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Midland Funding vs. Donim74


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1. Who is the named plaintiff in the suit? Midland Funding

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)  Listed as Midland Funding.  Attorneys listed  at end under Midland Funding LLC are, Kristy Gabrielova, Brian Staley, Katharine Banks, Andrew Herreth.

3. How much are you being sued for? $3540.59

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

5. How do you know you are being sued? (You were served, right?) Yes, I received papers

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

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

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 that I recall

9. What state and county do you live in? Texas - Tarrant County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) I don't recall.  The statement they enclosed states 2010.

11. What is the SOL on the debt? To find out: 4 years

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 B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).The suit has been served.  I have answered my suit.  I received a pre-trial date for next Tuesday (8/27/13).  The attorney sent me discovery last week (Just 2 weeks before pre-trial)

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?

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They attached a statement from November 2010.

 

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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?

 

^^ Important.

 

You must answer the suit. File a copy with the court and send a copy of your answer to the plaintiff. Send it certified with receipt so you can prove they got it. We can help better with your answer if you answer #15.

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My main question for now is, My pretrial date as set by the court is next Tuesday.  Last week, I received a discovery request from Midland.  I'm supposed to have 30 days to respond to this, but again pre trial is next week.  Do I have to have my reply to their discovery in before on on the pre-trial date?  I am putting my discovery for them together as well.  If we don't have this done, I don't understand how we can proceed with a pre-trial.  I don't know what they have or don't have yet to even discuss with them?

 

Sorry...I'm in a panic, and I'm sure there were 100 steps I should have done prior to today, but I was ignorant to most of this and just found your site.  Hoping I can get some help.

 

Their Discovery consists of Admit/Deny for the following:

 

1. Plaintiff properly named Defendant in Plaintiff's Original Petition

 

2. Defendant requested to open an account with CHASE BANK USA, N.A. and entered into a contract with CHASE BANK USA, N.A.  on or about April 04, 2004.

 

3. Defendant agreed to repay all charges or cash advances incurred, or amounts due incurred by the use of Defendant's CHASE BANK USA, N.A. credit card account per the terms of the contract.

 

4. Plaintiff has performed all conditions precedent, or all conditions precedent have occurred, necessary for Plaintiff to bring suit on the contract.

 

5.  Pursuant to the terms of the contract agreed to between Defendant and CHASE BANK USA, N.A., CHASE BANK USA, N.A. is expressly authorized to charge Defendant both a late fee each month Defendant's payment is not received by the due date and an "over limit" fee when Defendant's monthly balance exceeds the Defendant's credit limit.

 

6. Defendant received goods, services, or cash advances by using Defendant's credit card account with  CHASE BANK USA, N.A.

 

7. Defendant received monthly statements from CHASE BANK USA, N.A.  at the address Defendand provided to CHASE BANK USA, N.A. showing the minimum monthly payment required.

 

8. CHASE BANK USA, N.A. specifically advised Defendand of his/her right to dispute any billing error on each monthly statement provided to Defendant.

 

9. CHASE BANK USA, N.A. offered an extension of credit to Defendant that has not been rescinded by either party, in exchange for Defendant's promise to repay the credit.

 

10.  Defendant made payments on Defendant's credit card account with CHASE BANK USA, N.A.

 

11. CHASE BANK USA, N.A. fully performed all its contractual obligations required by the contract between CHASE BANK USA, N.A. and Defendant.

 

12. Defendant breached the contract by failing to repay all sums due as required by the contract between Defendant and CHASE BANK USA, N.A..

 

13. Plaintiff made written demand for payment of the outstanding balance to Defendant prior to filing suit, and Defendant refused or failed to pay Plaintiff the outstanding balance.

 

14. The dollar amount due on the account statement attached to Plaintiff's Original Petition is just and true and remains unpaid.

 

15. Plaintiff has applied all just and lawful credits and offsets to your account and the current amount of $3348.64 is currently due and payable from Defendant to Plaintiff.

 

Note on number 15...Their Original petition shows the alleged $3348.64 owed, but they also allege late fees of $191.95 for a total of $3540.49 due, but in number 15, they didn't add the "late fee".  Not sure that matters or not that their figures dont match?

Suggestions on response please?

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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?

 

^^ Important.

 

You must answer the suit. File a copy with the court and send a copy of your answer to the plaintiff. Send it certified with receipt so you can prove they got it. We can help better with your answer if you answer #15.

Hi Flyerfan, I alredy answered the suit.  Within 2 days I received a letter from the court informing me of my pre-trial date of 8-27.

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Texas Rocker loaned me this. He makes Texas a better place one junk debt buyer at a time.

It may be to late to amend your answer.

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

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

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In the District Court Of Your County

 

Midland Funding

Plaintiff

 

Vs.

 

My Name

Defendant
 

 

 

DEFENDANT’S RESPONSE TO ADMISSIONS

To: Midland Funding, through its attorney, Kristy Gabrielova 5161 San Felipe #320 Houston, TX 77056

 

The Defendant makes the following response to the Requests for Admissions included in the Plaintiff’s Original Petition

 

 

1. Plaintiff properly named Defendant in Plaintiff's Original Petition.

 Response: The defendant admits this is his name.

 

 

 

2. Defendant requested to open an account with CHASE BANK USA, N.A. and entered into a contract with CHASE BANK USA, N.A.  on or about April 04, 2004.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

3. Defendant agreed to repay all charges or cash advances incurred, or amounts due incurred by the use of Defendant's CHASE BANK USA, N.A. credit card account per the terms of the contract.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

 

4. Plaintiff has performed all conditions precedent, or all conditions precedent have occurred, necessary for Plaintiff to bring suit on the contract.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

 

 

 

5.  Pursuant to the terms of the contract agreed to between Defendant and CHASE BANK USA, N.A., CHASE BANK USA, N.A. is expressly authorized to charge Defendant both a late fee each month Defendant's payment is not received by the due date and an "over limit" fee when Defendant's monthly balance exceeds the Defendant's credit limit.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

6. Defendant received goods, services, or cash advances by using Defendant's credit card account with  CHASE BANK USA, N.A.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

7. Defendant received monthly statements from CHASE BANK USA, N.A.  at the address Defendand provided to CHASE BANK USA, N.A. showing the minimum monthly payment required.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

8. CHASE BANK USA, N.A. specifically advised Defendand of his/her right to dispute any billing error on each monthly statement provided to Defendant.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

9. CHASE BANK USA, N.A. offered an extension of credit to Defendant that has not been rescinded by either party, in exchange for Defendant's promise to repay the credit.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

10. Defendant made payments on Defendant's credit card account with CHASE BANK USA, N.A.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

11. CHASE BANK USA, N.A. fully performed all its contractual obligations required by the contract between CHASE BANK USA, N.A. and Defendant.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

12. Defendant breached the contract by failing to repay all sums due as required by the contract between Defendant and CHASE BANK USA, N.A.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

13. Plaintiff made written demand for payment of the outstanding balance to Defendant prior to filing suit, and Defendant refused or failed to pay Plaintiff the outstanding balance.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

14. The dollar amount due on the account statement attached to Plaintiff's Original Petition is just and true and remains unpaid.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

15. Plaintiff has applied all just and lawful credits and offsets to your account and the current amount of $3348.64 is currently due and payable from Defendant to Plaintiff.

 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

Respectfully Submitted,

 

My name

my address

my phone

 

Certificate of Service
On August 21, 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.Attorney Kristy Gabrielova 5161 San Felipe #320 Houston, TX 77056.

 


 

 

 

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Sorry RC, yes they did.  Pursuant to Rules 190.2.(B)(6) and 194 , Plaintiff requests the following disclosures from Defendant:

 

Rule 190.2(B)(6):

     Disclose all documents, electronic information and tangible items that the disclosing party has in it's possession, custody, or control and may use to support it's claims or defenses.

 

Rule 194:

 

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

     B) the names, addresses and telephone numbers of any potential parties;

     c) the legal theories and, in general, the factual 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;

          (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

               (B) 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);

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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 Donim74

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:1.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 3 years prior to the date the lawsuit was filed.Defendant further states that Chase Bank of Delaware is located in Delaware and the contract was made in Delaware, Defendant believes thru information and belief that Delaware law may apply to this case. Del. Code Ann. tit. 10, § 8101 et seq.With a three year statue of limitations.
2.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:
Donim74 who may be contacted at the following address, my address
Chase Bank, who may be contacted through the Plaintiff’s attorney.

F. For any testifying expert:

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.

 

Respectfully Submitted,

 

My name

my address

my phone

 

Certificate of Service
On August 21, 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.Attorney Kristy Gabrielova 5161 San Felipe #320 Houston, TX 77056.

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DEFENDANT’S FIRST DISCOVERY REQUEST
To: Midland Funding, through its attorney, Kristy Gabrielova 5161 San Felipe #320 Houston, TX 77056

 

The Defendant serves this First Discovery Request, consisting of a request for Production Of Documents, upon you pursuant to Texas Rules of Civil Procedure 196

 

                                    DEFINITIONS

The following words, when used has the designated meaning:

(A) "Account" means the indebtedness alleged in your Complaint.

( B ) "Original Creditor" is the Person with whom the Account was originally created for Defendant.

                                       

 

1. The original signed application by Chase Bank and defendant establishing the account.

2. Charge slips bearing defendant's signature which establish use of the account.

3. The original written agreement in which defendant allegedly assented to the terms of the account.

4. A complete history of the account from day one, establishing the legitimacy of the balance sought.

5. Any document setting forth the choice of law provision.

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default.

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes of the choice of law provision it seeks to enforce.

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed.

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial.

10. Proof of mailing of monthly statements to defendant.

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time.

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."


13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow or media document(s) governing this transaction.

 

Respectfully Submitted,

 

 

Certificate of Service
On August 21, 2013, I my name caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:

Kristy Gabrielova 5161 San Felipe #320 Houston, TX 77056 By Certified U.S. Mail, Return Receipt Requested

 

my name

my address

my phone

sign your name

 

 

 

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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).
 

Respectfully Submitted,

 

 

Certificate of Service
On August 21, 2013, I my name caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:

Kristy Gabrielova 5161 San Felipe #320 Houston, TX 77056 By Certified U.S. Mail, Return Receipt Requested

 

my name

my address

my phone

sign your name

 

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Thank you, thank you.....and thank you!

 

I have a couple of questions:

 

1.  The pre-trial date is set for next Tuesday 8-27-13.  I received the discovery from Midland last week.  I have 30 days to respond to them, but the 30 days will be after the pre-trial date.

     a)  Should I hold off on sending my reply to their discovery until after the pre-trial?

     B)  Should I hold off on sending my request to them until after the pre-trial?

My understanding is that the pre-trial was to work out things like when we would be doing discoveries, but they put me on the clock, by sending it last week.  So I'm not sure how to handle this part.

 

2.  They included their request for disclosure in with the discovery they sent me. 

     a) Do I need to send my Discovery to them and the request for disclosure in the same letter as they did, or do they need to be submitted separately?

     B) Since this is discovery, this just goes between myself and the Midland, and I do not need to file this with the court.  Am I correct?

 

Thanks again to everyone who has replied to my thread.  I truly appreciate your assistance, more than words can relay.

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oops...one more to question 1.

 

c)  If I hold off on my responses, should I request any type of continuance motion since Midland will have 30 days to reply to my discovery as well, or would that depend on the trial date that is set by the court, whether or not I would need to ask for more time?

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Send the requests in the same envelope to the attorney's office.

Any thing you send always certified mail return receipt requested.

No need to wait send it off to the attorney.

No playing Mr nice guy they want your money worse than you do.

Don't be afraid to send your paperwork.

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A little advice for you.  Racecar has done for you what takes new pro se's a month and it won't be that good. Since he has saved you sooo much time, do yourself a huge favor.  Read it, and then read it again... and then again. If there is anything you don't understand, ask. The last thing you want is to have great documents like this and, when you are asked a question regarding them in court, have no idea what the hell they mean.

 

Very important.

 

 

                               Racecar

::allhail::

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  • 1 month later...

Ok, below are the docs sent back from my discovery.  The bad news is my trial date is Tues. Oct. 8.  I just got these docs.  Now I scramble to make sense of it.  If anyone has any insight, I would appreciate your time.  They also sent about 8 copies of statements.

 

Sorry in advance for any typos.  I did this as fast as I could….since I’m about out of time.

 

Affidavit of Legal Specialist: (I’ll refer to as LS going forward)

 

LS, whose business address is XXXXX  St. Cloud, MN 0000, certifies and says:

 

(NOTE:  Dont know why all these points got re-numbered after I pasted here)

  1. I am employed as a Legal Specialist and have access to pertinent account records for Midland Credit Management, Inc.  (“MCM”), servicer of this account on behalf of plaintiff.  I am a competent person over eighteen years of age, and make the statements herin based upon personal knowledge of those accounts records maintained on plaintiff’s behalf.  Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant’s CHASE  BANK USA, N.A. account XXXXX (MCM Number  XXXXX) (hereinafter “the account”).  I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on plaintiff’s behalf.
     
  2. I am familiar with and trained on the manner and method by which MCM creates and maintains its business records pertaining to this account.  The records are kept in the regular course of business.  It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record.  In the regular course of business, the record or compilation is made at or near the time of the act or event.  The relevant financial information concerning the account includes the following”
  1. MCM’s records show that the account was charged-off on 2010-10-31 with a balance of $3348.64.  On or about 2012-05-30, plaintiff purchased and was assigned the balance owed by defendant of $3348.64.  As of 2013-5-14, MCM’s records show that the balance of $3348.64 remains due and owing and $191.95 was interest subsequently assessed to the account at the rate of 6.0000% simple interest per annum.  Therefore, plaintiff seeks the amount of $3540.59 from defendant.  All credits and offsets for payments have been applied to the balance.
  1. On or about 2012-5-30, the account was sold from CHASE BANK USA, N.A. to Midland Funding LLC.  The account was then sold to the following debt buyers in order of occurrence on our about:
    Not Applicable
  1. Attached hereto are records regarding the account and/or payment(s) received.  The documents attached hereto, are true and correct copies of the originals, being a reproduction from the records on file on behalf of plaintiff based upon my review.
  1. MCM acquired and incorporated the attached account records into its permanent business records as a result of plaintiff’s purchase of the account.  These records are kept in the regular course of business on behalf of plaintiff, and along with the electronic records provided at purchase, are plaintiff’s primary source of business records for this account.
  1. The accuracy of such documents are relied upon by Plaintiff and/or its servicer in purchasing and collecting this account.  These records are trustworthy and relied upon because the original creditor was required to keep careful records of the account at issue in this case as required by law and/or suffer business loss.

I certify under penalty of perjury that the foregoing statements are true and correct.

 

Signed LS

 

State of Minnesota

County of Stearns

 

Affidavit of sale of account by original creditor

 

State of New York, County of Nassau

 

ML being duly sworn, deposes and says:

 

I am over 18 and not a party to this action.  I am an officer of JPMorgan Chase Bank, N.A.  and am authorized by Chase Bank USA, N.A. to execute this affidavit.  In my position, I am aware of the process of the sale and assignment of electronically stored business records.

 

On or about 5/22/2012, Chase Bank USA, N.A. sold a pool of charged-off accounts (the “Accounts”) to Midland Funding LLC. (“Buyer”) under a Purchase and Sale Agreement and a Bill of Sale between Buyer and Chase Bank USA, N.A.  As part of such sale, electronic records and other records on individual accounts included in the Accounts were transferred to Buyer.  These records were kept in the ordinary course of business of Chase Bank USA, N.A.

 

I am not aware of any errors in the Accounts.  The above statements are true to the best of my knowledge.

 

Signed ML

 

BILL OF SALE (Chase logo in upper right corner of document)

 

Closing Date: 05/30/2012

 

Chase Bank USA, N.A. (“Seller”), for value received and pursuant to the terms and conditions of Credit Card Account Purchase Agreement dated 12/28/2011 between Chase Bank USA, N.A. and Midland Funding LLC (“Purchaser”), its successors and assigns (“Credit Card Account Purchase Agreement”), hereby assigns effective as of the File Creation Date of 05/22/12 all rights, title and interest of Seller in and to those certain receivables, judgments or evidences of debt described in the Final Data File, entitled (Account’s Primary File Name) attached hereto and made part hereof for all purposes.

 

[bLACKED OUT BOX HERE]

 

Amounts due to Seller by Purchaser in hereunder shall be paid U.S. Dollars by a wire transfer to be received by Seller on (the “Closing Date”) 05/30/2012 by 2:00pm Seller’s time, as follows:

 

[bLACKED OUT BOX HERE ]

 

This Bill of Sale is executed without recourse except as stated in the Credit Card Account Purchase Agreement to which this is an Exhibit.  No other representation of or warranty of title or enforceability is expressed or implied.

 

With respect to account information for the Accounts listed in the Final Data File, Seller represents and warrants to Purchaser that (i) the Account information is complete and accurate;  (ii) the Account information constitutes Seller’s own business records and accurately reflects in all material respects the information in Seller’s database; (iii) the Account information was kept in the regular course of business; ( iv) the Account information was made at or near the time by, or from information transmitted by, a person with knowledge of the data entered into and maintained in the Seller’s database; and (v) it is the regular practice of Seller’s business to maintain and compile such data.

 

Signed by Team leader (Chase)                and Midland President

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The second two affidavits are meaningless. They show that Midland bought some accounts but do not mention yours specifically.

 

The first one mentions your accounts. It is as robo-signed as they come but you have to address it. Let me guess, it has a bar code and AFFRECORD on the bottom, right?

 

This link may help you at least cast doubt on its worth.

 

http://www.vincerabagolaw.com/wp-content/uploads/2012/07/Exhibit-C-Excerpts-of-Fraud-Lawsuit.pdf

 

The last few pages of that link are Judy Richter's affidavit with the AFFRECORD at the bottom. It is the form they attack in that link.

 

 

http://ftpcontent.worldnow.com/wowk/Midland.pdf

 

^^ This is a good one too. Start reading from page 36 when they start questioning the Midland affiants.

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Well at this point I'm super scared and stressed.

 

I have a court date on Tuesday.  I'm still feeling unprepared.

I'm reviewing the docs flyerfan and racecar suggested to punch holes or cast doubt on the robo-generated affidavit where my account is mentioned.  I just received this earlier this week, and go to court in a couple days.  I've never been to court and I know looking on the net will yeild me answers (and I AM looking), but I beg, if anyone can let me know from their past court experience, does the Plaintiff attorney go through these affidavits and statements and say ok, see here's the proof he owes.  Do I wait until he's done to have my say about each item?

 

For example:

 

One affidavit states that Chase sold accounts to Midland.  Nothing specific about me or my account is mentioned.  Do I object once he offers this to the judge, stating that the document has no mention of me and/or my account, or do I wait until it's my turn.

 

Can anyone offer me advice on how the actual "trial" may go?

 

I'm sorry if this comes across as lazy (I do not mean for it to), but like most, I work a 40+ hr job, and I'm doing my best to try to be ready, but I feel i'm in for a world of hurt, since they issued the court date while i was waiting on my discovery from midland.  It gave me a week basically to see what they had and to put this all together.

 

Thank you to EVERYONE who has had some input for me up to this point.  I cannot thank you enough.

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Just got out.

 

I lost.  Something I didn't realize in the change of the law a month ago.   All of their heresay documents could not be objected to.  All I can say is if you are in Texas, read up on this.

 

Both the judge and the Attorney for Midland both said to me afterwards, that a month ago, I would have been right on track.  For what it's worth Midland's attorney said he would have attacked the documents just like I did.  But whatever changed blew out my defense.   My ignorance cost me.

 

All of my objections due to heresay were overruled.  On the affidavit from the Midland rep, I did reference State of MN vs Midland and their robo-signing affidavits and falsely filing, to help cast doubt on them, but it was all for nothing.

 

Texas people read up on this, it could mean my fate if you don't.  Unless you're ok with praise from the judge for reading and putting in the work / research, but still losing.

Best of luck to anyone that finds this thread helpful in what not to do during trial.

 

Thank you to everyone that provided me details on how to get through this, I appreciate you all (Flyerfan, Racecar, etc.)

 

Live and learn hard lessons sometimes.   Oh well, life moves on.

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