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Sued by PRA in Texas. Double discovery?

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1. Who is the named plaintiff in the suit?
     Portfolio Recovery Associates, LLC

2. What is the name of the law firm handling the suit?
     Rausch, Sturm, Israel, Enerson & Hornik, LLC

4. Who is the original creditor? (if not the Plaintiff)
     "Account" opened with Dell Financial Services, LLC
     On the first set of discovery, "the original creditor" left blank.
     On the second set of discovery, "the original creditor" shall mean Portfolio Recovery Associates, LLC

10. When is the last time you paid on this account?
       within SOL

12. What is the status of your case?
       Suit served, being handled in district court, answer turned in, discovery due

 

I've done a lot of reading on the site and I'm impressed by the help given.

I haven't been able to find any info about the double discovery issue of mine.  I received two, six-page sets of discovery along with my original petition.  The first set looks like it belonged to someone else's petition, but had most of my information pasted in.  The three big things it had wrong were: there was no original creditor listed at all; they referenced an owed amount that didn't even closely match the petition in the admissions questions; and the wrong county is used above the verification section.  The second, six-page set of discovery has those errors corrected and slightly altered the admissions questions, to tailor them more toward the type of account they're suing me over.

I'm hoping this error might help me, but I'm not too optimistic about it.  Maybe it's what the courts would consider a bona fide error?  I have another month to answer discovery, but I'm not sure if I need to answer both sets.  They're both labeled "First Discovery Request".

Another thing I'm worried about is that the account the lawsuit references is from Dell Financial Services, and their accounts are supposedly different.  They're secured accounts as opposed to unsecured.  I don't know if the original answers I've seen, shared by texasrocker, apply to this type of account as DFS might be considered an account that deals in goods directly.  I'm not sure....  Also, I think it's odd that DFS was mentioned in the original petition, but not in the discovery as the original creditor.  PRA is listed as the original creditor in the second of the two sets of the discovery.

Would someone please help me get an answer together?

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You have a very good chance of winning against this law firm. 

Please make larger copies of your scans; the print is much too small to read.

Copy the following 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.  Edit the parts in red to match exactly how they worded their explanation that they now own the alleged debt.   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.)
Send a full and complete copy via certified mail to the attorney's office who filed the lawsuit.

 

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, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS to the Plaintiff on the _____ day of ____________________, 20____.

Signed____________________________________

Name:
Address:
Phone:

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Thank you for that texasrocker!

I'm curious -- why do you think I have a good chance against this law firm?  Obviously, I'd rather not declare BK7 if I don't have to.  If I fight and lose this case, is it a trivial matter to discharge its judgment in a BK7 when DFS accounts are supposedly secured?

I assume I should omit the line that says, "Defendant asserts that the claims are barred by the applicable statute of limitations." since I'm within the SOL?

When you say to edit the parts in red:  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 6There 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.

Is this what you mean I should edit it to?  Instead, Plaintiff alleges "On or about {[date]}, Defendant's(s') Account was assigned to Plaintiff, and Plaintiff is the current holder of Defendant's(s') account and the proper party to bring this lawsuit."  See Plaintiff's Original Petition & First Discovery Requests under section D. Facts, paragraph 6.

Also, does the italicized argument apply to my case?  Earlier in that paragraph 6, they mention DFS.

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I believe this only affects people using the Defendant's Original Answer that texasrocker shares with Texas residents, but I haven't searched the forum for help provided in other states.  I discovered the following while researching the answer I ended up filing with the court.  With much appreciation, I used some of what texasrocker provided, but I had to abandon most of it because I didn't believe it applied to my specific case.

It's almost always going to be pointless to claim the usury defense provided by texasrocker ("Defendant asserts that the interest rates charged by the original creditor are usurious.").  While Texas has decent usury laws, and it appears they might apply (thus capping your interest at a maximum of 18% annually), in the vast majority of situations this won't apply to your debt with regard to an original creditor.  Original creditors cleverly bypass state usury laws by setting up headquarters, or going through other banks, in states with lax or nonexistent usury laws.

If you think Texas usury laws actually apply to your debt and you want to use this defense (it's one of the many use-it-or-lose-it defenses), be sure to follow the Texas Rules of Civil Procedure, Rule 93(11), and verify your denial.  Many people have lost their cases simply because they didn't follow procedure and file a verified denial for a defense that required one.  There are examples of what a verified denial looks like if you search.  You don't have to notarize your denial, but most examples show the verification on its own page, verified by a notary,

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