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Zum36

Sued in Texas by TD Bank, USA--Rausch Sturm(law firm)

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@texasrocker

Please HELP!!!:please:

I was sued a few days ago by TD Bank, but there was not enough information provided in the complaint to identify the debt owed. In addition to providing a response to the court, the plaintiff (TD Bank) is requesting first discoveries including production, disclosure, admission, interrogatories. I have no idea how to respond to these??? 

1. Who is the named plaintiff in the suit?

 TD Bank, USA

2. What is the name of the law firm handling the suit?

Rausch Sturm; Attorney is Jesse Lockhart

3. How much are you being sued for?

$1,048.74

4. Who is the original creditor? If not the plaintiff?

TD Bank, USA

5. How do you know you are being sued?

I was served on 5/22/19

6. How were you served?

At home around 4:30 p.m.

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

I think so, she asked if I was the person listed on document. And then asked me to read the first line at the top, before she walked away.

8. What was your correspondence with the people suing you before you think you were sued?

No correspondence with TD Bank prior to the lawsuit

9. What state and county do you live in?

Texas, Wichita County

10. When is the last time you paid your account?

According to the petition, my last payment was made in February 2019, but I am unsure of what the debt is actually for. I have never heard of TD Bank prior to being served papers.

11. When did you open the account?

Allegedly, June 2016.

12. What is the SOL on the debt?

4 years in Texas, but I am not 100% certain what the debt is...

13. What is the status of the case?

Filed 5/10/2019

14. Have you disputed the debt with the credit bureaus?

No, I was unaware of the debt

15. Did you request debt validation before the lawsuit was filed?

No

16. How long do you have to respond?

The Monday that follows 20 days from the citation’s date of service

17. What evidence was provided with the summons?

The only information that they gave me was TD Bank, amount owed, when account was opened, and the alleged date of last payment.

In my initial post, I included information about an account that I assumed the lawsuit was in reference to. After reviewing the information on the petition further, I am unable to verify that I am responsible for this debt. 

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You're being sued by the original creditor. They'll have what they need to win the lawsuit. Best thing to do is negotiate a settlement with them now before attorney's fees get any higher and you end up with a judgment.

The good news is that being in Texas, they can't garnish your wages, so you've got that going for you. 

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1 hour ago, Zum36 said:

I have spent the last several days doing research over Texas law, how to answer, and how to write a response for discovery requests.

If they sued you in Justice Court they cannot do discovery without the permission of the court.  Given that this is the original creditor the need for discovery is very low because they have all the proof they need to prevail already without the need for affidavits or bill of sale of accounts.

1 hour ago, Zum36 said:

I was able to pull up the email that confirmed the payment plan, and noticed it had an old account number listed as payment source for monthly drafts--that account had been closed for a few years. I would not have chose that payment method. So, basically they were attempting to pull funds from a closed account.

Unfortunately the burden was on you to immediately correct that payment method and your still having proof via that email that they did indeed communicate the plan to you makes it worse that you did not react. In their eyes and the court's you have defaulted twice.

1 hour ago, Zum36 said:

Please help!

As Harry said:  settle.  This is not difficult at all for them to win.  If you have to borrow from family to settle in full do that and pay family back.  I seriously doubt they will take payments now after 2 defaults.

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@Clydesmom

For one, without typing a novel on here...I no longer use that email address, so I never even saw the email until I accessed it a few days ago when I was trying to figure out what was going on. Other than that, the only other emails that I could find in that account was another automatically generated email showing that the reoccurring payment plan had been cancelled.  

Not saying that I am not responsible for the debt, but I did not have anyway of knowing anything was going on. How would I? I stay super busy during the school year because I am a teacher, I let my husband keep up with our budget and bills, etc... I set it up with the correct bank account, and I didn't think anything about it until this was brought to my attention... Initially, I was under the impression that something was wrong with my bank account, or they were not accepting my payments. 

Anyways, I came on here to get advice on how to proceed with the court, not for someone to tell me that the debt is mine or who I should get money from to pay it.

My concern is also whether or not this is the actual creditor, there was not ANY evidence that would support their complaint. In fact, they reported that I made my last payment in February 2019. That is incorrect.

I just need help with someone from Texas please... so I can file an answer... Thank you so much!  

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1 hour ago, Harry Seaward said:

You're being sued by the original creditor. They'll have what they need to win the lawsuit. Best thing to do is negotiate a settlement with them now before attorney's fees get any higher and you end up with a judgment.

The good news is that being in Texas, they can't garnish your wages, so you've got that going for you. 

How can I be sure that TD Bank is the one actually suing me? The law firm that filed the lawsuit are debt collectors too. They specifically state the following in the last section of the petition, titled "Miscellany":

"The undersigned attorneys hereby give notice that they and Plaintiff are attempting to collect a debt and any information obtained will be used for that purpose. Plaintiff's attorneys are debt collectors."

They are also requesting that I send first discovery requests to their office within 50 days. It also says that if I fail to send a written response to the request for admissions, the request will be deemed admitted without a court order. 

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3 minutes ago, Zum36 said:

How can I be sure that TD Bank is the one actually suing me?

Who does the complaint identify as the plaintiff? That's who is suing you. 

5 minutes ago, Zum36 said:

"The undersigned attorneys hereby give notice that they and Plaintiff are attempting to collect a debt and any information obtained will be used for that purpose. Plaintiff's attorneys are debt collectors."

This language is standard CYA.  It doesn't mean the TD is not the plaintiff. 

7 minutes ago, Zum36 said:

It also says that if I fail to send a written response to the request for admissions, the request will be deemed admitted without a court order. 

Yes, you need to respond to their requests. I was saying you're not going to uncover anything interesting in what you ask them for. 

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4 minutes ago, Zum36 said:

How can I be sure that TD Bank is the one actually suing me? The law firm that filed the lawsuit are debt collectors too. They specifically state the following in the last section of the petition, titled "Miscellany":

Yes, attorneys can be debt collectors.   However, that does not mean they purchased the debt.  Not all debt collectors are debt buyers that purchase accounts.  Most collection agencies and debt collectors simply collect for the original creditors.   

In your case, the law firm is representing the bank.  It’s just the same as if you were to sue someone and hired an attorney to represent you.  You would be named as the plaintiff.  The attorney would do all the work and represent you in court.  

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57 minutes ago, Zum36 said:

I no longer use that email address, so I never even saw the email until I accessed it a few days ago when I was trying to figure out what was going on. Other than that, the only other emails that I could find in that account was another automatically generated email showing that the reoccurring payment plan had been cancelled.  

Not saying that I am not responsible for the debt, but I did not have anyway of knowing anything was going on. How would I? I stay super busy during the school year because I am a teacher, I let my husband keep up with our budget and bills, etc... I set it up with the correct bank account, and I didn't think anything about it until this was brought to my attention... Initially, I was under the impression that something was wrong with my bank account, or they were not accepting my payments. 

Without typing a novel:  none of that matters now that they sued you and the court REALLY does not care.  In fact that payment arrangement can be used as evidence against you that the account is yours.

58 minutes ago, Zum36 said:

Anyways, I came on here to get advice on how to proceed with the court,

Then answer the question:  are you being sued in Justice Court or State Court?  It makes a HUGE difference as there are different rules of civil procedure in Texas for both.

59 minutes ago, Zum36 said:

I just need help with someone from Texas please... so file this answer...

I used to live there and successfully sued a CA.  I can't help you if you won't provide the necessary information to actually answer the suit.  Enjoy your judgment.

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16 minutes ago, Clydesmom said:

Then answer the question:  are you being sued in Justice Court or State Court?  It makes a HUGE difference as there are different rules of civil procedure in Texas for both.

 District Court.

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27 minutes ago, Clydesmom said:

Without typing a novel:  none of that matters now that they sued you and the court REALLY does not care.  In fact that payment arrangement can be used as evidence against you that the account is yours.

Honestly, I am not 100% sure that the account that I was referring to earlier is even the one that I am being sued for. 

I just assumed that it was: 

After researching TD Bank on Google, I realized that they were connected to Target credit card.

All correspondence that I received about my account with Target has been from TargetCardServices. The address provided in the emails that I have from this account are different from the one on the petition I was served. 

Something else that makes me question whether this is the same account is the balance that was in the email I had, and the one stated in the petition are different. The last payment dates do not match either. Does any of this make a difference when responding to a complaint? 

Thanks!

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1 hour ago, Clydesmom said:

I used to live there and successfully sued a CA.  I can't help you if you won't provide the necessary information to actually answer the suit.  Enjoy your judgment.

And sorry! After I went back, I noticed my typing error "so file this answer", I did not mean to type that. It was supposed to say "so that I can file an answer"... Ooops! That sounded really rude. Sorry about that!

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15 minutes ago, Zum36 said:

The address provided in the emails that I have from this account are different from the one on the petition I was served. 

That is because the address that payments go to is very different from the one that handles litigation.  Totally different departments within the same creditor.

16 minutes ago, Zum36 said:

Something else that makes me question whether this is the same account is the balance that was in the email I had, and the one stated in the petition are different. The last payment dates do not match either. Does any of this make a difference when responding to a complaint? 

When answering the complaint:  no.  When defending the suit:  yes. Is the one in the petition higher or lower?  Also, the balance could be different because it is the OC they can continue to add on interest, late fees, and over the limit fees until charge off.  

56 minutes ago, Zum36 said:

District Court.

Okay, they sued in District Court because they do not have to get permission to do discovery.  That is the 100 Rules in Texas Court.  File an answer with a general denial of all counts formatted the same way the papers are you were served with.  The next thing is to understand the defenses you read about on sites like this are based upon a junk debt buyer suing NOT an original creditor.  Unfortunately you do not have an affirmative defense.  There are only 2 for an OC suit:  identity theft or the SOL being expired.  Since you defaulted in 2018 the SOL in Texas is very much alive.  Worse, entering into a new payment agreement likely re-aged it as well.

 

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22 minutes ago, Clydesmom said:

When answering the complaint:  no.  When defending the suit:  yes. Is the one in the petition higher or lower?  Also, the balance could be different because it is the OC they can continue to add on interest, late fees, and over the limit fees until charge off.  

The balance in the petition is higher,  $18 difference. 

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27 minutes ago, Clydesmom said:

Okay, they sued in District Court because they do not have to get permission to do discovery.  That is the 100 Rules in Texas Court.  File an answer with a general denial of all counts formatted the same way the papers are you were served with.  The next thing is to understand the defenses you read about on sites like this are based upon a junk debt buyer suing NOT an original creditor.  Unfortunately you do not have an affirmative defense.  There are only 2 for an OC suit:  identity theft or the SOL being expired.  Since you defaulted in 2018 the SOL in Texas is very much alive.  Worse, entering into a new payment agreement likely re-aged it as well.

So, I need to file an answer with a general denial of all counts? Do I need to do anything in regards to the discovery requests? TY

 

 

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13 hours ago, Zum36 said:

So, I need to file an answer with a general denial of all counts?

Yes.

13 hours ago, Zum36 said:

Do I need to do anything in regards to the discovery requests?

If you do not answer their discovery requests they are deemed admitted and it is a fast track to summary judgment.  

You need to send yours back to them.  At the very least you need the last 6 months of statements prior to charge off of the account alleged in the complaint.  There is not a ton of discovery you can do against an original creditor because they have all their own records and can attest to them.

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