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Sued by PRA in Texas


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1. Who is the named plaintiff in the suit? Portfolio Recovery Associates LLC Assignees of Capital One

2. What is the name of the law firm handling the suit? Law Office of Regent and Assoc (Anh Regent)

3. How much are you being sued for? $4XXX.XX

4. Who is the original creditor? Capital One

5. How do you know you are being sued? Substitute Served on door

6. How were you served?  Notice on door

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Texas, Dallas County

10. When is the last time you paid on this account? 9/2009 (Lawsuit initiated on 5/28/2013)
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). Motion and Order for Substitute Service. HUGE NOTE: Dismissal Hearing set for 9/27/2013. My answer is not due until Monday, Sept 30th @10:00am.

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? See Attached for claims. As noted, I have till the 30th to Answer the Complaint. Hoping for a "Dismissal for Want of Prosecution".

 

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. None, what you see attached is what they supplied.

So, this is where I am at the moment. My plan is to put an answer together, but not submit it until Monday, Sept30th. I will know at that time if the case has been dismissed or if the JDB has Retained the case on the docket. Correct?

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Make sure you answer the summons within the time alloted. I believe it's 20 days. Make sure and do it a day or so early. Mean time, read and study everything you can here so that you can be ready to fight them.

Actually, in Texas it's 20 days plus till the following Monday at 10:00am. So, even though 20 days is Thursday the 26th, I have until the following Monday (30th) at 10:00am. I don't see where it would help me to get it in before the Dismissal Hearing at 9:00am on Friday the 27th. In Texas, if the defendant has been served and no answer has been filed, then it's within the parameters to Dismissal for Want of Prosecution. The plan is to go to the clerk's office on the afternoon of the 27th with my answer....just in case the judge doesn't dismiss the case.

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From the Judge's website:

 

A. All newly filed cases are given a dismissal date 120 days after the filing date (on the next available Friday). Notice of the dismissal date will be promptly mailed to the party/counsel. The case WILL BE DISMISSED for want of prosecution if the following does not occur prior to the dismissal date:

  1. Process of service is completed and an answer is filed,
  2. Process of service is completed and default judgment is granted,
  3. Motion to Retain (with verification and certificate of service) filed and set for hearing (cannot retain a case more than once).

 

 

This is why I need to wait until the afternoon of the 27th. Filing my answer any earlier would end the opportunity for a DWOP.

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Fyi, I'm not of the illusion that the attorney won't file a Motion to Retain. Based on his history, it could go either way for the DWOP. I'm going to prepare my Answer this week as well as work on my response to the Request for Disclosures/Request for Admissions. Any help would be highly appreciated. I've also been reading up on the civil procedures and rules.

Quick question....would you hire an attorney to fight this if you could afford to do so? I can probably make it happen, but money is pretty tight. Just wondering if an attorney would take all of the same angles and use the same tactics as suggested in these forums. Fighting this Pro Se doesn't sound like an adventure I'd willingly sign up for if I had the choice.

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Quick question....would you hire an attorney to fight this if you could afford to do so? I can probably make it happen, but money is pretty tight. Just wondering if an attorney would take all of the same angles and use the same tactics as suggested in these forums. Fighting this Pro Se doesn't sound like an adventure I'd willingly sign up for if I had the choice.

Regent & Associates is notorious for filing a lawsuit, answering your discovery with the typical JDB objections, and then delaying doing anything further for months.  It can sit idle for a year or more then one day after having not even thought about it anymore you have a Motion for Summary Judgment sprung on you. 

 

I will always advise hiring an attorney that specializes in defending against JDB's if you can afford it.  I know of two in your general area with reasonable fees that I would recommend who are very competent in this field.  I can PM you their contact information if you want it.

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Regent & Associates is notorious for filing a lawsuit, answering your discovery with the typical JDB objections, and then delaying doing anything further for months.  It can sit idle for a year or more then one day after having not even thought about it anymore you have a Motion for Summary Judgment sprung on you. 

 

I will always advise hiring an attorney that specializes in defending against JDB's if you can afford it.  I know of two in your general area with reasonable fees that I would recommend who are very competent in this field.  I can PM you their contact information if you want it.

 

Thank you for the info. I'd certainly welcome any recommendations regarding local attorneys.

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IN THE COUNTY COURT OF DALLAS COUNTY TEXAS

Case #

Portfolio Recovery Associates LLC

Plaintiff

Vs.

TexasToast

Defendant

 

DEFENDANT’S RESPONSE TO REQUESTS FOR DISCLOSURE

To: Portfolio recovery LLC at the Law Office of Regent & ASSOC 2650 Fountain View DR STE 233,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 TexasToast

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 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:

1.TexasToast , who may be contacted at the following address 1313 Mocking Bird lane Houston Texas.

2.Portfolio Recovery LLC, who may be contacted through the Plaintiff’s attorney.

3.Capital One Bank 1680 capital One Drive Mclean,Virginia 22102.

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 September 09, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:Law Office of Regent & ASSOC 2650 Fountain View DR STE 233,Houston,TX 77057. By Certified U.S. Mail, Return Receipt Requested.

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IN THE COUNTY COURT OF DALLAS COUNTY TEXAS

Case #

Portfolio Recovery Associates LLC

Plaintiff

Vs.

TexasToast

Defendant

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

Comes now the Defendant and files his Original Answer

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 and demands strict proof thereof by a preponderance of the evidence.

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 interest rates charged by the original creditor are usurious.

4. Subject the foregoing, the defendant denies the lawsuit in its entirety.

 

 

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.
 

 

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( c )(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 provide discloser within 30 days of the service of this request, the information or material described in Rule 194.2(A) through (I).


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>

 

Certificate of Service
On September 09, 2013, I certify the foregoing instrument(s) are a true and correct copy of Defendant's Original Answer, Plea to the Jurisdiction and Special Exceptions. To be served by delivering a copy to all counsel of record in this case as indicated below:Law Office of Regent & ASSOC 2650 Fountain View DR STE 233,Houston,TX 77057. By Certified U.S. Mail, Return Receipt Requested

Sign it

print your name

address

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.

 

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.

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Type in the rest of the questions starting at # 11

IN THE COUNTY COURT OF DALLAS COUNTY TEXAS

Case #

Portfolio Recovery Associates LLC

Plaintiff

Vs.

TexasToast

Defendant

DEFENDANT’S RESPONSE TO ADMISSIONS

To:Portfolio Recovery Associates LLC / Law Office of Regent & ASSOC 2650 Fountain View DR STE 233,Houston,TX 77057.

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

1.The Plaintiff (or Plaintiff's predecessor in interest) entered into a contract with the Defendant.

1. RESPONSE: Defendant is unable to admit or deny as this request calls for legal conclusion and/or legal interpretation. Additionally, Defendant is unable to admit or deny as this request is vague and ambiguous as to the use of the term "contract," which the Plaintiff fails to define.

2.Based on Defendants request,Plaintiff or Plaintiff's predecessor in interest opened the account.

2.RESPONSE: Defendant is unable to admit or deny as this request calls for legal conclusion and/or legal interpretation. Additionally, Defendant is unable to admit or deny as this request is vague and ambiguous as to the use of the term "account," which the Plaintiff fails to define.

3.Plaintiff is the owner of the indebtedness on the Account.

3.RESPONSE: Defendant is unable to admit or deny as this request calls for legal conclusion and/or legal interpretation. Additionally, Defendant is unable to admit or deny as this request is vague and ambiguous as to the use of the term "indebtedness," which the Plaintiff fails to define.

4.Plaintiff (Plaintiffs predecessor in interest) and Defendant entered into an agreement to create an account for credit.

4.RESPONSE: Defendant is unable to admit or deny as this request calls for legal conclusion and/or legal interpretation. Additionally, Defendant is unable to admit or deny as this request is vague and ambiguous as to the use of the term(s) "agreement," and "account for credit" which the Plaintiff fails to define.

5.Plaintiff (Plaintiffs predecessor in interest) offered an extension of credit to defendant in exchange for Defendants promise to repay the credit.

5.RESPONSE: Defendant is unable to admit or deny as this request calls for legal conclusion and/or legal interpretation. Additionally, Defendant is unable to admit or deny as this request is vague and ambiguous as to the use of the term"extension of credit" which the Plaintiff fails to define.

6.Defendant has understood from the time the Account was opened that Plaintiff (Plaintiffs predecessor in interest) made a loan on behalf of the Defendant for the amount requested.

6.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 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.

7.RESPONSE: Defendant is unable to admit or deny as this request calls for legal conclusion and/or legal interpretation. Additionally, Defendant is unable to admit or deny as this request is vague and ambiguous as to the use of the term"Account" which the Plaintiff fails to define.

8. Defendant made purchases using the credit provided by Plaintiff or Plaintiffs predecessor in interest .

8.RESPONSE: Defendant is unable to admit or deny as this request calls for legal conclusion and/or legal interpretation. Additionally, Defendant is unable to admit or deny as this request is vague and ambiguous as to the use of the term"using the credit" which the Plaintiff fails to define.

9. Defendant made payments on the Account.

Response:Defendant is unable to admit or deny as this request is vague and ambiguous as to the use of the term"Account" which the Plaintiff fails to define.

10. After the Account was opened, defendant received statement showing the balance remaining on the Account, along with the minimum payment required.

10.RESPONSE: Defendant is unable to admit or deny as this request calls for legal conclusion and/or legal interpretation. Additionally, Defendant is unable to admit or deny as this request is vague and ambiguous as to the use of the term "Account," which the Plaintiff fails to define.

11.

11.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.

12.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.

13.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.

14.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.

15.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.

16.

16.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.

17.

17.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.

18.

18.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.

19.

19.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.

20.

20.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.

21.

21.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.

22.

22.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.

23.

23.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,

name

address

phone

Certificate of Service
On September 09, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:To:Portfolio Recovery Associates LLC / Law Office of Regent & ASSOC 2650 Fountain View DR STE 233,Houston,TX 77057. By Certified U.S. Mail, Return Receipt Requested

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If you can not plead to the jurisdiction just answer with a general denial

http://www.jdsupra.com/legalnews/texas-defendants-original-answer-af-82434/

 

IN THE COUNTY COURT OF DALLAS COUNTY TEXAS

Case #

Portfolio Recovery Associates LLC

Plaintiff

Vs.

TexasToast

Defendant

 

 

DEFENDANT’S ANSWER AND AFFIRMITIVE DEFENSES TO PLAINTIFFS COMPLAINT

 

COMES NOW the Defendant MY NAME, Pro se (hereinafter referred to as"defendant"), submits Defendant’s Answer and Affirmitive Defenses to Plaintiffs' Complaint for SUIT ON OPEN & STATED ACCOUNT/DEBT/BREACH OF CONTRACT("Complaint") as follows:

 

Allegations of Plaintiffs Complaint

 

Defendant is without information or knowledge sufficient to form a belief as to the truth
of the allegations contained in paragraphs ¶ 1, ¶ 2, ¶3,¶ 4,¶ 5,¶ of Plaintiff's complaint. Therefore 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 demands strict proof thereof by a preponderance of the evidence.

As to all remaining allegations of fact in the numbered or unnumbered parts of the complaint not specifically admitted, Defendant denies all such allegations. As to all remaining allegations which call for a legal conclusion, Defendant lacks sufficient knowledge or information to respond to such legal conclusions and, therefore, denies them.

 

AFFIRMATIVE DEFENSES

By and for his Affirmative Defenses, Defendant states:

First Affirmative Defense
Plaintiff's Complaint fails to state a claim upon which relief may be
granted against defendant.

Second Affirmative Defense
Plaintiff caused harm or injury to itself by purchasing defaulted debt.

Third Affirmative Defense
Plaintiff is not the legal holder of the alleged debt and therefore is not the real party in interest; this action should be dismissed for lack of standing.

Forth Affirmative Defense
Plaintiff’s complaint is not properly verified and is not grounded in fact because it does not exhibit the alleged contract the debt is based upon, a valid statement of account, nor any valid assignment that gives Plaintiff legal title to the claim.

Fifth Affirmative Defense
Plaintiff in filing this Complaint has not produced a copy of the executed agreement it seeks to enforce.

Sixth Affirmative Defense
Defendant reserves the right to plead additional defenses (or cross-claims or counter claims) that may be identified during the Defendant's investigation and/or course of discovery.

WHEREFORE, Defendant prays that this Court find judgment for Defendant,
deny Plaintiffs’ request for relief, deny Plaintiffs’ request for damages, deny
Plaintiffs’ request for costs, deny Plaintiffs’ request for attorney’s fees and deny Plaintiffs’ request for any relief whatsoever. Defendant further prays that this Court hold that Defendant is the prevailing party, and dismiss Defendant with prejudice.


Respectfully Submitted,


name
address
phone

Certificate of Service
On September 09, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below: To Portfolio Recovery Associates LLC / Law Office of Regent & ASSOC 2650 Fountain View DR STE 233,Houston,TX 77057. By Certified U.S. Mail, Return Receipt Requested






 

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IN THE COUNTY COURT OF DALLAS COUNTY TEXAS

Case #

Portfolio Recovery Associates LLC

Plaintiff

Vs.

TexasToast

Defendant

 

DEFENDANT’S RESPONSE TO REQUESTS FOR DISCLOSURE

To: Portfolio recovery LLC at the Law Office of Regent & ASSOC 2650 Fountain View DR STE 233,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 TexasToast

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 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:

1.TexasToast , who may be contacted at the following address 1313 Mocking Bird lane Houston Texas.

2.Portfolio Recovery LLC, who may be contacted through the Plaintiff’s attorney.

3.Capital One Bank 1680 capital One Drive Mclean,Virginia 22102.

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 September 09, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:Law Office of Regent & ASSOC 2650 Fountain View DR STE 233,Houston,TX 77057. By Certified U.S. Mail, Return Receipt Requested.

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DEFENDANT'S REQUEST FOR DISCLOSURE TO PLAINTIFF, PORTFOLIO RECOVERY LLC.

 

TO: PORTFOLIO RECOVERY LLC / Law Office of Regent & ASSOC 2650 Fountain View DR STE 233,Houston, TX 77057.

 

NOW COMES Defendant, TexasToast, in the above-entitled and numbered

cause, and pursuant to Rule 194 of the Texas Rules of Civil Procedure serves the attached

Request for Disclosure upon Plaintiff, Portfolio Recovery LLC.

 

You are advised such request for Disclosure must be responded to separately and

fully in writing, and your responses are not subject to objections. The responses to this

Request must be served upon the undersigned defendant on or before fifty (50) days from the

day of service of this pleading as defined in Rule 194.3 of the Texas Rules of Civil Procedure.

 

You are instructed to make your responses on the basis of all information available to you,

your agents, representatives, employees, or attorneys, or appearing in your records.

 

You are

further instructed to supplement your answers as provided by the Texas Rules of Civil

Procedure.

 

REOUEST FOR DISCLOSURE

 

YOU ARE TO DISCLOSE THE FOLLOWING INFORMATION:

(a) The correct names of the parties to the lawsuit:

 

( b ) The name, address, and telephone number 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 person’s connection with the case.

 

F. For any testifying expert:

1. The expert’s name, address, and telephone number.
Response:

 

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).

 

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.

 

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.

Respectfully Submitted,

 

name

address

phone

 

Certificate of Service
On September 09, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below: PORTFOLIO RECOVERY LLC / Law Office of Regent & ASSOC 2650 Fountain View DR STE 233,Houston, TX 77057.

By Certified U.S. Mail, Return Receipt Requested

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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