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Please Help,


Suit filed by Portfolio Recovery Asignee of Citibank NA The Home Depot


Filed as Civil Citation in Justice Court - State of Texas


Amount of suit is just under $2,000.00


Count One is for Breach of Contract which states that the issuance of a card constitutes the offer of a contract. Defendant accepted by using and / or authorizing use. Issuer performed obligations by reimbursing. Defendant breached contract by defaulting on the payment, violating the aforementioned "written contract"


Count Two is account stated. This was a credit card. Can account stated be used on a credit card? Count two states Plaintiff is entitled to recover because transactions between plaintiff and defendant gave rise to an indebtedness, there existed an agreement between the plaintiff and defendant which established the amount due to plaintiff, and the defendant promised to pay the indebtedness.


Prayer requests response and appearance resulting in judgement for damages, just under 2k, court costs, and all other relief entitled.


The affidavit states that the custodian for Portfolio is


- Competent to testify in the matters contained herein


- An authorized employee of PRA, and is familiar with the policies and practices, as well as the books and records of ACCOUNT ASSIGNEE with respect to the matters stated herein. The affidavit is based on their personal knowledge of ACCOUNT ASSIGNEE'S RECORD KEEPING SYSTEM and their review of the business records of the original creditor, including a review of the business records transferred to account asignee.


- According to the business records, the account and all proceeds are now owned by ACCOUNT ASSIGNEE, having been sold, transferred and assigned by the seller on (xx/xx/2013). Affidavit states all power and authority has been assigned to account assignee.


- According to records transferred, defendant breached terms of the account in the amount of $x,xxx.xx with respect to account ending in xxxx as of xx/xx/2012.


- Affidavit states amount due, once again.


- Affirms defendant is not a minor or service member.


Signed and Notarized


Bill of Sale is included, which makes no mention of account number, original creditor, plaintiff, and date of sale does not coincide with date on affidavit. Only one account statement is included, with account number blacked out, other than last 4 of card. Statement does not list any payment, last payment, etc. Only information is the "New Balance," which is the amount being pursued. One page of statement includes generic verbiage regarding account. No information that would indicate how balance was accrued, interest rate changes, last payment, or any payment, etc. Paperwork is very ambigous.


Any assistance is greatly appreciated. I am looking for assistance regarding a proper response. Do I need to request permission to request discovery? How should I respond? Is it possible for breach of contract and Account stated? This is a credit card account. Should I bring into question SOL? Also, should I question custodians knowledge of original creditors policies and procedures, as well as their personal knowledge of account and history of how interest was calculated? Do I bring into question their mention of this being an "Account Stated?" as well as the mention of a "Written Contract?"

Furthermore, Can I use defense that Sale date on affidavit does not coincide with "Bill of Sale" that was included. The bill of sale, as stated above, makes no mention of any personal information in regards to the account, original creditor, defendant, amount, etc.


Sorry for the information being a bit scrambled. I am attempting to include all that seems relevant without posting verbatim, and am rushing through this as I have 14 days to respond, and only discovered this website yesterday.


Any help, again, is greatly appreciated, and I can provide addtl' information as needed. Thank you all in advance, and I look forward to being of assistance in any way I can in the future on this site.



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Your first priority now is to get your answer filed before the deadline.  Read my post #10 in this thread-


Edit the wording in red to match Plaintiff's Original Petition that you were served with.


Your second priority is to ask the court for their approval to conduct discovery since it was filed in a JP court.  When you have received said permission let me know and I will provide you with first set of discovery to send.

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I see they have a generic request for discovery form on their website, so as long as that will suffice, I will use it. Hopefully, if my assessment of the paperwork they presented is any indication, they don't have much to throw back. I am hoping we can all bow out gracefully before any further action is required. In any case, I appreciate all of your help thus far, and I will update as soon as I see an update on the county site or receive a letter, which will let us know how to proceed. Enjoy your weekend!

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  • 4 weeks later...

Hello again,

I have received my approval to request discovery. I am following up as you mentioned that there is a specific line of questioning you recommend. Thanks in advance bro. We all have so much sh*t that adds up to keep us busy, I commend you for taking the time to help people with situations such as this. @texasrocker

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I am quite fond of these:


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.

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

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

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

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

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

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

14.  Please identify by name and address all persons who provided information or other assistance in answer to these interrogatories.



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 complaint Original 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.


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.

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  • 2 weeks later...

@texasrocker thanks again. I sent you a PM if you get a chance to check it. I am just looking for a bit of follow up advice.

@Clydesmom I appreciate the input you have provided. All information is helpful. Anything that you may have in addition, if willing, is always invited.

Thanks again. I'll keep an eye on my inbox @texasrocker

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