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Being Sued by Midland Funding in Texas


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3 minutes ago, Clydesmom said:

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.

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.

Pretty sure I qualified all my statements and it's not like I told her not to worry because Louisiana does it this way and that means Texas does it that way.

The situation I dealt with was:  1) client sued on a credit card debt 3 months before SOL in an improper venue, 2) creditor took 6 months to serve client which made the service date beyond SOL.   Louisiana law says that a suit filed in an improper venue does not suspend or interrupt SOL so if she would have objected to venue the case would have been beyond the SOL and I could have easily gotten it dismissed.   However, because she filed a pro se answer that did not object to venue, she waived that objection, making venue "proper" and the lawsuit retroactively filed in a "proper venue."  

Louisiana really is not that different.   We have different names for the same concepts.   I highly doubt Louisiana is the only state in the country where you can waive an venue objection by not bringing it and consequently waive other objections.

I think I made it clear that particular case was bizarre and is unusual but it happens.

The safe thing to do is to raise any and all defenses you know you have (in this case she knows venue is improper) so you do not risk waiving a right.   Rights can be waived and you should not chance losing your rights in any state.   That was my point.

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So, it appears that I need to file a separate petition and pay a filing fee for my counterclaim. Should I file a motion for change of venue, then file my counterclaim or file the counterclaim, then MCV?

 

RULE 502.6. COUNTERCLAIM; CROSS-CLAIM; THIRD PARTY CLAIM
(a)Counterclaim. A defendant may file a petition stating as a counterclaim any claim against a plaintiff that is within the jurisdiction of the justice court, whether or not related to the claims in the plaintiff’s petition. The defendant must file a counterclaim petition as provided in Rule 502.2, and must pay a filing fee or provide a sworn statement of inability to pay the fees. The court need not generate a citation for a counterclaim and no answer to the counterclaim need be filed. The defendant must serve a copy of the counterclaim as provided by Rule 501.4.
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@misbhavn

If you have a valid FDCPA claim for being sued in the wrong venue,  you should try to see if you can get a TX consumer lawyer to defend you on a contingency basis, which should not cost you.  Contact 3 or 4 at www.consumeradvocates.org

You might also google "Jerry Jarzombeck."  His office is in FT Worth, but I think he takes cases statewide.  One of TX's best lawyers and a really fine person who advised me about a FDCPA claim I had even though I don't live in TX.

Also, unless PACER has changed in the last 6 months,  once you sign up for PACER, you can log in right away.  And you get so many searches for free.  After that, it's 10cents a page.

 

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3 hours ago, neweuquol said:

Pretty sure I qualified all my statements and it's not like I told her not to worry because Louisiana does it this way and that means Texas does it that way.

The situation I dealt with was:  1) client sued on a credit card debt 3 months before SOL in an improper venue, 2) creditor took 6 months to serve client which made the service date beyond SOL.   Louisiana law says that a suit filed in an improper venue does not suspend or interrupt SOL so if she would have objected to venue the case would have been beyond the SOL and I could have easily gotten it dismissed.   However, because she filed a pro se answer that did not object to venue, she waived that objection, making venue "proper" and the lawsuit retroactively filed in a "proper venue."  

Louisiana really is not that different.   We have different names for the same concepts.   I highly doubt Louisiana is the only state in the country where you can waive an venue objection by not bringing it and consequently waive other objections.

I think I made it clear that particular case was bizarre and is unusual but it happens.

The safe thing to do is to raise any and all defenses you know you have (in this case she knows venue is improper) so you do not risk waiving a right.   Rights can be waived and you should not chance losing your rights in any state.   That was my point.

New,

Thanks for your reply.  I haven't seen you post in a while, but I rememberyou are a licensed La. lawyer and we always like to hear from lawyers who wish to advise others on this board.

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14 hours ago, debtzapper said:

New,

Thanks for your reply.  I haven't seen you post in a while, but I rememberyou are a licensed La. lawyer and we always like to hear from lawyers who wish to advise others on this board.

I talked to a few attorneys and none will take it on a contingency due to the fact that it's a relatively small amount. I did get some useful information though. I am required to file the motion to change venue before I file my counterclaim or I waive my venue objection as @neweuquol pointed out. So I'm back at square one...kinda, but I have a better idea of what to do now.

 

I do have one more question if anyone knows the answer. I'm using @texasrocker's answer. I'm thinking I should file a general denial only and omit the Plea to the Jurisdictions and Special Exceptions until I get it moved. My thinking is by submitting those, I am submitting myself to that venue. Once I get it moved, I can amend my answer. Is this correct?

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17 hours ago, misbhavn said:

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.

There is no contingency fee to be had because you are the one being sued.   My fee for a debt lawsuit is usually a fixed fee based on the amount the consumer has been sued for in the petition/complaint.  

I take FDCPA actions on a contingency but I am very selective so I am not surprised if there a few consumer attorneys may not be interested in pursuing a FDCPA action for you.   It does not mean you have a bad case.  Sometimes another attorney will see value in a case when another attorney refused a case simply because he already had x number of FDCPA cases and he does not think he can ethically handle anymore (or whatever).  FDCPA is not really a contingency because my fee is usually the greater of a certain percentage of recovery or the attorney fee award, whichever is greater.

 

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7 hours ago, misbhavn said:

I do have one more question if anyone knows the answer. I'm using @texasrocker's answer. I'm thinking I should file a general denial only and omit the Plea to the Jurisdictions and Special Exceptions until I get it moved. My thinking is by submitting those, I am submitting myself to that venue. Once I get it moved, I can amend my answer. Is this correct?

A general denial will suffice in any case in any court and yes, you can amend your Original Answer.

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2 minutes ago, debtzapper said:

@misbhavn  I had to contact 5 consumer lawyers before I got one to take my FDCPA claim ( I was not sued by a debt collector) and it was an out of state lawyer.  In any case, there are members here who will help you.

 

Count me as a FDCPA lawyer who is highly selective and it is not because the consumer has a bad case.   Many times they have a great case and another consumer lawyer will jump on it.   i do not really have any set protocol for refusing a "good case" but sometimes it is just bad timing.   I almost always give names of additional attorneys to consumers with good cases because not all FDCPA lawyers are NACA members.   With that being said, I am pretty blunt and will tell you when I think you have a "bad case."

If a consumer hands me a stack of some of the letters I see posted on the internet (not necessarily here) it's an instant red flag it's a case I do not want to deal with, etc.

 

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1 hour ago, neweuquol said:

Count me as a FDCPA lawyer who is highly selective and it is not because the consumer has a bad case.   Many times they have a great case and another consumer lawyer will jump on it.   i do not really have any set protocol for refusing a "good case" but sometimes it is just bad timing.   I almost always give names of additional attorneys to consumers with good cases because not all FDCPA lawyers are NACA members.   With that being said, I am pretty blunt and will tell you when I think you have a "bad case."

If a consumer hands me a stack of some of the letters I see posted on the internet (not necessarily here) it's an instant red flag it's a case I do not want to deal with, etc.

 

Well said.  Thanks for letting us know the thought process of consumer lawyers in deciding whether to take a case.

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6 minutes ago, misbhavn said:
 

Update;

Jerry Jarzombek is taking the case on contingency. It was a misunderstanding that I thought he would not. This is a weight off my shoulders.

@misbhavn that's great news, in the meantime check out this article from him, it's outstanding...

http://www.law.gonzaga.edu/files/Jarzombek-Defending-Debt-Collection-Suits.pdf

another one here as well...

https://works.bepress.com/peter_holland/9/

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