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Being sued by PRA in TX, please help!!


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22 minutes ago, breturbo said:

Once a debt is dropped and PRA loses what happens to it?

Depends on WHY it is dropped.  If the court rules you don't owe it then you can have the PRA trade line removed from your credit report.  If PRA simply drops the pursuit of the suit and dismissed without prejudice then they can refile the suit within the SOL.  

23 minutes ago, breturbo said:

Does it go to another JDB?

That used to be the case but I believe PRA is under a consent judgment with the CFPB not to re-sell the bad debts they buy especially if they know they are not collectable i.e. they lost a lawsuit on the debt.

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On 2/26/2017 at 9:46 AM, fisthardcheese said:

If you have a bad judge that is stonewalling the usual methods that @texasrocker usually helps people win with, then I might consider doing the arbitration method.  I would file a Motion to Compel Arbitration and take this away from the court's jurisdiction.

@fisthardcheeseI have a pretrial date next Tuesday. Can I still file arbitration after that date if it doesn't go as planned?

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Update to my case. I was completely railroaded by the justice judge.  I feel like he was against me before the trial even began. He had denied my request for discovery early on and in the hearing today he denied my pleas to the jurisdiction and to the special exceptions. He had already sided with the lawyer for portfolio from the beginning. He basically said, I have what I need but it's your turn so you're free to talk. Everything I said, the judge said you want to talk all this legalese but you should have hired a lawyer. I said that's the point of justice court, to represent yourself when you can't afford a lawyer. He said I should have known better having no experience going up against a lawyer with years of schooling. He didn't care about any of my objections to the affidavit or bill is sale. He said before he ruled, he would give us 5 minutes to come to an agreement or he would render one for us. So I felt like I didn't have much choice but to make payment arrangements with the lawyer. I can't afford the time, money and stress to file an appeal if he had rendered judgement. I'm super pissed. But the lawyer said to settle only on the alleged debt. So I don't have to pay lawyers or filing fees at least. I'm very upset and felt as though I never even stood a chance with this judge. 

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2 hours ago, CSexton311 said:

 I feel like he was against me before the trial even began.

This is likely true.  Another reason I advocate for arbitration and taking the case out of court and away from judges like this.

Also, this judge scared you into a settlement agreement, which means you probably can't even appeal.

I'm sure that attorney bought the judge lunch after their round of golf the next day.

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The judge made it clear that he was ruling in favor for the plaintiff so that's why I opted to settle with the lawyer instead of a judgement. I never had a shot from the get go with this judge. He said I should have hired a lawyer but isn't that what justice court is for? For people to be able to represent themselves because they can't afford an attorney?! Argh. Looking back, if I knew the judge would be against me, I would have filed arbitration. I regret that now. 

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51 minutes ago, CSexton311 said:

The judge made it clear that he was ruling in favor for the plaintiff so that's why I opted to settle with the lawyer instead of a judgement. I never had a shot from the get go with this judge. He said I should have hired a lawyer but isn't that what justice court is for? For people to be able to represent themselves because they can't afford an attorney?! Argh. Looking back, if I knew the judge would be against me, I would have filed arbitration. I regret that now. 

DO NOT beat yourself up over this.  Even if you had filed a MTC arb it does not mean the judge would have granted it.  If the scenario is as @fisthardcheeseclaims then this Judge would have shot that motion down as well.  MANY of the Justice Court judges are pro-creditor.  They can be hard to beat but if you are going to go down you at least did so swinging and not by default judgment. 

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I think what the judge meant by "legalese" is that the advice given on these forums for fighting in court no longer works. Everybody in the court - from you to the court reporter knew the debt was yours and knew that PRA bought the debt - they didn't find your name in a dumpster and forge the statements, etc. No amount of legal "technicalities" is going to over come reality. 

This was always going to be the outcome when arbitration was not pursued.

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28 minutes ago, Goody_Ouchless said:

I think what the judge meant by "legalese" is that the advice given on these forums for fighting in court no longer works. Everybody in the court - from you to the court reporter knew the debt was yours and knew that PRA bought the debt - they didn't find your name in a dumpster and forge the statements, etc. No amount of legal "technicalities" is going to over come reality. 

This was always going to be the outcome when arbitration was not pursued.

I also believe that many of these types of judges and attorneys simply get mad that some of us Pro-Se defendants are able to properly argue the law and cite case law to back up our motions without ever having to go into debt for law school like they did.  As if we have some nerve learning things on our own without using the same over priced methods they used! We haven't even paid our dues by working as a low level clerk or paralegal first.

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6 minutes ago, fisthardcheese said:

True, however, an appeal would have over turned Judge Beuford's MTC denial and he wouldn't be getting his free prime rib lunch at the country club that week.

MAYBE.   There is no guarantee an appeals court would have found a legal basis to over turn the denial of the MTC despite your definitive statement that this is exactly what would happen.  Look at the pro-se defendant on the other board that just lost that argument all the way to the State Supreme Court. 

The frightening part is how many people argue that "if you had just done this you would have won your case" when in reality you cannot guarantee a win any more than a lawyer can.

5 minutes ago, fisthardcheese said:

I also believe that many of these types of judges and attorneys simply get mad that some of us Pro-Se defendants are able to properly argue the law and cite case law to back up our motions without ever having to go into debt for law school like they did.  As if we have some nerve learning things on our own without using the same over priced methods they used! We haven't even paid our dues by working as a low level clerk or paralegal first.

That may occur some times but the reality is many pro-se defendants are ill equipped to defend themselves and simply get into court and freeze up.  Confidence on the internet is not the same as an intimidating court room environment for MANY people. 

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4 hours ago, Goody_Ouchless said:

I think what the judge meant by "legalese" is that the advice given on these forums for fighting in court no longer works. Everybody in the court - from you to the court reporter knew the debt was yours and knew that PRA bought the debt - they didn't find your name in a dumpster and forge the statements, etc. No amount of legal "technicalities" is going to over come reality .[/quote]

It certainly does work, little child.  I would bet anything that this defendant would have won on appeal.  I don't know what planet you are getting such information from but in Texas cases are decided based on case law and legal precedents set on previous appeals rather than assumptions and  speculation.

You may know the debt was yours but you, the court reporter and everyone else in the court have no way of knowing that PRA purchased the debt based on the "evidence" they have shown without even considering finding something in a dumpster or forging any documents.  I have yet to see even a single case where the JDB had solid proof that they purchased any individual debt.  Their own forward flow agreement affirms that the information they have is not guaranteed to be authentic and/or accurate.

It sure is funny that the first thing one sees when checking out the arbitration forum is " USE THE ADVICE IN THIS FORUM AT YOUR PERIL! Arbitration is an unproven method.  Please report anyone who is touting it as the only solution to your legal problems."

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4 hours ago, Goody_Ouchless said:This was always going to be the outcome when arbitration was not pursued.[/quote]

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10 hours ago, Clydesmom said:

MAYBE.   There is no guarantee an appeals court would have found a legal basis to over turn the denial of the MTC despite your definitive statement that this is exactly what would happen.  Look at the pro-se defendant on the other board that just lost that argument all the way to the State Supreme Court. 

The frightening part is how many people argue that "if you had just done this you would have won your case" when in reality you cannot guarantee a win any more than a lawyer can.

That may occur some times but the reality is many pro-se defendants are ill equipped to defend themselves and simply get into court and freeze up.  Confidence on the internet is not the same as an intimidating court room environment for MANY people. 

The other case you are referring to is  completely different.  That person lost on Summary Judgement after the MTC was not filed timely and a leave to amend was not properly filed.  That is day and night compared to the case here, where OP filed the MTC according to proper procedure and the Judge simply denied his MTC.  That absolutely can be overturned on appeal because the Supreme Court says it's a matter of right when it's in a contract.

6 hours ago, texasrocker said:

It certainly does work, little child.  I would bet anything that this defendant would have won on appeal.  I don't know what planet you are getting such information from but in Texas cases are decided based on case law and legal precedents set on previous appeals rather than assumptions and  speculation.

You may know the debt was yours but you, the court reporter and everyone else in the court have no way of knowing that PRA purchased the debt based on the "evidence" they have shown without even considering finding something in a dumpster or forging any documents.  I have yet to see even a single case where the JDB had solid proof that they purchased any individual debt.  Their own forward flow agreement affirms that the information they have is not guaranteed to be authentic and/or accurate.

It sure is funny that the first thing one sees when checking out the arbitration forum is " USE THE ADVICE IN THIS FORUM AT YOUR PERIL! Arbitration is an unproven method.  Please report anyone who is touting it as the only solution to your legal problems."

You give a lot of good help to people in TX, but that does not equate to any other state (except CA).  In other states, none of the usual strategies work as well as arbitration when facing a JDB.  Even in TX, the arbitration method does work when properly used.  The nonsense you quoted from the arb forum was put there many years ago by someone with a grudge against the people who were first to discover the arbitration strategy, which was new and unproven at the time.  Today, we know very well how much it works.  As with everything in law, it is always subject to change, but for now, I would use arbitration 100% of the time if I needed to defend myself.

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13 hours ago, texasrocker said:

It certainly does work, little child.  I would bet anything that this defendant would have won on appeal.  I don't know what planet you are getting such information from but in Texas cases are decided based on case law and legal precedents set on previous appeals rather than assumptions and  speculation.

You may know the debt was yours but you, the court reporter and everyone else in the court have no way of knowing that PRA purchased the debt based on the "evidence" they have shown without even considering finding something in a dumpster or forging any documents.  I have yet to see even a single case where the JDB had solid proof that they purchased any individual debt.  Their own forward flow agreement affirms that the information they have is not guaranteed to be authentic and/or accurate.

It sure is funny that the first thing one sees when checking out the arbitration forum is " USE THE ADVICE IN THIS FORUM AT YOUR PERIL! Arbitration is an unproven method.  Please report anyone who is touting it as the only solution to your legal problems."

I'm sure the @CSexton311did his best.   Since we were not in the courtroom, we don't know what was argued by either party, so it's not definite that he would have won on appeal.

I commend you on the research and time you took to compose your suggested Answer and Plea to the Jurisdiction.    In that Answer, you cite McCamant v. Batsell, a TX Supreme Court ruling that is over 125 years old.    That ruling was handed down before credit cards were in existence.   Courts must take  changing times and technology into consideration. 

Based upon the county listed on the complaint served to the OP, an appeal would be with the 14th District Court of Appeals.  That court, along with other TX appeals courts,  has ruled that it is proper to bring a credit card debt under an account stated cause of action. 

We have previously addressed this issue and held that account stated is a proper cause of action for a credit card collection suit.   Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 298 (Tex.App.-Houston [14th Dist.] 2010, no pet.)  Because an agreement on which an account stated claim is based can be express or implied, a creditor need not produce a written contract to establish the agreement between the parties; an implied agreement can arise from the acts and conduct of the parties. Id. See  McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 763 (Tex.App.-Waco 2009, no pet.).

Also, as you know, TX courts allow 3rd parties to authenticate business records.   We know that's a problem.

Arbitration is not cited as the "only" solution.  It's being suggested as a course of action that has resulted in dismissals for many due to the fact that JDBs will rarely arbitrate and some OCs will dismiss rather than arbitrate for smaller debts.

At one time, I was not a proponent of arbitration but now I do support it under certain circumstances because it does appear that JDBs do not want to arbitrate debt collection lawsuits.  A MTC seems to be a more successful and expeditious alternative in most courts.

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2 hours ago, BV80 said:

I'm sure the @CSexton311did his best.   Since we were not in the courtroom, we don't know what was argued by either party, so it's not definite that he would have won on appeal.

I commend you on the research and time you took to compose your suggested Answer and Plea to the Jurisdiction.    In that Answer, you cite McCamant v. Batsell, a TX Supreme Court ruling that is over 125 years old.    That ruling was handed down before credit cards were in existence.   Courts must take  changing times and technology into consideration. 

Based upon the county listed on the complaint served to the OP, an appeal would be with the 14th District Court of Appeals.  That court, along with other TX appeals courts,  has ruled that it is proper to bring a credit card debt under an account stated cause of action. 

We have previously addressed this issue and held that account stated is a proper cause of action for a credit card collection suit.   Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 298 (Tex.App.-Houston [14th Dist.] 2010, no pet.)  Because an agreement on which an account stated claim is based can be express or implied, a creditor need not produce a written contract to establish the agreement between the parties; an implied agreement can arise from the acts and conduct of the parties. Id. See  McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 763 (Tex.App.-Waco 2009, no pet.).

Also, as you know, TX courts allow 3rd parties to authenticate business records.   We know that's a problem.

Arbitration is not cited as the "only" solution.  It's being suggested as a course of action that has resulted in dismissals for many due to the fact that JDBs will rarely arbitrate and some OCs will dismiss rather than arbitrate for smaller debts.

At one time, I was not a proponent of arbitration but now I do support it under certain circumstances because it does appear that JDBs do not want to arbitrate debt collection lawsuits.  A MTC seems to be a more successful and expeditious alternative in most courts.

If everything CSexton311 says is true he (she?) did everything right and the court did everything wrong.  They denied him the right of discovery and pretty much mocked him instead of considering anything he had to say.  When I was in court the judge was carefully reading for a few minutes what I assume was case law after each side said their piece and at the end said he would render his decision within seven days.   Those are excellent traits of a good judge who sleeps on it and does plenty of research to prevent being overturned on appeal.   Therefore there is no doubt in my mind that this would have been a successful appeal.

It has no bearing on the case whether or not the defendant's plea to the jurisdiction and special exceptions is denied or, in the vast majority of  cases, completely ignored by the court.   As I have stated many times the main purpose of these is to give the plaintiff's attorney the impression right out of the gate that they are up against someone who has done plenty of research and knows what they are doing.   

As far as Texas courts allowing 3rd parties to authenticate business records is concerned they can easily be brought down if discovery is worded properly for that purpose.

It certainly appears to me that the poster I quoted was citing arbitration as the only solution.  I was not referring to anyone else.  

I have always agreed that arbitration is a viable defense for those being sued for a relatively small dollar amount.  Other than that I will never be an advocate of arbitration simply because if the plaintiff does decide to go along with it since they are the ones paying then the arbitration committee would naturally be biased in their favor.

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2 hours ago, texasrocker said:

I have always agreed that arbitration is a viable defense for those being sued for a relatively small dollar amount.

JDBs have reportedly walked away from $30,000 debts when faced with arbitration as their only option.

I would tread very carefully when dealing with an OC on anything over $1,000, but arbitration with a JDB is a no brainer, especially with ones like PRA that know what it entails.

You may not think the Adoptive Business Records Doctorine is anything to be concerned about, but I've yet to see one single debt collection case reversed on appeal over a challenge to evidence admitted under this doctrine.  Our top consumer lawyers in AZ haven't been able to overcome it.

But if you have the solution to the magic JDB bullet, let's hear it.

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On 3/8/2017 at 5:09 PM, Harry Seaward said:

You may not think the Adoptive Business Records Doctorine is anything to be concerned about, but I've yet to see one single debt collection case reversed on appeal over a challenge to evidence admitted under this doctrine.  Our top consumer lawyers in AZ haven't been able to overcome it.

But if you have the solution to the magic JDB bullet, let's hear it.

I had never heard of the Adoptive Business Records Doctrine.  I do not think it has been brought up in any Texas cases.  

Unfortunately there is no magic bullet as each state has different rules and procedures and each court has the discretion to render any decision it so desires.   The closest thing to it in Texas is to trap them in discovery where they can't answer without shooting themselves in the foot or by producing the forward flow agreement.

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1 hour ago, texasrocker said:
 

I had never heard of the Adoptive Business Records Doctrine.   I don't believe it has ever been brought up in any Texas cases.

I had never heard of the Adoptive Business Records Doctrine.  I do not think it has been brought up in any Texas cases.  

Unfortunately there is no magic bullet as each state has different rules and procedures and each court has the discretion to render any decision it so desires.   The closest thing to it in Texas is to trap them in discovery where they can't answer without shooting themselves in the foot or by producing the forward flow agreement.

Adoptive Business Records Doctrine is what allows a witness from Company B testify about records created by Company A. It's the 'official' name for the 3rd party authentication you referenced just above the section of your post that I quoted.

It is this Doctrine that JDBs rely on to win their cases in our courts. I didn't find any hits in TX courts on that exact phrase, but I'll bet a donut that arguments against admission of these types of records have been shot down there with a finding that they do not necessarily violate Evid.R 803 and 901 (or equivalent state court rules).

Also, courts have ruled the forward flow agreements don't create a question of the reliability of the records associated with any one particular account.  Unless you have something controlling that says otherwise, I'd hedge my bets on any one particular court coming to the same conclusion. 

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5 hours ago, texasrocker said:

I had never heard of the Adoptive Business Records Doctrine.  I do not think it has been brought up in any Texas cases.  

 

Further, third-party documents can become the business records of an organization and consequently admissible under rule 803(6) if the records are (1) incorporated and kept in the course of the testifying witness's business, (2) the business typically relies upon the accuracy of the contents of the documents, and (3) the circumstances otherwise indicate the trustworthiness of the documents. . Ortega v. CACH, LLC, 396 S.W.3d 622, 627 (Tex. App.-Houston [14th Dist.] 2013, no pet.); Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240-41 (Tex.App.-Houston [1st Dist.] 2010, no pet.) (citing Bell v. State, 176 S.W.3d 90, 92 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd)); see Ainsworth v. CACH, LLC, No. 14-11-00502-CV, 2012 WL 1205525, at *5 (Tex.App.-Houston [14th Dist.] Apr. 10, 2012, pet. denied) (mem. op.).

Personal knowledge by a third party of the procedures used in preparing the original documents is not required when the documents are incorporated into the business of the third party, are relied upon by the third party, and there are other indicators of reliability.  Dodeka, LLC v. Campos, 377 S.W.3d 726, 732 (Tex. App.-San Antonio 2012, no pet.).(citing Simien v. Unifund CCR Partners, 321 S.W.3d 235, 244 (Tex. App.-Houston [1st Dist.] 2010, no pet.).

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15 hours ago, fisthardcheese said:

@CSexton311 I had to go back and refresh my memory on your case... but you said that your court date was a preliminary hearing.  Was that changed somehow?  How did the judge end up ready to make a final judgement at a preliminary hearing?

When I received a letter in the mail to appear in court, it did not specify what it was. It simply said to be at the justice court on this particular day and time. Two days later I went to their office and asked if this was a Pre trial and the clerk said yes. Fast forward to a day before the "Pre trial" and I stop in to ask a question about what to expect as far as, would there be a big group of defendants getting called one by one and the judge happened to be sitting there and invited me back to chat. He said the hearing would be whatever he wanted it to be. He said he makes the rules in justice court and it could be just a pre trial or he could decide to litigate it right then and there. The day of,  PRA's representative told the judge he thought this was just a hearing on my plea to the jurisdiction. He didn't even know this was actually going to be the trial either. I felt side blinded. I tried my best but the judge seemed biased from the get go   

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On 3/9/2017 at 12:27 AM, BV80 said:

 

Further, third-party documents can become the business records of an organization and consequently admissible under rule 803(6) if the records are (1) incorporated and kept in the course of the testifying witness's business, (2) the business typically relies upon the accuracy of the contents of the documents, and (3) the circumstances otherwise indicate the trustworthiness of the documents. . Ortega v. CACH, LLC, 396 S.W.3d 622, 627 (Tex. App.-Houston [14th Dist.] 2013, no pet.); Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240-41 (Tex.App.-Houston [1st Dist.] 2010, no pet.) (citing Bell v. State, 176 S.W.3d 90, 92 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd)); see Ainsworth v. CACH, LLC, No. 14-11-00502-CV, 2012 WL 1205525, at *5 (Tex.App.-Houston [14th Dist.] Apr. 10, 2012, pet. denied) (mem. op.).

Personal knowledge by a third party of the procedures used in preparing the original documents is not required when the documents are incorporated into the business of the third party, are relied upon by the third party, and there are other indicators of reliability.  Dodeka, LLC v. Campos, 377 S.W.3d 726, 732 (Tex. App.-San Antonio 2012, no pet.).(citing Simien v. Unifund CCR Partners, 321 S.W.3d 235, 244 (Tex. App.-Houston [1st Dist.] 2010, no pet.).

The plaintiff's attorney will always try to spring these on the defendant as their ace in the hole so we need to shoot it down early in discovery before they get a chance to spring.   If you carefully read Simien  you will see that it requires the accuracy of business records to be reasonably relied upon.  

In first set of discovery this will be addressed in interrogatories, for example- "If you contend that any employee, officer, agent or representative of plaintiff has personal knowledge of the record keeping systems of the Original Creditor and is qualified to offer testimony as custodian of records for the Original Creditor in this case, state the factual and legal basis for your contention."   " Identify  all representations or claims made by the Original Creditor and relied upon by you in which the Original Creditor represented that the business records of the subject account were accurate or reliable"

In Request for Production, "If you contend that you relied upon the accuracy of the original creditor's business records in purchasing the account, produce all of the documents or tangible things you reviewed prior to purchasing the account that caused you to believe the records were accurate or reliable."  "If you contend that the Original Creditor's business records are reliable because the Original Creditor was under a legal duty to keep accurate records or that the Original Creditor faced a risk of business loss if it did not keep accurate records, produce a copy of all documents and tangible things upon which you base this contention."

In Request for Admissions,   "Admit that no employee, agent or representative of the plaintiff is or ever has been a custodian of records for the Original Creditor on the account at issue in this lawsuit"  "Admit that no employee, agent or representative of Plaintiff has personal knowledge of Original Creditor's record keeping of any records pertaining to Defendant"

They cannot answer any of these without setting themselves up to lose the case so they will conjure up excuses to object to them.  This is the first stage of their downfall.   The next step is to threaten with a motion to compel the answers and the forward flow agreement.   Now their ace in the hole is gone. 

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2 hours ago, CSexton311 said:

the judge happened to be sitting there and invited me back to chat. He said the hearing would be whatever he wanted it to be. He said he makes the rules in justice court

After hearing that I would have objected to everything on trial day and then appealed.  The Judge is still bound by the law and essentially what he told you was regardless of the law he was going to do what he wanted to.  He also basically told you that had you hired an attorney it would have been different because the lawyer would have held the Judge to the law as well but he knew you didn't know how to do that. Sadly, I have heard that about the Judge up in Denton before.  

I can tell you that Judge Hubner in Irving Part 4 is extremely fair and when I sued a CA there was a pre-trial AND a trial.  She did it according to Texas law and did not make up the rules as she saw fit.  She even held opposing counsel to the law as well.  Not all judges are like the one you got but unfortunately for consumers many are.

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