Update Better Late than never.

[Nosartur]

An apology and a helping of crow are in order.  I received some great help on here a few years ago.  The thread is at 

 I would like to really thank texasrocker, TomnTex, racecar, houtxman, and everyone else that helped me out back then.  After sending the documents, Answers to the Court, and Request for Admissions at the end of November 2012 I never heard from CACH, LLC or Jenkins, Wagnon & Young again until today.  I called the the Court a few times  up through the Spring of 2013 to see if anything had been updated from them but they never scheduled or updated anything.  Then life happened and I forgot about it with a new job and a death overseas in the family.  I apologize about not keeping those that helped me out in the loop.

Fast forward to today.  In the mail I get a Manila envelope and a standard envelope from everyone's favorite Lubbock law firm Jenkins, Wagnon and Young.  The Manila Envelope contained an Original Plaintiff's Motion for Summary Judgement.  Cause number is the same as the original case from back in 2012.  In the standard envelope was a copy of Motion to Retain Case on Docket.  The Motion to Retain on Docket states in the second paragraph, "Plaintiff requests that this case be retained on the docket.  Plaintiff is ready for a trial setting.  Thus, Plaintiff requests that this case be set for trail before the court."  So is there anyway to fight the Motion to Retain on Docket? 

Also in the "Original" Motion of Summary Judgement there are a couple of old CC statements, a Bill of Sale and Assignment from the CC, as well as what appears to printouts from an account database.  So where do I go from here?

 

Nosartur

 

[CCRP626]

Research Rule 165a Dismissal for Want of Prosecution. Wonder if the SOL has been tolled all this time? Maybe all those people you left hanging will have an answer?

 

[Nosartur]

Ok so I could file a Motion to Dismiss pursuant Rule 165a.  The case to cite would be 

09-0619          
MICHAEL JOSEPH LESSARD, DOROTHY ELAINE LESSARD, MONICA JEAN LESSARD AND JEANNE 
MARIA LESSARD v. VELSICOL CHEMICAL CORP.; from Live Oak County; 13th district (13-00-00113-CV, 
___ SW3d ___, 04-23-09, pet. denied Sep. 2009)(DWOP and denial of motion to reinstate affirmed).

Not sure if a Motion to Dismiss would work with the Plaintiff filing a Motion to Remain on Dockett at the same time.

As to SOL my understanding is that in Texas that is 6 years and they  still have a year left before that tolls out.

[Clydesmom]

3 hours ago, Nosartur said:

So is there anyway to fight the Motion to Retain on Docket? 

Yes.  You oppose their motion on the basis that by waiting 4 years to pursue this they unfairly prejudiced you from defending yourself.

1 hour ago, Nosartur said:

As to SOL my understanding is that in Texas that is 6 years and they  still have a year left before that tolls out.

No.  The SOL on credit card debt in Texas is 4 years.  However, it is tolled while the case is active on the docket.  If you are successful in getting it dismissed even without prejudice the SOL would automatically be passed and they would be time barred from pursuing it.

[BV80]

1 hour ago, Nosartur said:

As to SOL my understanding is that in Texas that is 6 years and they  still have a year left before that tolls out.

The statute of limitations on a claim for debt based on breach of contract is "four years after the day the cause of action accrues." TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(3) (West 2002); Dodeka, L.L.C. v. Campos, 377 S.W.3d 726, 731 (Tex. App.-San Antonio 2012, no pet.); Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 234 (Tex.App.-Houston [1st Dist.] 2008, no pet.).

[kraftykrab]

Hi,

 

I'm going to guess that the bill of sale and assignment they sent you do not identify you or an alleged account in any way.  I am guessing that because that is the most common way that those come.  Then they like to add a computer printout that could literally have come from anywhere, and pretend that it proves that they bought this specific account. 

I would attack this two ways.  First, I would attack the fact that they waited all this time to try to move forward with the case.  You are unfairly prejudiced when this much time has gone on, because witness recollections grow dim over time, and even documentation disappears as time goes on because after a certain number of years, no one keeps it anymore.  Rule 165a(2) does say that a case can be dismissed if it does not comply with the time standards set by the TX Supreme Court.  Under TX Rules of Judicial Administration, Rule 6.1 says that a civil nonjury case should be disposed of within 12 months, and a civil jury case within 18 months.  I would point these out in my argument, as well as using case law to support the point.  The law does allow that complex cases can be permitted more time, but this is clearly not a complex case.  It's a standard run of the mill debt collection case, of which thousands are filed across the country every day.  And I would point that out.

Then, I would attack the evidence that they just provided to you.  The goal would basically be to tell the court, "Your Honor, the plaintiff has dragged its feet for four years now with no action.  And now that the plaintiff has decided to try its case, the evidence it provided is not even sufficient to move forward on."  So, I would poke as many holes as I could in everything they are using to support their MSJ.  Think about this too, the Plaintiff just said that it "is ready for a trial setting", so if you can sufficiently discredit all the evidence they have brought forth, and you can remind the court that the Plaintiff said it was prepared, you would then have shown the court that the plaintiff was clearly relying on everything it already provided to make its case, which is not nearly sufficient, and therefore the plaintiff should not be rewarded with more time to try to build a stronger case.  It had 4 years, and declared "we are ready" with weak evidence.  Anything except a dismissal would result in wasting the court's time, and yours.  It's also good to remember that under the administrative rules, the court is allowed to excuse a reasonable delay.  Notice what your plaintiff did?  They motioned to keep the case on the docket, but did they provide any explanation in that motion that would be reasonable to explain the delay?  I would guess that they did not, and are hoping that the court will either overlook the 4 year delay without explanation, or that you will not question it.

Here's a TX Supreme Court decision that backs you up:

https://scholar.google.com/scholar_case?case=7248784056066287610&q=want+of+prosecution&hl=en&as_sdt=4,44&as_ylo=2015

This one names a couple of other cases in it as well that are along the same line.  This case can be very helpful to you in my opinion because of one specific point that was brought up:

"By September 2011, the Peels had taken no other action to advance the case, and Connor moved to dismiss for want of prosecution. The Peels responded that the delay was due to their counsel's health issues, including a stroke requiring hospitalization and, later, bypass surgery. The Peels did not indicate when counsel's health issues had occurred. The trial court refused to dismiss the case.

In October 2013, when the Peels had still done nothing to pursue their claims, Conner again moved to dismiss for want of prosecution. At the hearing on the motion, the Peels offered no other excuse for their delay than they had before. Conner cited court records showing that the Peels' counsel had appeared in many different matters in the prior two years. The trial court again refused to dismiss, directed the Peels to respond to Connor's discovery requests served more than eight years earlier, and set the case for trial."

This is a very important quote.  You can use the same exact logic in your case.  I'm pretty sure you will be able to find cases within this last 4 years where both the plaintiff and their attorney have taken action.  If they were not blocked by anything in performing in those cases, you deserve the same from them, and it works against you if the court does not require that same thing from them in your case. 

[Nosartur]

Thanks kraftykrab.  Here is my draft of a Motion to Dismiss based on Rule 165a(2).

 

CAUSE NO. C-1CV-

 

 

 

 

 

CACH, LLC

 

Plaintiff,

 

v.

 

 

 

NosArtur

 

Defendant(s)

 

IN THE COUNTY COURT

 

AT LAW NO. 1

 

TRAVIS COUNTY, TEXAS

 

 

 

 

 

 

 

Defendant's Motion to Dismiss

 

 

 

TO THE HONORABLE JUDGE OF SAID COURT:

 

 

 

                Comes now the Defendant, NosArtur, pro se, Defendant in the above styles and numbered cause, and reserving the right to file other and further pleadings, exceptions and denials, files this Motion to Dismiss pursuant to Rule 6.1, TEXAS RULES OF JUDICIAL ADMINISTRATION and Rule 165a(2), TEXAS RULES OF CIVIL PROCEDURES and in support thereof would respectfully show unto the Court the following:

 

I.

 

DEFENDANT'S MOTION TO DISMISS

 

                Defendant NosArtur assert unto the Court that the Plaintiff's Petition has grossly exceeded the standards set forth in Rule 6.1, TEXAS RULES OF JUDICIAL ADMINISTRATION of disposition within 12 months for a civil nonjury case and 18 months for civil jury cases. 

 

                Plaintiff CACH, LLC initiated this action on August xx, 2012 and served the Defendant NosArtur via Substituted Service on November xx, 2012.  Answers to the Court and Requests for Admissions were filed and received by the court on November xx, 2012 and the attorney for the plaintiff, Attorney Mackie McFace on December xx, 2012.   No action has been taken in this matter until the Plaintiff filed a Motion to Retain on the Docket on or about May xx, 2016.  A motion may be dismissed for want of prosecution if the movant fails to prosecute the motion with due diligence.  Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex.1980).  These events clearly demonstrate that the Plaintiff has failed to exercise due diligence as (1) the delay in prosecuting the case is unreasonable as a matter of law and (2) the delaying party has failed to establish "sufficient cause".  Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, 491 (1942).

 

                Under these circumstances, whether a party later becomes active and requests a trial setting is immaterial.   Rorie v. Avenue Shipping Co., 414 S.W.2d 948, 954 (Tex.Civ.App.-Houston 1967, writ ref'd n.r.e.) (four-year delay).

 

                Wherefore, premises considered, Defendant NosArtur move that the Court dismiss with prejudice Plaintiff's Petition.

 

                                                                                                                                Respectfully submitted,

 

                                                                                                                                NosArtur

[Nosartur]

kraftykrab, the Bill of Sale and print outs go beyond generic.  Anyone could have made them up at anytime.  However there is the Affidavit from an Employee of the original CC company.  The Affidavit is actually detailed and lists me, the account#, date opened, and last payment along with my SS#.  However the the sale of the account took place nearly one year before the affidavit was sworn to and lists no documentation to back up the assertation that any account with my name on it was in the bundle they purchased.

[CCRP626]

@Nosartur just to avoid surprises, nothing in the online case detail that shows they did anything during all these years?

Something woke the Plaintiff up to file a reinstatement motion. Did the court already dismiss the case under 165 a3? Did the Plaintiff give an explanation for their vacation (the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.)?

[BV80]

@Nosartur

They probably filed the "motion to retain" because the court has placed them on the docket for dismissal because of inactivity.    What do they say in the motion?

[BV80]

29 minutes ago, CCRP626 said:

Did the Plaintiff give an explanation for their vacation (the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.)?

Right.  The rule says they have to show "good cause" for the case to be maintained on the docket.

I'm wondering if the OP needs to file an oppotion to the motion to retain, or if his MTD would serve as an opposition.

[Nosartur]

The Motion to Retain states no reason for the delay just, "Plaintiff requests that this case be retained on the docket.  Plaintiff is ready for a trial setting.  Thus, Plaintiff requests that this case be set for trial before the court."  There is a Notarized Verification that states, "that every statement, allegation, and denial in the foregoing Motion to Retain Case on Docketare true and correct."  They also included the Order Retaining the Case on Docket for the Judge to sign and Decree.

Just checked the online database and there had been no action on the case since the Court recieved my Answer to the Court was recieved back at the end of November 2012 until the latest filings of teh Motion to Retain.

[BV80]

11 minutes ago, Nosartur said:

The Motion to Retain states no reason for the delay just, "Plaintiff requests that this case be retained on the docket.  Plaintiff is ready for a trial setting.  Thus, Plaintiff requests that this case be set for trial before the court."  There is a Notarized Verification that states, "that every statement, allegation, and denial in the foregoing Motion to Retain Case on Docketare true and correct."  They also included the Order Retaining the Case on Docket for the Judge to sign and Decree.

Just checked the online database and there had been no action on the case since the Court recieved my Answer to the Court was recieved back at the end of November 2012 until the latest filings of teh Motion to Retain.

I don't know if you need to write an opposition and a MTD or just the MTD.   But either way, I'd point out what the rule says about showing good cause and that they've offered no explanation for the delay.  Therefore, they haven't shown good cause for the delay.

[Nosartur]

Would filing both be an issue?  If not then the Opposition would basically be That the Plaintiff stated no "good cause" in the Motion and cite the applicable cases dealing with Rule 165a(2).  Then the MTD as above?

[CCRP626]

I think the Judge would have to rule on the motion to dismiss before you'd be required to present an opposition to their summary judgment but you may just want to do the opposition at this time as well since it doesn't seem like it would take much additional effort to state their affidavit doesn't reference anything, is conclusory and while dated a year after the account was no longer in the OC's possession it is also many years in the past from the current day which further illuminates Plaintiff's delay to present their case. Plus, standing/hearsay-business records exception.

One odd thing is they file a MSJ but say they're ready for trial which to me comes across as ironic since the MSJ is supposed to show there is no need for a trial.

AND, I think you have enough to put them away with but might as well throw in the CFPB order on Citibank since your account dates appear to be in the ballpark for the shoddy documentation issues. Make sure to read the PDF file with the detail at http://www.consumerfinance.gov/about-us/newsroom/cfpb-orders-citibank-to-provide-relief-to-consumers-for-illegal-debt-sales-and-collection-practices/

[Nosartur]

I think BV80 was refering to an Opposition to the Motion to Retain on Docket or at least that is how I took it.

[CCRP626]

12 minutes ago, Nosartur said:

I think BV80 was refering to an Opposition to the Motion to Retain on Docket or at least that is how I took it.

I think so too. Reading Rule 165 it sounded to me like the court should have dismissed this long ago on its own with the Plaintiff getting a limited period to ask for it to be kept open but you mention there is no activity showing that or the court now pushing this to be closed.

[Nosartur]

Yeah nothing has been entered in the online record since I filed my answers back in 2012 until this month with the Motion to Retain.

[CCRP626]

I'd say just one document and title it DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO RETAIN CASE ON DOCKET based on King v. Holland, 884 SW 2d 231 - Tex: Court of Appeals, 13th Dist. 1994 and TEXAS SOC., DAR, INC. v. Estate of Hubbard, 768 SW 2d 858 - Tex: Court of Appeals, 6th Dist. 1989

[Nosartur]

TEXAS SOC., DAR, INC. v. Estate of Hubbard, 768 SW 2d 858 - Tex: Court of Appeals, 6th Dist. 1989 is great since it is nearly word for word what they are trying to do here.  It also points to the fact that my not moving the case forward has anything at all to do with their lack of prosecution per Rorie v. Avenue Shipping Co., 414 S.W.2d 948, 954 (Tex.Civ.App.-Houston 1967, writ ref'd n.r.e.)

[CCRP626]

Yeah, if they say you were the one negligent since you weren't calling them over the years to keep the case they filed moving along-

Passive attitude of opposing parties does not excuse want of diligence. Beckham v. Travelers Insurance Company, 487 S.W.2d 772 (Tex.Civ.App.-Amarillo 1972, no writ); Crosby v. DiPalma, 141 S.W. 321 (Tex.Civ. App.-El Paso 1911, writ ref'd); 1 Tex.Jur. 3d Actions § 254 (1979).

[BV80]

1 hour ago, Nosartur said:

I think BV80 was refering to an Opposition to the Motion to Retain on Docket or at least that is how I took it.

Yes, that's what I meant.

[texasrocker]

14 hours ago, CCRP626 said:

@Nosartur just to avoid surprises, nothing in the online case detail that shows they did anything during all these years?

Something woke the Plaintiff up to file a reinstatement motion. Did the court already dismiss the case under 165 a3? Did the Plaintiff give an explanation for their vacation (the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.)?

Highly unlikely.  This law firm is probably the least competent group of idiots in Texas.   They did the same thing to me but it was after one year had passed.  I had no problem defeating their MSJ.  Their stand in "rent-a-lawyer" was dumbfounded, either having not been provided a copy of my response or having never read it.  She thought the extremely poor quality copies of three bank statements she had from months after the alleged account was charged off were indisputable proof that they owned it.   I had the same three statements stamped  "For demonstration purpose only" with Dan Young's name and address in place of mine.  (If I had known he would be sending a stand in I would have fabricated it with her name instead of his)

If you are in Travis County Court they despise these guys as much as we do.  Do everything right with plenty of case law reinforcement and object to everything the stand in says and you will have no problem.      

[kraftykrab]

Do you guys think it would be worth the OP's time to shoot their "proof" full of holes now?  My thinking is this--if the plaintiff claims the case should stay on the docket, and the defendant can show that the "evidence" they have is hearsay, inadmissible, not sufficient, etc, then wouldnt that just further show the court that there is absolutely no good reason to drag this out any further?  My concern is that the plaintiff claiming that it "is ready for trial" might sway a judge to just let it play out.  But if you can show that their "ready for trial" is not nearly good enough, wouldnt that pretty much seal the deal?  That affidavit, for example, is questionable at best.  You said that the affidavit was written by an employee of the OC....how do you know?  Robo-signing happens every day.  Also, check your state rules of procedure--many states say that those affidavits are hearsay and not admissible.  I would absolutely object to that affidavit.  Also, several states, when it comes to hearsay, have a "business records exemption", and one of the conditions a document must meet to be considered a business record is that it must have been created at or near the time of the event it references.  This affidavit looks to me as though it would have been created for litigation, and not in the normal course of business. 

I can picture a judge, when being asked to retain a case on the docket, but seeing that the plaintiff's case is pitiful at best.  I would imagine that this would only strengthen your argument that enough time has been wasted already.  The plaintiff's attorney should well know better as an officer of the court to play that kind of game with the court.

in the supreme court case I mentioned above, it is also stated that the plaintiff must demonstrate a good legitimate reason why nothing has been done with the case.  This plaintiff never even tried to provide any explanation, and I would make sure to bring that up in your opposition.  In fact, the case I linked specifically says that the plaintiff there never provided any reasonable explanation, and the result was the plaintiff's case was dismissed.  The same is true in your case now.

 

 

[Nosartur]

OK Surprise of the day.  Checked the mail when I got home and there was a letter from The Honorable Judge of the County Court.  The letter was an Order Denying Plaintiff's Motion to Retain Case on Docket.

"The Court, having considered the Motion, is of the opinion that the motion to retain case on docket should be denied.

IT IS, THEREFORE, ORDERED ADJUDGED AND DECREED that the Motion to Retain Case on Docket filed by Plaintiff CACH, LLC in the above captioned matter is DENIED.

Signed 12th day of May, 2016."

Just checked the Online Database and it is now showing status of CV Pending DWOP.

So now do I need to file a Motion to Dismiss or just let it run its course?