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Portfolio Recovery Associates, LLC sueing me in Texas


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@texasrocker

 

This where we need to read some more cases to make sure we're understanding "deemed admissions".  Here's a sentence from Curry v. Clayton, 715 SW 2d 77 - Tex: Court of Appeals, 5th Dist. 1986.  It's an older case, but it seems to explain the term.

 

Clayton sent requests for admissions to Curry, which Curry received on February 19. Curry failed to file a response or objection to these requests within thirty days of the date of receipt; thus, the requests were deemed admitted by operation of law. TEX.R.CIV.P. 169.  Clayton then filed a motion to deem requests for admissions admitted and a motion for summary judgment, based upon the deemed admissions and the supporting affidavit of Clayton.

 

As you can see, "deemed admissions" means admissions that are considered admitted.  "Deemed" is what happens after there's no response or a response is improper.

 

Think of a default judgment.  If the admissions are included in the petition, but the defendant doesn't answer the complaint, those admissions become "deemed admissions". 

 

In the case where a defendant answers the complaint, but improperly responds to the admissions, they can become deemed admissions.   The term seems to have to do with admissions for which there are no response and, possibly, those for which an improper response was provided. 

 

The judge is merely saying that any embedded admissions that are deemed admitted because the defendant didn't do something cannot be used to support the plaintiff's case.  It's to protect the defendant.

 

That's why the judge stated that deemed admissions could only be used if a corresponding set was sent separately to the defendant.  If the defendant fails to respond to those admissions or still responds improperly, then it's obvious that the defendant either isn't defending himself or possibly has no defense.  In that case, the embedded admissions that are deemed admitted could be used.

 

But again this should make no difference to the OP as long as he answers the complaint, responds properly to the requests, and doesn't admit anything he shouldn't admit.  None of those requests could be deemed admitted at any point.

I fully understand what "deemed admissions" means.  What doesn't make sense is your explanation that the court's rule that states "admissions cannot be embedded in the Original Petition" refers to deemed admissions. I just don't see how deemed admissions could possibly be embedded in an Original Petition when they are not deemed admitted until 20 days after the defendant has been served and failed to answer.  But as you said it won't matter as long as the suit is properly answered.

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@texasrocker

 

What doesn't make sense is your explanation that the court's rule that states "admissions cannot be embedded in the Original Petition" refers to deemed admissions. I just don't see how deemed admissions could possibly be embedded in an Original Petition when they are not deemed admitted until 20 days after the defendant has been served and failed to answer.

 

 

The judge's order is in case the admissions ARE deemed admitted at some point.  (Which, in this case, probably won't occur).

 

Notice that the order says "A party who violates this Standing Order may not rely on alleged Deemed Admissions for any purpose in this case, including in connection with a Motion for a Default Judgment or a Motion for Summary Judgment"

 

Default judgments and MSJs would occur more than 20 days after the defendant has been served.  By the time those motions could be filed, unanswered admissions would have been deemed admitted.

 

He's only telling the plaintiff that if he files a motion for default (by which time the admissions would have been deemed admitted), he can't rely on the admissions he embedded in the complaint to support his motion.

 

If the defendant answers improperly, they could be deemed admitted.  So, unless the plaintiff sends corresponding admission requests, the judge is telling the plaintiff that he can't use the deemed admissions to support an MSJ.

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Just a small update, just a few minutes ago the Attorney's Office for Portfolio called and left a message that they know service of suit was completed on December 27th. and were just wanting to let me know that settlement was available and that I should call to discuss it with them.

 

I am finishing up my "ANSWER" and I had compiled a guide for myself from the Texas Rules of Civil Proceedure pertaining to my case and was going to share it here to see if it matters that it does not seem to me that the defendant has not followed the rules to a degree and if that should be address, or do I just go ahead and file my answer and start working on my motion for "Discovery"

 

RULE 500.3. APPLICATION OF RULES IN JUSTICE COURT CASES

 

(a) Small Claims Case. A small claims case is a lawsuit brought for the recovery of money

damages, civil penalties, personal property, or other relief allowed by law. The claim can

be for no more than $ 1 0,000, excluding statutory interest and court costs but including

attorney fees, if any. Small claims cases are governed by Rules 500-507 of Part V of the

Rules of Civil Procedure.

 

( Debt Claim Case. A debt claim case is a lawsuit brought to recover a debt by an assignee of

a claim, a debt collector or collection agency, a financial institution, or a person or entity

primarily engaged in the business of lending money at interest. The claim can be for no

more than $ 1 0,000, excluding statutory interest and court costs but including attorney fees, if any. Debt claim cases injustice court are governed by Rules 500-507 and 508 of Part V

of the Rules of Civil Procedure. To the extent of any conflict between Rule 508 and the rest

of Part V, Rule 508 applies.

Application of Other Rules. The other Rules of Civil Procedure and the Rules of Evidence

do not apply except:

(I) when the judge hearing the case determines that a particular rule must be followed

to ensure that the proceedings are fair to all parties; or

(2) when otherwise specifically provided by law or these rules.

 

RULE 502.1. PLEADINGS AND MOTIONS MUST BE WRITTEN, SIGNED, AND FILED

 

Except for oral motions made during trial or when all parties are present, every pleading, plea,

motion, application to the court for an order, or other form of request must be written and signed by the party or its attorney and must be filed with the court. A document may be filed with the court by personal or commercial delivery, by mail, or electronically, if the court allows electronic filing.

 

RULE 502.2. PETITION

Contents. To initiate a lawsuit, a petition must be filed with the court. A petition must

contain:

 

  1. the name of the plaintiff;

 

(2) the name, address, telephone number, and fax number, if any, of the plaintiffs

attorney, if applicable, or the address, telephone number, and fax number, if any, of

the plaintiff;

 

(3) the name, address, and telephone number, if known, of the defendant;

 

( 4) the amount of money, if any, the plaintiff seeks;

 

(5) a description and claimed value of any personal property the plaintiff seeks;

 

(6) a description of any other relief reqested;

 

(7) the basis for the plaintiff's claim against the defendant; and

 

(8) if the plaintiff consents to email service of the answer and any other motions or

pleadings, a statement consenting to email service and email contact information.

 

( Justice Court Civil Case Information Sheet. A justice court civil case information sheet, in

the form promulgated by the Supreme Court of Texas, must accompany the filing of a

petition and must be signed by the plaintiff or the plaintiffs attorney. The justice court civil

case information sheet is for data collection for statistical and administrative purposes and

does not affect any substantive right. The court may not reject a pleading because the

pleading is not accompanied by a justice court civil case information sheet.

RULE 508. DEBT CLAIM CASES

 

RULE 508.1. APPLICATION

 

Rule 508 applies to a claim for the recovery of a debt brought by an assignee of a claim, a financial institution, a debt collector or collection agency, or a person or entity primarily engaged in the business of lending money at interest.

 

RULE 508.2. PETITION

 

(a) Contents. In addition to the information required by Rule 502.2, a petition filed in a lawsuit

governed by this rule must contain the following information:

 

( l ) Credit Accounts. In a claim based upon a credit card, revolving credit, or open

account, the petition must state:

 

  1. the account name or credit card name;
  2. the account number (which may be masked);
  3. the date of issue or origination of the account, if known;

(D) the date of charge-off or breach of the account, if known;

(E) the amount owed as of a date certain; and

 (F) whether the plaintiff seeks ongoing interest.

3. Ongoing Interest. If a plaintiff seeks ongoing interest, the petition must state:

 

(A) the effective interest rate claimed;

( whether the interest rate is based upon contract or statute; and

© the dollar amount of interest claimed as of a date certain.

 

            Date certain means a fixed or appointed day, or a specified day. Almost all instruments and deeds will specify a date certain for its execution. It is to be noted that a written rent demand notice which fails to specify a date certain by which the rent must be paid, is not ambiguous or otherwise insufficient. It is also called as date certain.

 

(4) Assigned Debt. If the debt that is the subject of the claim has been assigned or

transferred, the petition must state:

 

(A) that the debt claim has been transferred or assigned;

( the date of the transfer or assignment;

© the name of any prior holders of the debt; and

(D) the name or a description of the original creditor.

 

RULE 502.4. VENUE- WHERE A LAWSUIT MAY BE BROUGHT

 

(a) Applicable Law. Laws specifying the venue- the county and precinct where a lawsuit may

be brought - are found in Chapter 15, Subchapter E of the Texas Civil Practice and

Remedies Code, which is available online and for examination during the court's business

hours.

 

( General Rule. Generally, a defendant in a small claims case as described in Rule 500.3(a)

or a debt claim case as described in Rule 500.3( is entitled to be sued in one of the

following venues:

 

  1. the county and precinct where the defendant resides;
  2. the county and precinct where the incident, or the majority of incidents, that gave rise
  3. to the claim occurred;
  4. the county and precinct where the contract or agreement, if any, that gave rise to the
  5. claim was to be performed; or
  6. the county and precinct where the property is located, in a suit to recover personal
  7. property.

 

 

RULE 502.5. ANSWER

Requirements. A defendant must file with the court a written answer to a lawsuit as directed

by the citation and must also serve a copy of the answer on the plaintiff. The answer must

contain:

 

  1. the name of the defendant;
  2. the name, address, telephone number, and fax number, if any, of the defendant's

attorney, if applicable, or the address, telephone number, and fax number, if any, of

the defendant; and

 

if the defendant consents to email service, a statement consenting to email service

and email contact information.

 

( General Denial. An answer that denies all of the plaintiffs allegations without specifYing

the reasons is sufficient to constitute an answer or appearance and does not bar the defendant

from raising any defense at trial.

 

© Answer Docketed. The defendant' s appearance must be noted on the court's docket.

 

(d) Due Date. Unless the defendant is served by publication, the defendant's answer is due by

the end of the 1 4th day after the day the defendant was served with the citation and petition,

but

 

( I ) i f the 1 4th day i s a Saturday, Sunday, or legal holiday, the answer i s due on the next

day that is not a Saturday, Sunday, or legal holiday; and

 

(2) if the 14th day falls on a day during which the court is closed before 5:00 p.m., the

answer is due on the court' s next business day.

 

RULE 503. DEFAULT JUDGMENT; PRE-TRIAL MATTERS; TRIAL

 

RULE 503.1. IF DEFENDANT FAILS TO ANSWER

 

(a) Default Judgment. If the defendant fails to file an answer by the date stated in Rule 502.5,

the judge must ensure that service was proper, and may hold a hearing tor this purpose. If it is determined that service was proper, the judge must render a default judgment in the following manner:

( 1 ) Claim Based on Written Document. If the claim is based on a written document

signed by the defendant, and a copy of the document has been filed with the court

and served on the defendant, along with a sworn statement from the plaintiff that this

is a true and accurate copy of the document and the relief sought is owed, and all

payments, offsets or credits due to the defendant have been accounted for, the judge

must render judgment for the plaintiff in the requested amount, without any necessity

for a hearing. The plaintiff's attorney may also submit affidavits supporting an

award of attorney fees to which the plaintiff is entitled, if any.

 

(2) Other Cases. Except as provided in ( 1), a plaintiff who seeks a default judgment

against a defendant must request a hearing, orally or in writing. The plaintiff must

appear at the hearing and provide evidence of its damages. If the plaintiti proves its

damages, the judge must render judgment for the plaintiff in the amount proven. If

the plaintiff is unable to prove its damages, the judge must render judgment in favor

of the defendant. With the permission of the court, a party may appear at a hearing

by means of telephone or an electronic communication system.

 

( Appearance. If a defendant files an answer or otherwise appears in a case before a default

judgment is signed by the judge, the judge must not enter a default judgment and the case

must be set for trial as described in Rule 503.3.

 

© Post-Answer Default. If a defendant who has answered fails to appear for trial, the court may

proceed to hear evidence on liability and damages and render judgment accordingly.

 

(d) Notice. The plaintiff requesting a default judgment must provide to the clerk in writing the

last known mailing address of the defendant at or before the time the judgment is signed.

When a default judgment is signed, the clerk must immediately mail written notice of the

judgment to the defendant at the address provided by the plaintiff, and note the fact of such

mailing on the docket. The notice must state the number and style of the case, the court in

which the case is pending, the names of the parties in whose favor and against whom the

judgment was rendered, and the date the judgment was signed. Failure to comply with the

provisions of this rule does not affect the finality of the judgment.

 

RULE 503.2. SUMMARY DISPOSITION

 

(a) Motion. A party may file a sworn motion for summary disposition of all or part of a claim

or defense without a trial. The motion must set out all supporting facts. All documents on

which the motion relies must be attached. The motion must be granted if it shows that: there are no genuinely disputed facts that would prevent a judgment in favor o f the party;

(2) there is no evidence of one or more essential elements of a defense which the

defendant must prove to defeat the plaintiff s claim; or

 

(3) there is no evidence of one or more essential elements of the plaintiffs claim.

 

( Response. The party opposing the motion may tile a sworn written response to the motion.

 

© Hearing. The court must not consider a motion for summary disposition until it has been on

file for at least 1 4 days. The judge may consider evidence offered by the parties at the

hearing. By agreement of the parties, the judge may decide the motion and response without

a hearing.

 

(d) Order. The judge may enter judgment as to the entire case or may specifY the facts that are

established and direct such further proceedings in the case as are just.

RULE 508.3. DEFAULT JUDGMENT

Generally. If the defendant does not file an answer to a claim by the answer date or

otherwise appear in the case, the judge must promptly render a default judgment upon the

plaintiffs proof of the amount of damages.

 

( Proofof the A mount of Damages.

 

( 1 ) Evidence Must Be Served or Submitted. Evidence of plaintiff' s damages must either

be attached to the petition and served on the defendant or submitted to the court after

defendant's failure to answer by the answer date.

 

(2) Form of Evidence. Evidence of plaintiffs damages may be offered in a sworn

statement or in live testimony. The evidence offered may include documentary

evidence.

 

(3) Establishment of the Amount of Damages. The amount of damages is established

by evidence:

 

(A) that the account or loan was issued to the defendant and the defendant is

obligated to pay it;

 

( that the account was closed or the defendant breached the terms of the

account or loan agreement;

 

© of the amount due on the account or loan as of a date certain after all

payment credits and offsets have been applied; and

 

(D) that the plaintiff owns the account or loan and, if applicable, how the plaintiff

acquired the account or loan.

 

( 4) Documentary Evidence Offered By Sworn Statement. Documentary evidence may

be considered if it is attached to a sworn statement made by the plaintiff or its

representative, a prior holder of the debt or its representative, or the original creditor

or its representative, that attests to the following:

 

(A) the documents were kept in the regular course of business;

( it was the regular course of business for an employee or representative with

knowledge of the act recorded to make the record or to transmit information

to be included in such record;

 

  1. the documents were created at or near the time or reasonably soon thereafter

 

And the documents attached are the original or exact duplicates of the original.

(5) Consideration of Sworn Statement. A judge is not required to accept a sworn

statement if the source of information or the method or circumstances of preparation

indicate lack of trustworthiness. But a judge may not reject a sworn statement only

because it is not made by the original creditor or because the documents attested to

were created by a third party and subsequently incorporated into and relied upon by

the business of the plaintiff.

 

© Hearing. The judge may enter a default judgment without a hearing if the plaintiff submits

sufficient written evidence of its damages and should do so to avoid undue expense and

delay. Otherwise, the plaintiff may request a default judgment hearing at which the plaintiff

must appear, in person or by telephonic or electronic means, and prove its damages. If the

plaintiff proves its damages, the judge must render judgment for the plaintiff in the amount

proven. If the plaintiff is unable to prove its damages, the judge must render judgment in

favor of the defendant.

 

(d) A ppearance. If the defendant files an answer or otherwise appears in a case before a default judgment is signed by the judge, the judge must not render a default judgment and must set the case for trial.

 

(e) Post-Answer Default. If a defendant who has answered fails to appear for trial, the court may

proceed to hear evidence on liability and damages and render judgment accordingly.

 

 

Affirmative Defenses You Can Use in a Lawsuit

Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

Failure of Consideration: No exchange of money or goods occurred between the Plaintiff and the Defendant. Failure of consideration will void contracts in some cases.

Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

  • Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.
  • Plaintiff's complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.
  • Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.
  • Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

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I believe you mean the plaintiff instead of the defendant (which is you)

Completely absolutely and totally ignore any calls or letters from them.  Never call a JDB or their attorney under any circumstances.

 

Filing your answer before the deadline is imperative and your top priority at this point.  You can add to your answer that you assert that the plaintiff has not properly pled their case if you are certain of that and ask that the case be dismissed or they be required to change their pleadings according to TRCP Rule ____.

 

Remember that the new small claims (JP) court rules require you to get the judge's permission before sending discovery. 

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  • 2 weeks later...

I believe you mean the plaintiff instead of the defendant (which is you)

Completely absolutely and totally ignore any calls or letters from them.  Never call a JDB or their attorney under any circumstances.

 

Filing your answer before the deadline is imperative and your top priority at this point.  You can add to your answer that you assert that the plaintiff has not properly pled their case if you are certain of that and ask that the case be dismissed or they be required to change their pleadings according to TRCP Rule ____.

 

Remember that the new small claims (JP) court rules require you to get the judge's permission before sending discovery.  You should have 50 days from when served to send it.

 

OK, so in a case where the amount is over 10K this rule (getting judge permission, is not needed). Correct?

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  • 1 month later...

Good morning all, first I want to thank TexasRocker for all the help that has been given to me on this issue, I am still here plugging away and have received a response from Portfolio on the Request for Discovery that I sent to them, now I just am not sure how to proceed. The first hearing date has been set for March 11th at 10 AM and I am not sure I am prepared to proceed at this point....it has snuck up on me that's for sure. I am going to try and attach the response I received from them here, because it is 35 pages and I don't think this forum will let me copy and paste all that here...so here goes

 

 

Ok for some reason I am unable to copy and paste or I m doing something wrong.... so I have attached the response and really need help and direction on next move ect...

 

Just Me

 

 

 

InfoCenter COmplete Copy.pdf

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PLAINTIFF'S RESPONSE TO DEFENDANT 'S REQUEST FOR DISCLOSURE

 

 

Plaintiff

 

PORTFOLIO RECOVERY ASSOCIATES, LLC ("Plaintiff" ), has not yet completed its  preparation for trial. Consequently, this response is given without prejudice to Plaintiff's rights to supplement or, at the lime of trial or in another proceeding, to produce

subsequently discovered evidence relating to the proof of substantially discovered facts.

Subject to the foregoing and pursuant to TEX. R. elv. P. 194.2, Plaintiff makes the following disclosures to Defendant:

 

 

 

The correct names of the parties to the lawsuit:

 

The Plaintiff is PORTFOLIO RECOVERY ASSOCIATES, LLC

The Defendant is XYZ

 

2. The names, addresses, and telephone numbers of any potential parties:

Plaintiff is unaware at this time of any potential parties other than those already named in

the lawsuit.

 

3. The legal theories and, in general, the factual bases of the responding party's claims or defenses:

 

Plaintiff sued Defendant on a debt. PlaintifT asserts that, pursuant to a contractual

obli gat ion, Defendant was provided with a revolving credit account to provide advances

to cover Defendant's purchases in exchange for Defendant's agreement to reimburse Plaintiff , or Plaintiff's predecessor, for those advances in monthly installments and to pay interest on the advances.

 

 

Plaintiff currently owns the account. As additional causes of act ion, Plaintiff asserts that Defendant breached her contract with its Original Creditor and that under the doctrines of Quantum Meruit, Unjust Enrichment, and Money Had And Received, Defendant has received the use and benefit of the advances provide~ by the original creditor, and that Defendant should repay Plaintiff for the value of those advances, because Plaintiff has purchased the account including the right to collect past due amounts.

 

4. The amount and method of calculating economic damages:

 

Plaintiff has calculated its damages in accordance with the contract between Defendant and Plaintiff. Those damages total at least $Y,zzzz at the time of the petition. This amount  may not include litigation costs or any prejudgment interest pennitted by contract

or law.

 

5. The name, address, and telephone number of persons having knowledge of the relevant facts, and a brief  statement of each identified person's connection with the case:

 

XYZ

She is the Defendanl.

 

Anita Bray, Colby Eyre, Cristina Patterson, Cynthia Clarke, David Sage, Dianna Williams, Donna Dangerfield, Dwayne Davis, Elaine Freeman Lark, Elonda Shennan, Evita Rodriquez, !tina Spellman, Joann Cuffee, Johnny B. Tabor, Larry Earl Whitaker, Larry Andrews, Lecinda Shipmon-Walker, Leonard Wolfe, Maria Marin, Mark Lozano, Mary Moore, Meryl Dreano, Michael Cody LaDoucer, Myrell Johns, Ricky Vaughn, Samaria Braswell, Shirley Garcia, Tamara Bond, Tiffany Griffin, Tracy Parker, Yvette Stephens or other Account Representative or Custodian of Record of PORTFOLIO RECOVERY ASSOCIATES, LLC clo Regent & Associates 2650 Fountain View Drive, Suite 233

 

 

Houston, Texas 77057 (7 I 3) 490-7076 Telephone These Account Representatives have knowledge of Defendant's account and transactions on said account.

 

6. For any testifying expert:

 

a. the expert's name, address, and telephone number;

 

Anh H. Regent, Esq. or J. David Roberson, Esq.

2650 Fountain View Drive, Suite 233

 

Houston, Texas 77057

 

(713) 490-7076

 

b. the subject matt er on which the expert will testify;

 

Mr. Regent and Mr. Roberson may testify regard ing the nature, extent, amount and reasonableness of attorney's fees, or rebut any attorney fee testimony offered by Defendant or any other party. Mr. Regent and Mr. Roberson have personal knowledge of the services rendered and to be rendered on behalf of Plaintiff, are licensed to practice law in the state and federal courts of Texas, are fami liar with the attorney fees customarily charged by attorneys in this jurisdiction, for handling similar matte rs, and are familiar with attorney services nonnally required to properly represent clients in this and simi lar contested litigation matters. The services rendered and to be rendered were or will be performed at hourly rates that were, are and will be nonnal, customary, usual and reasonab le in this jurisdiction. The attorney services rendered in connection with the representation of Plaintiff in this matte r. See attached curriculum vitae.

 

 

c. the general substance of the expert's mental impress ions and opinions and a brief summary of the bases for th em, or if the expert is not retained by, employed by or oth en vise subject to the co ntrol of the responding party, documents reflectin g such information;

 

 

 

Not applicable.

 

d. if the expert is retained by, employed by, or othenvisc subject to the control

of the responding party;

 

All documents, tangible things, reports, models, or data compilations that have been provided to, revicwed by, or prepa red by or for the expert in anticipation of the expert's testimony; and not applicable.

 

ii) the expert's current resume and bibliography;

See attached Cv.

 

 

 

Any indemnity and insuring agreements described in Rule 192.3(f):

None.

8. Any settlement agreements described in Rule 192.3(g):

None.

9. Any witness statements described in Rule 192.3(h):

Plaintiff does not have any documents responsive to this request at this time.

10. 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:

Not applicable.

11. 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.

Not applicable.

12. The name, address, and telephone number of any person who may be designated as

a responsible third party.

Not applicable.

Respectfully submitted,

REGENT& ASSOCIATES

 

 

PLAINTIFF'S RESPONSE TO DEFENDANT'S REQUEST FOR ADMISSIONS

 

1. Admit that you did not provide any Goods or Services to the Defendant.

RESPONSE: Deny.

 

2. Admit that Plaintiff is not the Original Creditors on the account at issue.

RESPONSE:  Admit.

 

3. Admit that Plaintiff did not enter into any contract with Defendant.

RESPONSE: Deny.

 

4. Admit that you obtained your rights to the account at issue through an assignment.

RESPONSE: Admit.

 

5. Admit that the account that is the subject of this lawsuit is governed by a written contract

between the original creditor and defendant.

 

RESPONSE:

Admit that the account that is the subject of this lawsuit is governed by the

Cardmember Agreement. Deny all else.

 

6. Admit that the terms and conditions for that account that is the subject of this lawsuit are set forth in a card member agreement.

 

RESPONSE:

Admit the terms and conditions for the account that is the subject of this

lawsuit are listed in the Cardmember Agreement. Deny all else.

 

7. Admit that no employee, agent or representative of Plaintiff is a custodian of records for the Original Creditor on the account at issue in this lawsuit.

 

RESPONSE:

After reasonable inquiry, the information known or easily available to the

Plaintiff is insufficient to enable the Plaintiff to admit or deny.

 

8. Admit that no employee, agent or representative of Plaintiff has personal knowledge of

Original Creditor's record keeping of any records pertaining to Defendant.

 

RESPONSE:

After reasonable inquiry, the information known or easily available to the

Plaintiff is insufficient to enable the Plaintiff to admit or deny.

 

 

9. Admit that the last payment received on this account was received more than four years

before the date you filed suit.

RESPONSE: Deny.

10. Admit that the alleged breach of contract that is the basis of this lawsuit occurred more

than four years before the date on which you filed suit.

RESPONSE: Deny.

11. Admit that the original creditor sold or assigned the debt with a disclaimer of warranty.

RESPONSE: Deny.

12. Admit that you did not review the original creditor's business records associated with this

account prior to your decision to purchase the account.

RESPONSE: Deny.

 

 

PLAINTIFF'S  RESPONSE TO DEFENDANT'S REQUEST FOR PRODUCTION

 

Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC ("Plaintiff'), serves its Responses and Objections to Defendant's Request for Production pursuant to Rules 193 and 196 of the TEXAS RULES OF CIVIL PROCEDURE. Pursuant to the TEXAS RULES OF CIVIL PROCEDURE, and subject to general objections and the specific objections made to individual Requests,

Plaintiff will produce unobjected to, non-privileged documents as they are kept in the normal course of business.

 

 

GENERAL OBJECTIONS

1. Plaintiff objects generally to any Request insofar as it may be construed to require Plaintiff to furnish more information regarding documents, privileged or otherwise, than is required by the TEXAS RULES OF CIVIL PROCEDURE and the Local Rules.

2. Plaintiff objects generally to Defendant's Requests insofar as they may be

construed to require Plaintiff to concede the relevance or materiality of the documents sought. The Responses, which follow, are subject to and do not waive: a. questions or objections to (i) the competency, relevancy, materiality, privilege, or admissibility of evidence or (ii) the use of any of the responses given proceeding or trial in this or any other action or for any other purpose;

herein or the documents or the subject matter thereof in any subsequent

b. the right to object to other discovery proceedings involving or related to

the subject matter of the request to which these responses are directed; and

c. the right at any time to revise, correct, add to, or clarify any or all of the

responses, all of which are given subject to correction of any such omissions or

errors.

3. Plaintiff generally objects to Defendant's Requests as vague, overbroad, harassing

and irrelevant insofar as they request identification of "all documents." Such Requests also

attempt to impose burdens greater than those required by the TEXAS RULES OF CIVIL PROCEDURE,

would encompass privileged information, are unduly burdensome and unnecessarily expensive.

4. Plaintiff reserves the right to supplement its Responses before the time of trial.

Respectfully submitted,

REGENT & ASSOCIATES

 

 

PLAINTIFF'S RESPONSE TO DEFENDANT'S REQUEST FOR PRODUCTION

 

1. All documents that you identified in response to any interrogatory.

RESPONSE:

 

See copies of Account Summary and Defendant's monthly account statements,

attached hereto.

 

2. All documents, exhibits, evidence, or any tangible thing which you intend offer as

evidence or as an exhibit at trial or during the course of this lawsuit.

RESPONSE:

 

See copies of Defendant's monthly account statements and Account Summary,

attached hereto. Other responsive documents, to the extent available and applicable will be

supplemented.

 

3. All written contracts or Card Member Agreements that you contend apply to the Defendant's account.

 

RESPONSE:

 

Relevant documents, to the extent available and applicable, will be supplemented.

 

4. A copy of the attorney fee agreement between Plaintiff and its attorney for any attorney

fees you seek to recover in this case.

 

OBJECTION:

 

Not reasonably calculated to lead to the discovery of admissible evidence.

Information and/or material responsive to this request is being withheld under a claim of

attorney-client privilege.

 

RESPONSE:

 

Subject to objection and privilege, Plaintiff is not seeking attorney's fees at

this time.

 

5. A copy of any time entries or other documents or tangible things that support your claim

for reasonable and necessary attorney fees.

 

OBJECTION:

 

Not reasonably calculated to lead to the discovery of admissible evidence.

Information and/or material responsive to this request is being withheld under a claim of

attorney-client privilege.

 

RESPONSE:

 

Subject to objection and privilege, Plaintiff is not seeking attorney's fees at

this time.

 

6. A complete copy of the agreements that constitute the chain of title for the account at

issue in this lawsuit starting with the agreement between the originator of the account and

its assignee and including each agreement between an assignee of the account and another

assignee of the account and you. This is a request for the entire purchase agreement, not

just a redacted bill of sale or exhibit to an agreement, and includes master or "flow"

agreements whose terms relate in any way to or are incorporated by an agreement

transferring rights to the account at issue in this lawsuit.

 

OBJECTION:

 

Seeks information that is highly confidential, proprietary, and may constitute

or contain trade secret. Information or material responsive to this request is being withheld

under a claim of trade secret.

 

RESPONSE: Subject to objection and privilege, responsive documents to the extent

available and applicable will be supplemented.

 

7. All documents containing any warranties or representations (and disclaimers of

warranties and representations) made by the original creditor concerning the accuracy or

reliability of the original creditor's business records.

 

OBJECTION: Seeks information that is highly confidential, proprietary, and may constitute

or contain trade secret. Information or material responsive to this request is being withheld

under a claim of trade secret.

 

8. All documents which show or evidence the date of the Defendant's last payment on the

debt that is the subject of this lawsuit.

 

RESPONSE:

 

See copies of Defendant's monthly account statements and Account Summary,

attached hereto.

 

9. All documents and tangible things reviewed or relied upon by any custodian of records or

other witness whose affidavit or testimony you intend to use at trial or in connection with

any motion, pleading, filing or hearing in this case.

 

RESPONSE:

See copies of Defendant's monthly account statements, and Account Summary,

attached hereto. Other responsive documents to the extent available and applicable will be

supplemented.

 

10. If you contend that you relied upon the accuracy of the original creditor's business records

in purchasing the account, produce all of the documents or tangible things you reviewed

prior to purchasing the account that caused you to believe the records were accurate or

reliable.

 

OBJECTION:

Seeks information that is highly confidential, proprietary, and may constitute

or contain trade secret. Information or material responsive to this request is being withheld

under a claim of trade secret. Overbroad. Not reasonably calculated to lead to the discovery

of admissible evidence.

 

11. If you contend that the original creditor's business records are reliable because the

original creditor was under a legal duty to keep accurate records or that the original

creditor faced a risk of business loss if it did not keep accurate records, produce a copy of

all documents and tangible things upon which you base this contention.

 

OBJECTION:

Seeks information that is highly confidential, proprietary, and may constitute

or contain trade secret. Information or material responsive to this request is being withheld

under a claim of trade secret. Overbroad. Not reasonably calculated to lead to the discovery

of admissible evidence.

 

12. All credit card statements relating to the Subject Account.

 

RESPONSE:

See copies of Defendant's monthly account statements, attached hereto. Other

relevant documents, to the extent available and applicable, will be supplemented.

 

13. Any admissions or acknowledgments of the subject debt by Defendant.

 

RESPONSE:

 

Relevant documents, to the extent available and applicable, will be

supplemented.

 

14. All documents that show the assignment of the Subject Account was supported by good

and valid consideration.

 

OBJECTION:

 

Seeks information that is highly confidential, proprietary, and may constitute

or contain trade secret. Information or material responsive to this request is being withheld

under a claim of trade secret.

 

15. All recordings of any phone calls between Plaintiff or its attorneys (including non-lawyer

employees of the plaintiff's attorneys) and Defendant.

RESPONSE:

 

None known at this time.

 

PLAINTIFF'S RESPONSE TO DEFENDANT'S REQUEST FOR INTERROGATORIES

 

1. For each interrogatory, identify each person who provided information used to answer

that interrogatory and identify their relationship, title and position with the plaintiff.

 

RESPONSE: Anita Bray, Colby Eyre, Cristina Patterson, Cynthia Clarke, David Sage,

Dianna Williams, Donna Dangerfield, Dwayne Davis, Elaine Freeman Lark, Elonda

Sherman, Evita Rodriquez, Itina Spellman, Joann Cuffee, Johnny B. Tabor, Larry Earl

Whitaker, Larry Andrews, Lecinda Shipmon-Walker, Leonard Wolfe, Maria Marin, Mark

Lozano, Mary Moore, Meryl Dreano, Michael Cody LaDoucer, Myrell Johns, Ricky Vaughn,

Samaria Braswell, Shirley Garcia, Tamara Bond, Tiffany Griffin, Tracy Parker, Yvette

Stephens or Custodian of Record of PORTFOLIO RECOVERY ASSOCIATES, LLC c/o

Regent & Associates.

 

2. With respect to any Card Member Agreement or other written contract that you contend

was delivered to Defendant or that applies to the Defendant's account but which does not

identity the Defendant by name or which is not signed by Defendant explain how you

know that it was delivered to Defendant and how you know it applies to Defendant's

Account.

 

RESPONSE: Plaintiff has no reason to doubt that Defendant's Original Creditor did not

deliver a Cardmember Agreement to Defendant when she opened the account.

 

3. Identify any admission or acknowledgement of the debt made by defendant and the

amount of the debt acknowledged by defendant to You, the original creditor, or any of

your assignors.

 

RESPONSE:

 

Relevant information, to the extent available and applicable, will be

supplemented.

 

4. State the method and manner by which You determined the contractual interest rate and

the amount of interest owed by Defendant and identify each document you reviewed in

making this determination. If you contend that the original creditor made these

determinations and you relied upon their determinations explain how you know the

original creditor's determinations were accurate.

 

RESPONSE:

 

See copies of the Defendant's monthly account statements, attached to the

Plaintiff's Response to the Defendant's Request for Production. Plaintiff has no reason to

doubt the accuracy of the Original Creditor's record.

 

5. State the method and manner by which You determined the amount of the late fees,

penalties or finance charges you claim are owed by Defendant. If you contend that the

original creditor made these determinations and you relied upon their determinations,

explain how you know the original creditor's determinations were accurate.

 

RESPONSE:

 

See copies of the Defendant's monthly account statements, attached to the

Plaintiff's Response to the Defendant's Request for Production. Plaintiff has no reason to

doubt the accuracy of the Original Creditor's record.

 

6. If you contend that any employee, officer, agent or representative of Plaintiff has personal

knowledge of the record keeping systems of the original creditor and is qualified to offer

testimony as a custodian of records for the original creditor in this case, state the factual

and legal basis for your contention.

 

RESPONSE:

 

Defendant's Original Creditor's records became apart of Plaintiff's business

records in its ordinary course of business and Plaintiff maintains them in its ordinary course

of business. This is they capacity in which Plaintiff's Custodian of Records will testify.

 

7. Identify each document or tangible thing reviewed or relied upon by any custodian of

records or other affiant whose affidavit or testimony you intend to use at trial or in connection

with any notion or hearing in this case.

 

RESPONSE:

 

See copies of Defendant's monthly account statements and Account Summary,

attached to the Plaintiff's Response to the Defendant's Request for Production.

 

8. State the date on which the account was opened.

 

RESPONSE:

 

September 05, 2010.

 

9. State the date and amount of the last payment received on the account.

 

RESPONSE: See copies of Defendant's monthly account statements and Account Summary,

attached to the Plaintiff's Response to the Defendant's Request for Production.

 

10. Identify all representations or claims made by the original creditor and relied upon by

you in which the original creditor represented that the business records of the subject account

were accurate or reliable.

 

OBJECTION: Not reasonably calculated to lead to the discovery of admissible evidence.

 

11. If you contend your reliance upon the accuracy or reliability of the original creditor's

business records was reasonable notwithstanding the disclaimer of warranty stated in the

purchase agreement, assignment or bill of sale, state the factual and legal basis for your

contention.

 

OBJECTION: Not reasonably calculated to lead to the discovery of admissible evidence.

 

12. State the amount you paid as consideration for the assignment of the Subject Account.

 

OBJECTION: Seeks information that is highly confidential, proprietary, and may constitute

or contain trade secret. Information or material responsive to this request is being withheld

under a claim of trade secret.

 

RESPONSE: Subject to objections, Plaintiff paid good and valuable consideration for the

account.

 

13. For any affiant whose affidavit you are offering as a business records affidavit or in

support of a motion for summary judgment in this case, identify the number affidavits

signed by that affiant on day he or she signed the affidavit used in this case and state the

total amount of time the affiant spent on the affidavit in this case, including how much

time that affiant spent searching for and reviewing documents in this case.

 

OBJECTION: Not reasonably calculated to lead to the discovery of admissible evidence.

Objection, unduly burdensome.

 

RESPONSE: Subject to objections, Plaintiff's affiant devotes due diligence to each affidavit

she signs

14. For any affiant whose affidavit you are offering as a business records affidavit or in

support of a motion for summary judgment in this ease, identify each previous case in

which that affiant's affidavit has been ruled upon by a court as being inadmissible in

whole or in part.

OBJECTION: Not reasonably calculated to lead to the discovery of admissible evidence.

Objection, unduly burdensome.

RESPONSE: Subject to objections, None.

 

 

 

 

 

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