misbhavn Posted August 9, 2016 Report Share Posted August 9, 2016 So it appears I am being sued by Midland Funding. I haven't been served yet, but I received an ambulance chaser advert in the mail telling me I'm being sued. I will have to wait until I get served to post the particulars, but I do have a question... I live in Precinct 8, however the suit was filed in JP Precinct 1. This court is easily 30-40 minutes from my house. Is this a violation of the FDCPA? Can I at least file a change of venue or would I file a MTD for wrong venue? @texasrocker, @TomnTex Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted August 9, 2016 Report Share Posted August 9, 2016 7 minutes ago, misbhavn said: I live in Precinct 8, however the suit was filed in JP Precinct 1. This court is easily 30-40 minutes from my house. Is this a violation of the FDCPA? Yes, it is a violation. 8 minutes ago, misbhavn said: Can I at least file a change of venue or would I file a MTD for wrong venue? I would file a MTD for wrong venue. Quote Link to comment Share on other sites More sharing options...
misbhavn Posted August 9, 2016 Author Report Share Posted August 9, 2016 41 minutes ago, Clydesmom said: Yes, it is a violation. Just to be clear, both precincts are in Harris County so technically, they are in the correct county, just the wrong precinct. I have been thinking and if I file the MTD, they will just refile in the correct court. Should I just answer the complaint with a counter claim, then file a change of venue? This might be a two-edged sword, but I'm thinking this will either force them to have some concrete evidence or I can get a dismissal with prejudice. They can't just dismiss without prejudice if there is a counter claim filed. The scary part is what if they do go after the real evidence from the OC. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted August 9, 2016 Report Share Posted August 9, 2016 8 hours ago, misbhavn said: I have been thinking and if I file the MTD, they will just refile in the correct court. Should I just answer the complaint with a counter claim, then file a change of venue? This works too. Even if both courts are in the same county they are required to file in the correct one. They cannot just pick and choose which one. Most likely they did this to accomplish one of two things either you miss the trial and they get an easy default judgment or the precinct they chose has a very creditor friendly judge vs where you live. 8 hours ago, misbhavn said: The scary part is what if they do go after the real evidence from the OC. Midland is subject to a consent judgment with the CFPB. They are not supposed to file the lawsuit without having "real" evidence from the OC. Quote Link to comment Share on other sites More sharing options...
misbhavn Posted August 9, 2016 Author Report Share Posted August 9, 2016 1 hour ago, Clydesmom said: Midland is subject to a consent judgment with the CFPB. They are not supposed to file the lawsuit without having "real" evidence from the OC. So this is a bad thing for me then, right? Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted August 9, 2016 Report Share Posted August 9, 2016 20 minutes ago, misbhavn said: So this is a bad thing for me then, right? No it is a good thing. You can use that consent judgment against them if they don't have the proof to sustain their case. First things first is to find out who the original creditor was that they bought the account from. Unless it is one of a small handful another iron clad option for defeating them is to motion to compel arbitration. It is too expensive for Midland or any other junk debt buyer to pursue so they usually walk away. However, some creditors removed arbitration from their agreements so you have to know who they claim they bought the account from before you can pursue this option. 1 Quote Link to comment Share on other sites More sharing options...
texasrocker Posted August 9, 2016 Report Share Posted August 9, 2016 1 hour ago, Clydesmom said: No it is a good thing. You can use that consent judgment against them if they don't have the proof to sustain their case. I have yet to see a JDB that can prove they own the debt. Quote Link to comment Share on other sites More sharing options...
misbhavn Posted August 9, 2016 Author Report Share Posted August 9, 2016 3 hours ago, texasrocker said: I have yet to see a JDB that can prove they own the debt. PRA couldn't. They tried to sue my wife last year and couldn't prove they owned the debt. Once they received my discovery requests (actually your discovery requests :)), they walked away. How would you recommend I proceed? MTD for wrong venue or answer with counter claim? Quote Link to comment Share on other sites More sharing options...
misbhavn Posted August 9, 2016 Author Report Share Posted August 9, 2016 5 hours ago, Clydesmom said: No it is a good thing. You can use that consent judgment against them if they don't have the proof to sustain their case. Does that mean I can ask for sanctions if they can't prove ownership? Quote Link to comment Share on other sites More sharing options...
texasrocker Posted August 9, 2016 Report Share Posted August 9, 2016 As long as they are raking in millions from default judgments they couldn't care less about a consent judgment. Court orders and sanctions, even from the Texas Attorney General's office, have never resulted in them changing their ways. They will still say that their affidavit from their own employee, barely readable microfiche copies of statements and a generic bill of sale proves everything. 1 Quote Link to comment Share on other sites More sharing options...
misbhavn Posted August 10, 2016 Author Report Share Posted August 10, 2016 6 hours ago, texasrocker said: As long as they are raking in millions from default judgments they couldn't care less about a consent judgment. Court orders and sanctions, even from the Texas Attorney General's office, have never resulted in them changing their ways. They will still say that their affidavit from their own employee, barely readable microfiche copies of statements and a generic bill of sale proves everything. It seems you lean toward MTD for wrong venue then? Quote Link to comment Share on other sites More sharing options...
texasrocker Posted August 10, 2016 Report Share Posted August 10, 2016 18 hours ago, misbhavn said: It seems you lean toward MTD for wrong venue then? No. A counter suit would carry much more leverage. 1 Quote Link to comment Share on other sites More sharing options...
misbhavn Posted August 26, 2016 Author Report Share Posted August 26, 2016 I'm not sure what happened, but I posted in this thread yesterday and it's just gone...poof! I will recap...I have now been served. I need to get my answer in and I plan to use @texasrocker's answer, plea to the jurisdiction and special exceptions. My only issues are: 1. The summons I received is not in paragraph form and, instead, has a case form with different sections to fill in. In the section "Details About Plaintiff's Claim" it lists the OC, the amount I'm being sued for, some account info and what I'm being sued for (Account Stated and/or Open Account). Since this is all it states, I'm assuming I should just leave this part out? "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." 2. I plan to include a counterclaim for filing in an improper venue but I'm unable to find an example of how to style or word it. Any information in that direction would be most appreciated. Once I get my answer and counterclaim in, I plan to file a motion for change of venue. Quote Link to comment Share on other sites More sharing options...
texasrocker Posted August 27, 2016 Report Share Posted August 27, 2016 Here is an example that debtzapper provided awhile back... counterclaims example.doc 2 Quote Link to comment Share on other sites More sharing options...
misbhavn Posted August 27, 2016 Author Report Share Posted August 27, 2016 33 minutes ago, texasrocker said: Here is an example that debtzapper provided awhile back... counterclaims example.doc Awesome, thank you! Should my counterclaim be files as part of my answer or should I file it as a separate pleading? I'm going to put this here for anyone searching in the future, regarding proper venue in Texas. I had a hard time finding it myself, but I may not have been searching well enough. This is covered under TRCP 502.4(a). RULE 502.4. VENUE — WHERE A LAWSUIT MAY BE BROUGHT (a)Applicable Law. Laws specifying the venue – the county and precinct where a lawsuit may be brought – are found in Chapter 15, Subchapter E of the Texas Civil Practice and Remedies Code, which is available online and for examination during the court’s business hours. Quote Link to comment Share on other sites More sharing options...
misbhavn Posted August 27, 2016 Author Report Share Posted August 27, 2016 Texas Civil Practice and Remedies Code, Chapter 15, Subchapter E further states: Sec. 15.082. VENUE: GENERAL RULE. Except as otherwise provided by this subchapter or by any other law, a suit in justice court shall be brought in the county and precinct in which one or more defendants reside. Quote Link to comment Share on other sites More sharing options...
BV80 Posted August 27, 2016 Report Share Posted August 27, 2016 On 8/9/2016 at 0:17 AM, misbhavn said: So it appears I am being sued by Midland Funding. I haven't been served yet, but I received an ambulance chaser advert in the mail telling me I'm being sued. I will have to wait until I get served to post the particulars, but I do have a question... I live in Precinct 8, however the suit was filed in JP Precinct 1. This court is easily 30-40 minutes from my house. Is this a violation of the FDCPA? Can I at least file a change of venue or would I file a MTD for wrong venue? @texasrocker, @TomnTex Did you live in Precinct 1 when you opened the account? What is the amount of the alleged debt? Quote Link to comment Share on other sites More sharing options...
misbhavn Posted August 28, 2016 Author Report Share Posted August 28, 2016 18 hours ago, BV80 said: Did you live in Precinct 1 when you opened the account? What is the amount of the alleged debt? No, I have never lived in precinct 1. Quote Link to comment Share on other sites More sharing options...
misbhavn Posted August 30, 2016 Author Report Share Posted August 30, 2016 I have about a week to get my answer in. I'll be honest, I have no clue how to word my counterclaim for improper venue. I have googled for sample answers with counterclaims for improper venue, but I can't find any pleadings. Does anyone know where I can find copies of pleadings online? @debtzapper's example that @texasrocker posted is helpful, but it is not a counterclaim for improper venue. I have no idea where or how to find sample pleadings with this information. I have registered with Pacer, but I will not have search privileges in time to get my answer in. Quote Link to comment Share on other sites More sharing options...
misbhavn Posted September 1, 2016 Author Report Share Posted September 1, 2016 I received a letter from Plaintiff's attorney today seeking a settlement (of course). At the bottom of the page there is a notice that the attorneys are debt collectors. Does this mean I have two violations...one against the Plaintiff and another against Plaintiff's attorney? Quote Link to comment Share on other sites More sharing options...
BV80 Posted September 1, 2016 Report Share Posted September 1, 2016 39 minutes ago, misbhavn said: I received a letter from Plaintiff's attorney today seeking a settlement (of course). At the bottom of the page there is a notice that the attorneys are debt collectors. Does this mean I have two violations...one against the Plaintiff and another against Plaintiff's attorney? Yep. Quote Link to comment Share on other sites More sharing options...
Jking57 Posted September 1, 2016 Report Share Posted September 1, 2016 On 8/29/2016 at 9:12 PM, misbhavn said: I have about a week to get my answer in. I'll be honest, I have no clue how to word my counterclaim for improper venue. I have googled for sample answers with counterclaims for improper venue, but I can't find any pleadings. Does anyone know where I can find copies of pleadings online? @debtzapper's example that @texasrocker posted is helpful, but it is not a counterclaim for improper venue. I have no idea where or how to find sample pleadings with this information. I have registered with Pacer, but I will not have search privileges in time to get my answer in. Pacer is relatively pricey, for most needs a trip to your local library assuming they have access to WestLaw would be sufficient but I found this service to much more reasonable should the need arise. http://www.plainsite.org/prose/index.html Casetext is another great service that I've used, can save cases to your library, .pdf downloadable and in many cases than Google Scholar. https://casetext.com/ Quote Link to comment Share on other sites More sharing options...
neweuquol Posted September 2, 2016 Report Share Posted September 2, 2016 On 8/8/2016 at 11:17 PM, misbhavn said: So it appears I am being sued by Midland Funding. I haven't been served yet, but I received an ambulance chaser advert in the mail telling me I'm being sued. I will have to wait until I get served to post the particulars, but I do have a question... I live in Precinct 8, however the suit was filed in JP Precinct 1. This court is easily 30-40 minutes from my house. Is this a violation of the FDCPA? Can I at least file a change of venue or would I file a MTD for wrong venue? @texasrocker, @TomnTex I do not know about Texas law but in Louisiana if you fail to object (we call it except) to the venue you waive any other major defenses you may have in the case. Improper venue is waiveable in Louisiana. I had one case that came to me after she filed her pro se answer and she had a legitimate prescription (statute of limitations) defense that was waived because she did not object to improper venue. Louisiana has some very strict rules and a lot of defenses can be waived if the proper exceptions are not filed with the first responsive pleading which can cause some defenses that normally cannot be waived to be waived. It can result in completely bizarre circumstances, all caused by not bringing a defense the law thinks you should have known you were required to bring with your first responsive pleading. Just be careful and file exceptions, objections, whatever Texas calls them in your first responsive pleading. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted September 2, 2016 Report Share Posted September 2, 2016 40 minutes ago, neweuquol said: I do not know about Texas law but in Louisiana Louisiana laws are actually based upon French law/Napoleonic Code not English law like the other 49 states. It is VERY different. There is very little direct comparison. 41 minutes ago, neweuquol said: Just be careful and file exceptions, objections, whatever Texas calls them in your first responsive pleading. It doesn't work that way in Texas Justice Court. I know you are trying to be helpful but if all your experience is based upon the Napoleonic Code that Louisiana law is based on then much of it may not apply to cases outside your state. Quote Link to comment Share on other sites More sharing options...
misbhavn Posted September 2, 2016 Author Report Share Posted September 2, 2016 As I understand it, I have 20 days from the time I file my answer to motion for a change of venue. I will have to go back and look it up again. The bigger question, at least for me, is whether my counterclaim must be filed with my answer or if I can file it separately. I'm having trouble finding the answer. Quote Link to comment Share on other sites More sharing options...
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