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Webcollex lawsuit Texas..please look and advise.Thank You!


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Hello everyone.

Ive been sued for old credit card. SURPRIZE!!

Im turning in my answer. Can someone please look at it and make sure it is good to go??

Ive been reading and studying others on here and think I am ready to send it.

I'm attaching  the files for review..thank you to anyone that takes their time to help

Id like to turn this answer in today.

 

 

Case No. 

 

 

 

WEBCOLLEX,LLC dba CKS                               IN THE Justice Court

 

FINANCIAL      

 

                       

 

  Plaintiff                                                               1 Court

 

  V.

 

                                                                                                         

 

                                                                              HOOD COUNTY TEXAS                                

 

                                                                                   

 

Defendant

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 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 "On or about March 10,2009. See Plaintiff's Original Petition under "Facts" paragraph 4. 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:

 

 

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Take out the part about usurious interest.  It won't fly.  Unless they charged over 30% it isn't in violation of the law in interest rates.  Not only that you basically are admitting in your answer the debt is yours by asserting it with the wording you used.

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I'm not a lawyer and this isn't legal advice -- the following are just the thoughts of a fellow defendant....

I agree with Clydesmom about removing the usury defense (TRCP 93.11).  If you insist on keeping it, it requires a verified denial (pg.6), or an unsworn declaration.

You may want to re-redact the plaintiff's petition PDF you've uploaded to remove the cause number, bar code at the top, and anything else identifying, if you care to.  I can read your name through the marker.

I don't know about using texasrocker's special exception to account stated argument in your answer.  I don't fully understand the alternative "Suit on Debt" pleading (Count Two).  While the pleading doesn't specifically say 'account stated' or 'stated account', perhaps the wording somehow implies an account stated theory.  I haven't seen a claim worded like that yet, but I'm inexperienced with this b.s. legal b.s. still.  I'd be very careful about adding things to your answer that may have no bearing on your case, as it might piss off an overburdened JP court judge.

The plea to the jurisdiction on lack of standing seems appropriate, since there are no exhibits showing an assignment of your debt, but you've left some wording out.  You might change "Instead, Plaintiff alleges "On or about March 10,2009." to Instead, Plaintiff alleges "As of July 9, 2013, Plaintiff has ownership of the account and has been assigned the rights to this account, including the right to collect the outstanding balance which it pleads for herein."  I think that fits with the argument, but I could be mistaken.

I noticed that your plaintiff didn't mention "that all conditions precedent have been performed or have occurred."  You might want to include the specific denial from this example (paragraph 2).  I think it will force the plaintiff to prove otherwise.  From what I've seen, specific denials require some additional reasoning, so you may need to do more than just quote what's said in that example.

I'm also defending a breach of contract case.  It seems incredibly unfair that a plaintiff can make claims, which you are required to specifically defend, when they don't offer you the contract you supposedly breached to examine.  The legal system is borked.

Good luck.  I'll try to keep up with your thread.

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  • 1 month later...

I'm an attorney in Texas, and I specialize in handling credit card lawsuits.  I have gotten over 3000 debt lawsuits dismissed.  I handle cases like this all day every day.

All you need to do is file a general denial.  

Then if you have any real defenses (statute of limitations, identify theft, it's not your debt, you don't owe it, you already settled it, etc.), you need to assert those.

If you want, send me a copy of the lawsuit and your answer, and I'll look them over.

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7 hours ago, JamesHeston said:
 

I'm an attorney in Texas, and I specialize in handling credit card lawsuits.  I have gotten over 3000 debt lawsuits dismissed.  I handle cases like this all day every day.

All you need to do is file a general denial.  

Then if you have any real defenses (statute of limitations, identify theft, it's not your debt, you don't owe it, you already settled it, etc.), you need to assert those.

If you want, send me a copy of the lawsuit and your answer, and I'll look them over.

Do you actually defeat the junk debt buyers or just negotiate a settlement?

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11 minutes ago, willingtocope said:

NOTE:  We have had many posters who claim to be lawyers...or who claim to have a magic formula for making debts go away.

BEWARE.

If a user is not willing to post their opinions in open forum, there's a good chance they have something to hide.

A Google search reveals there is a consumer attorney in Houston TX by the name of James Heston.  Now whether that is who posted or not I don't know.

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Good God, people.

I've never joined one of these groups before in my life, and I'm going to quit this one.

I'm offering to help, for free, and you watchdog people warn the guy off.

Here's some news for you:  all lawsuits are public records.  

If the court is online, then I (and every other person in the entire world) can get a copy of the petition via the internet.  If the court is not online, then I (and every other person in the entire world) can go to the courthouse and get a copy of the petition.

Asking the poster to send me a copy of a document that every single person in the entire world can get a copy of if they feel like it does not worsen the poster's situation any.

But whatever.  Keep doing what you're doing.

 

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19 minutes ago, JamesHeston said:

I'm offering to help, for free, and you watchdog people warn the guy off.

You are new here so you don't have the knowledge about scammers who come here pretending to be lawyers.  This site welcomes lawyers and a few actually participate.  There is one from California that helps quite a bit, @LawKitty is a FL attorney that also is here when she has time, and the only other one I know of is from TN @TNConsumerLawyer who have all helped out many people.   Having a Texas lawyer would be a great asset.

We are suspicious (and by the way I defended you) because there are debt collectors who come on these forums pretending to help with the intent of doing harm to the consumer.  There are also numerous instances of scam debt settlement agencies joining the forums and fleecing desperate people for money.  We have reason to be suspicious but don't let initial skepticism scare you off.  We can certainly use the help.  Remember:  it is a public forum on the internet.  Initially we have no way to know based on one post saying "I am a lawyer" if you are actually an attorney or a 12 year old home with the flu who found a lawyer's name and created a screen name out of boredom.

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@JamesHeston

As @Clydesmomhas pointed out, we don't know that you really are an attorney.   Anyone can make that claim, but it doesn't mean it's true, and I should think that, rather than becoming huffy, it would be something you would understand. 

We are well aware that lawsuits are public records.  Yes, you and anyone else can get a poster's court records online or at a court house but only if the poster reveals his identity.   We would be remiss if we did not warn posters about revealing their identities to other posters.

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Assuming this is the website of the James Heston who posted on this board claiming to be a TX lawyer,  he advertises that  he specializes in debt relief, debt settlement and bankruptcy:

Debt Settlement Lawyers El Paso | Debt Relief ... - Heston Ciment

https://www.hestonciment.com/attorneys/
  1.  
Debt Settlement Lawyers El Paso. Debt Relief Lawyer Katy. Debt Lawyers Texas -Heston Ciment

 

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8 hours ago, debtzapper said:

Assuming this is the website of the James Heston who posted on this board claiming to be a TX lawyer,  he advertises that  he specializes in debt relief, debt settlement and bankruptcy:

Debt Settlement Lawyers El Paso | Debt Relief ... - Heston Ciment

https://www.hestonciment.com/attorneys/
  1.  
Debt Settlement Lawyers El Paso. Debt Relief Lawyer Katy. Debt Lawyers Texas -Heston Ciment

 

There is also one of the same name in Houston.

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On ‎8‎/‎18‎/‎2016 at 4:22 AM, JamesHeston said:

 

All you need to do is file a general denial.  

 

Even if he wasn't a lawyer, (or if he is one of the many lawyers that gets ran off the website) his suggestion of a general denial over fighting the entire case in the answer was a good one. In my opinion.

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@Anon Amos it isn't our intent to "run lawyers off this web site".   We do, however,  point to our readers that there are some people who claim to be lawyers that aren't.  We try to point out the dangers involved in dealing with "debt fixers" and anyone else who claims to have a sure fire easy fix zip zop make it go away solution to a debt problem.

One of the ways we have found that provides some measure of protection for our members is to suggest that all advice be provided in open forum so that others can both benefit from  and verify its accuracy.

 

And,  @JamesHeston  please note...if you are indeed a lawyer and are willing to provide advice...on line...in open forum...you are more than welcome here.

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