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Being Sued by Crown Asset Management Please help


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1. Who is the named plaintiff in the suit?

Crown Asset Management LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Jenkins, Wagnon & Young P.C.

3. How much are you being sued for?

$3200  plus attorneys fees and court cost

4. Who is the original creditor? (if not the Plaintiff)

Citibank NA

5. How do you know you are being sued? (You were served, right?)

Served

6. How were you served? (Mail, In person, Notice on door)

In Person

7. Was the service legal as required by your state?

Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

Texas, Galveston County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

maybe May/June 2013

11. What is the SOL on the debt? To find out:

4 years

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

waiting on my answer by April 10

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

no

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

no

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

14 days from being served

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

no evidence

17. Read this article:

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petition on debt claim

1.  Discovery,  discovery in this case will be conducted by motion pursuant to Rule 500.9 of the texas rules of civil procedure

2. parties,  plaintiff is Crown asset management llc, whose business address is,  plaintiff has no drivers license or social security number as set in section 30.014 of the texas civil practice and remedies code.

       Defendant is xxxxxxxxxxxx who may be served with process at xxxxxxxxxxxx and whose last known telephone number xxxxxxxxxxx

3. Account History,  plaintiff is the owner and holder of this account.  the account originated with Citibank, n.a. under account number ************** The account was opened on august 28, 2012 and charged off on October 07, 2013  The account was assigned to plaintiff on July 20, 2016.  The prior owner is Citibank, n.a.

4.  Debt,    defendant entered into a credit agreement in connection with the account number***************.  Plaintiff is the owner and holder of the credit agreement executed by the defendant, and is entitled to receive all the money due under its terms.  Defendant's failure to pay the amount owed is a breach of the parties' agreement and plaintiff is entitled to prevail under  breach of contract, account stated or  quantum meruit

5. Default..  Defendant defaulted in paying the credit agreement and the account was subsequently charged off on October 7, 2013.  The principal balance due $3200

6.  Conditions Precedent.  All conditions precedent have been performed or have occurred

7.  Attorney's Fees.  Defendants default has made it necessary for plaintiff to employ the undersigned attorney to file suit.  This claim was timely presented to defendant, and it remains unpaid.  Plaintiff seeks its reasonable and necessary attorney's fees as allowed by law.

8.  PRAYER

Plaintiff Prays That:

a.  Defendant be cited to appear and answer herein;

b. Plaintiff be granted judgment for $3200.00 as the principal amount due;

c.  Plaintiff be granted judgment for reasonable and necessary attorney's fees;

d.  Plaintiff be granted judgment for all cost of court; and

e.  Plaintiff be granted all further relief to which plaintiff may be entitled.

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I see my old friends from Lubbock, Jenkins, Wagnon & Young are still at it; haven't seen them in these parts for a few years.  Dan Young was the lowlife lawyer in my first of three lawsuits from  JDB's  and holds the title of being the inspiration for the first notch in my Winchester.  What I remember most about him is filing the suit and then doing nothing for over a year and then springing a MSJ on me.  After many very late nights of studying I was proudly able to defeat it and his rent-a-lawyer who made a big scene stomping her feet out of the courtroom.     

Since you were just given 14 days to respond I am assuming it is a JP court so you will have to get the court's approval before sending discovery.

Copy the following and deliver in person or mail it to the court via certified mail in the same format of the original petition that you were served.  Make a copy of the first page and ask the court clerk to file-stamp it for you (if you are mailing it include a SASE.)
Send a full and complete copy via certified mail to the attorney's office who filed the lawsuit.

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 claims are barred by the applicable statute of limitations.

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 " The account was assigned to plaintiff on July 20, 2016. " See Plaintiff's Original Petition in paragraph 3. 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.

SPECIAL EXCEPTION TO QUANTUM MERUIT

Quantum Meruit it is an implied contact theory where an express contract already exists. In addition,
in order to establish a quantum meruit claim a plaintiff must establish that it provided services or
goods directly to the defendant.  See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944
(Tex. 1990)

1. CREDITOR DID NOT SELL GOODS OR PROVIDE COMPENSABLE SERVICES

A quantum meruit claim requires, at a minimum, that the claimant have furnished valuable materials or
services to the party from whom it is seeking recovery. Credit card issuers do not sell goods;  nor
did they provide services that meet the definition of quantum meruit under longstanding  appellate
precedents.

2. A  CARDMEMBER/ACCOUNT AGREEMENT GOVERNS THE RELATIONSHIP BETWEEN BANK AND CUSTOMER

In general, a party may recover under the doctrine of quantum meruit only in the absence of an express
contract covering the services or materials furnished. The existence of an express contract does not
preclude recovery in quantum meruit for the reasonable value of services rendered and accepted which are
not covered by the contract, but this exception has no application in the context of credit cards, -- at
least not credit cards issued by banks which have no business dealings with their customers that would
not be based on, and governed by, the applicable account agreement.

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:

CERTIFICATE OF SERVICE

I do hereby certify that I will mail a true and correct copy of this ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS to the Plaintiff on the _____ day of ____________________, 20____.

Signed____________________________________

Name:
Address:
Phone:

 

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When you take your answer to the court ask the clerk how they prefer you to go about requesting the court's approval to begin discovery.  Let me know if they ask to examine what you plan on sending and I will PM it to you.  Otherwise let me know when you have received their approval and I will get it to you then to send to the plaintiff's attorney.

Order this book and study it every day as if you were cramming for a final exam-
http://www.amazon.com/OConnors-Texas-Rules-Civil-Trials/dp/1598391828/

Read this board extensively every hour you are awake and not at your job for a few weeks and learn how we beat these idiots.

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Took the answer to the court house this morning, court date to be set 45 days sent the stamped copy certified postage  with return signature to the Attorney, I asked if I needed permission to file motion for discovery I did not and will need to file it before the court date!  Thanks for all the help.  will keep you posted.

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2 hours ago, DSH61 said:

Took the answer to the court house this morning, court date to be set 45 days sent the stamped copy certified postage  with return signature to the Attorney, I asked if I needed permission to file motion for discovery I did not and will need to file it before the court date!  Thanks for all the help.  will keep you posted.

Who told you that you don't need permission to conduct discovery.  According to rule 500.9, you do.

Rule 500.9.  DISCOVERY

(a) Pretrial Discovery.  Pretrial discovery is limited to that which the judge considers reasonable and necessary.  Any requests for pretrial discovery must be presented to the court for approval by written motion.

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4 hours ago, DSH61 said:

Took the answer to the court house this morning, court date to be set 45 days sent the stamped copy certified postage  with return signature to the Attorney, I asked if I needed permission to file motion for discovery I did not and will need to file it before the court date!  Thanks for all the help.  will keep you posted.

 

1 hour ago, BV80 said:

Who told you that you don't need permission to conduct discovery.  According to rule 500.9, you do.

Rule 500.9.  DISCOVERY

(a) Pretrial Discovery.  Pretrial discovery is limited to that which the judge considers reasonable and necessary.  Any requests for pretrial discovery must be presented to the court for approval by written motion.

Apparently the clerk told him to go ahead and send the discovery as long as it was before the court date.  I have seen this happen quite a few times and so far it has not caused any problems but of course adhering to the rules is always best.   A savvy JDB attorney could use it as an excuse to not answer as they would have received a copy of the motion.  At the very least it should have been in writing from the clerk.

Here is my Motion to Conduct Discovery so you can do it properly-

MOTION SEEKING COURT'S PERMISSION TO CONDUCT DISCOVERY

Comes now, Defendant ______________ and files his (her) Motion to request permission from the honorable Court to begin Level 1 discovery pursuant to Texas Rules of Civil Procedure Rule 190.2 and Rule 500.9

Defendant hereby asks to send Plaintiff Request for Disclosure (pursuant to TRCP Rule 194), request for admissions, production of documents, and interrogatories relative to how Plaintiff intends to prove up the assignment of the alleged debt they claim to own which is the subject of the lawsuit.  Defendant asserts that Plaintiff lacks standing to bring forth this lawsuit; therefore discovery is reasonable and necessary in order to develop his (her) defense and to minimize taking up the Court's valuable time.

PRAYER

Defendant prays that the honorable Court grant his (her) Motion For Permission To Conduct Discovery and grant Defendant any other relief that he (she) is entitled to.

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The Clerk told me but she also left 2 pages out when she copied the answer that she handed to me to send to the Plaintiff, I didn't notice this at the time but when I came back home and had a look at the docket papers I went to look at the answer I had just handed in and there were 2 pages missing, so I had to return and get them to stamp another copy to go to the plaintiff.  So I I will phone tomorrow and double check with them as I don't want to leave any step out.  Thanks!

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This is Citibank's most recent credit card/arbitration agreement, and it retains the small claims court carve out for arbitration.  Is that correct @fisthardcheese

"Arbitration limits • Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court. "

 

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Yes, Citibank has a problem agreement to arbitrate in "small claims".  If Texas JP court is also called "small claims", then it could be a reason to have the MTC denied.

If it were me, I would still file an MTC and hope the JDB attorney is too caught up in having to deal with something other than a default judgement to even notice and oppose based on that language in the agreement.  However, I would also be prepared to have the MTC denied and go with plan B by attempting to use the @texasrocker method with discovery.

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3 hours ago, fisthardcheese said:

Yes, Citibank has a problem agreement to arbitrate in "small claims".  If Texas JP court is also called "small claims", then it could be a reason to have the MTC denied.

It is no longer called "small claims" but technically that is what it is.  One of the results of the new rules enacted in 2013 was to combine small claims into JP courts.  http://www.jtexconsumerlaw.com/V17N1/V17N1_SmallClaims.pdf

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1 hour ago, texasrocker said:

It is no longer called "small claims" but technically that is what it is.  One of the results of the new rules enacted in 2013 was to combine small claims into JP courts.  http://www.jtexconsumerlaw.com/V17N1/V17N1_SmallClaims.pdf

Are they still separate courts, in that a plaintiff has a choice whether to bring their case in the small claims division vs. regular JP Court?

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3 hours ago, DSH61 said:

I am in the process of finding the User Agreement for 2012 when the account was opened.  As you mentioned the change was in 2013  Thanks everyone!

The date of the cardmember agreement does not matter in relation to the change in the TX rules.

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12 hours ago, Harry Seaward said:

Are they still separate courts, in that a plaintiff has a choice whether to bring their case in the small claims division vs. regular JP Court?

ustice Court Suits
white.space
About the Justice Court

Creation and Jurisdiction
white.spaceThe Justice Courts in Texas were created under the Texas Constitution and are governed by the provisions of Chapter 27 of the Texas Government Code.  Prior to August 31, 2013, Justices of the peace also sat as judges of the small claims courts.  Effective August 31, 2013, small claims cases are filed in the Justice Courts and governed by procedural rules adopted by the Supreme Court.
Justice Courts have jurisdiction of civil matters in which the amount in controversy is no more than $10,000, exclusive of interest and court costs, but including attorney fees, if any.  Justice Courts also have jurisdiction of suits to foreclose mortgages and enforce liens on personal property in which the amount in controversy is otherwise within the Justice Court’s jurisdiction, and of suits relating to enforcement of a deed restriction of a residential subdivision that does not concern a structural change to a dwelling.  
Justice Courts have jurisdiction of debt claim cases, claims for the recovery of a debt brought by an assignee of a claim, a financial institution, a debt collector or collection agency, or a person or entity primarily engaged in the business of lending money at interest.  

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@fisthardcheese  how do I file a MTC?   and as you mentioned before if I file this MTC and it is denied can I then file for Discovery?

What do I send to the Plaintiffs Attorney?  I know I must send this first before I file MTC with the court? 

Do I only send the part which pertains to Arbitration in the agreement or do I need to send all of the agreement?

In Citibank card member agreement for 2016 AAA is the arbitrators  Do I request arbitration with them before I file the MTC?

 

Thanks for Information

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You don't send anything before you file your motion.  Type up your motion, file it with the court and send a copy to the attorney.  Include the full card agreement with your motion.  AAA doesn't matter until after the court grants your motion to compel arbitration.  After that, you file with AAA.

This thread has all the information on filing your MTC with a good sample on how it should look:

 

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