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breach of contract and account stated-Texas By Portfolio


hf2272
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So I finally was served yesterday at my home in person by a badge wearing man.

 

I had no contact with portfolio recovery until I started getting bombarded with lawyer advertisements saying I was being sued. I looked it up on my JP website and then wrote up a quick DV letter and sent it Cert. with the green card. They sent a letter with a copy of one c.c. statement. The letter was not ink signed, and was very basic. Then about a day or two I received a settlement offer from the Lawyers with the Five Names.

 

here is the citation:

 

Citation-Debt Claim Case

Justice Court/ Harris county TEXAS

Date petition filed 8/28/14

( there is a stamp on the next page "received Aug 04 2014")

 

address for plaintiff: Portfolio Recovery Associates LLC Assignee of Citibank NA (Sears), is PO Box ...portfolio's address.

 

They have generically stated B. Jurisdiction and C. Venue

 

D. Facts

6.On or about Jan 1999 Citibank (sears) issued credit card in defendants name under its account ending in ************9408. Defendant received and used the card and thereby became obligated to pay for the charges incurred with the card. Plaintiff's records show defendants last payment on the account occurred on April 24, 2012. Defendant's defaulted on the obligation to make monthly payments on the credit card account, and the card was subsequently cancelled. The credit card account subsequently closed due to non payment and/or charge off to profit and loss on or about December 21, 2012. The entire balance on the card account is presently due and payable in full. On or March 26, 2013, Defendants credit account was assigned to Plantiff, and plantiff is the current holder of defendant's account and the proper party to bring this lawsuit.

 

7. After allowing for all just and lawful offsets, credits, and payments on the credit account, the total balance due to Plaintiff by defendant on the Account is $49,13.14.

 

8. The Plantiff has made demand upon the defendant for payment of the amount due and payable in full. The defendants have failed, neglected, and refused to pay the amount requested.

 

9. Plantiff has performed all conditions precedent to the filing of this action or all such precedent have been performed or have occurred.

 

 

E.Count 1: BREACH OF CONTRACT

 

10.The issue of a credit card constitutes the offer of a contract then they list Bank one V Palmer, Grasso V. First USA bank, Read V. Gulf oil Corp, Feder V. Fortunoff, Empire National bank V. Manhattan.

 

11 By using and/or authorizing the use of the credit card defendants accepted the credit card contract and became bound to pay for all charges incurred with the credit card. Defendants also became subject to all terms and conditions of the plaintiff's cardholder agreement.

 

12.The issuer of the card fully performed the contractual obligations by reimbursing merchants who accepted defendants credit card. Prior to the date of charge-off monthly bills were sent to the defendant reflecting inter alia, all charges incurred with the credit card, the monthly payment due, and the total balance due. The defendant had a duty to submit any disputes of the charges set forth in such statement, in writing, within sixty days from the date of the statement . Plaintiff asserts that defendants' failure to submit such disputes should be treated as an admission of the account balance, since defendants was/were given both a method and an opportunity to raise such disputes.

 

13. Defendant breached the contract by defaulting on the payment obligation of the credit card agreement. In violation of the defendants promises and obligations under the aforementioned written contract, the defendants breached the agreement by wrongfully failing and refusing to pay for the credit advances actually made to the defendants

 

14. Defendants breach was a proximate cause of actual damages of $4913.41.

 

 

F. Count 2: ACCOUNT STATED

 

15. plaintiff is the owner and beneficiary of all claims related to the credit card account opened by defendant. The amount due and owing on the account is $4,913.41. All just and lawful offsets, credits, and payments have been applied to the account.

 

16. Plaintiff is entitled to recover on the account because (1) transactions between the plaintiff and defendant gave rise to the indebtedness, (2)there existed an agreement between the plaintiff and defendant which established the amount due to plaintiff, and (3) the defendants promised to pay the plaintiff on the indebtedness.

 

 

G. Damages

17. plaintiff seeks damages on its liquidated claim in the amount of at least $4,913.41, which is within the jurisdictional limits of this court.

 

 

H. Conditions Precedent

18. All conditions precedent to plaintiffs claim for relief have been performed or have occurred.

 

I.Miscellany

19. The undersigned attorneys hereby give notice that they and Plaintiff are attempting to collect a debt and any information obtained will be used for that purpose. Plaintiff's attorneys are debt collectors.

 

 

J. Prayer.

20. For these reasons. plantiff asks that the court issue a citation for defendant to appear and answer, and that plaintiff be awarded a judgement against defendant for the following:

a. actual damages in the amount of $4913.41

b. court cost

c.All other relief to which plaintiff is entitled

 

 

So my questions would be when I file my answer, do I just general deny all #'s or just the counts in general? or just the #'s within the Counts?

 

and since they have both "breach of contract"- specifically stated they have a written contract ( I underlined)- does the "account stated" just void itself out since they already admitted to said written contract?

 

I am so confused. and yes will be going with out a lawyer.

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Who is the attorney that filed the lawsuit?

 

Nothing "voids itself out."  You need to fight and produce case law to get it thrown out.

 

Copy the answer I gave in post #7 in the following thread. Send one copy to the court and one via certified mail to the attorney's office who filed the lawsuit.
http://www.creditinfocenter.com/community/topic/324432-being-sued-in-texas-by-portfolio-recovery/#entry1303627

It is imperative that you get your answer filed before the deadline. Since it was filed in a JP court you now need to ask the court for permission to send discovery to the plaintiff.  Get this permission as soon as possible. Let me know when you are granted said permission and I will PM you the first set of Discovery. It is preferable to send it to the JDB attorney at the same time you send his copy of your Original Answer.

 

Order this book and learn the rules and procedures- http://www.amazon.com/OConnors-Texas-Rules-Civil-Trials/dp/1598391828/ref=sr_1_1?s=books&ie=UTF8&qid=1408141083

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