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Sued by Midland in Texas - have to respond by 4/21!! Help Please


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So we were served with a law suit by Midland 4-7-15 for a Texas JP court.  I have to file and answer by 4-21-15 (14 days).  I have attached the suit redacting personal information.  It looks to have more information than others posts on here.  Do I have a leg to stand on to fight this? I am a fighter for sure!  Or should I file a simple response and wait to roll over and settle.  My statue of limitations would have expired June 2015.  They got their suit in the nick of time :(.   Frustrated and don't have the cash to pay it, obviously!

 

**Thanks shellieh98 for the redirect to the correct forum page**

Original Petition Midland.pdf

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Never roll over and settle until there are no options left!  Homework.  @texasrocker has responded to several threads with similar cases like yours.  browse through them, he has a couple where he has posted sample answers for JP court.  Start there.  Don't panic, you have time.  He will come on this thread to help direct you also.  I will browse around when I have time to see if I can find the threads Im talking about.  

Here is his profile. http://www.creditinfocenter.com/community/user/90923-texasrocker/

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Ok have done a little poking around and think that a denial based upon an account stated defense might work.  They also included a Bill of Sale but it does not have any of my account information on it.  They are using that to provided the legal chain of ownership but in my opinion fail to show that bill of sale applies to my account.   I also have never done business with them, the JDB so how can they claim I failed to perform a material obligation - payment - as required under the contract?  I never entered into a contact with Midland!  I do have some original paperwork from Chase card member agreement it states "assignment - we may assign your account, any amounts you owe us, or any of our rights and obligations under this agreement to a third party.  The assignee will be entitled to any of our rights that we assign to that person." So to me they have to provided proof that my account was part of the Bill of Sale listed in the Plaintiffs original petition.   How can I formulate this into a response to the court?

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Never roll over and settle until there are no options left!  Homework.  @texasrocker has responded to several threads with similar cases like yours.  browse through them, he has a couple where he has posted sample answers for JP court.  Start there.  Don't panic, you have time.  He will come on this thread to help direct you also.  I will browse around when I have time to see if I can find the threads Im talking about.  

Here is his profile. http://www.creditinfocenter.com/community/user/90923-texasrocker/

Here is a recent one-

http://www.creditinfocenter.com/community/topic/325709-being-sued-by-portfolio-in-county-court-in-texas/#entry1319415

 

Follow what I posted in post #10.  Make sure you edit it accordingly to match the wording in the original petition where they claim to have purchased the debt.

 

Your top priority is to get your answer filed then you need to get permission from the court to send discovery.  Let me know when you have received the court's approval and I will PM you first set of discovery to send.

 

"Settle" should not even be in your vocabulary when dealing with a JDB.  Never go down without a fight! 

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texasrocker,

 

Thank you so much for the advice.  Below is what I have edited the response to be.  I have only changed things up a little in the first paragraph.  Of course I still need to format it but can you review the content?  Also after I file my response how do I request the courts permission for discovery?  Also in my original answer should I include verbiage that I reserve the right to Amend my answer at any time, as well as reserve the right to petition the court to engage in pretrial discovery"

 

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 purchased Defendant’s debt on or about February 08, 2012.  Plaintiff has been assigned the debt, and plaintiff is now owed money from Defendant” See Plaintiff's Original Petition under "Facts" paragraph 8. There is no allegation or statement in the Bill of Sale attached to Plaintiff’s Original Petition that assigns the Plaintiff this alleged consumer credit card account.  It is a generic Bill of Sale for a presumed package of debts.  It is not proper or admissible in a court of Law to presume inclusion of this account in said Bill of Sale.  As such, 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.

 

Again thanks for the direction.

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texasrocker,

 

I filed my answer today, had the clerk stamp a copy for me and a copy for Midland.  I mailed the attorney for midland a copy of my answer via certified mail (green card) for return receipt.   The clerk stated I needed to file a motion and have it approved for discovery.  I believe this is per the new rule TRCP 500.9.  From my interpretation I believe that I need to present the discovery information to the judge within a motion to approve.  Can you PM the info?  Thanks for the help.

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  • 1 month later...

texasrocker,

 

I filed my answer today, had the clerk stamp a copy for me and a copy for Midland.  I mailed the attorney for midland a copy of my answer via certified mail (green card) for return receipt.   The clerk stated I needed to file a motion and have it approved for discovery.  I believe this is per the new rule TRCP 500.9.  From my interpretation I believe that I need to present the discovery information to the judge within a motion to approve.  Can you PM the info?  Thanks for the help.

I received the discovery packet but you state not to send it to the court, is my interpretation of the new rule TRCP 500.9 incorrect?

"

RULE 500.9. DISCOVERY

(a) Pretrial Discovery. Pretrial discovery is limited to

that which the judge considers reasonable and

necessary. Any requests for pretrial discovery

must be presented to the court for approval by

written motion. The motion must be served on the

responding party. The discovery request must not

be served on the responding party unless the

judge issues a signed order approving the request

after notice to the responding party and a hearing.

Failure to comply with a discovery order can result

in sanctions, including dismissal of the case or an

order to pay the other party’s discovery expenses."

 

Don't I have to send this with my motion for discovery?  Please advise I now have an assigned court date about 6 weeks away. 

Thank you for all the help.

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If the court asks to review the discovery before they grant you permission to send it then of course show it to them but it is up to the court.  What you have underlined is in reference to the request to send discovery-  read the whole sentence.  Then you must also send a copy of your request (or motion) to the plaintiff's attorney.

Remember that anything you file with the court must also be sent to them.

 

When I said do not send it to the court I was referring to when you begin your discovery by sending it to the opposing attorney.  I was just trying to prevent you from looking like an idiot.  Many people coming here for the first time assume that when they send discovery to the opposing attorney then they must also file a copy with the court.  

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  • 4 weeks later...

In light of the recent ruling of the CFPB 2015-CFPB-0013 against Chase Bank.  I am filing a Motion for Continuance and Request for Discovery to the court.  Why not use this recent ruling to my advantage... I had already planed to submit a continuance so that I could conduct proper discovery.  My trial would be about two weeks out if this is not granted.  What are yalls thoughts to the attached Motion?  May be the first time this is being brought up as it is a recent decision.   Coffee_befor_tea, Texasrocker, BV80 I covet your opinion.  Thanks for all the help.

Motion for Continuance-discovery forum.docx

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@Lonestar87

 

I'm not familiar with Texas, and their courts.  But I see you have received a Discovery Packet from Midland.  What was in it?

 

I read your continuance, and it seems fine.  However, I don't know if that is the correct direction to take.  

 

@Coffee_before_tea

 

I did not recive a discovery packet from midland, I have one that was provided by TexasRocker that I would like to send to Midland however I need at least 30 days prior to court to send it, as well as court approval to conduct discovery.  Any recommendations for the continuance?  I was going to file this tomorrow.

 

Thanks,

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@Lonestar87

 

Here's the thing that jumps out at me, regarding your continuance.

 

If you are going to "pray", it needs to be a prayer for the court, not the JDB.  Also, I'm not sure if this is the correct context, as I don't know the Texas Rules.

 

I would gather, that what you're looking for is a Motion to Dismiss, using the CFPB ruling, and in the alternative a motion for discovery.  What's the continuance for?  Are you bumping up on a deadline?

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@Coffee_before_tea

 

Yes my court date is a little over a week away.  As such I have to file a motion for a continuance on the grounds that I would like to conduct discovery and get both issues approved.  Based upon the CFPB do you think I should go for an all out Motion to Dismiss approach?   My guess is that the Justice Court Judge in Texas will deny the dismissal and possibly grant the motion for continuance if he will be granting the ability to conduct discovery.  (but that is just my baseless opinion, I don't really know what the judge will do)

 

All facts considered do you think I should just do a motion to dismiss laying out the facts in the CFPB and that the JDB can not bring a case against me if the records can not be trusted?  As in having all of there 'evidence' thrown out?  All they have is a copy of the very last statement prior to assignment to them from Chase, and a Bill of Sale that has parts blacked out.

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@Lonestar87

 

You're probably correct about the judge denying the MTD and granting the continuance & discovery.  However, this probably depends on how compelling you make your argument in your MTD.  This is obviously uncharted waters, but if your alternative prayer requests a continuance & discovery, I don't see much harm in it.  If the judge denies your MTD, and grants your continuance & discovery, then you're in the same position you are now, except you now have a continuance.

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