Sued by Cavalry - Update: Texas Justice Court - Lost, Appealed to County - Lost, Further Appeal?

[bartos]

Update: See June 15 post for latest update

1. Who is the named plaintiff in the suit?   CAVALRY SPV I, LLC, AS ASSIGNEE OF CITIBANK, N.A.

2. What is the name of the law firm?   Javitch Block & Rathbone LLP

3. How much are you being sued for? $8750 + plus court costs

4. Who is the original creditor? Citibank

5. How do you know you are being sued? Served in person

6. How were you served? In person.

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 sued? Texas, Llano County

10. When is the last time you paid on this account? July 2020

11. When did you open the account?  2017

12. What is the SOL on the debt?  4 years?

13. What is the status of your case? 

• Nov 7, 2021 - Case was filed 
• Jan 1st, 2022 - Served me with Court date set for March 8
• Jan 18 - I filed General Denial
• Jan 24 - Javitch sent me a letter wanting to discuss settlement
• March 4 - I filed MTCA which was granted. Also asked for continuance if MTCA wasn't granted.
• March 10 - Javitch filed Motion to Vacate MTCA, which was granted. New court date March 31
• March 24 - I filed another MTCA, challenging "small claims court" language which was denied.
• March 26 - Javitch sent me a Business Records Affidavit
• March 31 - Court Date upcoming 

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

15. Did you request debt validation before the suit was filed? No

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

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.


Summary:

• I'm a noob at all this, but reasonably intelligent
• Tried to compel arbitration, based on the Card Agreement. Granted
• Plaintiff was able to vacate MTCA based on the statement “Individual Claims filed in small claims court are not subject to arbitration, as long as the matter stays in small claims court.”
• Filed a 2nd MTCA (which was denied) stating "The parties agreed in the terms to a “small claims court”, not a “small claims case in a justice court”, which would make that condition of the terms applicable only in states where small claims courts exist, which excludes Texas. 
• Sent my info to Jerry Jarzombek (thanks @texasrocker ) last week, and called again yesterday but haven't heard back yet as I'm sure he's swamped. Just trying to figure out how to best proceed with time closing in.
• Not sure if I can file an interlocutory appeal on the MTCA in a Justice Court?
• How to best defend the court case since I went Arbitration route over Discovery. (Incomplete bill of sale, etc?)

Attachments:
Motion to Vacate MTCA

2nd MTCA
 

Business Records Affidavit

Edited June 15, 2022 by bartos
UPDATE

[bartos]

So I lost the case, and am about to appeal, posting the double bond. Anybody successfully done this? I assume discovery would be the better route over arbitration?

[BV80]

@texasrocker

[texasrocker]

23 hours ago, BV80 said:

@texasrocker

I have exactly zero experience in filing an appeal and I don't know of anyone on this board who has done so in Texas.  An appeal does not mean going back and re-trying the case.  It is to bring up issues that the appellant believes the court erred or acted with bias. 

He needs an attorney.  Appellate court is a completely different world than county or JP court with strict procedures and time limits on everything and is not for a  pro se to try to handle on his own. 

[texasrocker]

 I sure do wish someone would appeal this vague "small claims" verbiage once and for all.  It defies everything I have learned in the last ten years regarding analyzing every word in every sentence in a legal document, precedent, or rule. 

There should be no question that there is a huge difference between the definitions of "court" and "case."

Keep trying to contact Jerry.  I'm sure he would love take this on.

[shadow99]

2 hours ago, texasrocker said:

sure do wish someone would appeal this vague "small claims" verbiage once and for all. 

Midland tried that on me in Virginia this past fall. The judge didn't buy it and granted my motion to compel.

In Virginia, I think the rule is that a lawyer can only plead his own case in small claims court - we apparently have one.  They can't represent someone else.  So, most of the JDB cases go to district court.

[Bulldoger]

2 hours ago, shadow99 said:

Midland tried that on me in Virginia this past fall. The judge didn't buy it and granted my motion to compel.

In Virginia, I think the rule is that a lawyer can only plead his own case in small claims court - we apparently have one.  They can't represent someone else.  So, most of the JDB cases go to district court.

In the old Texas small claims court attorneys were allowed.  Texas doesn't and never had a court where lawyers are not allowed. 

5 hours ago, texasrocker said:

There should be no question that there is a huge difference between the definitions of "court" and "case."

Agree however,  Judges keep ruling that  "court" and "case" are no more different than "ice" and "frozen water". 

The law states that small claims courts are abolished.  That's pretty clear plus the argument that the legislature could have easily keep it wording  as "small claims court" but change the wording to "small claims case" to denote that they did not intend it to be considered a small claims court.    

 

[bartos]

FYI, in the original case, I filed a Motion to Compel Arbitration and the judge granted it. However Javitch came back and had them vacate based on the "Small Claims" clause. I then lost in court. The judge seemed pretty uninterested that I didn't deny owing Citibank, but only that Cavalry hadn't proved they bought the debt. She kept referring to them as Citibank, as if they were the same entity. I have another case with Midland in her court next month. This time I requested a jury (figured I was going nowhere with her again).

As to this case, I just got a notice my appeal court date is next month in District Court. This is a "Trial De Novo", ie, a brand new trial and I'm not sure how well I can navigate this pro se, but it's out of Jerry's geographic area and I'm not having much luck finding an attorney.

So the question is, do I try discovery or now that it's out of small claims court, go for arbitration? The Plaintiff’s motion to vacate the previous arbitration order was based on the card agreement statement “Individual Claims filed in small claims court are not subject to arbitration, as long as the matter stays in small claims court” which obviously no longer applies?

[Bulldoger]

"As to this case, I just got a notice my appeal court date is next month in District Court. This is a "Trial De Novo", ie, a brand new trial and I'm not sure how well I can navigate this pro se, but it's out of Jerry's geographic area and I'm not having much luck finding an attorney."

I not an attorney but navigate district court in VA.  As texasrocker states there are rules and timelines which have to be followed. You seem very intelligent looking at your MTCs I would think you could handle this case and help your fellow Texans with a precedent case with the small claims issue.  You will need a copy of the rules and if possible, the texas district court judge manual.  Having a consumer attorney would be best if you can't find one your only choice is to handle this pro se.  The arbitration portion should be easy for you since you have the MTC just need to be modified for district court.   It's the discovery and trial where a local consumer attorney comes in real handy.  

IMO ( I am not attorney)

Just my thought it's de novo, I don't see a drawback in refiling your MTC Arbitration in district court. See how the district court interprets how the small claims issue applies now that your case is in District Court.  If Javitch tries to argue it again that it should still apply.  You can argue your not in small claims court any more so the contract wording "as long as the matter stays in small claims court” applies. And also argue that you appeal to district court because the lower court applied the law incorrectly since Texas no longer has small claims court and the small claims court exclusion should not have applied that court should correct the error that occurred in Justice Court and award your MTC.    

Even if it all goes to **** and your not granted your MTC you lost nothing by trying you can still do discovery after the MTC is denied. (gives you more time to find attorney to handle discovery and trial) 

I would take another shot at it in both courts/cases. I would also file MTC against MCM then try to get a continuance based on your filing appeal in this matter on your Javitch case where said court ruled against your MTC. You are in the process of having a ruling in a precedent case with your appeal and the court should wait for that ruling.  If they don't give you continuance and things work out with the MTC in appeal you have option to file for reconsideration base on your Javitch case or appeal the MCM case to district. 

Does MCM have a small claims exclusion? reason why you elected trial by jury?

[bartos]

On 5/15/2022 at 7:18 PM, Bulldoger said:

"As to this case, I just got a notice my appeal court date is next month in District Court. This is a "Trial De Novo", ie, a brand new trial and I'm not sure how well I can navigate this pro se, but it's out of Jerry's geographic area and I'm not having much luck finding an attorney."

I not an attorney but navigate district court in VA.  As texasrocker states there are rules and timelines which have to be followed. You seem very intelligent looking at your MTCs I would think you could handle this case and help your fellow Texans with a precedent case with the small claims issue.  You will need a copy of the rules and if possible, the texas district court judge manual.  Having a consumer attorney would be best if you can't find one your only choice is to handle this pro se.  The arbitration portion should be easy for you since you have the MTC just need to be modified for district court.   It's the discovery and trial where a local consumer attorney comes in real handy.  

IMO ( I am not attorney)

Just my thought it's de novo, I don't see a drawback in refiling your MTC Arbitration in district court. See how the district court interprets how the small claims issue applies now that your case is in District Court.  If Javitch tries to argue it again that it should still apply.  You can argue your not in small claims court any more so the contract wording "as long as the matter stays in small claims court” applies. And also argue that you appeal to district court because the lower court applied the law incorrectly since Texas no longer has small claims court and the small claims court exclusion should not have applied that court should correct the error that occurred in Justice Court and award your MTC.    

Even if it all goes to **** and your not granted your MTC you lost nothing by trying you can still do discovery after the MTC is denied. (gives you more time to find attorney to handle discovery and trial) 

I would take another shot at it in both courts/cases. I would also file MTC against MCM then try to get a continuance based on your filing appeal in this matter on your Javitch case where said court ruled against your MTC. You are in the process of having a ruling in a precedent case with your appeal and the court should wait for that ruling.  If they don't give you continuance and things work out with the MTC in appeal you have option to file for reconsideration base on your Javitch case or appeal the MCM case to district. 

Does MCM have a small claims exclusion? reason why you elected trial by jury?

Thanks for the reply and sorry for the delay. Life got in the way for a moment.

I've been trying to get a Consumer Attorney, but having trouble with the geographic location. I may just try to get a local attorney to help me navigate the procedural items, and just file the MTC Arbitration on the Appeal Case.

For the new MCM case, they don't have an arbitration clause (Capital One) and the reason I went jury is because it's the same judge as the previous one and she was treating the JDB and the Original Creditor as the same entity, often conflating them, even though my entire argument was that they were not the same entity and the debt had allegedly been sold and I wanted proof that it was actually sold, what the terms were, etc.




 

[alwayswinning36]

I can understand why the MTC was denied the second time. Justice Court is the small claims equivalent in Texas. Go to any justice court website, and you will see that you can in fact file a SMALL CLAIMS case. They moved quick though. 2020 last payment and filed suit not even a year later. Wow. My brother is an attorney, although he doesn't specialize in FCRA, or FDCPA, I think I remember him saying once that if you appeal a Justice Court decision that it is sent to District Court and is in fact de novo. But that is the only appeal you get, and whatever is decided at that time becomes final.

 

Edit: appeal is in County court, not district. My bad.

[bartos]

2022-06-15 - 2nd Appeal time?

Update: I lost the appeal (technically a Trial de novo) in County court. The judge was not a lawyer.

I made a Motions to Dismiss based on "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"

DENIED

I then re-made the Motion to Compel Arbitration from Justice Court, based on the Card Agreement, which stated:
"Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court."

In Justice Court, my argument was that Small Claims Courts were abolished in Texas in 2013 and that the clause did not apply, even though this might be a small claims case. That motion was initially granted in JP court, but then vacated. My argument in County Court was that the clause does not apply since the case is Trial De Novo and in County Court. The plaintiff attorney argued that I was appealing to venue shop.

DENIED

After that I made a Motion to Strike the Business records in a similar way to JP court, that they weren't true and correct copies and incomplete, no privilege log explaining redactions, etc.

DENIED

I then argued that the Master Purchase agreement, which is referenced in the sale, was necessary to show exactly what Cavalry bought from Citibank, and since it was not present, there's no way to know what Citibank sold to Cavalry related to my account. The judge kept asking if I owed Citibank, and I contended that I had a contract with Citibank, but not Cavalry, so without clear title to the loan, I had to way to know that I would no longer owe Citibank, or that there weren't other Junk Debt Buyers that might own part or other rights to the debt. The judge then wanted to know why I didn't pay the debt in the first place, and I explained that it was something I wanted to negotiate with Citibank and was immaterial to whether I owe Cavalry anything.

The judge then ruled in favor of the plaintiff and started to grant the payment out of the bond I posted, but I stated that I planned to appeal again, and the judge then decided to take some time to decide what to do about the bond and we send something out...I assume because he realizes it would be burdensome to recover the judgment if another appeal is successful.

So @texasrocker I know you previously mentioned wanting somebody to appeal the Small Courts Clause in Texas...I think this is the opportunity because I'm happy to try. I just need guidance or advice.





 

[Bulldoger]

In case you haven't seen this here is a link to a guide on how to file an appeal in Texas.  

http://archive.tyla.org/tyla/assets/File/Pro Se Litigant Guide.pdf

good luck looks like you have good arguments for appeal. 

I noticed it states if you file Request for Findings of Facts and Conclusions of Law you get extension up to 90 days to file appeal brief. 

Tex. R. Civ. P. 296

As amended through April 25, 2022

Rule 296 - Requests for Findings of Facts and Conclusions of Law

In any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law. Such request shall be entitled "Request for Findings of Fact and Conclusions of Law" and shall be filed within twenty days after judgment is signed with the clerk of the court, who shall immediately call such request to the attention of the judge who tried the case. The party making the request shall serve it on all other parties in accordance with Rule 21a.

Tex. R. Civ. P. 296

From: https://utcle.org/elibrary/download/practice_area_id/5/a/52052/p/1

Together, findings of fact and conclusions of law provide the trial court’s reasoning for its judgment. Allstate Ins. Co. v. Hegar, 484 S.W.3d 611, 615 (Tex. App.—Austin 2016, pet. denied). Which are more important? The applicable standard of review confirms that findings of fact are the more important of the two. Findings of fact are reviewed for sufficiency of the evidence; conclusions of law are reviewed de novo. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008).

The court of appeals treats findings of fact as it would jury findings but does not give any weight to the trial court’s legal conclusions. When reviewing conclusions of law, courts of appeals will make their own legal determination. First Trust Corp. TTEE FBO v. Edwards, 172 S.W.3d 230, 233 (Tex. App.—Dallas 2005, pet. denied). An erroneous conclusion of law is not binding on an appellate court. Bexar Cnty. Crim. Dist. Atty’s Ofc. v. Mayo, 773 S.W.2d 642, 643 (Tex. App.—San Antonio 1989, no writ).

Further, if there is a conflict between a finding of fact and a conclusion of law, the fact finding prevails. Buzbee v. Buzbee, 870 S.W.2d 335, 340 (Tex. App.—Waco 1994, no writ). What are the purposes of findings of fact and conclusions of law? First, findings of fact and conclusions of law narrow the issues for appeal and provide a basis for attacking the judgment. Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 252, 255 (Tex. App.—Houston [14th Dist.], pet. denied).

Findings of fact assist the losing party by ascertaining the true basis for the trial court’s decision. Nicholas v. Env’t Sys. (Internat’l) Ltd., 499 S.W.3d 888, 894 (Tex. App.— Houston [14th Dist.] 2016, pet. denied).

In a bench trial, there is a presumption of validity of the judgment and that all evidence necessary to support it was admitted at trial. To limit the scope of the presumption, an appellant should request findings of fact. Vickery, 5 S.W.3d at 252; Larry F. Smith, Inc. v. Weber Co., Inc., 110 S.W.3d 611, 614 (Tex. App.—Dallas 2003, pet. denied). Without findings of fact, the court of appeals implies all necessary findings in support of the judgment. Combs v. Newpark Resources, Inc., 422 S.W.3d 46, 49 (Tex. App.—Austin 2013, no pet.); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980); Schoeffler v. Denton, 813 S.W.2d 742, 744 (Tex. App.—Houston [14th Dist.] 1991, no writ).

If there are no findings of fact requested and none filed, the appellate court must affirm the judgment if any legal theory is supported by the evidence. Newpark Resources, 422 S.W.3d 46, 49; Schoeffler, 813 S.W.2d at 744. Findings of fact also define the parameters of issues tried for purposes of res judicata. Igal v. Brightstar Information Technology Group, Inc., 250 S.W.3d 78, 89-90 (Tex. 2008).

Second, a request for findings of fact extends the appellate deadlines. TEX. R. APP. P. 26.1(a)(4). The extended deadline only applies, however, in Rule 296 findings or in cases where findings of fact may be considered on appeal. Id. This is important because if not a proper case for findings of fact, the request does not extend the appellate deadlines and an appeal that relied on the extended deadlines would be dismissed for lack of jurisdiction. 

I would think filing a Requests for Findings of Facts and Conclusions of Law is your next step Under Rule 296. 

 

[bartos]

1 hour ago, Bulldoger said:

In case you haven't seen this here is a link to a guide on how to file an appeal in Texas.  

http://archive.tyla.org/tyla/assets/File/Pro Se Litigant Guide.pdf

good luck looks like you have good arguments for appeal. 

I noticed it states if you file Request for Findings of Facts and Conclusions of Law you get extension up to 90 days to file appeal brief. 

Tex. R. Civ. P. 296

As amended through April 25, 2022

Rule 296 - Requests for Findings of Facts and Conclusions of Law

In any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law. Such request shall be entitled "Request for Findings of Fact and Conclusions of Law" and shall be filed within twenty days after judgment is signed with the clerk of the court, who shall immediately call such request to the attention of the judge who tried the case. The party making the request shall serve it on all other parties in accordance with Rule 21a.

Tex. R. Civ. P. 296

From: https://utcle.org/elibrary/download/practice_area_id/5/a/52052/p/1

Together, findings of fact and conclusions of law provide the trial court’s reasoning for its judgment. Allstate Ins. Co. v. Hegar, 484 S.W.3d 611, 615 (Tex. App.—Austin 2016, pet. denied). Which are more important? The applicable standard of review confirms that findings of fact are the more important of the two. Findings of fact are reviewed for sufficiency of the evidence; conclusions of law are reviewed de novo. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008).

The court of appeals treats findings of fact as it would jury findings but does not give any weight to the trial court’s legal conclusions. When reviewing conclusions of law, courts of appeals will make their own legal determination. First Trust Corp. TTEE FBO v. Edwards, 172 S.W.3d 230, 233 (Tex. App.—Dallas 2005, pet. denied). An erroneous conclusion of law is not binding on an appellate court. Bexar Cnty. Crim. Dist. Atty’s Ofc. v. Mayo, 773 S.W.2d 642, 643 (Tex. App.—San Antonio 1989, no writ).

Further, if there is a conflict between a finding of fact and a conclusion of law, the fact finding prevails. Buzbee v. Buzbee, 870 S.W.2d 335, 340 (Tex. App.—Waco 1994, no writ). What are the purposes of findings of fact and conclusions of law? First, findings of fact and conclusions of law narrow the issues for appeal and provide a basis for attacking the judgment. Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 252, 255 (Tex. App.—Houston [14th Dist.], pet. denied).

Findings of fact assist the losing party by ascertaining the true basis for the trial court’s decision. Nicholas v. Env’t Sys. (Internat’l) Ltd., 499 S.W.3d 888, 894 (Tex. App.— Houston [14th Dist.] 2016, pet. denied).

In a bench trial, there is a presumption of validity of the judgment and that all evidence necessary to support it was admitted at trial. To limit the scope of the presumption, an appellant should request findings of fact. Vickery, 5 S.W.3d at 252; Larry F. Smith, Inc. v. Weber Co., Inc., 110 S.W.3d 611, 614 (Tex. App.—Dallas 2003, pet. denied). Without findings of fact, the court of appeals implies all necessary findings in support of the judgment. Combs v. Newpark Resources, Inc., 422 S.W.3d 46, 49 (Tex. App.—Austin 2013, no pet.); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980); Schoeffler v. Denton, 813 S.W.2d 742, 744 (Tex. App.—Houston [14th Dist.] 1991, no writ).

If there are no findings of fact requested and none filed, the appellate court must affirm the judgment if any legal theory is supported by the evidence. Newpark Resources, 422 S.W.3d 46, 49; Schoeffler, 813 S.W.2d at 744. Findings of fact also define the parameters of issues tried for purposes of res judicata. Igal v. Brightstar Information Technology Group, Inc., 250 S.W.3d 78, 89-90 (Tex. 2008).

Second, a request for findings of fact extends the appellate deadlines. TEX. R. APP. P. 26.1(a)(4). The extended deadline only applies, however, in Rule 296 findings or in cases where findings of fact may be considered on appeal. Id. This is important because if not a proper case for findings of fact, the request does not extend the appellate deadlines and an appeal that relied on the extended deadlines would be dismissed for lack of jurisdiction. 

I would think filing a Requests for Findings of Facts and Conclusions of Law is your next step Under Rule 296. 

 

This is great, and I definitely need the 90 days. THANKS!

 

[Bulldoger]

Judge can argue semantics on the small claims court (weak argument)  but he definitely falls with the Trial De Novo in county court. 

 I wonder what case law he cites for a Trial De Novo case is not a new case.  Because,   Trial De Novo by definition means New Case. 

I can't see the appellate court accepting any of the Judge's possible reasoning. 

Wonder what he will write. Maybe he will write the truth since he is not a lawyer something like. 

The defendant admitted to having a Capital-One account gave no reason why he defaulted obviously he owes the money that's why the Judgement.  

I would not be surprise he vacates the Judgement and awards the MTC.  Reasons he doesn't have to write the Requests for Findings of Facts and Conclusions (law clerk or himself has to put in the effort to support his findings)  to only have the Appeals court remand the case back to him. 

If he vacates judgement and awards the MTC and dismisses the case without prejudice he gets rid of the case. (I don't even see him staying the case)  

hopefully that happens and you don't even have to deal with appeal. 

[texasrocker]

On 6/15/2022 at 9:22 AM, bartos said:

...So @texasrocker I know you previously mentioned wanting somebody to appeal the Small Courts Clause in Texas...I think this is the opportunity because I'm happy to try. I just need guidance or advice.

I am not qualified to advise on filing an appeal and I don't know of anyone on this board who is except maybe CalLawyer but he has been absent for a long time. 

You definitely have grounds for an appeal but it is imperative that you at the very least talk to an attorney or you will likely lose on a technicality before you even have a chance to present your case. 

[Bulldoger]

here a couple of consumer attorneys in your area. 

https://lawyers.findlaw.com/lawyer/firm/consumer-protection/llano/texas

Consumer attorneys usually give free consults,   

[alwayswinning36]

I can ask my brother about a situation like this and see what he says. But I think, JP rulings only get appealed once, to the county court at law. And if you lose the appeal there, that's all she wrote.

[bartos]

On 6/19/2022 at 12:02 PM, alwayswinning36 said:

I can ask my brother about a situation like this and see what he says. But I think, JP rulings only get appealed once, to the county court at law. And if you lose the appeal there, that's all she wrote.

The JP Appeal is not a true appeal. It just says that JP "normal people / easier rules" court didn't make a ruling that was acceptable to all parties, so now the party can get a "Trial de Novo" aka, an entirely new trial, as if the JP trial never happened...but I'd still love to hear what your brother has to say.

[Clydesmom]

2 hours ago, bartos said:

The JP Appeal is not a true appeal. It just says that JP "normal people / easier rules" court didn't make a ruling that was acceptable to all parties, so now the party can get a "Trial de Novo" aka, an entirely new trial, as if the JP trial never happened...but I'd still love to hear what your brother has to say.

The OP in this case already had their trial de novo.  They lost on all motions and verdict for the Plaintiff.  Now their only option is to appeal to the Appellate Court.

On 6/15/2022 at 3:01 PM, Bulldoger said:

Judge can argue semantics on the small claims court (weak argument)  but he definitely falls with the Trial De Novo in county court. 

 I wonder what case law he cites for a Trial De Novo case is not a new case.  Because,   Trial De Novo by definition means New Case. 

The judge not ruling in your favor on all motions at the State Court level doesn't mean it wasn't a trial de novo it means you lost again.  If you read the OP's breakdown of how the case went it was a trial de novo.  The court heard all the motions and ruled on each one.  The judge not ruling in your favor means you lose.  In this case the court chose not to hear the small claims exception.  One reason is most likely in Texas if you engage in the litigation process you waive your right to arbitrate.  Well appealing to another court IS engaging in the litigation process.  My opinion is the chances of over turning this ruling on appeal is zero.  That is using another level of the courts and by now could be interpreted as venue shopping.

On 6/15/2022 at 9:22 AM, bartos said:

After that I made a Motion to Strike the Business records in a similar way to JP court, that they weren't true and correct copies and incomplete, no privilege log explaining redactions, etc.

DENIED

Under the business records exemption laws which have been used for almost a decade now the amount of proof needed for records as evidence is greatly reduced.  Another problem is that the rules in JP court are the 500 rules.  District/State Court is the 100 rules.  You have to go by the rules of evidence for the court you are in.  Similar is not the same as following the rules of civil procedure.  

On 6/15/2022 at 9:22 AM, bartos said:

I then argued that the Master Purchase agreement, which is referenced in the sale, was necessary to show exactly what Cavalry bought from Citibank, and since it was not present, there's no way to know what Citibank sold to Cavalry related to my account. The judge kept asking if I owed Citibank, and I contended that I had a contract with Citibank, but not Cavalry, so without clear title to the loan, I had to way to know that I would no longer owe Citibank, or that there weren't other Junk Debt Buyers that might own part or other rights to the debt. The judge then wanted to know why I didn't pay the debt in the first place, and I explained that it was something I wanted to negotiate with Citibank and was immaterial to whether I owe Cavalry anything.

You walked right into that trap.  The judge asked you why you didn't pay and you admitted to the debt and then doubled down on confirming it was yours when you argued that you wanted to negotiate with CITI.  Once that account was sold CITI was no longer in the picture.  At that point it was game over.  

On 6/15/2022 at 3:01 PM, Bulldoger said:

I can't see the appellate court accepting any of the Judge's possible reasoning. 

You also can't see the courts ruling that JP court is small claims and yet it keeps happening over and over.  Appealing this all the way to the Texas Supreme Court to get a ruling that JP court isn't small claims takes time and a LOT of money.  Chances on getting a favorable decision are slim to none in my opinion.  

On 6/15/2022 at 9:22 AM, bartos said:

 I know you previously mentioned wanting somebody to appeal the Small Courts Clause in Texas...I think this is the opportunity because I'm happy to try. I just need guidance or advice.

Appealing your case at this point is no longer a trial de novo.  Now you have to have clear and convincing evidence which means TEXAS case law from your jurisdiction and the appellate level on other cases that the judge in your case made errors of law and/or procedure.  If you thought the rules at the District/State Court level were tough the Appellate Court and Supreme Court rules are to the letter 10x harder.  Everything from font, spacing, and layout of your filed documents, along with supporting case law, and appealing under the correct rule(s) is required to name just a few requirements.  I understand everyone's desire to get that ultimate verdict from the higher court supporting what they believe.  It it what this country was founded on but doing so is not easy or cheap.  The timelines are even shorter and the days to make it happen are slipping away fast.

[alwayswinning36]

On 6/23/2022 at 10:13 AM, bartos said:

The JP Appeal is not a true appeal. It just says that JP "normal people / easier rules" court didn't make a ruling that was acceptable to all parties, so now the party can get a "Trial de Novo" aka, an entirely new trial, as if the JP trial never happened...but I'd still love to hear what your brother has to say.

My brother say good luck to your further appeal. Let us all know if you get one and how it goes.

[bartos]

So I filed the "Requests for Findings of Facts and Conclusions of Law" but crossing in the mail from Javitch was a "Plaintiff's Notice of Nonsuit with Prejudice". This came in about 8 days after the Final Judgment and payment out to Javtich/Cavalry from half of my double-bond.

I'm confused as to what this implies?

[Bulldoger]

4 hours ago, bartos said:

This came in about 8 days after the Final Judgment and payment out to Javtich/Cavalry from half of my double-bond.

Are you saying the court took from your appeal bond which was twice the Judgement amount and paid the judgement, Thus satisfying the judgement.  Correct?  So they knew you were appealing.

4 hours ago, bartos said:

"Plaintiff's Notice of Nonsuit with Prejudice"

This means they have no more claims against you they have been made whole by court and are asking court to dismiss the case with prejudice. 

You can still appeal but they are not fighting the appeal. They will not be filing an answer to your appeal brief or appearing in appeal hearing they are done with case.  They figure you will lose your appeal and they don't have to defend the case.  I would check with court and see if you have to continue to mail them you filings through the appeal process I would think not. 

Good news is if you lose appeal your not on hook for any of their legal fees if they had decided to defend the appeal and you lost you would have to pay legal fees out of the remaining bond. 

If you win you will get a Judgement against the plaintiff for the return of your bond money they got. 

There will be no order to Arbitrate as Plaintiff dismissed with prejudice. 

 

That's how I read it, not an attorney, just how I interpret it. 

 

 

 

 

[bartos]

On 7/15/2022 at 12:46 AM, Bulldoger said:

Are you saying the court took from your appeal bond which was twice the Judgement amount and paid the judgement, Thus satisfying the judgement.  Correct?  So they knew you were appealing.

 

 

 

 

Correct.

Quote

This means they have no more claims against you they have been made whole by court and are asking court to dismiss the case with prejudice. 

You can still appeal but they are not fighting the appeal. They will not be filing an answer to your appeal brief or appearing in appeal hearing they are done with case.  They figure you will lose your appeal and they don't have to defend the case.  I would check with court and see if you have to continue to mail them you filings through the appeal process I would think not. 

Good news is if you lose appeal your not on hook for any of their legal fees if they had decided to defend the appeal and you lost you would have to pay legal fees out of the remaining bond. 

If you win you will get a Judgement against the plaintiff for the return of your bond money they got. 

There will be no order to Arbitrate as Plaintiff dismissed with prejudice. 

 

That's how I read it, not an attorney, just how I interpret it. 

I've already received a check for the other half of the bond. Not sure if there is another bond needed for appeal.  Also, even though I have filed the "Requests for Findings of Facts and Conclusions of Law", and now have 90 days, I'm not sure if I should file the Notice of Appeal now, or wait for the "Requests for Findings of Facts and Conclusions of Law" to come back, since filing the Notice of Appeal starts the timer on when I have to file my brief.

Thanks for the interpretation!

[bartos]

I wonder if it's worth it to make a motion to vacate the judgment?