Contiuance of trial request from plaintiff

[jbohannon82]

So, Capital One and their debt attorney sued me at the beginning of the year and had the case dropped after I answered them.  Then, again in July they opened a new case for the same thing and I responded with my denial until proof and court date was set for Oct 9th.  Yesterday, I received a certified letter for continuance of trial from the plaintiff extending it for 90 days.  I did receive a phone message from them saying that the judge is requesting my agreement with this before proceeding.  They are using the excuse that they think the matter can be resolved through settlement (I've  never even given any hint to this).  They also make the statement that they sent me verification of the debt, but all I received was a typed up piece of paper (not even signed) saying that Capital One is having the debt attorney represent them.  I have received no credit card agreements, statements, or anything with my name on it and the credit card information.  

 

My question is can I deny this continuance on grounds that I believe they are just trying to prolong the trial?  How do I file this with the court and do I have time to file it?  They included a pre-typed up order granting the motion for the judge to fill in and sign.

 

Thanks!   

[Az Piano Lady 14]

Yes, I would DENY it. Check your rules of civil procedure as to how lond before trial they have to file a MSJ.  I belive they are asking for the continuance to file a MSJ on you.  You can type up your own motion requesting the judge deny the continuance, as they gave no valid reason to ask for it.  You would also type up an order for the judge for him to sign.  Use their format.

 

I believe you have 10 days to respond after their motion is filed. But if you are ready for court and they have sent you nothing and it was dismissed once , I would get it in asap!!!!!  Hopefully  their motion will not be granted and they will dismiss again.

[texasrocker]

How do you know if they dropped the case?  It is not common for an original creditor to drop it just upon receiving your answer.

 

It is common for an attorney to include a proposed order for the judge to sign and you can send one of your own.

 

Was this suit filed in a county court or a JP court?

[TomnTex]

Hey Texasrocker, hope your doing okay, greetings from Hawaii.

[Harry Seaward]

The questions I would be asking myself in a situation like this are:

1. Will I be prejudiced by a continuance;

2. Do I otherwise have a legitimate reason for objecting, and;

3. What would I want the other party to do if it was me making the request?

I think people's initial response is to react out of spite without looking at the big picture.

[Harry Seaward]

I belive they are asking for the continuance to file a MSJ on you.

If their case is not good enough to win a trial, it's not going to be good enough to win an MSJ.

[WhoCares1000]

You can file a motion to deny the request but realize that if this is the plaintiff's first request, those are routinely granted so this is not a sword I would fall on.

If this is not small claims (or its equivalent in your state), you need to start discovery and find out what they have.

[jbohannon82]

It's JP court and they dismissed the first case about a week prior to the trial date - I'm sure because they lacked evidence, not to mention this lawyer is located about 400 miles from me.  After the first one was dismissed, they sued me again a few months later.  Now trial date is approaching and I'm sure they still lack evidence and are wishing I was one of those people that would just default.  I figured since this was first request, the judge would probably grant it, but I also read somewhere that I could file that I agree with the continuance, but ask the judge to only give them 10 days instead of the 90 they are seeking.  

 

How do I start discovery?  I already requested in my answer that they need to prove this debt and all I got was that paper stating that they are representing Capital One and the amount......but nothing to back it up.  The continuance does mention that if we don't settle in the 90 days they will proceed with trial and present evidence, but aren't they supposed to present the evidence prior to trial so I have a way to respond?   

[WhoCares1000]

This looks like a small claims court. This means that it is a simple you present your case, they present their case, and the judge decides. There is no real discovery at this level but if you lose, you can usually request a trial denovo with a higher court where discovery is applicable. Realize that there are fees associated with this.

 

You could file a motion and reduce the time. Then the judge will probably rule somewhere in the middle between your request and their request. You can also call the attorney for the plaintiff and see if they have an interest in settling. If they do, offer a really low amount and see if the bite. If they say no, then tell them that an higher offer is contingent upon you seeing the evidence against you because you feel that you really do not owe this.

[Harry Seaward]

How do I start discovery?

 

Check your rules.

Discovery is when you ask them for things like 'requests for production', 'requests for admission' and 'interrogatories'.  There is a process you have to follow.

[jbohannon82]

Ok, today in the mail I received a packet from the attorney that includes a years worth of statements, a stub with check payment from 2009, a credit card agreement from 2010, a 3rd party debt collection bond, and power of attorney.  So that is their proof.  The continuance request stated they believe the account could be settled.  I could contact them with a low ball settlement offer (what little cash I have on hand) with the stipulation that the offer is merely to keep this out of court and not out rightly admitting, yes, this is my account, right?  

[WhoCares1000]

Most courts will not use settlement discussions as a method to prove a case because that would remove the incentive for settlement in the first place which is what courts want. You can stipulate that however.

Another question though, the check stub from 2009, is that the last payment according to your records? If so, then Texas has a 4 year Statute of Limitations and they blew that by dismissing and then refiling in July. If you have not stated that in your answer, you might want to file a motion for leave to amend your answer based on this new evidence that was brought to your attention. They might argue against it but then you have negoitating room for their continuance. "I will agree with the 90 day continuance if they agree with the leave to amend my answer" is what you say in court. Then again, the judge might agree with both. Even if you cannot amend your answer, you can probably argue that in court since the JP courts are probably relaxed on the rules and if things go your way, they would have to file for a trial de novo in a higher court where you can bring it up in the answer for the new trial.

[debtzapper]

You may amend your Answer per the Rule below:

 

RULE 502.7. AMENDING AND CLARIFYING PLEADINGS (a) Amending Pleadings. A party may withdraw something from or add something to a pleading, as long as the amended pleading is filed and served as provided by Rule 501.4 not less than 7 days before trial. The court may allow a pleading to be amended less than 7 days before trial if the amendment will not operate as a surprise to the opposing party.

[WhoCares1000]

Unfortunately, yesterday was the day to file the amended answer if the trial is on the 9th. It might be a good thing to research however and for the OP to give themselves time for. It might be to the OPs advantage to take the 90 day continuance they are asking for.

There are also other questions here. If this is a CA or JDB, there where is the affidavit to authenticate the statements and check? If a JDB, the bond is not enough, they need a bill of sale to show the account was transferred to them (although I think this is a CA). Add this to the SOL thing and the OP might be able to mount a good defense in 90 days.

I would still call them and offer the low ball amount. If that does not work, save up for the 90 days and come up with another amount to settle a week before trial. Who knows what they might take. Especially in Texas where if the person has no assets and only employment income, they are collection proof.