being sued by portfolio in county court in Texas

[sol]

I was served court papers on Friday night. It is portfolio (walmart). I have been sued in small claims court before and looked here for how to deal with it. I answered that and never heard from them again. Now I am getting sued again by this company but for a different account. I believe by the looks of the paperwork that portfolio has requested a first discovery request. I have no idea what I need to do! Will answer any information you need to know to help me but personal ( name, addy, ect.). PLEASE HELP!!

[CCRP626]

Please complete the answers to the questions in the link and also post the discovery questions. Round off amounts and such since anyone including the other side reads these.

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

 

Here's some recent Texas related links posted in other threads to study-

http://www.creditinfocenter.com/community/topic/320360-texas-thread-for-those-living-in-tx/

http://home.bexar.org/jp/docs/JusticeCourtRules_effective20130901.pdf

http://www.zelle.com/news-publications-237.html

http://warybuyer.com/wp-content/uploads/2011/10/How-To-Defend-a-Credit-Card-Case.pdf

[sol]

1. Who is the named plaintiff in the suit?
Portflio Recovery Associates LLC Assignee of GE Capital Retail Bank (Wal-Mart)
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Rausch,Sturm,Issael,Enerson & Hornik, LLC
3. How much are you being sued for?
between $5,000-$6,000
4. Who is the original creditor? (if not the Plaintiff)
looks like Wal-mart
5. How do you know you are being sued? (You were served, right?)
served papers
6. How were you served? (Mail, In person, Notice on door)
in person
7. Was the service legal as required by your state? 
yes
Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
none
9. What state and county do you live in?
Live in Texas. would rather not say county
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
with in the statute of limitations by a couple of months
11. What is the SOL on the debt? To find out: 
4 years
Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or   looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
active
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
no
14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.
no. did not respond to calls or mail in any way
15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I scanned in  everything I was handed and then blacked out all personal information as well as location. Is it ok to post it on here? Im unsure what information you are needing and where to find it. 

 

        

 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

[TomnTex]

I know texrocker doesn't think much of arbitration, but it has helped many. If done right and you get JAMS it usually runs them off. I have some links to arb in my sig line below. Read up on and it and make your decision. Good luck.

[texasrocker]

Are you being sued in a county or JP court?

[sol]

ok it wont let me attach or copy and paste so i will type out everything i was handed:

 

Citation

Portfolio recovery associates

llc assignee of ge capital retail

bank (wal-mart) 

-vs- 

me

 

to: me

defendant, -greeting-

Notice to defendant: "you have been sued. you may employ an attorney. if you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 am on the Monday nest following the expiration of 20 day after the date you were served this citation and petition, a default judgement may be taken against you".

You are hereby commanded to appear by filing a written answer to the plaintiffs petition at or before 10 oclock am on the monday next after the expiration of 20 days after the date of service hereof before the honorable (judges name and county court) at the court house in said county in (not listing), texas. said plaintiffs petition was filed in said court on March 27, 2015 in the above entitled cause.

the nature of plaintiffs demand is fully shown by a true and correct copy of plaintiffs petition accompanying this citation and made a part hereof. the name and address of the attorney for plaintiff, or the address of plaintiff is Portfolio recovery associates llc assignee of ge capital retail bank (walmart) po box 12914 norfolk va 23541.

issued and given under my hand and seal of said court at ( not saying), texas this 27th day of march, 2015.

( then is notorized)

 

 

page 2

officers return

all blanks are not written in at all 

 

Page 3

Portfolio Recovery Associates LLC

Assignee of Ge Capital Retail Bank

(Wal-Mart)

-vs-

me

 

Plaintiffs Original Petition & First Discovery Requests

A. Parties

1. The address for Plaintiff ( not typing to save time, already listed on first page if you need it)

2. Defendant, me, 

B. Jurisdiction

3. Plaintiff seeks only monetary relief of $1000,000 or less, including damages of any kind, penalties, costs, expenses, and pre-judgment interest.

4. Plaintiff asserts that the above-named court has Jurisdiction over the subject matter of this case and the person of the defendant and that the damages sought are within the jurisdictional limits of this court.

C. Venue

5. Venue of this action is proper in the county named above because defendant is/are individual believed to be residing in said county at the time of commencement of suit.

D. Facts

6. On or about October 29, 2004, defendant opened a credit account with GE capital retail bank (Wal-mart) in the defendants name under its account number ending in ( not listing). Defendant used the account and thereby became obligated to pay for the entire balance owed on the credit account. plaintiff records indicate defendants last payment on the account occurred on june 11, 2011. defendants defaulted on the obligation to make monthly payments on the credit account, and the account was subsequently canceled. The credit account was subsequently closed due to nonpayment and/or charged off to profit ans loss on or about january 16, 2012. Then entire balance remaining on the credit account is presently due and payable in full. Defendants credit account has been assigned to Plaintiff, and Plaintiff is the current holder of defendants 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 the Plaintiff by defendant on the account is $ (not listing).

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

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

E. Count 1: Breach of Contract

10. Plaintiff is entitled to recover for breach of contract. Plaintiffs offer and extension of credit to defendant constitute performance and/or tendering of performance by plaintiff. Defendants use of the credit account constitutes acceptance of the terms of the account proposed by plaintiff. Defendant failed to repay the full amount owed on the credit account and thereby breached the contract.

11. Defendants breach was a proximate cause of actual damages of $(not listing). All just and lawful offsets, credits, and payments have been applied to the account.

F. Count 2: Account stated

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

G: Damages

13. Plaintiff seeks damages on its liquidated claim in the amount of at least $(not listing), which is within the jurisdictional limits of this court.

Conditions Precedent

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

L. Miscellany

15. 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. Plaintiffs attorney are debt collectors.

J. Plaintiffs first discovery requests attached

16. Plaintiff is attaching hereto plaintiffs first request for discovery, which is to be served on defendant along with plaintiffs petition. Plaintiffs first request for discovery includes plaintiffs request for disclosure, request for production, request for admissions and interrogatories. Pursuant to texas rules of civil procedure 194,196,198,and 197, plaintiff may serve these discovery requests on defendant prior to the date defendants answer is due, in which case defendant must serve its response within 50 days after the date of service of the discovery request. See Oliphant Financial, llc v. Julio galaviz, 299 s.w. 3d 829,838( tex.app.-dallas[5thdist], 2009)(for the proposition that plaintiff may attach requests for admissions to its petition); see also Sherman acquisitions ll, lp. v. garcia, 229 s.w. 3d 802, 813 (tex app - waco, 2007, no pet.).

K Prayer

17. For these reasons, Plaintiff asks that the court issue citation for defendant to appear and answer, and that plaintiff be awarded a judgment against Defendant for the fallowing:

a. Actual damages in the amount of $ ( not listing)

b. Court costs

c. All other relief to which plaintiff is entitled

 

then its sigend by the attorneys

 

 

 

Plaintiffs First Discovery Request

to. me

Plaintiff, Portfolio Recovery Associates LLC Assignee of GE Capital Retail Bank (Wal-Mart), hereby serves its First Discovery Requests on Defendant, me, along with its Original Petition in the above-styled lawsuit. Plaintiffs First Discovery Requests include, Plaintiffs Requests for Disclosure, Requests for Production, Requests for Admissions and Interrogatories. Pursuant to Texas Rules of Civil Procedure 194, 196, 198, and 197, DEFENDANT IS DIRECTED TO SERVE WRITTEN RESPONCE TO PLAINTIFFS FIRST DISCOVERY REQUESTS AND PRODUCE ALL REQUESTED DOCUMENTS TO PLAINTIFFS COUNSEL OF RECORD AT (gives attorneys name and address and is typed in the first of this) WITHIN 50 DAYS AFTER THE DATE OF SERVICE OF THE DISCOVERY REQUEST.

I. NOTICE REGARDING FAILURE TO TIMELY RESPOND TO REQUEST FOR ADMISSIONS

IN THE EVENT DEFENDANT FAILS TO RESPOND IN WRITING TO PLAINTIFFS REQUEST FOR ADMISSIONS WITHIN THE TIME PERIOD REQUIRED UNDER TEXAS RULE OF CIVIL PROCEDURE 198.2(a), PLAINTIFF REQUEST FOR ADMISSIONS SHALL BE DEEMED ADMITTED WITHOUT THE NECESSITY OF A COURT ORDER AS PERMITTED UNDER TEXAS RULE OF CIVIL PROCEDURE 198.2©, AND SUCH DEEMED ADMISSIONS MAY BE RELIED UPON BY PLAINTIFF IN SUPPORT OF ITS CLAIMS AGAINST DEFENDANT.

II. INSTRUCTIONS

1. For any document that no longer exists or that cannot be located, identify the document, state how and when it passed out of existence, or when it could no longer be located, and the reasons for the disappearance. Also, identify each person having knowledge about the disposition or loss of the document.

2. When identifying a document, you must state (1) the nature of the document (e.g., fax,letter,memorandum); (2) the title or heading that appears on the document; (3) the date the document was created and/or executed; and (4) the identity of the author and the signer of the document.

3. When identifying a person, you must state (1) the persons full name and (2) the present or last known address and telephone numbers for the person.

III. Definitions

the following terms contained in plaintiffs first discovery request shall have the following meanings, unless the context requires otherwise:

1. Plaintiff shall mean Portfolio recovery associates llc assignee of ge capital retail bank (walmart) as well as any of its authorized agents, representatives, officers, directors,employees, attorneys, partners, corporate agents, subsidiaries, affiliates and/or parent companies.  

2. Defendant, you and/or your shall mean ME as well as any of his authorized agents,respresentatives, officers, directors, employees, attorneys, partners, corporate agents, subsidiaries, affiliates and/or parent companies, and/or any other person or entity acting on behalf of and with the permission of ME. In the event there are multiple defendants in this lawsuit, defendant shall be construded to refer to both the singular and plural version and shall be inclusive of all named defendants.

3. Documents means all written, typed or printed matters, and all magnetic, electronic, or other records or domcumentation of any kind or description in your actual possession, custody, or control, including those in the possession, custody, or control of any and all present or former directors, officers, employees, consultants, accountants, attorneys or other agents, whether or not prepared by you, that constitute or contain matters relevant to the subject matter of this action.

4. Possession, custody, and/or control of an item means that the person either has physical possession of the item or has a right to possession equal or superior to that of the person wbho has physical possession of the item.

5. Person means any natural person, corporation, firm, asscoiation, partnership, joint venture, porprientorship, govermental body, or any other organization, bussiness, or legal entity, and all predecessors or successors in interest.

6. the account shall mean the credit account bearing the original creditor account number ending in (not listing) made the subject of this lawsuit.

7. The original creditor shall mean ge capital retail bank (walmart)

 

then its signed the law firm/ attorneys

 

Request for Disclosure

Pursuant to Texas Rule of Civil Procedure 190.2((6) Defendant is requested to disclose all documents, electronic information, and tangible items that defendant has in his/her possession, custody, or control and that defendant may use to support his/her claims or defenses.

Pursuant to texas rule of civil procedure 194.3 defendant is requested to disclose with 50 days of service of this request, the imformation or material described in texas rule of civil procedure 194.2(a)-(l).

(a) the correct names of the parties in the lawsuit;

( the names, address, and telephone numbers of any potential parties;

© the legal theories and, in general, the factual bases of the responding party's claims or defenses (the responding party need no marshal all evidence that may be offered at trial);

(d) the amount and any method of calculating economic damages;

(e) the names, address, and telephone numbers of persons having knowledge of relevant facts, and a brief statement of each identified persons connection with the case;

(f) for any testifying expert:

(1) the experts name, address, and telephone numberr;

(2) the subject matter on which the expert will testify

(3) the general substance of the experts mental impressions and opinions and a breif summary of the basis for them, or if the expert is not retained by , employed by, or otherwise subject to the control of the responding party, documents reflecting such information;

(A) all documents, tangible things, reports, models, or data compilations that have been provided to, recieved by, employed by, pr prepared by or for the expert in anticipation of the experts testimony; and

( the experts current resume and bibliography;

(g) any indemnity and insuring agreements described in rule 192.3 (f);

(h) any settlement agreements described in rule 192.3 (g);

(i) any witness statement described in rule 192.3 (h);

(j) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or , in lieu thereof, an authorization permitting the disclosure of such medical records and bills'

(k) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party;

(l) the name, address, and telephone number of any person who may be designated as a responsible third party.

 

Request for Production

Pursuant to texas rule of civil procedure 196, defendant is directed to provide written responses to the following request for prodction and to produce the documentation requested therein to plaintiff through its attorney of record within 50 days after the date of service.

1. Please produce all documents in your possession relating to the account, including copies of any account statements, credit applications, signed contracts, and/or any terms, conditons, account holder agreements or any amendments to same.

2. Please produce all communications made between you and plaintiff and/or the original creditor within the four years immediately preceding the date this lawsuit was filed. Please include in your response a copy of any request for verification or validation of the account.

3. Please produce copies of any written notices sent by defendant to plaintiff and/or the original creditor obgecting to or disputing the account.

4. Please produce copies of any documents reflecting any payments made by defendant or on behalf of defendant to plaintiff or the original creditor within the four years immediately proceding the date this lawsuit was filed. Please include in your responce copies of any checks, payment confirmations, and/or banking account statements that reflect payments made to plaintiff or the original creditor

5. If you contend that the defendant does not owe the amount claimed by plaintiff in this lawsuit and/or that all due payments, offsets, credits and/or deductions in favor of defendant have not been applied to teh account, please produce all documents in support of such contention, including copies of any payments made and/or bank account statements reflecting payments made.

6. If you contend that defendant did not owe a balance on the account to the original creditor at the time the account was closed, please produce all document in support of such contention

7. If you contend that defendant does not owe the amount claimed by plaintiff in this lawsuit as a result of idenity theft and/or fraud, please produce all documents in support of this contention

8. If you contend that plaintiff has violated the fair debt collectioons practices act, the fair credit reporting act, the texas debt collection act, the texas finance code, the texas deceptive trade act or any other federal or state statute, including the texas rules of civil procedure and or the texas civil practice and remedies code, in connection with the account, please produce all documents in support of your contention

9.  If you contend plaintiff has made any misrepresentations regarding the account and/or taken any false or deceptive actions with respect to the account, please produce all documents in support of your contention

10. if you contend that plaintiff has engaged in improper, abusive, adn/or harassing collection efforts with respect to the account, please produce all documents in support of your contention

11. if you have or intend to assert any conuterclaims against plaintiff in this lawsuit, please produce all documents upon wich you base such claims

12. if you have asserted counterclaims against plaintiff in this lawsuit, please produce all documents reviewed and/or relied upon at the time you filed the counterclaims. If an investigation was preformed by defendants counsel prior to filing the counterclaim, please provide all documentts that were reviewed as part of the investigation that are not subject to privilege

13. if you contend that plaintiff claims in this lawsuit are barred by the applicable statute of limitations, please produce all documents in support of your contentions, including any documents showing when you contend the last payment was made on the account or when the last purchase/charge was incurred on the account.

14 If you have asserted any affirmative defence in responce tothis lawsuit, please produce all documents in support of each affirmative defence asserted

15 if you contend that plaintiff is not the current holder of the account or does not have standing to bring this lawsuit, please produce all documents in support of your contention, including specifically, any demends or notices recieved by you from any other party seeking to collect on the account.

 

 

 

Request for Admissions

Pursuant to texas rule of civil procedure 198, please respond in writting to the following request for admissions by admitting or denying the truth of the fallowing statements and serve such written responses on plaintiff through its counsel of record within 50 days after the date of service. In the event defendant fails to respond in writting to plaintiffs request for admissions witin 50 days after the date of service of this request, plaintiff requests for admissions shall be deemed admitted without the necessity of a court order as permitted under Texas Rule of civil procedure 198.2©, and such deemed admissions may be relied upon by plaintiff in support of its cliams against defendant.

Admit or deny the following requests

1. As of the date plaintiffs petition was filed defendant owed plaintiff $( not listing) on the account

2. Defendant made use of the account or made payments on the account within the four years immediately preceding the date this lawsuit was filed

3. defendant has maintained at least one checking and/or banking account within the four years preceding the date this lawsuit was filed

4. Defendant was provided with a copy of the applicable terms and conditions and/or the account holder agreement for the account

5 Defendant did not object to the applicable terms and conditions and/or account holder agreement for the account prior to making use of the account

6. defendant knew he/she would be assessed interest, late fees, over-limit fees and other fees and/or penalties in exchnage for the abiltiy to use the account

7 defendant was notified of all applicable interest rates, late- fees, over the limit fees and other fee and or penalites that were assessed on the account

8 during the life of the account, defentand regularly recieved monthly account statements for teh account in the corresponding billing cycle

9 defendant was notified of all changes and /or amendments to the terms and conditions and /or account holder agreement for the account

10 at the time defendants last payment was applied to the account a balance remained owed on the account

11. all due payments, credits, deductions and /or adjustments in favor of defendant have been applied to the account

12. plainiff is the current owner of the account

 

Plaintiff first set of interrogatories

1. if you deny that you owe the amount claimed by plaintiff in its petition, please state the  factual basis for your denial

2. please state the factual basis for any affirmative defenses you have asserted in this lawsuit

3. please state the factual basis for any counterclaims you have asserted against plaintiff in this lawsuit. Plantiff is not requesting a detailed narrative. Plaintiff is requesting to know the actions or omissions allegedly committed by plaintiff that serve the basis of the counterclaim, when they were allegedly committed, and the names of the person who committed them

4. if you have filed a counterclaim against plaintiff in this lawssuit, please state the steps taken and /or investigation conducted to determine the validity of the such claims prior to filing such counterclaim

5. If you contend that you have recieved any demands for payment on the account from any enitiy other then the plaintiff, the orginal creditor and/or their authorized attorneys or respresentatives with the 12 months preceding the filing of this lawsuit, please identify such entity, the apporximate date the damand was made, and how the damand as made (ie- in writting via mail, over the telephone, ect) If you have not received any demands for payment from any enity other then plaintiff and/or its attorneys with the 12 months preceding the filing of this lawsuit, please answer "none".

 

state of texas county of (not listing)

verification

by signing this document, i hereby swear or affirm, subject to the penalty of perjury, that the answers and responses included in the foegoing document are true and correct. My signature affixed hereto also confirms that i have personally read each answer or responce and personally affirm them as my own.

 

 

(place for me to sign)

and then notorized

[sol]

sorry it took awhile to get that done. Didnt see any replies while i was doing all that. To Texasrocker it is county court.

[TomnTex]

If you are not able to copy and paste you must be using Explorer 11. You need to get rid of that and put in EX ver 10.

[sol]

I wasnt using explorer at all. it said a setting in my security wouldnt let me to use a box that popped up with ctrl + v and that didnt work neither. 

[texasrocker]

Order this book and study it every day as if you were cramming for a final exam-

http://www.amazon.com/OConnors-Texas-Rules-Civil-Trials/dp/1598391828/

 

Copy this and deliver in person or mail it to the court via certified mail in the same format of the original petition that you were served.  Send a copy via certified mail to the attorney's office who filed the lawsuit and make a copy of the first page and ask the court clerk to file-stamp it for you (if you are mailing it include a SASE.)  Edit the parts in red to match exactly how they worded their explanation that they now own the alleged debt.  I will PM you a first set of discovery to send to said attorneys along with their copy of your answer. 

 

 

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 "Defendant's account has been assigned to Plaintiff, and Plaintiff is the current holder of Defendant's accounts" See Plaintiff's Original Petition under "Facts" paragraph 6. 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. 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 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.

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:

[sol]

I did and Thank you!

[sol]

ok in the answer i see that the stature of limitations is listed. im not sure if that applys to me. if the date the attorney listed in the papers is correct then it doesnt come into play until june of this year. if I send this will i get in trouble with the court if i send this and the sature of limitations is not up?

[misbhavn]

You're listing the SOL as an affirmative defense. The burden is on the Plaintiff to prove otherwise.

[sol]

Thank you! I hated to ask yet another question when you guys have been nothing but help.

[texasrocker]

It may well still be within SOL. If so then nothing lost, nothing gained.

The whole idea is to make them work.  They hate having to get up off of their lazy butts.

[sol]

Thank you for all the help you have given me!

[sol]

Ok so today i was served papers that are the exact same as the ones i already have. just different filing date. what is this about? only difference is where the attorney needs to sign it says original is signed.

[TomnTex]

It may just be a follow up to make sure that you did get served. Like when they put one on the door and then mail you a copy. TR may have a better idea.

[goodriddens]

I have the exact questions for disclosure, production, admissions & interrogatories @texasrocker from portfolio in Texas. 

I already replied to the citation,with your post #7, and requested permission for discovery. Need assistance replying to discovery.

I am due to respond by end of day tomorrow. 

 

Here's more info:

1. Who is the named plaintiff in the suit?
Portfolio Recovery Associates LLC Assignee of Capital One Bank (USA), NA Assignee of HSBC Bank Nevada, NA (Ameritech)
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Rausch, Sturm, Israel, Enerson & Hornik, LLC
3. How much are you being sued for?
$2,282.03
4. Who is the original creditor? (if not the Plaintiff)
HSBC
5. How do you know you are being sued? (You were served, right?)
served
6. How were you served? (Mail, In person, Notice on door)
in person
7. Was the service legal as required by your state? 
yes
Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
none
9. What state and county do you live in?
Texas, Comal
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
not past sol
11. What is the SOL on the debt? To find out: 
4 years
Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or   looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
Suits on debt filed
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
no
14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

no

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?  
responded to the complaint/summons - 20 days Need to respond to discovery - 30 days - by tomorrow
Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

none

[sol]

I just got a letter in the mail today from them and it's a Notice of Nonsuit without prejudice. Yay!!!! A huge THANK YOU to Texasrocker!!!

[texasrocker]

Excellent!  You are welcome.

[shellieh98]

Good for you! Congrats.

[debtzapper]

Great win for you @sol  and yet another win for @texasrocker.

[sol]

I'm so thankful for all the help texasrocker gave me! And for putting up with my stupid questions... Lol thank you again!

[clo6971]

Going through the same thing. Same law firm and same Walmart suit. Could use some help please