Sued in Texas for CC Debt

[HumbleLearner]

I'm new to all this and looking for resources. I purchased O'Connor's Texas Rules Civil Trials 2016 and am waiting for it to arrive.
 - What should my first response to Texas  Justice of the Peace be?
Please PM me or post links to the following:
 - Request for Discovery
 - Request for Production
 - Letter that I should send via certified mail to the plaintiff's attorney stating that if answers to my discovery are not received within seven days then I intend to file a motion to compel the answers

This is what I have gathered for my first response to the court:
 - "Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim."
 - "Plaintiff’s claim demands monies for an alleged debt for which no proof of said debt, nor proof of ownership of said debt, has been verified and exhibited."
 - "The plaintiff is required, by law, to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiff’s claim that he is the present owner of the cause of action."
 - Per Marine Bank, 25 Pa. D. & C.3d at 267-69. A "defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what items he can contest."

Thanks in advance for any help you provide.  

[texasrocker]

You must file your answer before the deadline and cannot begin discovery until getting the JP court's approval.  A general denial is sufficient. Throwing in all that jargon about individual transactions will just result in starting off on the wrong foot and making a fool of yourself before the court.

[HumbleLearner]

Thanks @texasrocker. I'm sorry to bother, but if you have time, I have a couple questions about the request for discovery

• Do you have any pointers on how I should phrase my request to get JP court's approval for discovery?
• Should I include in my request to JP court a copy of the discovery questions I intend to send to plaintiff?
• I paid both these debts in full, should I include copy of bank statement showing payment in my request for discovery?

I'm going to stay on top of this and get my responses in well before the 3/9 deadline.

 

[texasrocker]

Each court has their own procedures.  You need to ask the clerk how they prefer you to go about requesting to begin discovery.  They may ask to first review the discovery; some do, some don't.

If you can indeed prove that you paid these off then that is your ace in the hole.  It will serve as grounds for dismissal in due time.  Concentrate on filing your answer now.

[BV80]

16 hours ago, HumbleLearner said:

"The plaintiff is required, by law, to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiff’s claim that he is the present owner of the cause of action."

Rausch Sturm is a law firm.  They don't buy debts but merely represent the plaintiff in court.  In your case, the plaintiff is Capital One, an original creditor.  An original creditor does not have to prove ownership of the debt.

16 hours ago, HumbleLearner said:

Per Marine Bank, 25 Pa. D. & C.3d at 267-69. A "defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what items he can contest."

It's actually Marine Bank v. Orlando.  That is an old court ruling (1982) from Erie County in Pennsylvania.   Even if the ruling is still valid, it's only precedent in the Erie County court.  That means no other court anywhere, either in Pennsylvania or the rest of the U.S., is required to follow that ruling.   It would mean nothing in a TX court.

I don't where you got your information, but whoever (or whatever site) provided it has no clue and is providing bad advice.  I'd avoid taking any advice from that person or site.

[texasrocker]

That changes everything.  I failed to notice it was an OC case.  #%^* tiny font size in that form!

Do not utilize anything originating from me on this board as it is meant specifically for dealing with junk debt buyers not original creditors.

 

[texasrocker]

2 minutes ago, texasrocker said:

 

 

[Goody_Ouchless]

Start preparing for settlement. You have no chance of winning in court. You are lucky that your state doesn't allow wage garnishment, so if you can live on cash with no bank account...

 

[debtzapper]

 

TX Garnishment Law

E. General Garnishment Exemption and Execution Welcome to Texas, a debtor’s haven. Texas exemptions regarding garnishment and writs of execution are numerous and generous compared to other states.

Here is a quick review: 1. Wage Garnishment - Not allowed for creditors, but allowed for child support claims. 2. Bank Garnishment – Allowed, but not as to funds that can be traced to an exempt source, i.e., Social Security or Retirement money. 3. Homesteads – Generally 100% exempt, except for: (1) purchase money liens, (2) mechanic’s and materialman’s liens for work on that property, and (3) taxes. Urban homesteads shall not exceed 10 acres and Rural homesteads 200 acres for a family, or 100 acres for a single adult. 4. Automobiles – Generally 100% exempt from the claims of third party creditors. 5. Pensions and Retirement Accounts – Exempt 6. Tools of the Trade – Exempt, i.e., tools, equipment, books, machines used in a trade or profession. 7. Jewelry – not to exceed 25% of the dollar limit for personal property - $60,000.00 for a family, $30,000.00 for a single adult. 8. Various other items – Exempt: home furnishing, heirlooms, food farming and ranching vehicles, firearms, sporting equipment and certain animals. 9. A dollar cap on exempt personal property: $60,000.00 for a family and $30,000.00 for a single adult

From the same website

Consumer collections in Texas are difficult. Not only are there numerous protections provided by Texas law, but Texas judges are reluctant to enforce their own orders, which debtors disobey, such as an order to appear at a deposition or produce documents. Holding a judgment debtor in contempt and having the debtor arrested is very rare in state court.

Bank garnishments can be effective, but require the filing of a new lawsuit against the garnishee bank and the creditor is responsible for the bank’s legal fees in answering the garnishment action. However, if there is little or no money in the debtor’s account, many banks will waive their attorney’s fees if the creditor will agree to dismiss the garnishment action

[Goody_Ouchless]

Are wages considered an "exempt source" for purposes of bank garnishment? If so, then it's just a matter of living with no credit.

 

[texasrocker]

Wages cannot be garnished but if one's paycheck is deposited into a bank account then they can get it.

[Clydesmom]

1 hour ago, Goody_Ouchless said:

Are wages considered an "exempt source" for purposes of bank garnishment? If so, then it's just a matter of living with no credit.

 

Nope. The only exemption on funds in a bank account in Texas are the federal ones:  SSDI, SSA, pensions etc.  Once a wage earned paycheck hits the bank it is just money and can be levied.  Worse the levy is not limited to 25% like a garnishment they can take the entire account if none of the funds are exempt.  

[debtzapper]

Also, in TX, it takes time and effort to garnish someone.

http://www.ghtrial.com/portalresource/lookup/wosid/cp-base-4-6519/media.name=/2013.11.6 Garnishment Paper - WW.pdf

[Goody_Ouchless]

This is one those unfortunate cases where OP was DOA.

 

[Clydesmom]

On 2/24/2018 at 6:06 PM, HumbleLearner said:

- "The plaintiff is required, by law, to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiff’s claim that he is the present owner of the cause of action."

There is no assignor.  Cap1 is the original creditor.  Delete this.

On 2/24/2018 at 6:06 PM, HumbleLearner said:

 - Per Marine Bank, 25 Pa. D. & C.3d at 267-69. A "defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what items he can contest."

Defendants get bogged down in the bad advice that a creditor suing you must produce signed charge slips or proof of each transaction to prevail.  NOTHING could be farther from the truth.  The actual signed receipts only matter if you are alleging fraud and you didn't open the account or use it.

23 hours ago, HumbleLearner said:

I paid both these debts in full, should I include copy of bank statement showing payment in my request for discovery?

If both of these debts have been paid then you need to assert that in your answer.  No debt is owed as payment to the Plaintiff has already been made. 

 

[HumbleLearner]

I won both cases.

[HumbleLearner]

attaching some resources for others.

DEFENDANT'S ORIGINAL ANSWER.docx

MOTION SEEKING COURT'S PERMISSION TO CONDUCT DISCOVERY.docx

[texasrocker]

I am assuming that if you won it was because you had proof that you had already paid the debt. 

Using my general denial form is fine but as I said earlier in this thread do not ever use that original answer, plea to the jurisdiction and special exemptions when being sued by an original creditor.  It is specifically designed for those who are sued by a junk debt buyer as they lack sufficient evidence that they own the debt.  On the contrary an original creditor has all the evidence needed.