4 numbers. No other evidence supplied.

Trial is 31st July.

[enginama1]

So I plagiarized the below doc using sources on this site, please let me know if this is the right path ... appreciate all guidance on this ... Thanks

 

 

CASE NO. XXXXXX

MIDLAND FUNDING LLC

IN THE XXXXX COUNTY

PLAINTIFF

JUSTICE COURT

VS.

 

XXXX XXXX

 

DEFENDANT

 

REQUEST FOR PRODUCTION OF DOCUMENTS

 

TO THE HONORABLE JUDGE OF SAID COURT:

 

COMES NOW, XXX XXX, Defendant in the above styled and numbered cause,

and makes and files this Request for Production of Documents, and requests the Court to grant such Motion based on facts stated below::

 

 

1. The alleged credit application from CHASE BANK USA,N.A bearing the defendant’s signature;

 

2. The alleged credit agreement from CHASE BANK USA, N.A that states interest rate, grace period, terms of repayment, etcetera;

 

3. Itemized statements or credit card statements from CHASE BANK USA, N.A that demonstrate how the alleged amount of $X,XXXX.XX was calculated;

 

4. A contract, agreement, assignment, or other means demonstrating that Plaintiff had the authority and capacity, and was legally entitled to collect on the alleged debt from CHASE BANK USA, N.A;

 

5. Letter(s) sent to Defendant by Plaintiff., demonstrating an attempt to collect on the alleged debt, CHASE BANK USA, N.A;

 

6. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;

 

7. Any and all further documents that you believe establish that defendant had an outstanding account or debt related to CHASE BANK USA, N.A;

 

8. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt;

 

9. Any and all written communication, sent to the defendant from the plaintiff, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff's accessing of defendant's credit report(s).

 

10. Any and all credit report(s) plaintiff obtained from any credit reporting agency concerning the defendant;

 

11. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or CHASE BANK USA, N.A;

 

 

Respectfully Submitted,

Signed

Defendant/Pro Se

 

 

CERTIFICATE OF SERVICE

 

I do hereby certify that I will mail a true and correct copy of this REQUEST FOR PRODUCTION OF DOCUMENTS to the Plaintiff on the day of , 20

 

Signed

 

Defendant/Pro Se

[Savoir]

Do your rules suggest that these requests be filed with the court?

I'm asking because you seem to be addressing this to the judge.

Most times discovery is just between plaintiff and defendant .......... the court is not involved unless you need to compel them to answer or you motion to preclude.

 

You should also probably include some definitions to narrow the scope of what you are requesting. As it stands now I would think that most of these request would be objected to as being overly broad and burdensome.

[shellieh98]

do you need courts permission to conduct discovery in texas? In colorado we have disclosure, and I need permission, but I am thinking texas does not have disclosure.  If you don't then you would not send it to the court, but just to the plaintiff. If they fail to comply to your requests, then you would file a motion to compel them to send it to you.  (after you send them a meet and confer) 

Is your actual trial July 31st?  If so, I would motion to the court for leave of the court to conduct discovery, cite plaintiff has not supplied any documents to even prove a prima facie case.  You may want to ask for leave first, becasue most of the time they are given 30 days to respond, and that 30 days would not be up before trial.  title it motion for leave of court to conduct discovery, or int he alternative and extention of time.  Then you need to state why you want it, and respectfully submit it.  You would also want to send a copy cmrrr to the plaintiff.

[enginama1]

So something like this? Do I need to state how long I need?

 

MOTION FOR LEAVE OF COURT TO CONDUCT DISCOVERY

 

TO THE HONORABLE JUDGE OF SAID COURT:

 

COMES NOW, XXX XXX, Defendant in the above styled and numbered cause,

and makes and files this Request for Leave of Court to conduct discovery, and requests the Court to grant such Motion based on facts stated below:

 

1. Plaintiff has not supplied any documentation to prove a prima facie case

2. Defendant has no knowledge of any contract with defendant or CHASE BANK, N.A

[Anon Amos]

@enginama1

Are you sure it is a TRIAL date coming up on July 31 and not a case management or trial readiness conference or something like that? Because you would not have time for discovery if that's the case (my guess is that it is not a trial date). If it is a trial date (and not something else); you would probably request a witness and exhibit list (or something to that effect depending on your rules).

And you never said (unless I missed it) whether or not your rules say you need permission of the court to conduct discovery (most courts want to be left out of it). You need a copy of your local court rules (if you don't already have one) and you can find the state court rules and your civil code of procedures (or your states version of that)online.

If it's not a trial date, and you do have time to send discovery, you may be able to just send it to them without involving the court, I don't know, I was just making sure that you do, or if not that you could find out for sure ( if it's a trial date, and do you need leave of court to do discovery?)although if it is a trial date you do not have time for discovery, but you still need to get their evidence before the trial.

[enginama1]

Yep definitely a trial date. Letter states 'You should appear and be prepared for a bench trial at time/date'

 

Letter is addressed to their lawyer, with wife cc'd.

Civil Procedure does not state you need permission, it only requires that petition states what level discovery in 1st numbered paragraph of complaint, which it does.

 

 

Original complaint states plaintiff intends to conduct discovery under level 1 of Texas rules of civil procedure.

Also stated in original Complaint is  Plaintiff has reserved the right to plead more fully prior to, at the time of and during the trial ... not sure if that matters.

 

So as their is less than 30 days before trial date should I still be submitting the motion for leave of court to conduct discovery.

[shellieh98]

Also stated in original Complaint is  Plaintiff has reserved the right to plead more fully prior to, at the time of and during the trial ... not sure if that matters.

 

It does matter, becasue they will bank on you not knowing what you are doing, and will try to bring this stuff with them to trial, or provide it to you 1 week before trial, when it would be almost impossible for you to object to properly.  I would ask for leave of the court.  If you can't get it, I would consider taking the week before trial off so you will have time to write up objections, motions in limine etc.

 

Send a request for documents, send ROGS asking them who their witnesses will be, and hopefully they will answer (probably not lol).  Send it out ASAP, then file the motion for leave of the court.  That way if you don't get it, you will still have your request for those things, and if they don't send them to you you can ask they be precluded if they bring them to trial.

 

I would study up on some of the motions in limine around here where people have submitted them to state their objections to various evidence.  As soon as you get anything from them, come back and post it so we can direct you as to your next move.

[Anon Amos]

So as their is less than 30 days before trial date should I still be submitting the motion for leave of court to conduct discovery.

I wouldn't think so. To me it sounds like you wouldn't need the court's permission anyway, you would just send it, but it's too late for that type of discovery now.

You will have to check your court rules and rules of procedure; but there must be a way to request a "witness and exhibit list" or something to that effect. This is usually done about 30 days before trial. You don't want the evidence just dropped on your lap the day of trial if you can avoid it.

Look under trial rules, civil procedure, or maybe even discovery rules. There has to be a way to get an evidence list(of what they plan to use against you at trial) from them before trial. That is a part of your constitutional right to due process.

[Anon Amos]

Also stated in original Complaint is  Plaintiff has reserved the right to plead more fully prior to, at the time of and during the trial ... not sure if that matters.

 

It does matter, becasue they will bank on you not knowing what you are doing, and will try to bring this stuff with them to trial, or provide it to you 1 week before trial, when it would be almost impossible for you to object to properly.  I would ask for leave of the court.  If you can't get it, I would consider taking the week before trial off so you will have time to write up objections, motions in limine etc.

 

Send a request for documents, send ROGS asking them who their witnesses will be, and hopefully they will answer (probably not lol).  Send it out ASAP, then file the motion for leave of the court.  That way if you don't get it, you will still have your request for those things, and if they don't send them to you you can ask they be precluded if they bring them to trial.

 

I would study up on some of the motions in limine around here where people have submitted them to state their objections to various evidence.  As soon as you get anything from them, come back and post it so we can direct you as to your next move.

It will be impossible for him to do all that before a trial date of less than 30 days. They would not even have to send him their objection before the trial, not to mention he would have to send a M&C letter and then a motion to compel. You cannot work the case in the last month.

[shellieh98]

I know I thought of that, that is why I went and looked at texas rules.

 

It looks like you can ask for a pre-trial hearing, with a discovery schedule--that would continue the trial to a later time. OR at least be able to get discovery items more than a few days before trial.

Hey just listing what needs to be done, can't hurt to try, if left without trying, will lose anyway.

 

 

RULE 166. PRE-TRIAL CONFERENCE

In an appropriate action, to assist in the disposition of the case without undue expense or burden to

the parties, the court may in its discretion direct the attorneys for the parties and the parties or their

duly authorized agents to appear before it for a conference to consider:

(a) All pending dilatory pleas, motions and exceptions;

( The necessity or desirability of amendments to the pleadings;

© A discovery schedule;

(d) Requiring written statements of the parties' contentions;

(e) Contested issues of fact and the simplification of the issues;

(f) The possibility of obtaining stipulations of fact;

(g) The identification of legal matters to be ruled on or decided by the court;

(h) The exchange of a list of direct fact witnesses, other than rebuttal or impeaching

witnesses the necessity of whose testimony cannot reasonably be anticipated before

the time of trial, who will be called to testify at trial, stating their address and

telephone number, and the subject of the testimony of each such witness;

(i) The exchange of a list of expert witnesses who will be called to testify at trial, stating

their address and telephone number, and the subject of the testimony and opinions

that will be proffered by each expert witness;

(j) Agreed applicable propositions of law and contested issues of law;

(k) Proposed jury charge questions, instructions, and definitions for a jury case or

proposed findings of fact and conclusions of law for a nonjury case;

(l ) The marking and exchanging of all exhibits that any party may use at trial and

stipulation to the authenticity and admissibility of exhibits to be used at trial;

(m) Written trial objections to the opposite party's exhibits, stating the basis for each

objection;

(n) The advisability of a preliminary reference of issues to a master or auditor for

findings to be used as evidence when the trial is to be by jury;

(o) The settlement of the case, and to aid such consideration, the court may encourage

settlement;

(p) Such other matters as may aid in the disposition of the action.

The court shall make an order which recites the action taken at the pretrial conference, the

amendments allowed to the pleadings, the time within which same may be filed, and the agreements

made by the parties as to any of the matters considered, and which limits the issues for trial to those

not disposed of by admissions, agreements of counsel, or rulings of the court; and such order when

issued shall control the subsequent course of the action, unless modified at the trial to prevent

manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which

actions may be placed for consideration as above provided and may either confine the calendar to

jury actions or extend it to all actions.

Pretrial proceedings in multidistrict litigation may also be governed by Rules 11 and 13 of the Rules

of Judicial Administration.

[Anon Amos]

@shellieh98

Didn't you see anything about a witness or evidence list? Kind of like Cali's CCP 96 witness and exhibit list? There has to be something like that.

[shellieh98]

nope, but still looking.

[shellieh98]

OK so in reading your rules for discovery it looks like your discovery peroid was from the day they filed the petition, up to 30 days before trial.  So discovery is over--nothing was sent from either side, so you get nothing.  Don't think they will grant you leave, and doubt they would answer any at this stage.  The only thing I can see is this

 

(d) Reopening discovery. When the filing of a pleading or an amended or supplemental

pleading renders this subdivision no longer applicable, the discovery period reopens, and

discovery must be completed within the limitations provided in Rules 190.3 or 190.4,

whichever is applicable. Any person previously deposed may be redeposed. On motion of

any party, the court should continue the trial date if necessary to permit completion of

discovery.

 

So I guess your hope would be they try for a MSJ on you--that would be a new pleading.  I don't know, I may be reading that wrong. 

I guess your best hope is to see what they send you, and respond to it.  Post anything they send you, and we will see what can be done to keep it out of evidence.

 

I would study up on your rules of evidence.  Read all the texas cases in this forum you can.

 

I still can't find anything on when all their evidence or witness list needs to be to you by.

[Anon Amos]

I would expect you will receive in the mail some form of evidence list, affidavit in lieu of live testimony, or a summary judgment soon.

[shellieh98]

I am so wishy washie.  I guess you would have nothing to lose by asking for a continuance for discovery. I did find this.  It may or may not work.  This would be especially useful if they send you stuff days before trial and you did not have a chance to oppose it.

 

 

(Postponement or Continuance. Cases may be postponed or continued by

agreement with the approval of he court, or upon the court's own motion or for cause.

When a case is called for trial and only one party is ready, the court may for good

cause either continue the case for the term or postpone and reset it for a later day in

the same or succeeding term.

© Cases May Be Reset. A case that is set and reached for trial may be postponed for

a later day in the term or continued and reset for a day certain in the succeeding term

on the same grounds as an application for continuance would be granted in other

district courts. After any case has been set and reached in its due order and called for

trial two (2) or more times and not tried, the court may dismiss the same unless the

parties agree to a postponement or continuance but the court shall respect written

agreements of counsel for postponement and continuance if filed in the case when or

before it is called for trial unless to do so will unreasonably delay or interfere with

other business of the court.

[shellieh98]

I cant find anything as to a time line when things need to the defendant, I can't find anything on a trial brief either. It just says all discovery shall be done 30 days prior to tiral, and all motions need to be filed 30 days prior to trial. 

 

Did you not have any case management conferences? nothing but the filed suit and trial date set? 

 

It seems like to me they are just as unprepared, and maybe they will just dismiss with prejudice--they might have been just filing to get a default judgement. Maybe you will get lucky, I don't know.  Read up on your rules of evidence so you will have an idea on what to say or object to if they try and produce evidence.  Take notes, and if they send you anything, post.

[enginama1]

Correct, filed the answer to complaint beginning of May and heard nothing until the trial notification.

Thought they just gave up after we answered their complaint.

[shellieh98]

when did you gt the notice for trial?  That seems really fast to me. I would file the request for leave anyway, you have nothing to lose except a denial.

[enginama1]

Got the letter yesterday in home mailbox. Letter is dated ... wow ... letter is dated July 7 2013 on JP letter head. Interesting letter is dated tomorrow.

As I said letter is addressed to the Plaintiff lawyer with a cc to my wife (defendant).

 

On requesting leave, why would I ask for leave if discovery is over, or would leave extension extend discovery period as trial date would no longer be within 30 days?

[shellieh98]

Because you did not have discovery.  I would send out your discovery questions monday.  CMRRR, then go file it, ask for a date to be heard on the motion.  Tell the judge you did not recieve notice of a trial until the 7th (use it against them) and you were just starting the discovery process since plaintiff had not initiated anything.  You need leave of the court so you can conduct discovery because you do not believe this is a valid complaint.  They should grant it--2 months from being served to trial is not enough time.  

Is this small claims court?  I don't know how they would get a trial date that quick.