Business records in Texas

[cjtx2]

I was doing some research on business records admissibility in Texas based on Simien v. Unifund CCR Partners, 321 S.W. 3d 235, 240-45 (Tex .  App. -- Houston [1st Dist.] 2004, no pet.), which basically allows debt collectors to magically turn a debt with incomplete, possibly inaccurate/unreliable records into a valid debt as long as they incorporated the business records for everyday use as stated in an affidavit.

Check out:

https://www.johnstontobey.com/are-your-business-records-admissible/

 

According to the author, depending on where you live in Texas, the courts may be influenced by the Simien opinion, especially in the Houston area.

In Dallas, they use Powell v. Vavro,, McDonald & Assocs,., LLC, 136 SW3d 762, 765 (Tex. App. -- Dallas 2004, no pet.)

In El Paso, they use Riddle v. Unifund CCR Partners, 298 SW3d 780, 783 (Tex. App. -- El Paso, 2009, no pet.)

Both of which require the affiant to have personal knowledge about the way the records are maintained (not created) by the original creditor.

I checked out the Powell case and it was referenced in Castillon v Morgan, No. 05-13-00872-CV (Tex. App -- Dallas 2015). It references the Simien opinion but the outcome is based on Powell.

[texasrocker]

I have had plenty of discussions with the naysayers here regarding Simien. I don't worry about it too much because JDB's have a very hard time attesting that the second business reasonably relied on the accuracy of the first business's records.  That one little word is the key to raising doubt and leaving them dumbfounded.

I also wouldn't be too concerned about which corner of Texas one is in as any Texas precedent is considered fair game anywhere in the state plus an appeal is not likely. 

[Harry Seaward]

17 minutes ago, texasrocker said:

JDB's have a very hard time attesting that the second business reasonably relied on the accuracy of the first business's records. 

....and yet here we are talking about caselaw right from your own backyard that demonstrates just how easy it is. 

[cjtx2]

1 hour ago, texasrocker said:

I have had plenty of discussions with the naysayers here regarding Simien. I don't worry about it too much because JDB's have a very hard time attesting that the second business reasonably relied on the accuracy of the first business's records.  That one little word is the key to raising doubt and leaving them dumbfounded.

I also wouldn't be too concerned about which corner of Texas one is in as any Texas precedent is considered fair game anywhere in the state plus an appeal is not likely. 

I have been successful in the past as well, but I was away for some time and lately I am in the process of re-learning what works now. 

Simien seems to complicate things for defendants and give JDBs an easy win without proper records. I have been looking at your strategy and it looks promising, but I am concerned about hick JP non-lawyer judges who may fail to understand the nuances in Simien.

In looking at robo signed affidavits and their admissibility, I found the case from the attorney general against PRA in 2011 (which was Abbott back then and was filed in Harris county, btw), where he made the case that debt collection is a service under the Deceptive Trade Practices Act (DTPA). He also sued them under the Debt Collection Act (TDCA) as a tie-in statute to DTPA and ended up in a consented order.

This is interesting to me because I am dealing with a business account, so FDCPA and TDCA do not cover non-consumer debt. But the DTPA applies to all consumers whether businesses or individuals.

I have read your comments about TDCA not working anymore. How about DTPA? I like that the standard of proof is one of the lowest if not the lowest.

[texasrocker]

16 hours ago, cjtx2 said:

Simien seems to complicate things for defendants and give JDBs an easy win without proper records. I have been looking at your strategy and it looks promising, but I am concerned about hick JP non-lawyer judges who may fail to understand the nuances in Simien.

No matter who the judge is there would be a very good chance of that if you weren't familiar with Simien and allowed your case to just creep along all the way to trial (where JDB's love to spring it as their ace-in-the-hole) but if countered early in discovery they cannot answer it because they know their robo-signer took absolutely no measures to determine if the OC's records could be reasonably relied upon.  They just signed that day's stack of affidavits, punched their time card, and went home.  

 

16 hours ago, cjtx2 said:

I have read your comments about TDCA not working anymore. How about DTPA? I like that the standard of proof is one of the lowest if not the lowest.

  What comments are you referring to?  I don't remember ever making any such comment.  A few years ago however a former long time member here was advocating that if one mentions the Texas Finance Code in a DV request then a JDB must provide a lot more information regarding debt validation than the FDCPA requires.  I researched that and found no mention whatsoever in the Texas Finance Code regarding debt validation.  Perhaps that is what you are mistaking it for.

[cjtx2]

7 hours ago, texasrocker said:

  What comments are you referring to?  I don't remember ever making any such comment.  A few years ago however a former long time member here was advocating that if one mentions the Texas Finance Code in a DV request then a JDB must provide a lot more information regarding debt validation than the FDCPA requires.  I researched that and found no mention whatsoever in the Texas Finance Code regarding debt validation.  Perhaps that is what you are mistaking it for.

That must be it. You referred to a long time member still advising to use the Finance Code, which in the context was bad advice.

I see his point. There is no mention of debt validation in Finance Code 392, but there is no time limit to dispute the account under 392.202 after their first communication/dunning letter. Many collectors will ignore a validation request if not sent within 30 days. You can dispute the account as "not mine", which would force the  JDB to provide the equivalent of validation and probably much more than just a verification of the name of the OC and the balance. Also, with validation,  during the time they take to investigate and until they respond to you about a completed investigation (for which they have 30 days), they are not allowed to continue collection activity (reporting to the CRAs).