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MCM (CAPITAL ONE) - MOTION FOR DISCOVERY - NEED HELP


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Guys good afternoon 

I'm being sued by MCM for almost the same exact debit 

i almost have the same exact lawsuit with the same paperwork like LOST in TX .. except mine is missing the agreement .. but i have everything else like he posted .

Can someone help me with this case .. im not sure if i should go the same route like him and ask for discovery or go and ask for Arbitration.. 

I have never done this before .. i would appreciate anyone help so i can answer the court .. they actually didn't serve in person they left the papers at my old house where my Xwife lives now bec they said they couldn't locate me so the judge order alternative service and they just dropped it in her mailbox.

i have no idea how to file discovery or Arbitration .. so if you can guide me somewhere please 

My debit is 2300$ and it will pass statue of limitations on Aug 15/2022 that marks 4 years ..

The case was filled since July 15/2022 and they been trying to locate me for the past month and since i work on the road i have no residence under my name thats why they dropped the alternative on 7/7/2022 at my XWIFE house ..

 

Thank you so much @Lost in TX   @texasrocker  @Bulldoger

 

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For everyone that posts here, it will help us out if you can provide the following information: (revised 02-09-2012)

 

1. Who is the named plaintiff in the suit? Midland Credit Management 

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

3. How much are you being sued for? 2309.33

4. Who is the original creditor? (if not the Plaintiff) Capital One Bank 

5. How do you know you are being sued? (You were served, right?) They left at my Xwife residence when she said i don't live there anymore and also mailed her a copy

6. How were you served? (Mail, In person, Notice on door) Noice at the door and mailed

7. Was the service legal as required by your state? Yes in TX the judge can do a citation for this if im not in the residence and have no address 

Process Service Requirements by State - Summons Complaint

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

9. What state and county do you live in? TX 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 08/15/2018

11. When did you open the account (looking to establish what card agreement may be applicable)? i wanna say 2010-2012 

12. What is the SOL on the debt? To find out: 4 years for TX 

Statute of Limitations on Debts

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). 

6/03/2022     Original Petition (OCA)       Index # 1
06/03/2022     E-File Event Original Filing
06/03/2022     Citation Issued       Index # 2

 

07/06/2022     Notice       Index # 3
07/07/2022     Order for Alternate Service       Index # 4 

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? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

I never requested .. nor that i ever spoke to them on the phone since 2018 

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? i think 14 days but im trying to finish it this week

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

2 Statements  last Statements with my payment Sep 2018 of 1948.61 balance & the Statements before the charge off Feb 2019 for 2309.33 balance

Exhibit A  Forward Flow Receivable Agreement /  Affidavit of Sale of account by creditor / Certificate of Conformity  

and Exhibit B   of someone called Melissa that works for MCM/ Forward Flow Sale/ Agreement / Certificate of Conformity  

No contract 

18.  How did you find out about this site? Web Search 

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All you need to file is the general denial I posted on other thread.  copied from a @texasrocker post. 

Comes now, <your name>, the Defendant in the above styled and numbered cause and files this Original Answer in this action and would respectfully show the following:

I.  GENERAL DENIAL

Defendant generally denies each and every, all and singular, of the allegations set forth in the Plaintiff's Original Petition and demands that the Plaintiff proves same by the preponderance of credible evidence.

II. PRAYER

Wherefore Defendant requests judgment of the Court that Plaintiff takes nothing from the Defendant and the Defendant be granted any further relief that <he or she> is justly entitled to.

<Your name, address and phone number>

Comments to your draft. 

Do you have any evidence to support affirmative defenses 1-7? If not then why are you wasting the courts time? 

8 This is what discovery and the trial is about. Plaintiff has to prove they own the debt.  

9.  I haven't seen a credit card contract the meets the threshold of being vague and ambiguous.  Have you read it? 

10. The contract is written so the Statute of Frauds has been met. 

 

Your pleas:

1) On what grounds should the case be dismissed without prejudice.  identity theft, you paid the debt already, SOL has passed? 

Why ask for this when you know it's not happening at this junction. 

2) what cost case has just started?

3) Keep this. 

 

In my opinion filing this Answer just shows you don't know what your doing. 

 

  

 

 

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6 hours ago, Henrytx said:

A friend did this for me but i didn't send it yet.. 

Let me know what u think image.thumb.png.339ed3963091e9bc2fd84f577fecc1b7.pngimage.thumb.png.155e855634e94c057279a72d4d535148.pngimage.png.45a3d067fa368af1d9d0b91117eb0011.png1.  That defense has to do with fairness.  Have you any proof the plaintiff or the OC acted unfairly in regard to the cardmember agreement?

Affirmative defenses are reasons a defendant is not responsible for the subject of a lawsuit.  Here’s the kicker:  While the plaintiff must prove its allegations, the defendant has the burden of proving his defenses.  You must have proof.

I’m sure your friend was just trying to help, but did he copy them off the internet?  If so, credit card companies and debt buyers have seen them no telling how many times.  They’ll normally be posted on a site by someone who claims to have won his lawsuit by using those defenses.

Here are my simple, layperson’s descriptions of those defenses.

1.  This defense is based on fairness.  How was the plaintiff or OC unfair in regard to the account and cardmember agreement?

2. That means that the plaintiff should have taken an action or actions that could have lessened the amount of the damages.   An example would be a renter who moves and skips out on rent.  As soon as the landlord knew the renter had moved, he had an obligation to find a new renter.  The landlord could not let the house sit vacant for months and sue the renter for months of unpaid rent when he (the landlord) could have “mitigated” (lessened) the amount of damages by finding a new renter.  How does mitigation apply to your case?

3.  This defense is applicable if you can prove the debt is outside the SOL.

4.  Do you have proof that the balance is a different amount?  If the plaintiff provides admissible evidence of a balance owed, how would you counter that evidence.

5.  How did the plaintiff (including OC) breach the contract with you?  What evidence do you have to prove a breach?

6.  Harassment by the plaintiff might be a violation of the FDCPA or Texas collection law, but it would not bar the plaintiff from collecting the balance.  Do you have proof of harassment?

7.  Were you improperly served?

8.  This is written as a “request”.  A request is not a defense.

9.  I agree with @Bulldoger.  The contract language of credit card agreements are not vague and ambiguous.  Even so, consumers agree to that language when they use the card.

10.  Which part of the Statute of Frauds is violated?  How was it violated?  The Statute of Frauds is state specific and usually only applies to written contracts that require a signature.  Credit card agreements don’t require a signature.  But, you can look up the TX Statute of Frauds to see if there’s anything you can use.

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9 hours ago, Henrytx said:

A friend did this for me but i didn't send it yet.. 

Let me know what u think image.thumb.png.339ed3963091e9bc2fd84f577fecc1b7.pngimage.thumb.png.155e855634e94c057279a72d4d535148.pngimage.png.45a3d067fa368af1d9d0b91117eb0011.png

In addition to what everyone else said (that this is a REALLY bad idea) stop getting advice from this friend.  They are going to walk you straight to a judgment.  

16 hours ago, Henrytx said:

My debit is 2300$ and it will pass statue of limitations on Aug 15/2022 that marks 4 years ..

They already filed the suit before it expired so the SOL defense is not applicable.

16 hours ago, Henrytx said:

i have no residence under my name thats why they dropped the alternative on 7/7/2022 at my XWIFE house ..

That makes the service legal and you know about the suit now so you are not prejudiced by the method of service.

9 hours ago, Henrytx said:

11. When did you open the account (looking to establish what card agreement may be applicable)? i wanna say 2010-2012 

Capital One removed the arbitration clause over a decade ago.  WHEN you opened the account makes a huge difference.  I think Cap1 removed it starting in 2010 thought it has been so long I am not sure.  The second problem is that the Justice Courts in Texas took a big shine to alternative dispute resolution or mediation at the parties' expense.  It is entirely possible they force both of you to undergo mediation and I believe they charge $1500 for this privilege.  The cost split equally.  Watch out for that trap. 

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@BulldogerThank you so much for you help 

This is the draft i made today i just need to change the names and emails and court ID for the real ones if you approve of it ill go forward and do it and send it to the court ?

My second question do i need to file a discover and if i do where can i find a form for that or what do i need to file 

Thank you so much everyone for this help .. i have never been to court before or done any of that so i appreciate everyone feedback.. image.png.17b506d5304af2af189d65624fd0e07f.png

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i'am also leaving the country for 3 month .. So should i inform the court and show them my airline ticket thats proving i will be leaving next month and wont be back till Nov 2022 ..

Sorry i forgot to mention that earlier .. 

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2 hours ago, Henrytx said:

i'am also leaving the country for 3 month .. So should i inform the court and show them my airline ticket thats proving i will be leaving next month and wont be back till Nov 2022 ..

Sorry i forgot to mention that earlier .. 

This could be a HUGE problem.  Is this for work or vacation?  The court will typically grant one extension but you would have to be here to file the motion for a continuance with the court clerk.  I don't know if they will intentionally schedule the next hearing or the trial in November.  You could also get lucky and the court is backed up and they can't schedule anything before then.  The Plaintiff also had the opportunity to oppose the continuance motion though they typically don't.  The bottom line is If you assume the court will go along with your travel plans and miss any hearings you could end up with a default judgment and not be able to undo it.  You need to stay on top of all dates and deadlines.

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2 hours ago, Henrytx said:

i'am also leaving the country for 3 month .. So should i inform the court and show them my airline ticket thats proving i will be leaving next month and wont be back till Nov 2022 ..

Sorry i forgot to mention that earlier .. 

If the nature of trip has to do with military orders I believe they have to accommodate you otherwise you can ask at first appearance. It's not cost effective to hire local attorney to keep on top of the case and represent you in court in your absence as it may cost more than you owe.  Ask if possible to appear via ZOOM or telephone.  If court has way to can file motions via email or internet.  

 

The answer looks good to go check TX rules on  how to file it.  Usually make sure it's signed by you and you mail copy to attorney and court some states require certification of mailing statement at bottom check to see what Texas rules state.

 

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Thank you for all the info 

And yes i had a second page i didn't show with the date of this document and my name signed 

And i called the court and he said they are very busy and gave me his email to actually file my answer and i asked him about the trip .. he said to send him and email with the dates and he will add it to the file as Correspondence .. i also did inform him i don't have a resistance right now and if he can send me everything through email he said he will add a note to that ..

he also did inform be they are backed up 6 month to a year behind at the moment also :)

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@Bulldoger

Good morning 

Thank you for all the help so far .. i was wondering what is my next step after i filled the answer what should i do now .. just wait . or do i need to file for discovery or do anything else at the moment .. i just wanna finish everything before i leave ..

 

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1 hour ago, Henrytx said:

@Bulldoger

Good morning 

Thank you for all the help so far .. i was wondering what is my next step after i filled the answer what should i do now .. just wait . or do i need to file for discovery or do anything else at the moment .. i just wanna finish everything before i leave ..

 

I am not very familiar with Texas court proceedings. @texasrocker is our resident expert I just copied information he had posted on other Texas threads.  Haven't seen him online lately but he is  here frequently.  Perhaps send him a PM (click the envelope upper right of page by your user name)  on what you done and when you are leaving on vacation what your next court date is.  When to ask for discovery and what to ask for  etc...  

I wish I could help more but your past what I know you should do and don't want to misguide you.  

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