ktigs

Can we file for arbitration after being sued and filing answer?

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Hello.

We are being sued by Calvary SPV LLC for a Citibank card for $5097. We've been served and already filed an answer. We did receive a copy of evidence that they provided to the courts consisting of 6 billing statements, card agreement, and bill of sale and assignment. Court is on June 30th.

Is it too late at this point to file for arbitration? There is an arbitration clause in Citibank's card agreement. If we can file, do we forward anything to the courts and/or attorney? This is all new to us. 

Or is there a way to defend this in court to be in our favor? Are there specifics we can ask for once in front of the judge? SOL expires in December '21. We have not had any communication with Calvary besides answering the lawsuit where we denied all. Thank you!

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Yes, you can file for arb after being sued and filing an answer.  In fact, that is the best time to use the arb strategy.

You need to file a Motion to Compel Arbitration with the court, with copy to the plaintiff's attorney.  Look at the stickied thread at the top of this section.  That contains the best info on arb.

Forget about the statute of limitations for this case. They sued you before it expired.  But, if by using arb you can get them to dismiss the case, even without prejudice, the SOL is likely to expire before they can sue again.

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On 5/31/2021 at 2:47 PM, nobk4me said:

Yes, you can file for arb after being sued and filing an answer.  In fact, that is the best time to use the arb strategy.

You need to file a Motion to Compel Arbitration with the court, with copy to the plaintiff's attorney.  Look at the stickied thread at the top of this section.  That contains the best info on arb.

Forget about the statute of limitations for this case. They sued you before it expired.  But, if by using arb you can get them to dismiss the case, even without prejudice, the SOL is likely to expire before they can sue again.

Thank you so much for your response!

Do you know if in Texas Justice Court that arb will work? I know it can't work in smalls claims court, so looking for feedback on that, too. 

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On 6/2/2021 at 6:36 PM, BackFromTheDebt said:

From what I remember in this forum, Texas Justice Court is considered to be different from a small claims court.  

You could ask @texasrocker,  He knows the answer.

 

Edited by Bulldoger
incorrect information
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17 hours ago, BackFromTheDebt said:

From what I remember in this forum, Texas Justice Court is considered to be different from a small claims court.  

You could ask @texasrocker,  He knows the answer.

Small claims courts were abolished in Texas in 2013 but every time I say that someone here, obviously lacking skills in arguing a case, pops up and says in their case the judge ruled that any case less than $20,000 can still be called "small claims."  I don't recall having heard it mentioned in any other case. To my knowledge the issue has never been appealed so no precedent is set but regardless there are no longer any small claims courts in Texas. 

Edit:  To sum it all up, don't worry about it and file whatever you want to file. It brings to mind the naysayers on this board that slammed me for at least two years telling everyone that defending a case in court will never again be successful after three defendants were denied their requests to begin discovery by rural JP court justices even though I had flawlessly led at least 25 to victory before and after those three.      

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47 minutes ago, Bulldoger said:

the 2019 Texas Statues state: 



	§ 28.003. JURISDICTION.  (a) The small claims court has 
concurrent jurisdiction with the justice court in actions by any 
person for the recovery of money in which the amount involved, 
exclusive of costs, does not exceed $5,000...
	

Where are you seeing "2019"?  That information is actually from 1985-2005: https://law.justia.com/codes/texas/2005/gv/002.00.000028.00.html

Chapter 28 of the Texas Government Code was revoked in 2011 during the Supreme Court of Texas' restructuring of the JP court system: https://www.txcourts.gov/All_Archived_Documents/SupremeCourt/AdministrativeOrders/miscdocket/11/11918000.pdf

It resulted in a new set of rules for JP courts in the Texas Rules of Civil Procedure.   Small claims cases are now governed by Rules 500-507 of Part V of the TRCP:  http://www.txcourts.gov/media/1452232/trcp-combined-effective-january-1-2021.pdf  

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3 hours ago, texasrocker said:

Where are you seeing "2019"?  That information is actually from 1985-2005: https://law.justia.com/codes/texas/2005/gv/002.00.000028.00.html

Chapter 28 of the Texas Government Code was revoked in 2011 during the Supreme Court of Texas' restructuring of the JP court system: https://www.txcourts.gov/All_Archived_Documents/SupremeCourt/AdministrativeOrders/miscdocket/11/11918000.pdf

It resulted in a new set of rules for JP courts in the Texas Rules of Civil Procedure.   Small claims cases are now governed by Rules 500-507 of Part V of the TRCP:  http://www.txcourts.gov/media/1452232/trcp-combined-effective-january-1-2021.pdf  

I stand corrected, i just  Googled  Texas 28.003. the page u link was page i got info. It says look at 2019 statute , i just read it as 2019. 

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13 hours ago, Bulldoger said:

I stand corrected, i just  Googled  Texas 28.003. the page u link was page i got info. It says look at 2019 statute , i just read it as 2019. 

That is not an acceptable explanation whatsoever.  If you are unable to distinguish between a clickable link and the subject of a page then you have no business posting advice on this forum.   

 I see there are two links in small font size and blue such as most links on web pages are:  View the 2019 Texas Statutes | View Other Versions of the Texas Statutes  The heading of the document In large bold font plainly says, "2005 Texas Government Code CHAPTER 28. SMALL CLAIMS COURTS

Perhaps you should refrain from hastily running to google to reply to inquiries that you are not qualified to answer and/or were specifically directed to someone else.  I have been studying and discussing on this board the "new" Texas JP Court ruIes since 2012 when it first became known that they were being revised.  If this OP had taken your advice which was actually posted while I was still typing my reply then at best they would have made a fool of themself before the court; at worst it could have resulted in being the reason for losing their case.

What led you to google Texas 28.003 to begin with?  I googled it only after seeing your completely irrelevant reply. My suggestion is confine yourself to only commenting in general discussions such as the ridiculous stolen watch thread last week.  You fit right in there.

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On 6/3/2021 at 11:46 AM, texasrocker said:

That is not an acceptable explanation whatsoever.  If you are unable to distinguish between a clickable link and the subject of a page then you have no business posting advice on this forum.   

 I see there are two links in small font size and blue such as most links on web pages are:  View the 2019 Texas Statutes | View Other Versions of the Texas Statutes  The heading of the document In large bold font plainly says, "2005 Texas Government Code CHAPTER 28. SMALL CLAIMS COURTS

Perhaps you should refrain from hastily running to google to reply to inquiries that you are not qualified to answer and/or were specifically directed to someone else.  I have been studying and discussing on this board the "new" Texas JP Court ruIes since 2012 when it first became known that they were being revised.  If this OP had taken your advice which was actually posted while I was still typing my reply then at best they would have made a fool of themself before the court; at worst it could have resulted in being the reason for losing their case.

What led you to google Texas 28.003 to begin with?  I googled it only after seeing your completely irrelevant reply. My suggestion is confine yourself to only commenting in general discussions such as the ridiculous stolen watch thread last week.  You fit right in there.

@texasrocker I already mention it was a simple mistake and FYI I was on cellphone and it looks totally different on mobile. But I will follow your advice and stick to member's expressly needing help in Virginia and topics about  in general discussions.  BTW @ktigs needs help about MTC in Texas on the Arbitration thread. 

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On 6/4/2021 at 6:04 PM, Bulldoger said:
On 6/4/2021 at 6:04 PM, Bulldoger said:

@texasrocker I already mention it was a simple mistake and FYI I was on cellphone and it looks totally different on mobile. But I will follow your advice and stick to member's expressly needing help in Virginia and topics about  in general discussions.  BTW @ktigs needs help about MTC in Texas on the Arbitration thread. 

I’m still lost on how to start the process 😩 I haven’t received any feedback.

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@texasrocker @Bulldoger  @ktigsIt is critically important to stress to new members that they alone as pro se defendants are responsible for looking up and following the rules of civil procedure for their state and local courts. ("Trust but verify" on advice offered by strangers here; we are not attorneys.) It is also incumbent upon well-meaning members with some experience under their belts--eager to pay it forward here-- to take that extra second or two to actually look up to verify accuracy before hitting send. Providing a hotlink to the source material as @texasrocker did is always a helpful step so we can all learn. Mistakes can happen to the best (and worst) of us, and should be expected under these circumstances. An apology and the "edit" button for a correction are the right actions. Strive to do better.  This community relies on the volunteer spirit, the experience and acquired skill sets of all of us. We each do our part to make this forum such a valuable resource. I know I learn from our members every single day, since joining in 2012. 

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On 5/31/2021 at 1:18 PM, ktigs said:

Hello.

We are being sued by Calvary SPV LLC for a Citibank card for $5097. We've been served and already filed an answer. We did receive a copy of evidence that they provided to the courts consisting of 6 billing statements, card agreement, and bill of sale and assignment. Court is on June 30th.

Is it too late at this point to file for arbitration? There is an arbitration clause in Citibank's card agreement. If we can file, do we forward anything to the courts and/or attorney? This is all new to us. 

Or is there a way to defend this in court to be in our favor? Are there specifics we can ask for once in front of the judge? SOL expires in December '21. We have not had any communication with Calvary besides answering the lawsuit where we denied all. Thank you!

On a different note: if we just continued to court, since they already submitted to the courts billing statements, card agreement and bill of sale, do I have any defense to get this dismissed?

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On a different note: if we just continued to court, since they already submitted to the courts billing statements, card agreement and bill of sale, do I have any defense to get this dismissed?

lot of good info on this thread

 

Also see @Redlinehome  comment's in this thread:

read these documents they explain how to defend against debt buyers. 

 

5 secrets debt buyers who sue don_t want you to know about.pdf Defending credit card cases, 2009.pdf defending _JDB_suits.pdf

 

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OK, I think I have it! I attached a redacted MTC. Please advise. I want to turn this into the clerk tomorrow, as court is on the 30th.

Here's the arb clause from the cc agreement for reference:

ARBITRATION

PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY.

THIS SECTION PROVIDES THAT DISPUTES MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, HAVE A JURY TRIAL OR INITIATE OR PARTICIPATE IN A CLASS ACTION. IN ARBITRATION, DISPUTES ARE RESOLVED BY AN ARBITRATOR, NOT A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN IN COURT. THIS ARBITRATION PROVISION IS GOVERNED BY THE FEDERAL ARBITRATION ACT (FAA), AND SHALL BE INTERPRETED IN THE BROADEST WAY THE LAW WILL ALLOW.

Covered claims

 You or we may arbitrate any claim, dispute or controversy between you and us arising out of or related to your account, a previous related account or our relationship (called “Claims”).

 If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court or have a jury trial on that Claim.

Except as stated below, all Claims are subject to arbitration,
no matter what legal theory they’re based on or what remedy (damages, or injunctive or declaratory relief) they seek, including Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; Claims made regarding past, present, or future conduct; and Claims made independently or with other claims. This also includes Claims made by or against anyone connected with us
or you or claiming through us or you, or by someone making a claim through us or you, such as a co-applicant, authorized user, employee, agent, representative or an affiliated/parent/subsidiary company.

Arbitration limits

• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

• We won’t initiate arbitration to collect a debt from you unless you choose to arbitrate or assert a Claim against us. If
you assert a Claim against us, we can choose to arbitrate, including actions to collect a debt from you. You may arbitrate on an individual basis Claims brought against you, including Claims to collect a debt.

• Claims brought as part of a class action, private attorney general or other representative action can be arbitrated only on an individual basis. The arbitrator has no authority to arbitrate any claim on a class or representative basis and may award relief only on an individual basis. If arbitration is chosen by any party, neither you nor we may pursue a Claim as part of a class action or other representative action. Claims of 2 or more persons may not be combined in the same arbitration. However, applicants, co-applicants, authorized users on a single account and/or related accounts, or corporate affiliates are here considered as one person.

How arbitration works

Arbitration shall be conducted by the American Arbitration Association (“AAA”) according to this arbitration provision and the applicable AAA arbitration rules in effect when the claim is filed (“AAA Rules”), except where those rules conflict with this arbitration provision. You can obtain copies of the AAA Rules at the AAA’s website (www.adr.org) or by calling 800- 778-7879. You or we may choose to have a hearing, appear at any hearing by phone or other electronic means, and/or be represented by counsel. Any in-person hearing will be held in the same city as the U.S. District Court closest to your billing address.

Arbitration may be requested any time, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA.

The arbitration shall be conducted by a single arbitrator in accord with this arbitration provision and the AAA Rules, which may limit discovery. The arbitrator shall not apply any federal or state rules of civil procedure for discovery, but the arbitrator shall honor claims of privilege recognized at law and shall take reasonable steps to protect account information and other confidential information of either party if requested to do so. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statute of limitations, and may award damages or other relief under applicable law.

The arbitrator shall make any award in writing and, if requested by you or us, may provide a brief statement of
the reasons for the award. An arbitration award shall decide the rights and obligations only of the parties named in the arbitration, and shall not have any bearing on any other person or dispute.

Paying for arbitration fees

  • We will pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law.

    The final award

  • Any award by an arbitrator is final unless a party appeals it
    in writing to the AAA within 30 days of notice of the award. The arbitration appeal shall be determined by a panel of 3 arbitrators. The panel will consider all facts and legal issues anew based on the same evidence presented in the prior arbitration, and will make decisions based on a majority vote. Arbitration fees for the arbitration appeal shall be allocated according to the applicable AAA Rules. An award by a panel on appeal is final. A final award is subject to judicial review as provided by applicable law.

    Survival and Severability of Terms

    This arbitration provision shall survive changes in this Agreement and termination of the account or the relationship between
    you and us, including the bankruptcy of any party and any
    sale of your account, or amounts owed on your account, to another person or entity. If any part of this arbitration provision

    is deemed invalid or unenforceable, the other terms shall remain in force, except that there can be no arbitration of a class or representative Claim. This arbitration provision may not be amended, severed or waived, except as provided in this Agreement or in a written agreement between you and us.

    Rules for rejecting this arbitration provision

    You may reject this arbitration provision by sending a written rejection notice to us at: P.O. Box 790340, St. Louis, MO 63179. Your rejection notice must be mailed within 45 days
    of account opening. Your rejection notice must state that you reject the arbitration provision and include your name, address,

account number and personal signature. No one else may sign the rejection notice. Your rejection notice will not apply to the arbitration provision(s) governing any other account(s) that you have or had with us. Rejection of this arbitration provision won’t affect your other rights or responsibilities under this Agreement, including use of the account.

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2 minutes ago, ktigs said:

OK, I think I have it! I attached a redacted MTC. Please advise. I want to turn this into the clerk tomorrow, as court is on the 30th.

Here's the arb clause from the cc agreement for reference:

ARBITRATION

PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY.

THIS SECTION PROVIDES THAT DISPUTES MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, HAVE A JURY TRIAL OR INITIATE OR PARTICIPATE IN A CLASS ACTION. IN ARBITRATION, DISPUTES ARE RESOLVED BY AN ARBITRATOR, NOT A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN IN COURT. THIS ARBITRATION PROVISION IS GOVERNED BY THE FEDERAL ARBITRATION ACT (FAA), AND SHALL BE INTERPRETED IN THE BROADEST WAY THE LAW WILL ALLOW.

Covered claims

 You or we may arbitrate any claim, dispute or controversy between you and us arising out of or related to your account, a previous related account or our relationship (called “Claims”).

 If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court or have a jury trial on that Claim.

Except as stated below, all Claims are subject to arbitration,
no matter what legal theory they’re based on or what remedy (damages, or injunctive or declaratory relief) they seek, including Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; Claims made regarding past, present, or future conduct; and Claims made independently or with other claims. This also includes Claims made by or against anyone connected with us
or you or claiming through us or you, or by someone making a claim through us or you, such as a co-applicant, authorized user, employee, agent, representative or an affiliated/parent/subsidiary company.

Arbitration limits

• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

• We won’t initiate arbitration to collect a debt from you unless you choose to arbitrate or assert a Claim against us. If
you assert a Claim against us, we can choose to arbitrate, including actions to collect a debt from you. You may arbitrate on an individual basis Claims brought against you, including Claims to collect a debt.

• Claims brought as part of a class action, private attorney general or other representative action can be arbitrated only on an individual basis. The arbitrator has no authority to arbitrate any claim on a class or representative basis and may award relief only on an individual basis. If arbitration is chosen by any party, neither you nor we may pursue a Claim as part of a class action or other representative action. Claims of 2 or more persons may not be combined in the same arbitration. However, applicants, co-applicants, authorized users on a single account and/or related accounts, or corporate affiliates are here considered as one person.

How arbitration works

Arbitration shall be conducted by the American Arbitration Association (“AAA”) according to this arbitration provision and the applicable AAA arbitration rules in effect when the claim is filed (“AAA Rules”), except where those rules conflict with this arbitration provision. You can obtain copies of the AAA Rules at the AAA’s website (www.adr.org) or by calling 800- 778-7879. You or we may choose to have a hearing, appear at any hearing by phone or other electronic means, and/or be represented by counsel. Any in-person hearing will be held in the same city as the U.S. District Court closest to your billing address.

Arbitration may be requested any time, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA.

The arbitration shall be conducted by a single arbitrator in accord with this arbitration provision and the AAA Rules, which may limit discovery. The arbitrator shall not apply any federal or state rules of civil procedure for discovery, but the arbitrator shall honor claims of privilege recognized at law and shall take reasonable steps to protect account information and other confidential information of either party if requested to do so. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statute of limitations, and may award damages or other relief under applicable law.

The arbitrator shall make any award in writing and, if requested by you or us, may provide a brief statement of
the reasons for the award. An arbitration award shall decide the rights and obligations only of the parties named in the arbitration, and shall not have any bearing on any other person or dispute.

Paying for arbitration fees

  • We will pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law.

    The final award

  • Any award by an arbitrator is final unless a party appeals it
    in writing to the AAA within 30 days of notice of the award. The arbitration appeal shall be determined by a panel of 3 arbitrators. The panel will consider all facts and legal issues anew based on the same evidence presented in the prior arbitration, and will make decisions based on a majority vote. Arbitration fees for the arbitration appeal shall be allocated according to the applicable AAA Rules. An award by a panel on appeal is final. A final award is subject to judicial review as provided by applicable law.

    Survival and Severability of Terms

    This arbitration provision shall survive changes in this Agreement and termination of the account or the relationship between
    you and us, including the bankruptcy of any party and any
    sale of your account, or amounts owed on your account, to another person or entity. If any part of this arbitration provision

    is deemed invalid or unenforceable, the other terms shall remain in force, except that there can be no arbitration of a class or representative Claim. This arbitration provision may not be amended, severed or waived, except as provided in this Agreement or in a written agreement between you and us.

    Rules for rejecting this arbitration provision

    You may reject this arbitration provision by sending a written rejection notice to us at: P.O. Box 790340, St. Louis, MO 63179. Your rejection notice must be mailed within 45 days
    of account opening. Your rejection notice must state that you reject the arbitration provision and include your name, address,

account number and personal signature. No one else may sign the rejection notice. Your rejection notice will not apply to the arbitration provision(s) governing any other account(s) that you have or had with us. Rejection of this arbitration provision won’t affect your other rights or responsibilities under this Agreement, including use of the account.

REDACTED Screen Shot 2021-06-10 at 7.05.23 PM.jpg

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Don't mind the cursor on the second page. These are screen shots. 

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Arbitration limits

• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

@texasrockerI see that this particular agreement if typed or copied as stated doesn't even say "or states equivalent". I will reach out to my brother. He just graduated law school, though that isn't saying much.

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1 hour ago, alwayswinning36 said:

Arbitration limits

• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

@texasrockerI see that this particular agreement if typed or copied as stated doesn't even say "or states equivalent". I will reach out to my brother. He just graduated law school, though that isn't saying much.

Thanks for the response! I called our local county library yesterday, and they said it’s literally up to the judge if he will honor it. I did turn in the motion to the clerk yesterday morning.

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5 hours ago, alwayswinning36 said:

Arbitration limits

• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

@texasrockerI see that this particular agreement if typed or copied as stated doesn't even say "or states equivalent". I will reach out to my brother. He just graduated law school, though that isn't saying much.

That is my point exactly and the basis of my defense.  No one can deny that the alleged account is governed by the card member agreement.  Scrutinize every word in the agreement to form your defense.  These agreements are not written specific to each or any state in particular; they are in general to all locations.  I doubt that many other states, if any at all, have such wording in their rules giving you this opportunity. Who knows- perhaps whomever wrote the agreement may have construed it when small claims courts truly existed in Texas. 

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On 6/12/2021 at 11:29 AM, texasrocker said:

That is my point exactly and the basis of my defense.  No one can deny that the alleged account is governed by the card member agreement.  Scrutinize every sentence in the agreement and the TRCP to formulate your defense.  These agreements are not written specific to each or any state in particular; they are in general to all locations.  I doubt that many other states, if any at all, have such wording in their rules giving you this opportunity. Who knows- perhaps whomever wrote the agreement may have construed it when small claims courts truly existed in Texas. 

 

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