Ballerina72

Texas PRA Default Ruling: Motion To Set Aside

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Portfolio Recovery Assoc. filed a lawsuit against me in June of 2014. I answered the suit and waited for court to be set. I moved in May of 2017 and forgot to change my address with the courts. I, however, watched the county clerk boards for any sign of a court date and nothing...until I checked today and lo and behold, a default judgment in the plaintiff's favor on October 22, 2019. There was no entry on the clerk's page alerting a court date and I received nothing in the mail (because it was probably sent to the wrong address). I've talked to the clerk and am going into filing a motion to set aside the judgment; trying to figure out why the judge didn't order a DWOP after the case being on the books for over 5 years (Texas law says judge should DWOP after 12 months of no action).  On the motion, I am citing accident or mistake, due to change of address and it has a space to write out meritorious defense to the case. Can I state anything about how long this case sat on file, with no action? The clerk says I have 7 more days to file. Thank you all, in advance!

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I would argue that you rightfully believed there was no need to update the court with you new address after 3 years of inactivity. Also,  the delay in prosecution prejudices you far more than setting aside default prejudices them. 

I would also argue a laches defense since PRA themselves allowed this case to sit idle for 5 years.

The good news is that Texas courts seem more interested in resolving cases on their merits vs. default judgments, so you shouldn't have much problem getting the judgment set aside. From there, i would use arbitration if it's available to dispose of this case.

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

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Thank you, so much, for your reply...I have to return the forms to the clerk, then set the "motion to set aside hearing". Is there a possibility the judge could dismiss before the hearing, upon reading my meritorious defenses?

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Also, you're wouldn't be presenting a "meritorious" defense. Just arguing that so much time has passed that you can't effectively put on a meritorious defense at this point. 

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Gotcha and thank you for the treasure trove of info! Great stuff, right there...however; in Texas, when a citation is answered, since I didn't bring up ARB in my answer to the suit, I waived the right to do so at a later time. I filed a general denial and let it sit. I'm going to get the forms turned in and set a date for court. I assume I'll need to prepare statements (with citation), for the hearing. I also see that the judge may ask if I'm ready to proceed with the original case that day, if he grants my motion. I'm trying, but haven't found anything that states if I can file any other motions, alongside the motion to set aside.

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Thank you, for all of your help! It doesn't look as if I have any other choice than to stay in court because I don't want this default. I was prepared to go to court when they filed, but they never asked for discovery and neither did I. (I should have made the first move, but was involved with defending an MSJ in a different court and didn't want my cases to overlap). I guess at this point, I'm just unsure how it's going to play out and I don't want to make a technical mistake.

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25 minutes ago, Ballerina72 said:

Gotcha and thank you for the treasure trove of info! Great stuff, right there...however; in Texas, when a citation is answered, since I didn't bring up ARB in my answer to the suit, I waived the right to do so at a later time. I filed a general denial and let it sit. I'm going to get the forms turned in and set a date for court. I assume I'll need to prepare statements (with citation), for the hearing. I also see that the judge may ask if I'm ready to proceed with the original case that day, if he grants my motion. I'm trying, but haven't found anything that states if I can file any other motions, alongside the motion to set aside.

Just curious, have you looked to see if you can maybe file a motion to amend your answer?  I think, as long as you haven't engaged in discovery, you should be able to amend your answer or provide a supplemental one to include the affirmative defense.  Check the rules of civil procedure if you haven't already. TRCP

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The rules usually say an answer can be amended at any time that is "just". If all you did was file an answer, I'd argue there is no prejudice to PRA at this stage, and the ends of justice would be served by you having the opportunity to invoke a right granted to you by the card agreement. 

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Also, does Statute of Limitation come in to play? If how old is the debt? If the court dismisses the original case due to lack of prosecution, they may have to start over.

 

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This was originally a Capital One account that defaulted in 2011 and when Portfolio filed suit, it was just under the SOL, so it was legit. It's been sitting on the clerk's file, online, since June of 2014. I moved 3 years later and didn't notify the court, well because I didn't think about it for it had been so long. Normally, the clerk's website stays on top of anything that is mailed or filed. There are no entries on record from August of 2014, when I answered, until the entry of default judgment on October 22, 2019. No notice of the hearing online and I've been checking this whole time.

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Within the law, judges are supposed to clear out the docket when a case has been sitting for 12 months or more. What about a case that's been sitting for 5 years? Then to slap a default after that long seems suspect, to me.

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8 minutes ago, Ballerina72 said:

Within the law, judges are supposed to clear out the docket when a case has been sitting for 12 months or more. What about a case that's been sitting for 5 years? Then to slap a default after that long seems suspect, to me.

If the lawsuit was dormant for 5 years, you need to speak to a consumer attorney.  

When did PRA file a motion for default?

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I have no clue because the clerk didn't post it online. I have been checking the clerk's site all this time because I knew they would make a move at some point. They did and it wasn't documented online. I never got word because I moved 3 years after the case was filed. The address on file is my old address. I still live in the same city.

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1 hour ago, Ballerina72 said:

I have been checking the clerk's site all this time because I knew they would make a move at some point.

THIS could be a big problem. All this time you never made a move and knew the case was still active. You should have filed a motion to dismiss for lack of prosecution 2 years ago.

1 hour ago, Ballerina72 said:

I never got word because I moved 3 years after the case was filed. The address on file is my old address. I still live in the same city.

This is another potentially big problem.  You moved.   Forgetting at the time of the move and not updating the court with your current address is forgivable error.  Watching the online docket for 3 years for activity and never notifying the court you moved is not.  The other wrinkle is that you moved after they filed,  you were served and answered.  The same court would have kept the case even if you moved out of state because the move occurred after litigation commenced.  

3 hours ago, Impress said:

Check the rules of civil procedure if you haven't already. TRCP

If this case is in Justice Court those are the wrong rules.  The 500 rules apply to JP court cases.

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Thank you, for your reply! I totally get that about the address change. I was looking at the registrar of actions online and legitimately didn't think about the address change, until I saw the default, today. It's strange because the clerk didn't list a date for the hearing, in the registrar, on the website, which is protocol, in Texas. If I had seen that a court date had been set, I would have been there. There was nothing added to the registrar after august of 2014, until October 22, 2019, notifying the mailing of said default. Yes, this is in JP court. You are totally right, I should have moved on it after it sat for 2 years. I'm going to talk to a consumer attorney tomorrow.

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16 hours ago, Clydesmom said:

If this case is in Justice Court those are the wrong rules.  The 500 rules apply to JP court cases.

The TRCP  covers all courts.  The rules specific to Justice Courts (the 500 rules) are included. 

 

15 hours ago, Ballerina72 said:
 

Thank you, for your reply! I totally get that about the address change. I was looking at the registrar of actions online and legitimately didn't think about the address change, until I saw the default, today. It's strange because the clerk didn't list a date for the hearing, in the registrar, on the website, which is protocol, in Texas. If I had seen that a court date had been set, I would have been there. There was nothing added to the registrar after august of 2014, until October 22, 2019, notifying the mailing of said default. Yes, this is in JP court. You are totally right, I should have moved on it after it sat for 2 years. I'm going to talk to a consumer attorney tomorrow.

Talking to an attorney is  a good idea.  Keep us updated.

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17 hours ago, Clydesmom said:

THIS could be a big problem. All this time you never made a move and knew the case was still active. You should have filed a motion to dismiss for lack of prosecution 2 years ago.

This is another potentially big problem.  You moved.   Forgetting at the time of the move and not updating the court with your current address is forgivable error.  Watching the online docket for 3 years for activity and never notifying the court you moved is not.  The other wrinkle is that you moved after they filed,  you were served and answered.  The same court would have kept the case even if you moved out of state because the move occurred after litigation commenced.  

If this case is in Justice Court those are the wrong rules.  The 500 rules apply to JP court cases.

1) If the rules of Civil Procedure state that the courts are required to clear inactive cases after 12 months, there should be no reason for the defendant to do anything. Even if the defendant was required to clear the case, the court clerk should have recognized how old this was long before 5 years has passed. Especially in the age of computers.

2) Can the court prove that the defendant has been watching the case for more than 3 years. It would be easy for the OP to state that they assumed that the case was dismissed for inactivity and the OP only found out about this because a BK lawyer called the OP offering their services. I know PRA trolls these boards but if it took them 5 years to attempt to get a default on this case, are they really watching for something like this?

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2 hours ago, Impress said:

The TRCP  covers all courts.  The rules specific to Justice Courts (the 500 rules) are included. 

 

Talking to an attorney is  a good idea.  Keep us updated.

I will definitely keep everyone updated. I am meeting with a friend who is retired from practice tomorrow and hopefully, she can give me some direction. She doesn't believe I need a lawyer yet, for the fact due diligence wasn't provided by the court clearing the case after a year nor the plaintiff for letting it sit. It was also mentioned I need to attack the affidavit the plaintiff used for the citation in my meritorious defense, if I choose to go that route. My question to her will be,"What else am I allowed to file, along with the motion to set aside, to help my case?"

 

1 hour ago, WhoCares1000 said:

1) If the rules of Civil Procedure state that the courts are required to clear inactive cases after 12 months, there should be no reason for the defendant to do anything. Even if the defendant was required to clear the case, the court clerk should have recognized how old this was long before 5 years has passed. Especially in the age of computers.

2) Can the court prove that the defendant has been watching the case for more than 3 years. It would be easy for the OP to state that they assumed that the case was dismissed for inactivity and the OP only found out about this because a BK lawyer called the OP offering their services. I know PRA trolls these boards but if it took them 5 years to attempt to get a default on this case, are they really watching for something like this?

What I don't get is, after I filed my answer, I continued to live at the address I filed with the court for 3 years. I never received any mail during that time, concerning the case. Since lawyers have to file electronically, any move the plaintiff or court made would appear on the registrar of documents. I fought another case similar to this and every breath taken was documented in the registrar. In this case, there is bumpkiss for 5 straight years. It lists my answer date in August of 2014 and the next entry is on October 22, 2019, stating a hearing, along with default judgment made and letter sent. All on 10-22. Nothing entered before that connoting any forms or motions or court hearing notifications were filed. Just the default and they sent a letter...I don't know what actions have been taken by the court or plaintiff during the 5 years, if any because it's not in the registrar record and if they sent anything after June of 2017 by mail, I had moved, by then. The plaintiff in this case pulled multiple cases on the same day and all those cases were DWOP and non-suited after 3-4 months, except for mine. Go figure.

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Update: I went to the court clerk this morning and requested the entirety of my case file. I asked the clerk if this was everything that was ever submitted; motions, hearing announcement, etc. and she said what I had was everything entered into the court file. The only things in the file were: Plaintiff's original petition, case info sheet, my verified answer, my certificate of service and the default judgment.

No certificate of service for citation, no affidavit for basis of suit, no motions made by plaintiff, no hearing announcement, no DWOP to plaintiff, no mailings from the plaintiff nor court...nothing, for five and a half years. It's like the judge saw the case and without any announcements or orders (beyond default judgment), defaulted the case. However; the plaintiff did show for the hearing, but there's nothing in the file stating a hearing date was made.

I'm wondering if there is anything I do beyond the motion to set aside default judgment or if I even have to file the motion to set aside? When I spoke to my friend, yesterday, we never thought the file would be completely devoid of info, so I was content on filing the motion to set aside, with my reasons and go from there. Now everything has changed.

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