Texas: Sued By Midland, Answered, Hearing Coming Up. What Now?

[Texas Cornuthaum]

Helpful Forum - I was recently sued in Texas by Midland for debt collection.  They are the JDB for a charged off credit card with Capital One.

I answered with a general denial and some specific denials, and a hearing was set, coming up next week.

I was wondering if I should try and settle ASAP or perhaps attend the hearing and request documentation and a pre-trial hearing reset (continuance).

I would like to try the arbitration route, but I no longer have a copy of the original contract (over 20 years ago).  Also, I did not mention it in my answer, because I did not come across this site until after I answered.  So I'm not sure if that's an option.

The local court rules require all requests for a reset to be submitted in writing with the reason for the reset and filed with the court no less than three days prior to the hearing date.  Today is the three day mark by business day, although Saturday is the three day mark by calendar day.

Here are the answers to the standard questions:

1. Who is the named plaintiff in the suit?

• Midland Funding LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

• None (looks like in house attorneys)

3. How much are you being sued for?

• About $7,000

4. Who is the original creditor?

• Capital One Bank

5. How do you know you are being sued? (You were served, right?)

• Served

6. How were you served?

• Mail & Notice on door

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

• Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

• None

9. What state and county do you live in?

• Travis County, Texas

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

• September 2017

11. When did you open the account (looking to establish what card agreement may be applicable)?

• July 2000

12. What is the SOL on the debt?

• 4 years, to my knowledge

13. What is the status of your case? 

• Served, Answered, Hearing Set

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

• No

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

• No

16. How long do you have to respond to the suit?

• I had 14 days, I responded on the 15th day when I discovered I couldn't do an in-person drop-off of documents at the court due to covid-19 concerns, and it took me the next day to get everything squared away and eFiled.  I think the court accepted it, however.
• It is possible for me to pull up the official court register of actions on this case

17. What evidence did they send with the summons?

• Affidavit
• Certificates authenticating the sale of the debt to Midland
• Final bills

18.  How did you find out about this site?

• Google

[Texas Cornuthaum]

Update:  Via these forums, I was able to obtain a 2008 credit card agreement for Capital One which includes the provision for arbitration and the survivability clause.

Ostensibly, I can use these to compel arbitration?  The documents on file with the court definitely show I had an active account across 2008.

I'm wondering if I blew that chance at arbitration, though, by not including it in my original answer.

I haven't had my initial hearing yet, though, so perhaps I can file it now before the hearing?

Any advice is appreciated.  Thanks.

[texasrocker]

@fisthardcheese

[Bulldoger]

Since you haven't had your initial hearing. I see no reason why you can't file a MTC along with an amended/supplemental answer. I am not sure you need the amended/supplement answer but it doesn't hurt anything.  

[fisthardcheese]

On 5/20/2021 at 6:40 PM, Texas Cornuthaum said:

Update:  Via these forums, I was able to obtain a 2008 credit card agreement for Capital One which includes the provision for arbitration and the survivability clause.

Ostensibly, I can use these to compel arbitration?  The documents on file with the court definitely show I had an active account across 2008.

I'm wondering if I blew that chance at arbitration, though, by not including it in my original answer.

I haven't had my initial hearing yet, though, so perhaps I can file it now before the hearing?

Any advice is appreciated.  Thanks.

You can file the MTC and argue that you only discovered the arbitration clause after your answer, and it shouldn't be an issue.  Florida is the only state I know of with case law stating that arbitration must be raised in the answer.  HOWEVER, your biggest issue will be getting the 2008 agreement to fly.  They are very likely to argue that because you continued using the account beyond 2010 that you agreed to the changes that included removing arbitration.  It's really up to the Judge if the survivability clause applies.  If it were me, I would try and hope it works, and I would work on having responses to every possible argument over the arb clause from 2008 still being valid.

[Texas Cornuthaum]

I filed an amended original answer on Saturday.  We have a decent e-filing system with service that is largely free to use for pro se in Texas, so that is extremely helpful.

I read the local court rules and Texas Civil Code on these cases and tried to be careful in following the rules on how to word an amended original answer.  I put the lack of jurisdiction and arbitration in there as an affirmative defense.

I'll do the MTC tomorrow (day before hearing) with affidavit and the agreement attached and just see what happens at the hearing.

My game plan is to stick to my guns on arbitration and only bring up the survivability clause if I have to.

I looked up the plaintiff's lawyer and they seem like an 15 year experienced person, so we'll see how it goes.

[Impress]

How did it go?

[Texas Cornuthaum]

The day of my hearing, I filed a MTC arbitration.  However, the lawyer for the JDB hadn't seen it and side conferenced me at the hearing.  Hadn't heard from me and asked what I had in mind.

I said I wanted to arbitrate and he suggested mediation.  I kindly refused and asked for arbitration.

He said ok, we're done here, and we went back to the hearing.  He asked for a continuance, and it was granted.

Later, the court accepted my MTC.  A second hearing is pending but hasn't been set yet (three months later still nothing, lol).

So, just waiting for the hearing to be set, then I'll file with AAA closer to the hearing, I think.  I'll update the court docs and JDB with the AAA info, and then wait to see what they do.

Courts are moving slow in Texas these days.  I also had a JDB on another credit line that was on dismissal docket in another county where I used to live simply due to me filing an answer with general and some specific denials.

It was on dismissal docket for over a year with the JDB lawyer having filed an order asking to go to trial.

A hearing finally was set a month ago.  The lawyer no-showed that one, so the judge non-suited the case.

Four years (statute of limitations) has now passed on that credit line with no new suit filed, so I should now be immune from that one.

All in all, it's gone very well.  I had six credit lines (four cards, two personal loans) I walked away from around four years ago following a divorce.

Three have now aged out.  A fourth aged out today, so I'll be checking the dockets on that one for a while to make sure they didn't slip one in at the last second.

The fifth is this one that now has MTC Arb, which I expect to get a good settlement or dismissal for, and the sixth ages out just before Christmas.  It's a local credit union that I think doesn't have an arb clause, so it's the riskiest, but I haven't heard a peep out of them in three years.  So crossing my fingers.

Will update when a second hearing is set and this starts moving again.