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jmorris214

Being sued in Texas, quick question on Denial filing

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I am working on going the arbitration route but have a question on my denial filing. I have listed as my first affirmitive defense the

"A. Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore this Court does not have jurisdiction to hear this matter."

my question is, is it ok for me to list the rest of my affirmitive defenses as well, or would that hurt my chance for motion to compel arbitration?  Thanks in advance everyone

my other affirmitive defenses are -
B.estoppel;
C.laches/waiver;
D.failure of consideration;
E.affirmative defense of fraud;
F.statute of limitations;
G.the defense of justification and excuse
H.the Business Judgment Rule;
I.failure to mitigate damages
J.payment;
K.setoff or recoupment; and
L.all conditions precedent have not been performed and have not occurred

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DON'T use any of those defenses. NONE of them are valid and will simply cast credibility on your MTC. 

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So then just the lack of Jurisdiction defense? 

I had originally thought to include them as I have a law firm handling a larger case and those are literally all the defenses they listed on their general denial answer. 

For discussion sake, why would they be bad? Forgive my "newness."

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1 hour ago, jmorris214 said:

F.statute of limitations;

C.laches/waiver;

Lets start here.  When did you default on this account?  If it is within 4 years of them filing then you cannot use this defense.  If it is out of SOL then you don't need arbitration you have a gold plated defense and a counter claim. Laches does not apply if they filed timely.  The two are linked.

1 hour ago, jmorris214 said:

B.estoppel;

HOW did the Plaintiff go back on their word to you?  You breached the agreement when you defaulted on paying the account.

1 hour ago, jmorris214 said:

D.failure of consideration;

There is no consideration in a credit card case and the courts know it.

1 hour ago, jmorris214 said:

E.affirmative defense of fraud;

Utah is the only state that allows this defense.

1 hour ago, jmorris214 said:

G.the defense of justification and excuse

Not a legal defense to breaching the agreement and defaulting on your payments.  To quote a judge when the 2008 recession hit:  "it is awful that many are out of jobs or disabled and cannot pay. However, the law is CLEAR.  If you did not pay my hands are tied and I must rule for the Plaintiff."

1 hour ago, jmorris214 said:

H.the Business Judgment Rule;

You are not a corporation.  This would apply if you were suing them.

1 hour ago, jmorris214 said:

I.failure to mitigate damages

Not required in a debt case.  This is required in landlord tenant law.

1 hour ago, jmorris214 said:

J.payment;
K.setoff or recoupment; and

Did you pay it off?  Was there a set off used that the amount they are suing for should be lower?

28 minutes ago, jmorris214 said:

I had originally thought to include them as I have a law firm handling a larger case and those are literally all the defenses they listed on their general denial answer. 

Are these credit card debt cases?  If so, then you hired the wrong law firm.

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Yes, they are credit card debts. I only hired the law firm because I was being sued by an Original Creditor (Capital One).

I will remove those defenses of course, and proceed with the Denial Answer with only the jurisdiction defense.

Thank you a lot for your explanations, that was very thoughtful and very kind of you and I appreciate t. 

 

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1 hour ago, jmorris214 said:

Yes, they are credit card debts. I only hired the law firm because I was being sued by an Original Creditor (Capital One).

I will remove those defenses of course, and proceed with the Denial Answer with only the jurisdiction defense.

Thank you a lot for your explanations, that was very thoughtful and very kind of you and I appreciate t. 

 

I know you want to attempt to arbitrate.  Just an FYI, an original creditor is more likely to agree to arbitrate.   

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@BV80 I agree with your statement 100%, which is why I hired a lawyer for the OC. All the rest of my debt in collections have been sold to JDB's. Only Cap1 was holding out. 

 

Thank you for your input, it is appreciated. 

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45 minutes ago, jmorris214 said:

Only Cap1 was holding out. 

Cap 1 also removed arbitration from their card agreements a decade ago so that wouldn't be an option with them.

Knowing that you hired a lawyer for Cap1 tells me even more that this law firm may not be the right one.  The major problem is there is really only two defenses to a lawsuit by an original creditor like Cap1.  Identity theft or statute of limitations.  Anything else does not fly.  That laundry list they used is most likely their attempt to force them to settle.  They very well could last minute.  Just be prepared that they don't and worse dig their heals in and go all the way to judgment.  That does not mean you can settle for less later because as long as you keep nothing for them to seize in a bank account they are pretty much hog tied in collecting.  Texas does not allow wage garnishment for civil debts.

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@Clydesmom I would bet the farm you are correct in your assessment of the situation. The problem with me reciving a judgement is that my employer does not offer payment via check anymore. Only direct deposit which I would then potentially lose to a levy. I am just really trying to hold the proverbial waters at bay until I can file for bankruptcy protections on March 1, 2021. 

If you have any advice on how to avoid a levy, or how to get around a levy,  I am all ears! :D 

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1 hour ago, jmorris214 said:

The problem with me reciving a judgement is that my employer does not offer payment via check anymore. Only direct deposit which I would then potentially lose to a levy.

Pre-paid debit/credit card. They are very difficult if not impossible to find. Another option is a trusted family member who will allow it to go to their account and give you a debit card but not put your name on the account.

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@Clydesmom Don't banks notice when a direct deposit is coming in from a name not on the account?

I have thought of the pre-paid debit/credit card route but was unsure if that would actually work as I have read some sites stating that the collectors are on top of that scene now. I'm sure I could "work it" long enough to get to my BK filing. LOL 

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