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I started receiving letters from lawyers last week wanting to represent me in a lawsuit so I did a search of the courts in my county and sure enough there is a suit against me from Midland Funding LLC. I called the court to confirm and was given the case number, the date it was filed, the person who was suing me and the amount. Well, I just got served this evening by a private processor. 

 

I received a packet of papers that includes something called "Plaintiff's Original Petition" which is about a page and a half that incudes I.FACTS, II.CAUSES OF ACTION AND CONDITIONS PRECEDENT, and III.PRAYER.  Next is something called EXHIBIT A which is labeled AFFIDAVIT OF JENNIFER WIDHALM. Then there is a nontitled page with my name, contact information, a blacked out account number, acct open date, sale amount, 1st payment date, 1st payment amount, and last purchase date. Then there are 11 pages of information about an account with Dell Financial Services. On the bottom of the page it says "Data printed by Midland Credit Management, Inc from electronic records created, maintained, and provided by Dell Financial Services, LLC. Then there is another document titled Exhibit A BILL OF SALE starting with page 49 of some "redacted" document that describes Midland Funding "purchasing" the debt from the "seller" identified as Dell Financial Services. There is an exhibit B titled "CLOSING STATEMENT" which is about one page of a lot of "redacted" information. There is a WEBBANK bill of sale among WebBank, Dell Revolver Company, and Dell FInancial Services. A Schedule 1 which is a one liner identifying the JUNE WAREHOUSE JUNE 2013 sales WebBank.xlsx. Lastly there in AFFIDAVIT OF SALE OF ACCOUNTS BY ORIGINAL CREDITOR (WebBank).

 

My question is NOW WHAT DO I DO? I have read many of the posts on here for representing oneself in circumstances like this. But where do I start?

 

Any help pointing me in the right direction is greatly appreciated!

 

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I attached a copy of the two page PLAINTIFF'S PETITION.

 

Any help pointing me in the right direction is appreciated. I found the Texas Rules for Civil Procedure on a related post.  Thanks!

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Did they attach a contract or an agreement for their breach of contract claim? Did they attach a statement from the OC for their alternate account stated complaint?

If not, a motion to dismiss the breach of contract claim and a motion for more definite statement on the account stated claim would be good things to research relevant Texas case law...

Midland likes to attach self generated statements in lieu of OC statements. Attack that if the Motion for More Definite Statement is an option.

Download Texas Civil Procedure and study it. See if you can make the above motions in lieu of an answer. But no matter what you must either motion or answer the complaint by the deadline.

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There was none of the documents you mentioned in the packet of information they gave me. I will try to scan more of what they sent me tomorrow. 

Thank you for your response.

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First, you may have 20 days or more/less to respond to the summons. Find out when your last chance to do so is. That's "D DAY". Then after you know that get on here and learn how to fight it. In many instances, if you put up much fight, it runs them off. Sometimes it's not until the day your to appear in court before you run them off. Use that time to study and learn all you can with our help you stand a good chance to succeed. Good luck.

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Texasrocker has good wording in his documents. But before you copy and send ANYTHING to the court, be sure be sure be SURE that you understand what they are saying.

 

Because the most eloquent words on paper are useless, if you can't argue them effectively in front of a judge.

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Thank you elite 1331, TomnTex, Texasrocker, and Wins the Battle. I appreciate your comments and suggestions very much and I am reading fast and furiously!

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A motion for more definite statement would be denied so you can knock that out from consideration. It may be printed by Midland but they establish their number from $0 and have attached the account.

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Thank you elite 1331. I don't quite understand what you mean. I may be in over my head from the get go...

 

I just don't see how a junk debt buyer can pull a list from an excel spreadsheet and say without doubt that this all belongs to me. 

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Texasrocker has good wording in his documents. But before you copy and send ANYTHING to the court, be sure be sure be SURE that you understand what they are saying.

 

Because the most eloquent words on paper are useless, if you can't argue them effectively in front of a judge.

 

Get this book and learn everything in it that applies to your situation, read this forum and anything else you can find online regarding Texas case law like every hour you are awake and not at your job for the next month or two or how ever long it takes to understand it as if you were studying for a final exam.  

  http://www.amazon.com/OConnors-Texas-Rules-Civil-Trials/dp/1598391828/ref=sr_1_3?ie=UTF8&qid=1397095898&sr=8-3&keywords=o%27connor%27s+rules+Texas+Civil

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There is also several threads on here on how to fight/beat Midland. Search for them and read it all. It will help.

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Just out of curiosity I looked at all the Midland Funding suits since 1/1/13 listed on the JP No4 court's online records [the county I live in has 8 JP courts).  Between Jan 2013 and April 2014 there were 363 cases listed for Midland Funding. They were identified as either Debt Claims or Justice Suits. I don't know the difference. But the breakdown was listed as follows:

Debt Claims - Case Finalized (16)

Debt Claims - Dismissed (8)

Debt Claims - Filed (88)

Justice Suits - Case Finalized (94)

Justice Suits - Dismissed (86)

Justice Suits - Filed (69)

Justice Suits - Release of Judgement (1)

Justice Suits - Re-opened (1)

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Tomorrow I file my answer. I kept the SPECIAL EXCEPTION TO ACCOUNT STATED in the answer but don't exactly understand what it means.

 

Here is my response:

 

CAUSE NO. DCXXXXXXXXX

 

MIDLAND FUNDING LLC § IN THE JUSTICE COURT

Plaintiff

 

VS § PRECINCT X PLACE X

 

XXXXXXXXXXXXXX

Defendant § XXXXXX COUNTY, TEXAS

 

 

DEFENDENT'S ORIGINAL ANSWER

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, XXXXXXXXXX, Defendant herein, and files this Original Answer in response to Plaintiff's Original Petition served on 04/08/2014, and in support thereof states the following:

 

The Defendant generally denies, pursuant to Rule 92 of the TexasRules of Civil Procedure, each and every, all and singular, of The Plaintiff's allegations.

 

I.

The last four digits of Defendant's Social Security number is XXXX and the Defendant resides at XXXXXXXXXXXXXXXXXXXXX. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff's claim, and based on that denies generally and specifically Plaintiff's claim in paragraph 1.

 

II.

Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff's claim, and based on that denies generally and specifically Plaintiff's claim in paragraph 2.
 


III.

Plaintiff may not bring a cause of action against Defendant due to Failure of Consideration. Whereas no exchange of money or goods occurred between the plaintiff and the defendant, therefore, defendant cites Failure of Consideration. There is no evidence of a valid, binding, and enforceable agreement or contract between the Plaintiff and Defendant.

 

Plaintiff may not bring a cause of action against Defendant due to Repudiation. Plaintiff is not named in any alleged agreement that is purported to have been entered into between Defendant and Plaintiff. Whereas there was no “meeting of the minds” between Plaintiff and Defendant, a necessary element required to create a legal and binding contract, Plaintiff's claim is repudiated.

 

Plaintiff may not bring a cause of action against Defendant due to Lack of Privity. Whereas no relationship exists between Plaintiff and Defendant, and whereas Defendant never signed a contract or agreement with Plaintiff, Defendant cites Lack of Privity.

 

Plaintiff may not bring a cause of action against Defendant due to Statute of Frauds. Whereas Plaintiff claims “breach of contract” in paragraph II of Original Petition, Plaintiff asserts the existence of a valid, binding, and enforceable contract between Plaintiff and Defendant. Plaintiff failed to produce a original, written, signed contract or agreement with Defendant for an extension of credit to purchase goods, wares, merchandise, services, and/or for cash advances, therefore Defendant cites Statue of Frauds.

 

Plaintiff may not bring a cause of action against Defendant due to Scienti et volenti non fit injuria. The Plaintiff in this case alleges a debt on a credit account. Plaintiff is not a financial institution, original creditor, lender, or issuer of any credit card. According to Plaintiff's website they are one of the nations biggest buyer's of unpaid debt, also know as a junk debt buyer (JDB). That being said the laws in this country do not provide a remedy for a JDB that knowingly and voluntarily takes on a bad debt and then goes after a debtor in an attempt to collect an alleged debt. An entity cannot place itself in harms way and then sue for damages, therefore the Defendant cites Scienti et volenti non fit injuria.

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

2. A Credit Card Account Is Not an Account Stated

A credit card account is not an "account" as that term has been used in the common law governing suits on account. A credit card account does not arise out of a course of dealing between two parties engaging in transactions in goods. A credit card account is a multiparty arrangement. Each transaction involves at a 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 a 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.
 

IV.
REQUEST FOR DISCLOSURE

 

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

 

 

PRAYER

WHEREFORE PREMISES CONSIDERED, Defendant prays that the Court deny The Plaintiff's Complaint and takes nothing by way of this action and the Plaintiff;s Complaint be dismissed with prejudice and judgment entered in favor of Defendant.

Respectfully Submitted,

Signed_________________________________
Name: XXXXXXXXXXX
Address: XXXXXXXXXXXXXXXXXXXX
Phone: XXXXXXXXXXXXX

CERTIFICATE OF SERVICE

I do hereby certify that I will mail a true and correct copy of this Original Answer to the Plaintiff on the 22 day of April, 2014.

Signed____________________________________

Attorney for Plaintiff: Johnetta Lang and Brooke N. Fuselier

Fulton, Friedman & Gullace, LLP
Address: The Blinz Building

1001 Texas Avenue, Suite 500, Houston, TX 77002

Tel. (866) 563-0809 / Fax (281) 888-2400

ffgfilingstx@fultonfriedman.com

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What's Next~~~

 

I filed my answer with the court on Tuesday. Today I received a copy of my answer from the court and on the last page someone highlighted REQUEST FOR DISCLOSURE and wrote "Refer to rule 500.9-Discovery."

 

Does this mean I need to file a Discovery to the Plaintiff? Is there a format for doing this? What exactly should I ask for?

 

I received the O'Connonor's Texas Rules Book and have started reading...

 

Thank you in advance for your help and advice.

 

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RULE 500.9. DISCOVERY
(a)
Pretrial Discovery
Pretrial discovery is limited to that which the judge considers reasonable
and necessary. Any requests for pretrial discovery must be presented to the court for
approval by written motion. The motion must be served on the responding party. Unless
a hearing is requested, the judge may rule on the motion without a hearing. The discovery
request must not be served on the responding party unless the judge issues a signed order
approving the request. Failure to comply with a discovery order can result in sanctions,
including dismissal of the case or an order to pay the other party’s discovery expenses.

 

Apparently this court is interpreting the new rules to define the "request for disclosure" to be considered as discovery.   The new rules require you to receive permission from the court before conducting discovery in any JP (small claims) court case but this is the first time I have heard of a generic request for disclosure being rejected by a court. 

 

File an amended answer entitled "Defendant's Amended Original Answer" (without the quotation marks of course) beginning with "Comes now Defendant [your name] and files his Amended Original Answer with the Court"  then exactly what you already filed except leave the request for disclosure out.

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Thank you for the information. 

 

When I send in an amended answer,  do I list all the things I want Midland Funding to provide to me before there is a trial?

 

Do judges normally make notes on documents such as this and send them back to the person who submitted them?

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I received the attached letter in the mail yesterday from the law firm representing Midland Funding. Does anyone have any advice on what to do next to get the case dismissed? Do i go ahead and file a discovery? I know some of the rules have changes for Discovery. Any help from the wise people on this forum is greatly appreciated.

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That letter is a bunch of B.S.  Throw it in the trash and forget about it.

 

Did you get the court's approval to start discovery?  If not then get on it quickly.

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How do I get the court's approval? I have been reading the book you recommended but so far no indication as to how to do this. Do you have any suggestions?  I have a sort of Discovery drafted. Is there a certain format for writing it? Why would the law firm send a letter that has no meaning?

 

I truly appreciate your advice and direction.

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Use the same court format that you were served with and as you submitted your answer etc. Put "Pursuant to TRCP 500.9 comes now defendant, (your name) and hereby requests the Court to grant her permission to send discovery requests to Plaintiff" or something along that line.

I will PM you discovery to send after you have received the court's approval.

JDB's will send that official looking letter to try to convince you to settle with them out of court because they know they don't have any admissible evidence to win in court. It is no different than any old letter from a collection agency and has no bearing on your case.

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Is this all I need to say to get permission to send the discovery?  Thank you so much for all your help.

 

 

 

CAUSE NO. DCXXXXXXXXX

 

 

MIDLAND FUNDING LLC                                     §                                  IN THE JUSTICE COURT

Plaintiff

 

 VS                                                                        §                                  PRECINCT X PLACE X

 

XXXXXXXXXXXXXXX

Defendant                                                           §                                  XXXXXXX COUNTY, TEXAS

 

 

REQUEST FOR PRETRIAL DISCOVERY

 

TO THE HONORABLE JUDGE OF SAID COURT:

 

Pursuant to TRCP 500.9 COMES NOW, XXXXXXXXXXXX, Defendant herein and hereby requests the Court to grant her permission to send discovery requests to Plaintiff.

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