Mongosmash

Being sued by PRA in Dallas County, TX

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9 minutes ago, Mongosmash said:

...when arguing my points to the judge should I readily bring the case law up or should I keep it my back pocket for the most part.  I don't want to rub the judge the wrong way with him thinking I'm trying to throw out "legalese" I don't know anything about.

This is the $64,000 question. We have seen many members get shot down trying to argue points of law. We've seen a few where the judge compliments the defendant on their presentation. I can't recall a case where a pro se pulled a Perry Mason and wowed the court. There was a poster from AZ that won at trial (I went down to watch the proceedings), but, as I recall, the plaintiff really botched the case and was forced to provide a live witness. There had been numerous continuances and the judge was obviously in no mood for another - no witness, no admissible documents, no case.

The same member lost another case, even after appealing using a lawyer, because the plaintiff used the correct language to self-authenticate documents.

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1 hour ago, Mongosmash said:

Trial is actually on Tuesday.  There should be a hearing immediately prior to the trial where I'm confident the judge will rule in favor of my Motion to Compel Discovery and believe the Plaintiff will ultimately fold if that's the case. 

This is what I have been expecting and hoping for also.   I cannot imagine a  judge allowing any party on either side totally refusing to answer discovery and ignore a meet and confer.   At the very least they could have answered with objections such as "overly broad and burdensome" as most JDB's do anyway.   This is the first time I have seen one not answer at all and then not drop the lawsuit.    

As I mentioned earlier if in fact your motion to compel is denied you will have very good grounds for appeal.  You would of course have to decide if a $2,500 lawsuit is worth going through the trouble but let's keep this beside the point for now and think positive!

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One additional question.  The TRCP for Justice Courts 500(3)(e) states that "The other Rules of Civil Procedure and the Rules of Evidence do not apply except: (1) when the judge hearing the case determines that a particular rule must be followed to ensure that the proceedings are fair to all parties; or (2) when otherwise specifically provided by law or these rules."  That being said, do Justice Court judges typically allow TRE to be used or what is the best way to swing him in your favor?  Being that he permitted my discovery I'm inclined to believe TRE will be allowed but I don't know.

Good question.  This is as ridiculous as being required to ask the court's permission to begin discovery.   The new rules are so new that as far as I know there have not been any precedents set as of yet.  Furthermore we haven't really had any newcomers here going through the whole process all the way through trial in a JP court since the new rules took effect other than two of the recent ones who lost due to a biased judge in a borderline kangaroo court.  Unfortunately they had nothing to do with the new rules being applied so we can't learn anything pertinent from them.   The truth is very few JDB cases make it to trial (which is actually a good thing) so we may be waiting a good while longer.  I have hoping ever since the new rules were implicated that something will emerge to create case law concerning a JP judge refusing to allow discovery. 

Do you know anything about this judge?  I would advise to learn everything you can about the judge.  I was fortunate enough to be sued in likely the most favorable court and county (Travis County Court) in the state as both civil court judges hate JDB's as much as we do.   As far as swinging him in your favor goes you have done exceptionally well here with learning the procedures and how to defend yourself so  all you can do is  just show respect and honor to the court and don't talk out of turn except to exclaim, "Objection, your honor!" to anything your opponent brings forth.   Bring a note pad and the O'Connor's Rules and Procedures book with you and do your best to appear professional.  As far as the court is concerned you are stepping into the shoes of a seasoned lawyer who has finished law school and passed the bar.    

 

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Well that was a waste of time.  The judge ruled against my motion to compel stating that the TRCP doesn't apply to justice court and the case has gone on long enough.  The case immediately went to trial and the judge ruled in favor of a judgement for PRA.  The motion and trial lasted less than 5 minutes.  PRA produced the affidavit and account statements.  He didn't even produce the bill of sale, he produced an affidavit of sale from the OC, although I know they did have a bill of sale.  I attempted to object with the rules of evidence and argue the assignment but was immediately shot down because they don't apply.  I stated that the account was not mine and i have never had any dealing with PRA or been notified it was sold to them.  The judge said unless I intended to go across the street to the police department and file for identity theft he'll be ruling in favor of the plaintiff.

It was clear based on the trials that went before mine and that once my motion was denied that it was going down hill from there.

Of the 20 or so cases that went before me, most were default judgements due to no show.    The others were judgements because the Defendants agreed to the default judgements.  There was one dismissal because Plaintiff didn't show.  There were two cases defended by lawyers.  One was shot down in a similar manner to mine.  The other was non-suited because the Plaintiff didn't actually have the bill of sale or affidavit of sale showing the complete assignment, but that one entailed 3 different assignments.

What irks me is you could tell all the Plaintiff's lawyers were buddies.  They were all smirking and joking to each other the whole time.  And that the judge is at least familiar with the attorneys undoubtedly because he sees them on a regular basis in court.  I'm not saying there is any colusion going on, only that the Plaintiff's know that the rules of the justice courts favor them.  There was about a dozen PRA lawsuits there that day, all but mine were represented by a third party lawyer.  My lawyer was actually employed by PRA.  I don't if he just took a personal liking to my case or that was just luck of the draw.

I did play a jedi mind trick of my own and as we were leaving asked the clerk of the court for the paperwork to file de novo to the district court and did so in a way that the lawyer heard me.  I most likely will file the appeal and let a court decide that will actually rule on the evidence, either on my own or if I can find a lawyer that will take pity and give a payment plan.

My advise in Dallas County JP 2-1 is to go ahead and defend your lawsuit, but don't expect TRE or TRCP to apply and expect to have to appeal the decision.  You will some sort of evidence that is very compelling to get the judge to listen to you.  Or attempt to force contractual arbitration, but based on what I witnessed today I don't know that would do any good either.

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20 minutes ago, Mongosmash said:

The judge said unless I intended to go across the street to the police department and file for identity theft he'll be ruling in favor of the plaintiff.

Combine the above quote with the sheer number of cases you witnessed today and understand what some have us have been saying all along. Everyone in the court, including the homeless dude who came in to get out of the sun, knew the debt was yours and that PRA legally owned it. The court simply can't waste time on nonsense - if I was the judge I probably would have looked at the stack of statements and said "you want to compel MORE evidence??!!"

For obvious reasons we don't know enough about arbitration statutes in TX, but I suspect that will change as the losses mount. 

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31 minutes ago, Mongosmash said:

The other was non-suited because the Plaintiff didn't actually have the bill of sale or affidavit of sale showing the complete assignment, but that one entailed 3 different assignments.

This is a teachable moment, as well. When sites like this started, the above was the norm. That is where learning to fight the documents using the law was effective. That same tactic simply doesn't work when the documentation is sufficient. You saw one party with a lawyer win, and another with a lawyer lose - the difference was that the first had "better facts." 

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@Mongosmash

I'm so sorry you lost.   You worked very hard, so I know that this is frustrating and disappointing.

That affidavit of sale from the OC is better than a bill of sale.   That probably weighed heavily in the judge's decision. 

Did the 200 or so credit card statements show your name and address? 

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I'm sorry you lost and I appreciate that you bothered to come back to report the outcome. 

If you appeal  (and I think you should), BE SURE you include the denied MTC in your list of issues raised on appeal. I believe that's going to be your most likely shot of reversal.

I know nothing about TX appeals,  but I have appealed in AZ. I may not be much help,  but I'll pitch in where I can. 

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2 minutes ago, BV80 said:

That affidavit of sale from the OC is better than a bill of sale.   That probably weighed heavily in the judge's decision. 

Did the 200 or so credit card statements show your name and address? 

The affidavit of sale could be compelling, but under ordinary rules of evidence is hearsay.  Especially considering that it was signed and dated more than year after the bill of sale took place they attest to and prepared 1 month before trial indicating lack of trustworthiness since it was prepared in anticipation of litigation.

The credit card statements do show my name and address but still don't show assignment.  I can't contend that I didn't have a credit card with the original creditor but PRA should still have to prove assignment.

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4 minutes ago, Mongosmash said:

The affidavit of sale could be compelling, but under ordinary rules of evidence is hearsay.  Especially considering that it was signed and dated more than year after the bill of sale took place they attest to and prepared 1 month before trial indicating lack of trustworthiness since it was prepared in anticipation of litigation.

That applies only if it's offered as a business record.   If it's not offered as a business record itself, it can be prepared at any time.

5 minutes ago, Mongosmash said:

The credit card statements do show my name and address but still don't show assignment.  I can't contend that I didn't have a credit card with the original creditor but PRA should still have to prove assignment.

Yes, I was going to suggest that if you appeal, it would be difficult to deny that the account is yours due to the fact that you'd basically be claiming that you never received a single page of those 200 statements.

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5 minutes ago, BV80 said:

That applies only if it's offered as a business record.   If it's not offered as a business record itself, it can be prepared at any time.

It would still have to fall within an exception to hearsay wouldn't it?  They only way it would is under the business records exemption and it wouldn't meet any of those requirements.

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I guess my point is if the TRCP and TRE don't apply in Justice Court, then how can anyone possibly defend the lawsuit?  If a Plaintiff can just come up with 3 or 4 pieces of "evidence" and everyone assumes the account was assigned, then the only way to find out is to appeal to district court.

I'm not trying to get out any debts I allegedly defaulted on.  I'm just trying to determine if PRA actually owns the account and has the right to collect on it.  If PRA pursued the judgement and got their money (which is tough because I'm broke and it's Texas) and then the rightful owner comes along next year and sues me, then I'm doubly screwed.  Or the rightful owner is screwed out of their money.

Justice court is supposed to be so regular people can get justice, but I really don't feel it's setup to perform that way.  And I don't feel that justice was done today.

I'm gonna go pout some more and figure out what to do next.

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27 minutes ago, Mongosmash said:

It would still have to fall within an exception to hearsay wouldn't it?  They only way it would is under the business records exemption and it wouldn't meet any of those requirements.

No. If they didn't introduce it as a business record,  you would have to make the claim that it is, and then prove your claim. 

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32 minutes ago, Mongosmash said:

It would still have to fall within an exception to hearsay wouldn't it?  They only way it would is under the business records exemption and it wouldn't meet any of those requirements.

If you don't mind,  could you post the affidavit?

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An affidavit is not evidence, and is not trustworthy if it was made expressly for litigation.    An affidavit can only be used to lay the foundation for said business records, the  documents being relied upon as evidence.

Ortega v. Cach, LLC, 396 S.W.3d 622 (Tex. App. 2013)

Roberts v. Mullen, 446 S.W.2d 86 (Tex.Civ.App.-Dallas 1969, writ ref'd n.r.e.) (except in instances specified by statute or rule, such as summary judgments, pauper's oath proceedings, reasonable and necessary attorney's fees, etc., affidavits not evidence in contested cases); Roadway Express, Inc. v. Gaston, 90 S.W.2d 874 (Tex.Civ.App.-Texarkana 1935, no writ); Chapman v. Dickerson, 223 S.W. 318 (Tex. Civ.App.-Beaumont 1920, no writ).

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10 minutes ago, Mongosmash said:

I guess my point is if the TRCP and TRE don't apply in Justice Court, then how can anyone possibly defend the lawsuit?

Justice Court falls under the 500 section of RCP not the TRCP that applies to District Court.  When the CA I sued tried to get my documents tossed out under the TRCP the Judge was quick to inform him that the rules were different in Justice Court.  In TX JC court they go by the credibility of the evidence.  In my case I successfully argued I could introduce my own personal phone records, JPEGS I took of my answering machine call log, and letters I sent to the CA stating cease and desist CMRR.  What the judge told you  in your case is that the paperwork they produced was deemed reliable enough for the court.

 

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3 minutes ago, atom1971 said:

An affidavit is not evidence, and is not trustworthy if it was made expressly for litigation.    An affidavit can only be used to lay the foundation for said business records, the  documents being relied upon as evidence.

Ortega v. Cach, LLC, 396 S.W.3d 622 (Tex. App. 2013)

Roberts v. Mullen, 446 S.W.2d 86 (Tex.Civ.App.-Dallas 1969, writ ref'd n.r.e.) (except in instances specified by statute or rule, such as summary judgments, pauper's oath proceedings, reasonable and necessary attorney's fees, etc., affidavits not evidence in contested cases); Roadway Express, Inc. v. Gaston, 90 S.W.2d 874 (Tex.Civ.App.-Texarkana 1935, no writ); Chapman v. Dickerson, 223 S.W. 318 (Tex. Civ.App.-Beaumont 1920, no writ).

Only if the plaintiff introduces it as a business record.

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25 minutes ago, Mongosmash said:

how can anyone possibly defend the lawsuit?

The fact that you witnessed a case being dismissed over lacking evidence says to me that the system does work. 

26 minutes ago, Mongosmash said:

 I'm just trying to determine if PRA actually owns the account and has the right to collect on it.

Honest question. If what PRA showed you doesn't convince you they own the account, what would it take? 

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34 minutes ago, Mongosmash said:

I'm just trying to determine if PRA actually owns the account and has the right to collect on it.

Sorry to keep beating a dead horse, but this is the crux of essentially every defeat we see. It's like going to the store, buying a six pack of Budweiser and wondering if it was made in a bathtub by a bootlegger. Midland/CACH/Cavalry/PRA, etc. are like Ford or Apple - we may not like their "product," but they are huge, regulated publicly traded companies. There may be "mistakes," just like if Apple sends you the wrong color phone case, but those are easy to spot (like the case you saw today).

PRA owns your debt. They have owned it since they told you they owned it. You were given choices, and chose to go with bad advice. As Harry said, thanks for reporting outcome so that others can learn.

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1 hour ago, Mongosmash said:

I guess my point is if the TRCP and TRE don't apply in Justice Court, then how can anyone possibly defend the lawsuit?  If a Plaintiff can just come up with 3 or 4 pieces of "evidence" and everyone assumes the account was assigned, then the only way to find out is to appeal to district court.

I'm not trying to get out any debts I allegedly defaulted on.  I'm just trying to determine if PRA actually owns the account and has the right to collect on it.  If PRA pursued the judgement and got their money (which is tough because I'm broke and it's Texas) and then the rightful owner comes along next year and sues me, then I'm doubly screwed.  Or the rightful owner is screwed out of their money.

Justice court is supposed to be so regular people can get justice, but I really don't feel it's setup to perform that way.  And I don't feel that justice was done today.

I'm gonna go pout some more and figure out what to do next.

This judge is full of crap.   In 2013 the new JP court rules were added to and certainly are a part of the TRCP.   Go to  http://www.txcourts.gov/media/1435952/trcp-all-updated-with-amendments-effective-912016.pdf

Scroll down and you will see "TEXAS RULES OF CIVIL PROCEDURE  PART V - RULES OF PRACTICE IN JUSTICE COURTS" 

 

 

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2 hours ago, BV80 said:

Yes, I was going to suggest that if you appeal, it would be difficult to deny that the account is yours due to the fact that you'd basically be claiming that you never received a single page of those 200 statements.

Could he not file an appeal solely based on the judge throwing out the motion to compel answers to discovery on the basis that the TRCP do not apply to his court?  The judge erred by denying the motion.  Then there would be no reason for the statements to be brought up.  This is what I would be inclined do if I were in his shoes now but I can definitely see the point that a $2,500 suit is not worth appealing.  If I could find a good lawyer who would do it for that amount then I believe I would hire him.    

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If an appeal from JP court is a true de novo appeal, then if it was me I would file a motion to compel arbitration as soon as the case is accepted by the higher court.  I would stop messing with the courts all together.

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31 minutes ago, texasrocker said:

This judge is full of crap.   In 2013 the new JP court rules were added to and certainly are a part of the TRCP.   Go to  http://www.txcourts.gov/media/1435952/trcp-all-updated-with-amendments-effective-912016.pdf

Scroll down and you will see "TEXAS RULES OF CIVIL PROCEDURE  PART V - RULES OF PRACTICE IN JUSTICE COURTS" 

 

 

I read Part V.

(e)  Application of Other Rules.  The other Rules of Civil Procedure and the Rule of Evidence do not apply except:

(1) when the judge hearing the case determines that a particular rule must be followed to ensure that the proceedings are fair to all parties; or

(2) when otherwise specifically provided by law or these rules.

(1)  indicates that the rules of evidence are at the judge's discretion.

(2)  Where is it specified anywhere else that the rules of evidence must apply to JP courts?

 

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11 minutes ago, fisthardcheese said:

If an appeal from JP court is a true de novo appeal, then if it was me I would file a motion to compel arbitration as soon as the case is accepted by the higher court.  I would stop messing with the courts all together.

It is true de novo onto a county court.

TRCP Rule 506.3

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35 minutes ago, texasrocker said:

Could he not file an appeal solely based on the judge throwing out the motion to compel answers to discovery on the basis that the TRCP do not apply to his court?  The judge erred by denying the motion.  Then there would be no reason for the statements to be brought up.  This is what I would be inclined do if I were in his shoes now but I can definitely see the point that a $2,500 suit is not worth appealing.  If I could find a good lawyer who would do it for that amount then I believe I would hire him.    

As I pointed out in my previous post, the rules of evidence appear to be at the discretion of the judge unless other rules state that the rules MUST apply.

The OP would have to find a rule that says the rules of evidence apply to his motion to compel.

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