TRobinson1962

Sued by Crown Asset Management

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@TRobinson1962

I tried to copy and paste the case law to answer this question, but I couldn't. It is to late for arbitration. This case was filed almost a year ago, and you have engaged in discovery, you waived that right to arb even if there is an arb clause. In Texas the only discovery before arbitration are asking for things that you need to get to arbitration. For example you want plaintiff to provide you with a credit card agreement so you can read the arb clause. Or you can ask who the proper parties of interest are. That is pretty much it. It is to late for arbitration.

But you have a winnable case if you follow the guidance here. We can only lead you. No one is going to do it for you, you have to want it, and learn how to do it. Is there a specific problem we can help with?

 

Oh yea way to long............I think that if they ignore or blow off your request for a continuance and have the bench trial right then and there IF you Object orally and file an Objection the court is setting themselves up for abuse of Judicial Discretion and violation of Due Process.............both items that if documented properly for an appeal, either one of which would get a reversal. Then it would have to go back to the trail court and if the JDB wanted to continue to pursue  the matter would have to start all over.......................hopefully the SOL will kick in before that.

 

Any "Mediation" you would get at this time is going to be thru the Texas Court system.................Not thru JAMS or AAA.......and would Not be of any Benefit to you.

 

Just remember file your MSJ note and Object to each and EVERY item of any so called evidence....request it be stricken and excluded.......the Judge might accept your argument, if not and you have to appeal, then you have "documented Objections"..............these are needed to even make an appeal viable. Even if the trial judge is against you the 3 or so in appeals might see your arguments in a more favorable light............if so it won't matter what the trial judge thinks. I'm not sure how your state appeals on MSJ decision's or from JP courts for sure..................you need to read up on this procedure and pay attention to what is needed for a successful appeal......Always be prepared for that as NONE of these case's can be predicted with absolute certainty. Way too many variables.

 

Hopefully the information below will help you out some.................I'm not sure your really sure of what your supposed to do, maybe this will help some. ::travolta::

 

One thing I noticed glancing thru the statute...............the court can place fast and loose with evidentiary matters and are not restricted to exactly following Rules of Evidence........I doubt this holds true for the District Court, so win lose or draw stick with the rules even if the JP Judge ignores procedure.

 

Here's some information on your Courts.

 

Texas Rules of Civil Procedures, Part 5 - Rules of Practice for Justice Courts in TX.

 

RULE 526. SUMMARY DISPOSITION

(a) Motion. A party may file a motion with the court requesting judgment in its favor without a need for trial. A plaintiff’s motion for summary disposition should state that there is no genuine dispute of any material fact in the case, and that it is therefore entitled to judgment as a matter of law. A defendant’s motion for summary disposition should state that the plaintiff has no evidence of one or more essential elements of its claim against the defendant.

 

( B) Hearing. If a summary disposition motion is filed, the judge must hold a hearing, unless all parties waive the hearing in writing. Parties may respond to the motion orally at the hearing, unless the court orders them in writing to reduce their responses to writing, which may or may not be sworn, at the discretion of the court.

 

© Order. The court may enter judgment after the hearing as to an entire claim, or parts of a claim, as the evidence requires. The court should deny the motion if any material factual dispute exists.

 

Note to OP...this is why you must object to each piece of evidence, create a sustainable factual dispute, document with written objections, case law, statutes, etc and request to strike or exclude each piece of evidence....every piece of it  PRESERVE Appealable facts.

 

RULE 555. SETTING ASIDE DEFAULT JUDGMENTS AND DISMISSALS

 

A plaintiff whose case is dismissed may file a motion within ten days of that dismissal seeking reinstatement. The plaintiff must serve the defendant with a copy of this motion no later than the next business day using a method approved under Rule 515. The court may reinstate the case on good cause shown.

 

A defendant against whom a default judgment is granted may file a motion within ten days of that judgment seeking the judgment to be set aside. The defendant must serve the plaintiff with a copy of this motion no later than the next business day using a method

approved under Rule 515. The court may set aside the judgment and proceed with a trial setting on good cause shown.

 

If a court denies either of these motions, the party making the motion is entitled to appeal that decision as provided by SECTION 6, and will receive a trial de novo at county court if they successfully perfect the appeal.

 

Note from Me: De Novo means fresh and anew. The County court does not consider the JP courts ruling but examines the written record and pleadings and evidence with fresh eye. They make their decision based on the record..................the record are any written transcript or more importantly filed motions and pleadings...

 

WHICH IS WHY I SAY YOU NEED TO MAKE OBJECTIONS AND MOTIONS TO STRIKE OR EXCLUDE IN WRITING AND FILED WITH THE CLERK SO THAT THEY BECOME A PERMANENT PART OF "THE RECORD". PAYING FOR A COURT REPORTER AND TRANSCRIPT OF ORAL ARGUMENTS CAN GET EXPENSIVE!

 

You Can file an appeal in Pauperous or without funds if your basically broke..............so their is no real reason not to take the time to file one.

 

RULE 560. APPEAL

 

(a) Plaintiff’s Appeal. If the plaintiff wishes to appeal the judgment of the court, the plaintiff or its agent or attorney shall file a bond in the amount of $500 with the judge no later than the 20th day after the judgment is signed or the motion for new trial, if any, is denied. The bond must be supported by such surety or sureties as are approved by the judge, or cash in lieu of surety, must be payable to the appellee, and must be conditioned that the appellant will prosecute its appeal to effect and will pay off and satisfy such costs if judgment or costs be rendered against it on appeal.

 

( B) Defendant’s Appeal. If the defendant wishes to appeal the judgment of the court, the defendant or its agent or attorney must file a bond with the judge no later than the 20th day after the judgment is rendered or the motion for new trial, if any, is denied. This bond is calculated by doubling the amount of the judgment rendered in justice court. The bond must be supported by such surety or sureties as are approved by the judge, or cash in lieu of surety, must be payable to the appellee, and must be conditioned that the appellant will prosecute its appeal to effect and will pay off and satisfy the judgment which may be rendered against it on appeal.

 

© Appeal Perfected. When such bond has been filed with the court, the appeal will be held to be perfected. The appeal will not be dismissed for defects or irregularities in procedure, either of form or substance, without allowing appellant five days after notice within which to correct or amend same. This notice will be given by the court to which the cause has been appealed.

 

(d) Notice Required. Within five days following the filing of such appeal bond, the party appealing must give notice as provided in Rule 515 of the filing of such bond to all parties to the suit who have not filed such bond. No judgment may be taken by default against any party in the court to which the cause has been appealed without first showing compliance with this rule.

 

RULE 561. INABILITY TO PAY APPEAL COSTS

 

A party that wishes to appeal, but is unable to pay the costs of appeal, or secure adequate sureties, may appeal by filing a sworn statement of this inability no later than the 20th day after the judgment was signed or the motion for new trial, if any, was overruled. This statement must include the contents of section (a) below. The statement may be the same one that accompanied the filing of the petition, if one was filed at that time. Notice of this statement must be given by the court to the other party no later than the next business day.

 

(a) Contents of the Statement of Inability to Pay. The statement must contain complete information as to the party’s identity, nature and amount of governmental entitlement income, nature and amount of employment income, other income, (interest, dividends, et.), spouse’s income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses.

The statement must contain the following: “I am unable to pay court costs. I verify that the statements made in this statement are true and correct.” The statement shall be sworn before a notary public or other officer authorized to administer oaths or signed under penalty of perjury.......... If the party is represented by an attorney on a contingent fee basis, due to the party’s indigency, the attorney may file a statement to that effect to assist the court in understanding the financial condition of the party.

 

(d) Appeal of Ruling. If the decision is appealed by the appealing party, the judge shall send all papers to the county court. The county court shall set a day for hearing, not later than ten days after the appeal, and shall hear the contest de novo, and if the appeal is granted, shall direct the justice of the peace to transmit to the clerk of the county court, the transcript, records and papers of the case, as provided in these rules. If the county court denies the appeal, the party will have five days to post an appeal bond that satisfies Rule 560 in order to perfect its appeal.

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Thanks.  I guess I am just feeling a little overwhelmed at this point.  I have been filing motions and objections etc, and I just don't feel that the JP is even reading what I am sending in to her.  This last one to do the MSJ is just a little overwhelming I guess.  I am attempting to do as I was instructed by the folks on here and I hope it amounts to something.  I thank you for your comments.  I'm not even sure what I need to be swearing to in the affidavit I was told to make sure and include.  Anyway, just hoping to get this over with, because as you say, it has been almost a year.  I will get over it and get back to work now.

In the duration of this period of a year how much time have you spent learning the Texas rules and procedures, learning how to seek out and analyze case law and just reading this board to see how we beat these idiots?  I spent nearly every hour that I was awake and not at my job for about four weeks just to defeat a plaintiff's MSJ against me on my first case and was still at it well after midnight on most of those nights.   If you put in any less dedication to winning your case then don't be alarmed if you come out on the losing end.   

 

A simple google search taking about two minutes would show you that an affidavit in support of Motion for Summary Judgment in Texas should state that the facts asserted in the motion are true and based on your personal knowledge, the basis of how you came to have said personal knowledge, facts are stated as evidentiary facts and not conclusions, affirmatively demonstrate that you are over 18 years old and of sound mind.

 

Whether or not you believe the judge reads it is irrelevant.  You are fighting a battle and the objections and motions are your bullets.   Especially in your situation you are not only battling the plaintiff but also the court's ignorance so you need to also rack up as much grounds for appeal as you possibly can.

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The judge may not read your motions, but you are not writing it for the judge. You are writing it to tie his hands. If he/ she rules against a motion that was solid, had good case law standing behind it just because his personal opinion was that you owed the debt, then his decision will be reversed on appeal. The appeal courts do read everything in the court record. So don't worry about the judge, work on making a record for the court. So that anyone reading it can know exactly what happened, and why you should win. Even if it is on a technicality, doesn't matter.

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