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I received a citation on September 22nd from JP Court for a suit brought by Crown Asset Management.  I would like to answer this myself and see if anyone has suggestions for the answer and how I should do it.  I have read some of the posts on here and think I can do it but would like for someone to take a look at it and let me know which phrases I should use based on the paperwork I was served with. I have attached the papers I received.  Nothing else has been provided.  Thank you in advance for any assistance.Lawsuit Redacted.pdf

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FYI:  Your documents are not completely redacted of your identifying information.  I found your name and the case number in at least two places easily readable.  

 

You don't need fancy language to file an answer.  You need to file a simple answer denying the plaintiff's claim(s) and disputing the debt.  Save the detailed arguments for the trial if it gets that far.

 

You need to research defending junk debt buyer lawsuits and the case law.  That alleged debt has been sold three times and the I would compel the Plaintiff in this case to demonstrate that my specific account was included in all those sales and transfers.  I would also challenge their ability to testify to the accuracy of records of three previous entities over which they have no control or authority.

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Below is my first attempt at an answer.  Any comments or suggestions? 

 

 

 

 

CAUSE NO. XXXXXXXXXX

 

CROWN ASSET MANAGEMENT                    §                      IN THE JUSTICE COURT

Plaintiff                                                           §

                                                                        §

VS                                                                    §                      PRECINCT 4 OF

                                                                        §

XXXXXXXXXXXX                                             §                      COMAL COUNTY, TEXAS

Defendant 

 

 

DEFENDENT'S ORIGINAL ANSWER

 

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, XXXXXXXXXXXXXXX, Defendant herein, and files this Original Answer in response to Plaintiff's Original Petition served on 09/22/2014, 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.

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).

 

II.

The last four digits of Defendant's Social Security number are XXXX and the Defendant resides at XXXXXXXXXXXXXX. 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.

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 3. 

 

IV.

 

This is a lawsuit arising out of an alleged consumer credit debt. Plaintiff is not a financial institution, original creditor, lender, or issuer of any credit. Instead, Plaintiff alleges "Plaintiff is the owner and holder of the credit agreement executed by the Defendant, and is entitled to receive all money due under its terms. 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. Ceramic 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 has not provided such evidence, 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.

 

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 4 of Original Petition, Plaintiff asserts the existence of a valid, binding, and enforceable contract between Plaintiff and Defendant. Plaintiff failed to produce an 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 a buyer of unpaid debt, also known 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 harm’s way and then sue for damages; therefore the Defendant cites Scienti et volenti non fit injuria.

 

V.

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 5.

 

Defendant alleges that Plaintiff’s actions are precluded, whereas Plaintiff’s demands for interest are usurious and violate state and federal laws.

 

 

VI.

 

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 6.

 

VII.

 

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys’’ fees because the alleged contract did not include such provision, and there is no law that otherwise allow them.

VIII.

PLEA TO THE JURISDICTION

 

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.

 

 

IX.
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: XXXXXXXXXXXXXX
Address: XXXXXXXXXXXXXXXXXXXX
Phone: XXX-XXX-XXXX


 

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@TRobinson1962

 

You need to read your court rules regarding a defendant's answer to a complaint.   Unless your rules provide otherwise, you don't argue the case in your answer.   You should answer each allegation and then provide your affirmative defenses.

 

You should either copy each allegation and respond beneath it, or without copying each allegation, you should number your response to correspond with the appropriate allegation.   For instance, if you're responding to allegation #1, your response should be labeled 1.

 

Read your rules.

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Thank you very much.  OK, I have gone bare bones here on the answer.  I printed and read the rules for the justice court system in texas and it does not really tell me much as far as what can go in the answer

 

So with that said, I have the following questions as they apply to my answer:

 

1.  Can I use repudiation and Scienti et volenti non fit injuria as affrmative defenses or should I file these as a seperate motion?

 

2.  Can I include a plea to the jurisdiction with my original answer or should I file it as a seperate motion?

 

3.  When should I send discovery to the Plaintiffs Lawyer, and does someone have a template?Answer Documents Attempt 2.pdf

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@TRobinson1962

 

 

Hopefully, @TomnTex and @texasrocker will chime in here since they're both TX residents and know TX rules.

 

Affirmative defenses are not separate motions but are included with your answer.   Any defense upon which you wish to rely is yours to prove.   You can name any defense you choose, but if it doesn't apply, then naming it is just a waste.  For instance, scienti et volenti non fit injuria and the statute of frauds are not valid defenses in this case.

 

 

 
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Thanks for your assistance BV80.  The justification for those defenses are below:

 

Plaintiff may not bring a cause of action against Defendant due to Statute of Frauds. Whereas Plaintiff claims “breach of contract” in paragraph 4 of Original Petition, Plaintiff asserts the existence of a valid, binding, and enforceable contract between Plaintiff and Defendant. Plaintiff failed to produce an 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 a buyer of unpaid debt, also known 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 harm’s way and then sue for damages; therefore the Defendant cites Scienti et volenti non fit injuria.

 

 

Saw those on some others on this board and thought they might apply.  If not, I will just take them off of the answer. 

 

Thanks again for chiming in, you are the only one who has at this point, and I truly appreciate it.

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@TRobinson1962

 

 

 

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 a buyer of unpaid debt, also known 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 harm’s way and then sue for damages; therefore the Defendant cites Scienti et volenti non fit injuria.

 

 

 

The above is incorrect.  The laws in this country do provide for a JDB to collect on a debt.  Credit card agreements reference assignees.  Courts have ruled that assignees stand in the shoes of a creditor.   If the creditor can sue, the assignee can sue.

 

In regard to the statute of frauds, here's the TX statute: 

 

Sec. 26.01. PROMISE OR AGREEMENT MUST BE IN WRITING. (a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is

(1) in writing; and

(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.

(
b) Subsection (a) of this section applies to:

(1) a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate;

(2) a promise by one person to answer for the debt, default, or miscarriage of another person;

(3) an agreement made on consideration of marriage or on consideration of nonmarital conjugal cohabitation;

(4) a contract for the sale of real estate;

(5) a lease of real estate for a term longer than one year;

(6) an agreement which is not to be performed within one year from the date of making the agreement;

(7) a promise or agreement to pay a commission for the sale or purchase of:

(A) an oil or gas mining lease;

(
B) an oil or gas royalty;

© minerals; or

(D) a mineral interest; and

(8) an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician or health care provider as defined in Section 74.001, Civil Practice and Remedies Code. This section shall not apply to pharmacists.

 

 

None of the above have anything to do with credit card agreements.   It's best to understand a defense rather than just listing it.  If the defense doesn't apply, don't list it.   If it does apply, you need to understand it so that you can explain to the court how and why it applies to you.  

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Below is my first attempt at an answer.  Any comments or suggestions? 

 

No offense but your answer is terrible.  It looks like you copied some of my suggestions from this forum but then just haphazardly threw excerpts of them in.  Forget about the fancy affirmative defenses- all that will accomplish is presenting yourself as a fool before the court.  The Request for Disclosure needs to go also as some courts will view it as a form of discovery before having been granted permission. (Since this suit was filed in a JP court you now must obtain permission from the court before sending discovery.  Get this permission as soon as possible- it should be your second highest priority now, the first being filing your answer before the deadline.)  Order this book and learn the rules and procedures- http://www.amazon.com/OConnors-Texas-Rules-Civil-Trials/dp/1598391828/

Let me know when you receive the court's approval to conduct discovery and I will PM first set of discovery to you.

 

You already have the upper hand as this alleged debt has already changed hands from one JDB to another making it twice as hard for them to prove ownership.

 

Trash your draft and use this one instead:

 

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

 

ANSWER

 

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.

Defendant asserts that the claims are barred by the applicable statute of limitations.

Defendant asserts that the interest rates charged by the original creditor are usurious.

PLEA TO THE JURISDICTION

Grounds for Dismissal for Lack of Standing

This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff, is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges "Plaintiff is the owner and holder of this account" and "The account was assigned to Plaintiff on 12/27/2012" See Plaintiff's Original Petition under "Account History" paragraph 3. 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©(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 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.

SPECIAL EXCEPTION TO QUANTUM MERUIT

The Defendant specially excepts to Paragraph 4- Quantum Meruit.

Quantum Meruit it is an implied contact theory where an express contract already exists. In addition, in order to establish a quantum meruit claim a plaintiff must establish that it provided services or goods directly to the defendant.  See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990)

PRAYER

Wherefore, premises considered, Defendant prays that the Court grant his Plea to the Jurisdiction, grant his Special Exceptions, 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,

Signed_________________________________

Name:

Address:

Phone:

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 _____ day of ____________________, 20____.

Signed____________________________________

Name:

Address:

Phone:

 

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Texasrocker,

  None taken.  OK, I transferred what you gave me to the answer I first accomplished.  Does this work? 

 

______________________________________________________________________________________________________________________________________________________________________

 

CAUSE NO. XXXXXXXX

 

CROWN ASSET MANAGEMENT                    §                      IN THE JUSTICE COURT

Plaintiff                                                           §

                                                                        §

VS                                                                    §                      PRECINCT 4 OF

                                                                        §

XXXXXXXXXXX                                               §                      COMAL COUNTY, TEXAS

Defendant 

 

DEFENDENT'S ORIGINAL ANSWER PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS

 

 

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, XXXXXXXXXXXXXX, Defendant herein, and files this Original Answer in response to Plaintiff's Original Petition served on 09/22/2014, and in support thereof states the following:

 

 

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.

Defendant asserts that the claims are barred by the applicable statute of limitations.

Defendant asserts that the interest rates charged by the original creditor are usurious.

PLEA TO THE JURISDICTION

Grounds for Dismissal for Lack of Standing

This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff, is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges "Plaintiff is the owner and holder of this account" and "The account was assigned to Plaintiff on 12/27/2012" See Plaintiff's Original Petition under "Account History" paragraph 3. 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©(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 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.

SPECIAL EXCEPTION TO QUANTUM MERUIT

The Defendant specially excepts to Paragraph 4- Quantum Meruit.

Quantum Meruit it is an implied contact theory where an express contract already exists. In addition, in order to establish a quantum meruit claim a plaintiff must establish that it provided services or goods directly to the defendant. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990)

PRAYER
Wherefore, premises considered, Defendant prays that the Court grant his Plea to the Jurisdiction, grant his Special Exceptions, 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,

Signed_________________________________
Name: XXXXXXXXXXXXXXX
Address: XXXXXXXXXXXXXXXXXXXXXXX
Phone: XXXXXXXXXXXXXXXXX


 

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  • 2 weeks later...

@texasrocker

 

 

I received back my stamped copies of the answer from the court.  I am now planning to send the request for discovery to the court.  Here it is:

 

CAUSE NO. XXXXXXXX

 

CROWN ASSET MANAGEMENT               §                      IN THE JUSTICE COURT

Plaintiff                                                        §

                                                                     §

VS                                                                §                      PRECINCT X OF

                                                                     §

XXXXXXXXXXXXXXX                                 §                      XXXXX COUNTY, TEXAS

Defendant 

 

 

REQUEST FOR PRETRIAL DISCOVERY

 

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, XXXXXXXXXXXXXX, Defendant herein, Pursuant to TRCP 500.9 and hereby requests the Court to grant him permission to send discovery requests to Plaintiff

 

 

 

 

Respectfully Submitted,

Signed_________________________________
Name: XXXXXXXXXXXXXXX
Address: XXXXXXXXXXXXXXXXX
Phone: XXXXXXXXXXXX

 

 

 

CERTIFICATE OF SERVICE

I do hereby certify that I will mail a true and correct copy of this Request for Pretrial Discovery to the Attorney for Plaintiff on the 6th day of October, 2014.


Signed____________________________________

Name: XXXXXXXXXXXXXXXX
Address: XXXXXXXXXXXXXXXXXXXXXX
Phone: XXXXXXXXXXXX

Attorney for Plaintiff: XXXXXXXXXXX

Address:  XXXXXXXXXXXXXXXXXX

 

Does that work?

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  • 1 month later...

Hello,

@TomnTex and @texasrocker and anyone else who can be of assistance.  I recieved the attached documents in the mail yesterday from the plaintiffs attorney's office.  This came from them directly after I filed a the discovery request with the court even though I did not ever hear from the court that I had permission in accordance with state law to do it.  What should I do with these?  I thought they would need to have the original contract from GE Money Bank included in these records.  Anyway, any assistance would be greatly appreciated.

Plaintiffs Notice of Filing Business Records_Redacted.pdf

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  • 2 weeks later...

Your top priority should be getting the court's approval to begin discovery as soon as possible. 

 

Everything they sent you is typical JDB garbage.    You need to object to the affidavit as being a statement from their own robo-signing employee (referring to himself here as "records custodian") with no possible way of knowing about the original creditor's record keeping unless he was previously employed by them.   There is no way to determine from this affidavit how the affiant knows that said records are reliable and what measures he or the original creditor took to insure that the information regarding the accounts transferred in the bulk sale is accurate.  

 

This is probably one of the most beatable JDB lawsuits that I have ever seen.   The alleged account has changed hands three times.  It will be next to impossible to provide witnesses to all three sales.   Each bill of sale refers to a forward flow agreement or "Receivables Purchase Agreement."   The key to winning is in conducting discovery to demand copies of these complete agreements and also showing the court that the affidavit is pure B.S.     

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I agree with Tex R. Also, should you beat them back, look for them to sell it off to Santander. That's what they did to me, then I had to fight with them. They are still on my CR for a few more months, but, they are SOL now. My scores are now over 700+, so they aren't hurting me....lol.

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@TomnTex and @texasrocker

 

Thank you both for your responses.  I heard back from the clerk when I filed the request for discovery and to be honest it sounded to me like the JP did not really know what to do with it.  I live in a small community and our court may not get many of these cases.  She told me that the JP was on vacation and I may not hear back from the court until after the holidays, but I would not get a court date prior to that either.  So I am waiting to get permission to do discovery.  If you have some of the verbiage available from other similar cases that I should include in my response/rebuttal to this affidavit, I would appreciate it.  I saw an example on here of one but I would rather not recreate the wheel.  I am researching it as well to see if I find words that fit.  Thanks again.

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  • 1 month later...

Well, I finally got permission to conduct discovery.  Now I need assistance with what to ask for!  I am going to PM @TomnTex and @texasrocker but any assistance would be appreciated.  I never really got anything back from the court, but recieved a letter from the plaintiff telling me they had not recieved my request.  I have also recieved a court date of March 12.

Discovery_Granted_Redacted.pdf

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Well, I finally got permission to conduct discovery.  Now I need assistance with what to ask for!  I am going to PM @TomnTex and @texasrocker but any assistance would be appreciated.  I never really got anything back from the court, but recieved a letter from the plaintiff telling me they had not recieved my request.  I have also recieved a court date of March 12.

Here are some suggested ones to send to them ASAP:

 

1.  Admit that plaintiff lacks documentation/evidence to reasonably sustain their claim in a (your state) Court that the defendant owed/owes a debt to the plaintiff or any creditor identified in the complaint.

 

2.  Admit that plaintiff (JDB) lacks standing to sue on the account alleged in the complaint.

 

3.   Admit that the plaintiff lacks sufficient documentation that (JDB)  is the true and rightful owner of the specific account alleged in the complaint as belonging to the defendant.

 

4.  Admit that the affiant(s) in any affidavit in the possession of the plaintiff lacks personal knowledge of the account in the complaint alleged to belong to the defendant.

 

5.  Admit that plaintiff added interest in the amount of $amount.

 

6.  Admit that plaintiff lacks documentation supporting their claim that defendant has ever owed a debt related to an account for which the Plaintiff is legally entitled to collect on.

 

7.   Admit that plaintiff (JDB)  has never contacted defendant via any correspondence regarding the alleged account.

 

8.  Admit that the plaintiff has never had a contract with the defendant on this or any other account alleged in the complaint.

 

9.  Admit that plaintiff does not employ anyone with personal knowledge sufficient to legally verify the accuracy of business records of (original creditor).

 

10.  Admit that plaintiff added interest at a rate in violation of (state law if applicable) and which the defendant was not contractually obligated to pay.

 

 

DOCUMENTS TO BE PRODUCED

1.  Provide the actual credit card contract at the time the alleged account was opened and upon which your complaint is based on including the contractual interest rate, grace period, finance charges, and specifically the State Laws that agreement and account are governed plus other important facts

2.  Provide the contract, agreement, assignment, or other means of demonstrating that Plaintiff has the authority and is legally entitled to collect specifically on the debt allegedly owed by the Defendant.

3.  Furnish the original or copies of the assignment agreement or assignments agreement, transferring the alleged contract and specifically the account alleged in the complaintOriginal Creditor and (JDB).

4.  Provide copies of specifically the alleged contract, between the Plaintiff and Defendant or any other instruments constructed solely for the purpose of creating a credit agreement between the Plaintiff and Defendant.

5.  Produce the contract that legally requires the Defendant to pay the amount entered into the complaint.

6.  Provide copies of the amount(s) paid in the debt purchase for the alleged account.

7.  Provide a document or document(s) that prove you sent the Defendant a notification of assignment of the account or assignment of rights.

8.  Attach any and all notices sent to Defendant by plaintiff in regards to this alleged account demanding payment.

9.  Attach copies of all statements generated in the first 3 months of account activity after inception and the last 6 months of alleged account activity prior to the alleged default.

10.  Attach a complete and accurate history of the interest charged on this alleged account with Plaintiff.  Show the exact dates those interest rates changed and list the actual rates that were charged during this debt and the exact method of amortization.

11.  Identify each Credit Reporting Agency (Credit Bureau) to which the Plaintiff reported Defendant’s debt and the dates of each such report.

 

Defendant's First Interrogatories To Plaintiff

 

1.  State with factual particularity the basis for your claim that the defendant owes an alleged debt to the Plaintiff.

2.  Identify all documents that you assert constitute the contractual agreement(s) between the parties.

3.  Identify the number of payments and amount of every payment made toward the underlying contract by the defendant, or made by any other party on defendant’s behalf.

4.  Identify all documents and/or correspondence either sent to, or received from, the Defendant or relevant to this matter.

5.  Identify all persons whom you contend have knowledge of the facts which evidence or tend to support the denials, assertions and allegations as set forth in your Complaint, stating for each such person his or her name, address, telephone number, and provide a brief statement of the facts as to which each such person has knowledge.

6.  Identify all documents, by title and date, which you contend evidence or tend to support the assertions and allegations as set forth in your Complaint, and provide the name, address and telephone number of the current custodian for each such document.

7.  State with factual particularity the basis for your denial of any Request for Admission of Fact that you deny.

9.  State the amount you contend Defendant owes Plaintiff and describe how you calculated that amount.

10.  Identify all documents or other tangible things which you believe prove, support, or constitute evidence of any fact or circumstances supporting Plaintiff's answer.

11.  State each and every fact upon which you based your allegation of the indebtedness claimed owed by Defendant.

12.  State with factual particularity the basis for the assertion of plaintiff’s standing.

13.  State with factual particularity the basis for your assertion that Plaintiff has a valid assignment.

14.  State each and every fact upon which Plaintiff claims that the Complaint is being prosecuted by the real party in interest.

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  • 4 weeks later...

Plaintiff received my discovery request on February 10th and my court date is next week on the 12th.  That is actually 30 days after they received the discovery request.  As of today, I have not received the response.  So should I contact the court and ask that the date for court be changed so that I have time to review the information I get back from discovery?

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  • 2 weeks later...

OK, a couple of things have happened.  First Plaintiff requested that the court date be moved and the Judge approved that so that the date is now May 14, 2015.  I got back the response to my discovery request which is mostly a bunch of crap.  They respond to almost everything saying I am asking for information that I do not need or am not entitled to.  So I am thinking at this point I need to ask the court to compel them to respond.  I have attached the redacted file that shows what they sent me.  The only attachments they included were the stuff I already objected to and added a generic agreement with no signatures and an affidavit from the lawyer on attorney fees.  I am reviewing this currently and of course welcome any assistance especially from @TomnTex and @texasrocker.

Response_to_Discovery_Redacted.pdf

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He has already shot himself in the foot with his denials in his answers to request for admissions.   According to that their robosigner has personal knowledge of the OC's record keeping practices so he would have had to have been employed by the OC, the debt was sold without a disclaimer of warranty, and the account is governed by a card member agreement but the terms and conditions of the account were not set forth in said agreement.

 

To demonstrate good faith to the court you should send a "meet and confer" letter to Jody Jenkins asking him to within 15 days answer all interrogatories and produce all requested documents and to provide the Forward Flow Receivables Purchase Agreements referred to in plaintiff's multiple Bills of Sale.  Include with this letter a request for a privilege log, pursuant to Texas Rule of Civil Procedure 193.3(a) and (ƅ) for plaintiff to provide a description of the documents and information it withheld from its discovery responses based upon privilege. 

 

When he ignores it or refuses then send him a "last chance" letter that you intend to file a motion to compel in 15 days if he does not fully comply this time.

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