Jump to content

Getting Sued by PRA


Recommended Posts

Hi - I was served today and need help how to write the Written Answer.  The Plaintiff's orginal Petition, Request for disclosures, and reguest for admissions.

 

Do I just anwser admit/Deny - Plaintiff has not produced “the Agreement

  to the following?  There's nothing in the suits stating "COMPLAINT"

 

1.  This is a Level One discovery control plan case.

2.  Parties. (Planitiff is Portfolio Recovery Associates LLC Assignee of HSBC ("Plainfitt")) .  Defendant (Me)

3. Venue

4. Facts

5. Suit on Open & Stated Account/Debt/Breach of Contract

6. Request for Admissions

7. Request for Disclosures

 

Thank you,

TX1983

 

Link to comment
Share on other sites

Post the complaint and leave out personal information never put the exact amount being sued for.

Also post the discovery they sent you.

Does your complaint look like this one?

I know its Portfolio Recovery Associates LLC and this says midland funding.

This one pops up a lot that's why I ask.

 

Plaintiff's Original Petition
TO THE HONORABLE COURT:

MIDLAND FUNDING LLC, the Plaintiff, complains of, and for cause of action shows:

A. Discovery Level One.
1. Plaintiff intends to conduct discovery under Level 1 of the Texas Rules of Civil Procedure.
B. Parties and Service of Citation.
2. The Plaintiff is a foreign limited liability company duly authorized to conduct business in the State of Texas.
3. The Defendant is a resident of County NAME, County, Texas, and may be served at the following: xxx
C. Venue
4. Venue is proper in COUNTY NAME County because Defendant resides in this county.
D. Midland's Effort's To Resolve The Underlying Obligation
5. Plaintiff Midland Funding LLC owns portfolios or consumer receivables which it attempts to collect. When working with individual consumers, Plaintiff Midland Funding LLC and its affiliates (collectively,"Midland") generally attempt to contact consumers like Defendant through several means, all in an effort to establish contact and to resolve the underlying obligation. In doing so, Midland attempts to assess each consumer's willingness to pay, through phone calls, letters, or other means. Midland attempts to exclude consumers from its collection efforts, where Midland believes those consumers are facing extenuating circumstances or hardships that would prevent them from making any payments.
6. When Midland contacts consumers, it strives to treat consumers with respect, compassion, and integrity. Midland works with consumers in an effort to find mutually-beneficial solutions, often offering discounts, hardship plans, and payment options. Midland's efforts are aimed at working with consumers to repay their obligations and to attain financial recovery. Midland strives to engage in dialogue that is honorable and constructive, and to play a positive role in consumers' lives.
7. Despite Midland's efforts to reach consumers and resolve the consumer's obligations, only a percentage of consumers choose to engage with Midland. Those who do are often offered discounts or payment plans that are intended to suit their needs. Midland would prefer to work with consumers to establish voluntary payment arrangements resulting in the resolution of any underlying obligations. However, the majority of Midland's consumers ignore calls or letters, and some simply refuse to repay their obligations despite an apparent ability to do so. When this happens, Midland must decide then whether to pursue collection though legal channels, including litigation like the present action against Defendant. Although the account is now in litigation, Plaintiff remains willing to explore a mutually-beneficial solution through voluntary payment arrangements, if possible.
E. Facts
8. Defendant opened an account with Chase card services.. Plaintiff purchased Defendant's debt, and Plaintiff is now owed money from Defendant. Relevant information related to the account are as follows:
ORIGINAL CREDITOR:  Chase card services
ORIGINAL ACCOUNT NO: XXXXXXXXX8106
DATE OF CHARGE OFF: 8/31/2009
CHARGE OFF BALANCE: $3,000,00
F. Count 1 - Breach Of Contract
9. Defendant breached his/her obligation to pay Plaintiff by failing and/or refusing to pay the remainder of the obligation on this account. The breach was material because Defendant did not substantially perform a material obligation- payment- as required under the contract.
10. Demand for payment has been made by Plaintiff, and Defendant has refused and failed to remit the amount of $3,000.00, as well as interest of $710.94, for a total balance due of $3,710.94.
11. Interest on the account continues to accrue at the contractual or legal rate.
12. Plaintiff's injury, which is the extent of the amount owed on the account, was a natural and probable consequence of Defendant's breach.

G. Count 2 - Account Stated
13. Plaintiff is entitled to relief under the common law cause of action of account stated. Transactions between the parties or their predecessors-in-interest gave rise to indebtedness of the Defendant to the Plaintiff. An agreement, express or implied, between the parties fixed an amount due and the Defendant made a promise, express or implied, to pay indebtedness.
H. Damages
14. Plaintiff seeks liquidated damages in the amount of $3,710.94, plus pre- and postjudgement interest as allowed by the contract and/or Texas law.
I. Conditions Precedent 
15. All conditions precedent have been preformed, have occurred, or should be excused.
J. Prayer
For these reasons, Plaintiff asks that Defendant be cited to appear and answer, and that Plaintiff have judgement against Defendant for the following:
a. Actual damages in the amount of $3,710.94;
b. Pre judgment and post judgment interest at the contractual rate or the highest legal rate;
c. All costs of suit;
d. All other relief, in law and equity, to which Plaintiff may be entitled.

 

http://www.supreme.c...es/trcphome.asp

http://www.gaddywell..._OF_ACTION.html

http://webcache.goog...n&ct=clnk&gl=us

Link to comment
Share on other sites

I have attached the Summons I received yesterday.  Should there be supporting evidence such as the contract, billing statements I even owed the debt?

 

Do i just go down to the Court and ask the Clear for an Answer file?

Link to comment
Share on other sites

Racecar - the complaint I received is similar to the one you posted.  I was unable to copy/paste but did attach the complaint. I've been reading a lot from the site and seen "answer to Complaint" examples but still confused how to write my Answer.   

 

Do I just respond to paragraph 1 – 5 and not 6 (Request for Admission) since it states “Reponses to these requests for Admission are due 50 days after the service request. 

Link to comment
Share on other sites

1. Who is the named plaintiff in the suit? Portfolio Recovery Associates LLC Assignee of HSBC

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

3. How much are you being sued for? 4,700.00

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

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) In person

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, they would call but I never talked to them

9. What state and county do you live in? TX, Tarrant

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 30 days past due as of Dec 2009; Charge Off as of Jun 2010, May 2010

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

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?

10 days to answer the petition

50 days to answer Request for Admission

50 days to answer Request for Disclosures

 

  1. This is a Level One Discovery control plan case.
  2. PARTIES
  3. VENUE
  4. FACTS – Defendant received an extension of credit from Plaintiff’s predecessor in interest.  Plaintiff is now the owner of that indebtedness.  Defendant accepted the credit and became bound to replay Plaintiff, with interest.  This account represents a transaction or series of transactions, of which a systematic record has been kept.  All conditions precedent have been performed or have occurred.
  5. SUIT ON OPEN & STATED ACCOUNT/DEBT/BREACH OF CONTRACT – Defendant defaulted in making the payments on Account No. XXXXXXXXx as required by the terms of the agreement with Plaintiff/Plaintiff’s predecessor in interest.  Due to the Defendant’s breach of the agreement, Plaintiff accelerated maturity of the total amount due on the account.  The total balance due Plaintiff on the Account is $4,500.00, after all the just and lawful offsets, credits and payment have been allowed.  However, this amount may not include any payments or credits occurring after the date of this petition or the date of the affidavit or Plaintiff’s representative, or any pre-judgment interest.  Plaintiff has made timely demand on Defendant to pay the amounts due and owing, but Defendant has not done so.  Therefore, Defendant has breached the contract with Plaintiff. 
  6. REQUEST FOR ADMISSION:  23 questions
  7. REQUEST FOR DISCLOSURES
  8. Responses to this request for Disclosures are due 50 days after service of the request.  

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. None, no evidence only the reference to the account #

Link to comment
Share on other sites

@TX1983

 

You missed a question, and it's an important one.  The answer could determine how you respond to their allegations and admissions requests.

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Link to comment
Share on other sites

BV80 - Sorry I must had missed it...  

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. None, no evidence only the reference to the account #

Link to comment
Share on other sites

@TX1983

 

No need to apologize.   :-)

 

Since they included no evidence to support anything, I'd deny the allegations in the complaint.  

 

I would do the same with the admission requests, but be careful.  Read each request very carefully.   If you're not sure about denying something, you might say "Defendant has insufficient information to admit or deny.  Based upon the foregoing, Defendant denies."

 

Carefully study your court rules.  You should also prepare your own discovery requests.

Link to comment
Share on other sites

Thanks for the help; this is all new and a little confusing.  Since there is lack of evidence in the suit and Only Paragraphs 4 and 5 state any allegations

 

do I just write my Written Answer

 

Comes now the Defendant, ME, pro se, and files her Answer in the above-entitled matter and in support thereof states as follows:
The Defendant in the above titled action expressly and generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the allegations of the Plaintiff's Complaint, and leaves the Plaintiff to its proof.

 

or do I need to respond to each Number: 

1 This is a Level One discovery control plan case. No response is necessary.

 

2. PARTIES. Defendant admits

 

3. VENUE: Paragraph 3 contains a legal conclusion and therefore no response is neccessary.

 

4. FACTS: Defendant denies the allegations found in paragraph four of Plaintiff's Complaint.

 

5: SUIT ON OPEN & STATED ACCOUNT/DEBT/BREACH OF CONTRACT: Defendant denies the allegations found in paragraph four of Plaintiff's Complaint.

 

do I not answer to the "Request for Admissions" or "Request for Disclosures" within my written Answer? 

 

Should or do I need to add "Affirmative Defenses" with my written Answer?

 

Do I need to submit my Discovery Request with the written Answer?

 

I truly appreciate all the help and please forgive my ignorance how this process works.. 

Link to comment
Share on other sites

@TX1983

 

do I just write my Written Answer

 

This depends on your rules regarding an answer to a complaint.  In my state, the answer looks like the complaint.  One must include the court header that consists of the party names, case number, title (such as Answer to Plaintiff's Complaint), etc.

 

do I not answer to the "Request for Admissions" or "Request for Disclosures" within my written Answer?

 

 

You can send your discovery responses with your answer to the complaint.  In my state, discovery requests and responses are separate documents from the complaint.  They have their own court headers and titles.   See what's in your rules.

 

Should or do I need to add "Affirmative Defenses" with my written Answer?

 

 

There are certain affirmative defenses that must be raised in an answer or those defenses are waived (not usable).   Lack of Standing is an affirmative defense that applies to a JDB but it usually doesn't have to be raised in your answer.   New York is the only state that I know of that requires "Lack of Standing" to be raised in the answer.

 

If you want to include it, you can.  It might be better to be safe than sorry. 

 

Standing means that the plaintiff has been injured and deserves to be compensated for that injury.  In this case, it's an economic injury.

 

In order for a JDB to prove they've been injured and deserve to be paid, they have to prove they own the account.  If they can't prove they own the account, then they haven't proven they've been injured.  If there's no injury, they don't have standing to sue you for the debt.

 

Do I need to submit my Discovery Request with the written Answer?

 

Read your discovery rules.  Usually it's not required to send your requests with your answer.  But your rules might require something different.

Link to comment
Share on other sites

This is what I have so far, I'm hoping I'm on the right track.. 

 

CAUSE NO. xxxxxxxxxx
 

PORTFOLIO RECOVERY ASSOCIATES LLC                                                             IN THE JUSTIC COURT

 ASSIGNEE OF xxxx                                                                                                     COURT # _______

 

VS.

 

xxxxx xxxxxx                                                                                                 xxxxxx COUNTY, TEXAS

 

 

DEFENDANT’S ORIGINAL ANSWER

 

ANSWERS TO COMPLAINT

Comes now the Defendant, xxxx xxxx, pro se, and files his Answer in the above-entitled matter and in support there of states as follows:
The Defendant in the above titled action expressly and generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the allegations of the Plaintiff's Complaint, and leaves the Plaintiff to its proof.

 

All Answers below correspond to the numbered paragraphs of the Plaintiff’s Original Complaint. All allegations of the Complaint are denied unless expressly admitted herein.
 

1. No response is necessary.

 

2. Defendant admits the allegation found in paragraph two of Plaintiff's Complaint.  Defendant is currently a resident of xxx County and currently resides at XXXX, TX XXXXX

 

3. Paragraph 4 contains a legal conclusion and therefore no response is necessary. 

 

4. Defendant denies the allegations found in paragraph four of Plaintiff's Complaint.

 

5. Defendant denies the allegations found in paragraph five of Plaintiff's Complaint.

 

 

WHEREFORE, Defendant prays that the Court deny The Plaintiff's Complaint and for all other relief just and proper in the premises
 

Link to comment
Share on other sites

Never heard of Texasrocker or TomnTex :ROFLMAO2:

 

 

DEFENDANT’S RESPONSE TO REQUESTS FOR DISCLOSURE

To: PORTFOLIO RECOVERY ASSOCIATES LLC, through its attorney,Regent & Associates 2650 Fountain View Dr, Houston, TX 77057

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

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 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:
Texas1983, who may be contacted at the following address.
Portfolio Recovery Associates LLC Assignee of HSBC, who may be contacted through the Plaintiff’s attorney.

F. For any testifying expert:
1. The expert’s name, address, and telephone number.
Response: None at this time

2. The subject matter on which the expert will testify.
Response: None at this time

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: None at this time

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: None at this time.

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,

 

Certificate of Service
On August 04, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below: By Certified U.S. Mail, Return Receipt Requested By U.S. Mail

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 .                                                       

Link to comment
Share on other sites

Texasrocker mabey I have heard of him but not that Tomntex :ROFLMAO2:

 

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 with paragraph headings bold and centered etc.

File a Plea to the Jurisdiction at the same time you file your answer. Also file a special exception to their "Account Stated" pleading.

Write a brief paragraph stating "Comes now the Defendant and files his Original Answer, Plea to the Jurisdiction and Special Exceptions in the above-entitled matter and in support thereof states as follows:

DEFENDANT'S ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS

ANSWER

1. 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.

2. Defendant denies that Plaintiff has standing to assert any claims against Defendant arising out of any debt or obligation
owed by Defendant to the original creitor or any assignee of the original creditor, and therefore does not have standing to
bring this lawsuit.

3. Defendant asserts that the claims are barred by the applicable statute of limitations.

4. Defendant asserts that the interest rates charged by the original creditor are usurious.

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 "Plaintiff purchased Defendant's debt" See Plaintiff's Original Petition under "Facts" paragraph 8. 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 anytime 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.

(continued below)

(continued from above)

SPECIAL EXCEPTION TO ACCOUNT STATED

1. Credit Card Cases Are Based on Express Contracts and Cannot Be Brought On Implied Contract Theories Like Account Stated.

The Texas Supreme Court made clear in Truly v. Austin 744 S.W. 2d 934, 936 (Tex. 1988) that a plaintiff may not avoid the terms of its express contract by seeking recovery on an implied contract theory if the damages claimed are covered by the express contract. Credit card cases brought on an account stated theory violate this Supreme Court holding. Credit Card arrangements are governed by express contracts. The only viable cause of action for breach of a credit card is breach of contract. Implied or quasi-contractual causes of action like an account stated cannot be brought on a credit card debt without violating Truly v. Austin.

Texas courts will not imply the existence of contract where an express contract already exists. Fortune Production Co. v. Conoco, Inc.,52 S.W.3d 671 684 (Tex. 2000), Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex 1964), Musick v. Pogue, 330 S.W.2d 696, 699 (Tex. Civ App.- San Antonio 1959, writ ref'd n.r.e.). The reason for this rule, as described by the Supreme Court in Fortune Production, is that parties should be bound by their express agreements. When a valid agreement addresses the matter, a party should not be able to recover more than is provided for in the agreement. Id., 52 S.W.3d at 684. "Count 1" of the Original petition fails to provide fair notice as to how The Plaintiff can avoid this express contract in favor of an account stated.

The principle that a plaintiff should not be able to use an implied contractual theory to recover more than his contract authorizes is particularly applicable to credit card cases. Credit card fees and interest rates are heavily regulated. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended. See e.g. 15 U.S.C. § 1637©(1)-(7), 12 C.F.R. 225.5-225.16. Credit card plaintiffs should be able to produce these disclosures or otherwise prove the interest rates and fees that their customers agreed to pay. Using an account stated theory to imply an agreement to pay the interest and fees would improperly relieve plaintiff from establishing the amount of interest and fees that were required to be disclosed to the defendant under Federal law, and must have been included in the terms of its alleged express agreement with the defendant.

2. A Credit Card Account Is Not an Account Stated

A credit card account is not an "account" as that term has been used in the common law governing suits on account. A credit card account does not arise out of a course of dealing between two parties engaging in transactions in goods. A credit card account is a multiparty arrangement. Each transaction involves ata minimum, the debtor, a merchant, the merchant's bank, a clearing organization such as Visa, Mastercard, American Express, the card issuing bank and the card issuing bank's credit card processing unit. Every transaction brings a new merchant and merchant bank into the web of transactions that make up the account, with the result that over the term of a credit card account, hundreds of parties may be involved, not just two as envisioned for a common law account. Moreover, the transactions in a credit card account are not merely sales of goods. The account issuer does not sell goods to the account holder: instead, it makes extensions of credit to the account holder or to third party merchants on the account holder's behalf. For these reasons the cause of action for account stated does not apply to credit cards.

An account stated is merely an open account that has been closed because the party charged has agreed that the account is correct. Whittlesey v. Spofford 47 Tex. 13, (Tex. 1877), Wroten Grain & Lumber v. Mineola Box Mfg. Co., 95 S.W. 744 (Tex Civ. App.-1906), Padgitt Bros. Co. v. Dorsey, 194 S.W. 1124, 1126 Tex Civ. App.- El Paso 1917, no writ). An open account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from one to the other. McCamant v. Batsell, 59 Tex. 363, 367-369 (Tex 1883), Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex App.----Beaumont 199, no writ).

Over a century ago in McCamant v. Batsell, 59 Tex. 363, 1883 WL 9175 (Tex. 1883), a case that has never been overruled, The Supreme Court construed the word "account" as it is used in this context as limited to suits arising out of relationships in which title to goods was transferred from the plaintiff to the defendant and further excluding suits in which the rights of the parties were defined by a written agreement.

In McCamant, a suit on a promissory note, the plaintiff sought to make use of the then existing statute governing suits on account, which like current Rule 185, set up abbreviated procedure for resolving disputes involving such suits. Unlike the current rule the statute did not enumerate the kinds of action that could be brought as suits on account. The Supreme Court construed the meaning of the term "account" in the statute as being consistent with the common law meaning of the term:

"As used in the statutes of this state, in the act referred to, we believe that the word "account" is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon one side and purchases upon the other, the title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing."

The Court also ruled that the plaintiff’s suit against the maker of a note and his sureties could not be brought as a suit on account or an open account because it did not arise out of the course of dealings between a buyer and seller, but was based upon a written agreement in which all the terms were fixed and certain. Id., 1883 WL 9175 at 6.

The Supreme Court reaffirmed the holding of McCamant in Meaders v. Biskamp, 316 S.W.2d 75 (Tex. 1958), in which The Court distinguished a suit on an account from a suit based upon an express contract for purposes of awarding attorney’s fees. The then applicable language of Tex. Civ. Stat. Art. 2226, the predecessor to Tex. Civ. Prac. & Rem. Code Ch. 38 permitted an award of attorney’s fees for a suit upon a sworn account but did not include the present language authorizing fees in a breach of contract case. The Meaders court, citing McCamant held that a suit founded upon a written contract for the drilling of an oil well was not a suit on account because the relationship of debtor and creditor did not arise from a course of dealing but from a contract. Id., 316 S.W.2d at 78

The classic statements of the elements of the account stated cause of action expressly draw a distinction between suits that grow out of a course of dealing and suits that grow out of an express agreement. For example, in Central Nat. Bank of San Angelo v. Cox, 96 S.W.2d 746, 748(Tex. Civ. App.—Austin 1936, writ dismissed), the court said:

"The cases are legion on what constitutes an account stated. In general the essential elements involved are: Transactions between the parties which give rise to an indebtedness of one to the other; an agreement, express or implied, between them fixing the amount due; and a promise, express or implied, by the one to be charged, to pay such indebtedness. 1 Tex.Jur. p. 371 et seq.; 1 C.J. 678; 1 Am.Jur. 272; 1 C.J.S., Account Stated, p. 693."

The first and defining element of the claim is existence of a debtor-creditor relationship that arises from a series of transactions—from a course of dealing, not a contract. This element is identical across all suits on account, whether open, sworn or stated. While the other elements of the claim do reference an agreement, the subject matter of the agreement is not the creation or terms of the debtor-creditor relationship, but the acknowledgement, after the transactions that gave rise to the relationship have occurred, of the amount due and the obligation to pay.

Recent court of appeals decisions allowing a stated account on a credit card have overlooked these Texas Supreme Court authorities and instead are based upon mere dicta from a footnote in a decision out of the Dallas court of appeals. In a footnote in that case, Dulong v. Citibank (South Dakota) N.A., 261 S.W.3d 890 (Tex.App.----Dallas 2008) the court stated that a sworn account requires the passage of title and is thus not proper tool for a credit card case but noted that it differs from an account stated in this regard. But neither that decision nor any of the other appellate decisions that have followed it have explained how they reached this conclusion. These decisions are utterly devoid of any analysis or legal authority on the issue, and none of them discuss McCamant v. Batsell. These decisions are simply contrary to Texas Supreme Court authority.

REQUEST FOR DISCLOSURE

Pursuant to Texas Rules of Civil Procedure 194, Defendant requests that Plaintiff disclose within 30 days of the service of
this request, the information or material described in Rule 194.2(a) through (l).

Wherefore, premises considered, Defendant prays that the Court grant his Plea to the Jurisdiction, grant his Special Exception,enter judgment in his favor and against Plaintiff, that Plaintiff take nothing, that the Court assess costs against Plaintiff and award Defendant all other relief to which he is entitled.

Respectfully Submitted,
< Signature, printed name>

Add that you hereby certify that you sent the plaintiff's attorney via USPS certified mail (his/her name, address, date) a true and correct copy of Defendant's Original Answer, Plea to the Jurisdiction and Special Exceptions. Sign it and print your name, address, and phone number.

You should have three separate pages- one for your answer, one for the Plea to the Jurisdiction and one (or two if it is too long for one page) for the Special Exceptions & Request For Disclosure.

Link to comment
Share on other sites

RACE WHO???  ::devillaugh::  I just found this, haven't had a chance to dig into it yet. Make sure your up on the Texas Rules of Civil Procedure, go to court several times and sit in and see how it goes in court. learn how your local court operates and get confortable there. That will be 80% of wining. The rest is just having all your information in order and knowing the laws. If this is in what I call Kiddie court, (small claims) try and get it moved to Federal so that you will have a better chance. The Judge there will know the laws better and hopefully, it won't be the "Good Ole Boy Network".

  • Like 1
Link to comment
Share on other sites

First I want to thank you all for the help and advice.  I do have a few questions. 

 

1..  Defendant asserts that the claims are barred by the applicable statute of limitations. - Since my last payment was Dec 2009; I'm still in the statute of limitations time frame?  

 

 

"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."

So do I respond to the following in the complaint for 1 and 2?

1 This is a Level One discovery control plan case. 

2. PARTIES.

 

 

 

3.  Do I need to add "REQUEST FOR DISCLOSURE" to the heading on the first page?

 

@racecar

 

6.  REQUEST FOR ADMISSIONS  Pursuant to the TEXAS RULE OF CIVIL PROCEDURE, Defendant is required to admin the truth of the each of the matters listed below and to admin the genuineness of each of the documents described in and exhibited with the attached requested admissions.  Responses to these requests for Admission are due 50 days after service of the request, at (THE FIRM).  The dealine or respond to these Request for Admission does not alter any dealine to answer the lawsuit as set forth in the citation.  Admit that:

  1. The Plaintiff (or Plaintiff’s predecessor in interest) entered into a contract with Defendant.
  2. Based on Defendant’s Request, Plaintiff or Plaintiff’s predecessor in interest opened an account.
  3. Plaintiff is the owner of the indebtedness on the Account
  4. Plaintiff (or Plaintiff’s predecessor in interest) and Defendant entered into an agreement to create an account for credit.
  5. Plaintiff (or Plaintiff’s predecessor in interest) offered an extension of credit to Defendant in exchange for Defendant’s promise to repay the credit.
  6. Defendant has understood from the time the Account was opened that Plaintiff (or Plaintiff’s predecessor in interest) made a loan on behalf of Defendant for the amount requested.
  7. Defendant has understood from the time the Account was opened that Defendant is required and obligated to repay all charges or fees incurred on the Account.
  8. Defendant made purchases using the credit provided by Plaintiff or Plaintiff’s predecessor in interest.
  9. Defendant made payments on the account.
  10. After the Account was opened, Defendant received statements showing the balance remaining on the Account, along with the minimum payment required.
  11. Since the Account was opened, Defendant has not notified Plaintiff or Plaintiff’s predecessor in interest of a dispute or error regarding any information contained in any of the business records associated with the Account.
  12. Defendant presently owes Plaintiff the sum $x,xxx.xx.
  13. Defendant’s has breached the contract with Plaintiff or Plaintiff’s predecessor in interest.
  14. Defendant’s breach has damaged Plaintiff in the amount of $x,xxx.xx.
  15. Plaintiff made demand on Defendant before filling suit, for payment of the outstanding balance due at this time.
  16. You received a demand letter from Plaintiff of Plaintiff’s predecessor in interest or Plaintiff’s attorneys for payment on the account.
  17. At no time prior to the filing of this suit did Defendant or Defendant’s representative request verification of the debt from Plaintiff or Plaintiff’s predecessor in interest agent.
  18. At no time prior to the filing of this suit did Defendant or Defendant’s representative dispute the debt owing on the Account.
  19. Defendant is not a member of any military services with assignments or orders that would give the defendant a right to delay under the law.
  20. A contractual interest rate of at least 18% per year was agreed to by Plaintiff and Defendant.
  21. Defendant has no defense to this suit, and judgment should be granted, as prayed for.
  22. Plaintiff or Plaintiff’s predecessor in interest has applied all just and lawful offsets to the Account.
  23. If Defendant or Defendant’s representatives requested verification of the debt from Plaintiff, Plaintiff verified the debt prior to filing this lawsuit.

 

 

thanks again,

TX1983

 

 

 

 

 

Link to comment
Share on other sites

.This is what I have so far for my Answer.  Please let me know if I need to change anything before I file it with the courts.  I'm still confused with the Original Answer response.  Do I need to address and answer to the following line items?

 

1.  This is a Level 1 discovery Control Plan

2.  PARTIES - Plaintiff is xxxxx  xxxxx  xxxxxx.  Defendant  xxxx xxxx who may be served with process at xxxx xxxxx, TX.

3.  VENUE - Venue is proper in this court  because this is where the contract was signed, where the Defendant resides, or where the events giving rise to Plaintiff's claim occurred.  TEX. CIV. PRAC. & REM. CODE $$ 15.002(a), and 15.035( B).  The courts may also have jurisdiction and venue over this claim pursuant to TEX. CIV. PRAC.& REM. $$ 15.092(a), and 15.099 because it arises out of a contract to be perform in this county.  If this suit arises in Justice Court, the venue is proper because there is more than one Justice of the Peace Courts. 

 

 

CAUSE NO. xxxxxxxxxx
 

PORTFOLIO RECOVERY ASSOCIATES LLC                                                                        IN THE JUSTIC COURT

ASSIGNEE OF xxxx                                                                                                               COURT # _______

 

VS.

 

xxxxx xxxxxx                                                                                                              xxxxxx COUNTY, TEXAS

 

 

DEFENDANT'S ORIGINAL ANSWER,

PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS

 

 

 

Comes now the Defendant xxxxxxx and files his Original Answer, Plea to the Jurisdiction and Special Exceptions in the above-entitled matter and in support thereof states as follows:

 

ANSWER

 

 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, and leaves the Plaintiff to its proof.

 

1. Defendant denies the allegations found in paragraph one of Plaintiff's Complaint.

 

2. Defendant admits the allegation found in paragraph two of Plaintiff's Petition.  Defendant is xxxx

    xxxx currently a resident of xxxxxx County and currently resides at xxxx xxxxx xxxxxx xxxx

    xxxxxxxxx, TX xxxxx

 

3. Defendant denies the allegations found in paragraph three of Plaintiff's Complaint.

 

4. Defendant denies the allegations found in paragraph four of Plaintiff's Complaint.

 

5. Defendant denies the allegations found in paragraph five of Plaintiff's Complaint.

 

6.  Defendant denies the allegations found in paragraph six of Plaintiff's Complaint.

 

7. Defendant denies the allegations found in paragraph seven of Plaintiff's Complaint.

 

8. Defendant denies the allegations found in paragraph eight of Plaintiff's Complaint.

 

 

 

 

 

 

 

 

 

                                                                                           Page 1

 

 

 

PLEA TO THE JURISDICTION

1.  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 "Plaintiff purchased Defendant's debt" See Plaintiff's Original Petition under "Facts" paragraph 4. 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.

2.  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 anytime 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.

 

                                                                                        Page 2

 

SPECIAL EXCEPTION TO ACCOUNT STATED

1.  Credit Card Cases Are Based on Express Contracts and Cannot Be Brought On Implied Contract Theories Like Account Stated.

The Texas Supreme Court made clear in Truly v. Austin 744 S.W. 2d 934, 936 (Tex. 1988) that a plaintiff may not avoid the terms of its express contract by seeking recovery on an implied contract theory if the damages claimed are covered by the express contract. Credit card cases brought on an account stated theory violate this Supreme Court holding. Credit Card arrangements are governed by express contracts. The only viable cause of action for breach of a credit card is breach of contract. Implied or quasi-contractual causes of action like an account stated cannot be brought on a credit card debt without violating Truly v. Austin.

Texas courts will not imply the existence of contract where an express contract already exists. Fortune Production Co. v. Conoco, Inc.,52 S.W.3d 671 684 (Tex. 2000), Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex 1964), Musick v. Pogue, 330 S.W.2d 696, 699 (Tex. Civ App.- San Antonio 1959, writ ref'd n.r.e.). The reason for this rule, as described by the Supreme Court in Fortune Production, is that parties should be bound by their express agreements. When a valid agreement addresses the matter, a party should not be able to recover more than is provided for in the agreement. Id., 52 S.W.3d at 684. "Count 1" of the Original petition fails to provide fair notice as to how The Plaintiff can avoid this express contract in favor of an account stated.

The principle that a plaintiff should not be able to use an implied contractual theory to recover more than his contract authorizes is particularly applicable to credit card cases. Credit card fees and interest rates are heavily regulated. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended. See e.g. 15 U.S.C. § 1637©(1)-(7), 12 C.F.R. 225.5-225.16. Credit card plaintiffs should be able to produce these disclosures or otherwise prove the interest rates and fees that their customers agreed to pay. Using an account stated theory to imply an agreement to pay the interest and fees would improperly relieve plaintiff from establishing the amount of interest and fees that were required to be disclosed to the defendant under Federal law, and must have been included in the terms of its alleged express agreement with the defendant.

2. A Credit Card Account Is Not an Account Stated

A credit card account is not an "account" as that term has been used in the common law governing suits on account. A credit card account does not arise out of a course of dealing between two parties engaging in transactions in goods. A credit card account is a multiparty arrangement. Each transaction involves ata minimum, the debtor, a merchant, the merchant's bank, a clearing organization such as Visa, Mastercard, American Express, the card issuing bank and the card issuing bank's credit card processing unit. Every transaction brings a new merchant and merchant bank into the web of transactions that make up the account, with the result that over the term of a credit card account, hundreds of parties may be involved, not just two as envisioned for a common law account. Moreover, the transactions in a credit card account are not merely sales of goods. The account issuer does not sell goods to the account holder: instead, it makes extensions of credit to the account holder or to third party merchants on the account holder's behalf. For these reasons the cause of action for account stated does not apply to credit cards.

 

An account stated is merely an open account that has been closed because the party charged has agreed that the account is correct. Whittlesey v. Spofford 47 Tex. 13, (Tex. 1877), Wroten Grain & Lumber v. Mineola Box Mfg. Co., 95 S.W. 744 (Tex Civ. App.-1906), Padgitt Bros. Co. v. Dorsey, 194 S.W. 1124, 1126 Tex Civ. App.- El Paso 1917, no writ). An open account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title

                                                                                         Page 3

 

to goods passes from one to the other. McCamant v. Batsell, 59 Tex. 363, 367-369 (Tex 1883), Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex App.----Beaumont 199, no writ).

Over a century ago in McCamant v. Batsell, 59 Tex. 363, 1883 WL 9175 (Tex. 1883), a case that has never been overruled, The Supreme Court construed the word "account" as it is used in this context as limited to suits arising out of relationships in which title to goods was transferred from the plaintiff to the defendant and further excluding suits in which the rights of the parties were defined by a written agreement.

In McCamant, a suit on a promissory note, the plaintiff sought to make use of the then existing statute governing suits on account, which like current Rule 185, set up abbreviated procedure for resolving disputes involving such suits. Unlike the current rule the statute did not enumerate the kinds of action that could be brought as suits on account. The Supreme Court construed the meaning of the term "account" in the statute as being consistent with the common law meaning of the term:

"As used in the statutes of this state, in the act referred to, we believe that the word "account" is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon one side and purchases upon the other, the title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing."

The Court also ruled that the plaintiff’s suit against the maker of a note and his sureties could not be brought as a suit on account or an open account because it did not arise out of the course of dealings between a buyer and seller, but was based upon a written agreement in which all the terms were fixed and certain. Id., 1883 WL 9175 at 6.

The Supreme Court reaffirmed the holding of McCamant in Meaders v. Biskamp, 316 S.W.2d 75 (Tex. 1958), in which The Court distinguished a suit on an account from a suit based upon an express contract for purposes of awarding attorney’s fees. The then applicable language of Tex. Civ. Stat. Art. 2226, the predecessor to Tex. Civ. Prac. & Rem. Code Ch. 38 permitted an award of attorney’s fees for a suit upon a sworn account but did not include the present language authorizing fees in a breach of contract case. The Meaders court, citing McCamant held that a suit founded upon a written contract for the drilling of an oil well was not a suit on account because the relationship of debtor and creditor did not arise from a course of dealing but from a contract. Id., 316 S.W.2d at 78.

The classic statements of the elements of the account stated cause of action expressly draw a distinction between suits that grow out of a course of dealing and suits that grow out of an express agreement. For example, in Central Nat. Bank of San Angelo v. Cox, 96 S.W.2d 746, 748(Tex. Civ. App.—Austin 1936, writ dismissed), the court said:

"The cases are legion on what constitutes an account stated. In general the essential elements involved are: Transactions between the parties which give rise to an indebtedness of one to the other; an agreement, express or implied, between them fixing the amount due; and a promise, express or implied, by the one to be charged, to pay such indebtedness. 1 Tex.Jur. p. 371 et seq.; 1 C.J. 678; 1 Am.Jur. 272; 1 C.J.S., Account Stated, p. 693."

The first and defining element of the claim is existence of a debtor-creditor relationship that arises from a series of transactions—from a course of dealing, not a contract. This element is identical across all suits on account, whether open, sworn or stated. While the other elements of the claim do reference an agreement, the subject matter of the agreement is not the creation or terms of the debtor-creditor relationship, but the acknowledgement, after the transactions that gave rise to the

 

                                                                                        page 4                                                                                                  

relationship have occurred, of the amount due and the obligation to pay.

Recent court of appeals decisions allowing a stated account on a credit card have overlooked these Texas Supreme Court authorities and instead are based upon mere dicta from a footnote in a decision out of the Dallas court of appeals. In a footnote in that case, Dulong v. Citibank (South Dakota) N.A., 261 S.W.3d 890 (Tex.App.----Dallas 2008) the court stated that a sworn account requires the passage of title and is thus not proper tool for a credit card case but noted that it differs from an account stated in this regard. But neither that decision nor any of the other appellate decisions that have followed it have explained how they reached this conclusion. These decisions are utterly devoid of any analysis or legal authority on the issue, and none of them discuss McCamant v. Batsell. These decisions are simply contrary to Texas Supreme Court authority.

REQUEST FOR DISCLOSURE

Pursuant to Texas Rules of Civil Procedure 194, Defendant requests that Plaintiff disclose within 30 days of the service of this request, the information or material described in Rule 194.2(a) through (l).

Wherefore, premises considered, Defendant prays that the Court grant his Plea to the Jurisdiction, grant his Special Exception, enter judgment in his favor and against Plaintiff, that Plaintiff take nothing, that the Court assess costs against Plaintiff and award Defendant all other relief to which he is entitled.

Respectfully Submitted,
< Signature, printed name>

Add that you hereby certify that you sent the plaintiff's attorney via USPS certified mail (his/her name, address, date) a true and correct copy of Defendant's Original Answer, Plea to the Jurisdiction and Special Exceptions.

 

 

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

 

 

                                                                                       Page 5

Link to comment
Share on other sites

1..  Since my last payment was Dec 2009; I'm still in the statute of limitations time frame? 

 

If the TX SOL is 4 years, yes.

 

Unless TX rules are very different, what you've posted is more along the lines of a motion to dismiss.  Is that what you're intending to do?

Link to comment
Share on other sites

My first goal is getting the answer written and filed in court. Since no evidence was attached to the Plaintiff's Original Petition except an old account #, then yes.  If I have grounds to get it dismiss. 

 

Do I write in my Answer "Defendant denies the allegations in Plaintiff's Complaint" to the Plaintiff's "Request for Admissions" and "Request for Disclosures paragraphs" or just skip them.  Only Paragraphs 4 and 5 claim any allegations.

 

Paragraph 1 This is a Level One discovery control plan case.

Paragraph 2 - Parties

Paragraph 3 - VENUE

 

I just not sure if I need to address them or skip them..

 

Thanks,

TX1983

Link to comment
Share on other sites

This is filed with the court clerk and a copy sent to the plaintiff. If you don't submit it you will lose.

It may be stupid to you and me but its important to the court - judge and that's all that matters.

 

To: PORTFOLIO RECOVERY ASSOCIATES LLC, through its attorney,Regent & Associates 2650 Fountain View Dr, Houston, TX 77057

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

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 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:
Texas1983, who may be contacted at the following address.
Portfolio Recovery Associates LLC Assignee of HSBC, who may be contacted through the Plaintiff’s attorney.

F. For any testifying expert:
1. The expert’s name, address, and telephone number.
Response: None at this time

2. The subject matter on which the expert will testify.
Response: None at this time

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: None at this time

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: None at this time.

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,

 

Certificate of Service
On August 04, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below: By Certified U.S. Mail, Return Receipt Requested By U.S. Mail

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.