[neil5623]

Got served by Citibank last night. It is well within SOL, dammit (sent LVNV packing earlier this year on that). The only exibit included is a copy of possibly the very last statement mailed. I am thinking Assumption of Risk is my only affirmative defense. TowerRat on AOC always said to file your answer and MD immediately, don;t wait around. So I am wondering, what is a good basis for a dismissal?


This was filed by an attorney on behalf of Citibank in Texas County Court-at-Law, no CA ever involved. The atty sent letter earlier this year asking for payment, in the letter was a sentence saying if I disputed this debt, they would send a copy of verification. Like that ever happened, I responded CMRRR stating the account was in dispute, do not call, comm by mail only.

[drivel]

Originally Posted by neil5623

Got served by Citibank last night. It is well within SOL, dammit (sent LVNV packing earlier this year on that). The only exibit included is a copy of possibly the very last statement mailed. I am thinking Assumption of Risk is my only affirmative defense. TowerRat on AOC always said to file your answer and MD immediately, don;t wait around. So I am wondering, what is a good basis for a dismissal?


This was filed by an attorney on behalf of Citibank in Texas County Court-at-Law, no CA ever involved. The atty sent letter earlier this year asking for payment, in the letter was a sentence saying if I disputed this debt, they would send a copy of verification. Like that ever happened, I responded CMRRR stating the account was in dispute, do not call, comm by mail only.

Assumption of risk as in you are not responsible for paying this debt because the creditor should have known you weren't going to pay?

[hannah]

Neil, Citibank has a very good track record of suing and winning these types of cases because they are the OC and they do have your records. In addition, they are not required by the FDCPA to validate or verify your debt because they are THE creditor. If I were in this position, I would attempt to negotiate a settlement with them. However, that said, even though they aren't required by federal law to verify your debt to you the Republic of Texas may have state laws that apply.

Edited to add: Drivel, that is a very novel approach...

[centex]

Not enough information to say whether the one statement would be sufficient. We are dealing with (apparently) an OC, which means then that if the final balance matches what is claimed in addition to the attorney fees (if specifically enumerated), they may have satisfied their burden on the complaint.

What level of of discovery plan is specified? My guess is that you are looking at a Level 1 Discovery Control Plan. This should be contained in the first numbered paragraph of the original petition.

You don't specify what county you are in, but it may reasonably be expected that you are in one of the larger counties. County courts at law in the larger counties generally have decent judges...you are not dealing with Joe the country hick JP. That said, while you will get some latitude, you don't want to screw things up right off the bat by filing something just because you read it on a message board.

You got served last night. That means you have some time to think things through and to also get your hands on an annotated copy of the Texas Rules for Civil Procedure. Read through the relevant sections and understand WHY you are doing something before you do it...

[spinn]

Towers theory on assumption of risk was that if it were a JDB suing on a debt, chances are that JDB paid 2% or $20 if the debt were $1000. Tower said the JDB assumed the risk of the debt and that it is therefore worth $20, not $1000. That scenario does not apply here and unfortunately, I dont think its been sucessfully argued anwywhere.....although it seems interesting.

I also think he said to file your answer at the last possible minute. Why give the opposition more time than you need to?

[neil5623]

Originally Posted by drivel

Assumption of risk as in you are not responsible for paying this debt because the creditor should have known you weren't going to pay?

No, I was thinking more along the lines that they assumed the risk by jacking up the interest rate to 32% and piling on obscene amounts of fees when I ran into trouble with medical bills last year and they refused to work with me at a level that I could afford.

There is the "Contract of Adhesion" defense, as there was inequality of bargaining power.

I have to try something. I could not afford to pay then, I can not afford anything now. This is in Jefferson County, TX I have seen the judge in action, he goes easy on Pro Se parties.

[neil5623]

<<I also think he said to file your answer at the last possible minute. Why give the opposition more time than you need to?>>

Right, but don't wait too long after that to file the Dismiss to give them too much time.

[spinn]

Neil only 4% of defaults are due to simple refusal to pay.

A lot of people make their living rate jacking and suing the people who default on debts through a changing of their circumstances that are beyond their control.

Essentially...they are profitting from your misfortune.

At the end of the day....I can tell people what I do for a living.....Can they?

I know things will work out for the best on this.

[apexcrsrvc]

First, does the Texas Financial Code apply to creditors as well as collection entities. If so, you may consider asking Citibank to "verify" the account and it's history. If not, this approach would not apply insofar as the FACTA amendments have no teeth.

Second, does the State of Texas have a presrcibed usury standard? That is too say, does Texas, like West Virginia, codify what interest rate is excessive of a usurious limit? If so, you may consider disputing the balance/rates under the FCBA (yes, I know it wouldn't be timely but we're grasping here) and follow it up with an FCRA dispute through all three CRA's. If they verified without "resolving" the dispute, you'd have something (again, probably not timely but perhaps opposing counsel is a douchebag).

Third, have you ever disputed Citibank's tradeline on your reports? If so, did they mark it in dispute?

Fourth, how much money is in issue here. Reason I ask is that if you owe like 10k, you're just sunk.

With all the above said and presuming you owe a marginal amount (5k or less), you need to do the following:

1) File your responsive pleading, in this case an answer (or motion for a more definate statement if you feel frisky) at the latest possible date while reserving the right to amend with counters and affirmative defenses,

2) Dispute the tradelines if you haven't done so,

3) Pray for a violation such as failure to mark the account in dispute (Citibank is pretty damn compliant so good luck) and if you get one (or more) . . .

4) Amend with a counter or counters in an attempt to offset their claim.

Now, if the questions I asked above are answered in the affirmative, we have a whole new ball game . . .

[neil5623]

Hey, y'all. I just checked with the county clerk online at how they filed, it is listed as a SECURITY AGREEMENT." According to dictionary.com:

Main Entry: security agreement
Function: noun
: an agreement which creates or provides for a security interest <perfect a security interest in collateral described in a security agreement> —compare SECURED TRANSACTION

Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc.

Something tells me that credit card purchases do not qualify as a security interest, as there has to be a UCC-1 involved. I may be on to something, but I need to do some more checking.

Thanks, apex. I need to check on your post also. Bud Hibbs (budhibbs.com) may be help with answering some of that.

[centex]

I would not make any filings based upon how something is recorded online. You need to go to the Clerk's Office and review the file. The online entry could very well be based solely on drop-down boxes or other limited entries.

Your financial health is at issue...is it worth being lazy in how you research the matter?

[ilovemydogs]

Originally Posted by neil5623

Got served by Citibank last night. It is well within SOL, dammit (sent LVNV packing earlier this year on that). The only exibit included is a copy of possibly the very last statement mailed. I am thinking Assumption of Risk is my only affirmative defense. TowerRat on AOC always said to file your answer and MD immediately, don;t wait around. So I am wondering, what is a good basis for a dismissal?


This was filed by an attorney on behalf of Citibank in Texas County Court-at-Law, no CA ever involved. The atty sent letter earlier this year asking for payment, in the letter was a sentence saying if I disputed this debt, they would send a copy of verification. Like that ever happened, I responded CMRRR stating the account was in dispute, do not call, comm by mail only.

So Citibank still owns this account?
How much is it for?
How much was it for when you first stopped paying?
I went to court when Citibank sued me, and at the time I owed just about 12,500. I told them I would give them 1500 to go away or let us go into court and see when you will get ANYTHING.
Right there and then they said SHOW ME THE MONEY.
We went into court and said we needed a postponement as we had agreed on yada yada.
I made up a letter of settlement, they signed it, and I also had it dismissed with prejudice.
SO they would much rather take a chunk of money and run with it instead of it getting handed to them slowly in small payouts.

ILMD

[apexcrsrvc]

Originally Posted by neil5623

Hey, y'all. I just checked with the county clerk online at how they filed, it is listed as a SECURITY AGREEMENT." According to dictionary.com:

Main Entry: security agreement
Function: noun
: an agreement which creates or provides for a security interest <perfect a security interest in collateral described in a security agreement> —compare SECURED TRANSACTION

Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc.

Something tells me that credit card purchases do not qualify as a security interest, as there has to be a UCC-1 involved. I may be on to something, but I need to do some more checking.

Thanks, apex. I need to check on your post also. Bud Hibbs (budhibbs.com) may be help with answering some of that.

There is no way they filed an Article 9 claim insofar as this is an "unsecured" credit card, isn't it? I could see if this was Citifinancial which often finances furniture but, not a Citi backed credit card.

[neil5623]

Seems like I saw somewhere that Plaintiff has only so long to serve? I could not see anything specific in Texas Rules. Rat Farts.

[MED]

Originally Posted by neil5623

Seems like I saw somewhere that Plaintiff has only so long to serve? I could not see anything specific in Texas Rules. Rat Farts.

It is called Due Diligence and there is Texas case law showing Plaintiff must serve within a reasonable time. I haven't quite figured out what the magic number is though. I thought I saw a case were 4 months between filing and serving was too long. SOL ran out between that time and defendant won based on expired SOL.

I pulled the following from Christopher Medina, Appellant v. Dr. H. Lopez-Roman and Dr. Stuart Crane, Appellees

http://www.3rdcoa.courts.state.tx.us...OpinionID=9236

The mere filing of a petition will not toll the running of a statute of limitations; the plaintiff must exercise due diligence in procuring the issuance and service of citation upon the defendant. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975). Thus, if a plaintiff files a petition within the limitations period but does not serve the defendant until after the statutory period has expired, the date of service will nonetheless relate back to the date of filing if the plaintiff can show he exercised diligence in effecting service. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). A party moving to dismiss a suit on the ground that the petition was filed but not served within the applicable limitations period must establish that ground as a matter of law. Zale, 520 S.W.2d at 891.

This case also discusses due diligence related to service:
http://www.3rdcoa.courts.state.tx.us...OpinionID=9367

[MED]

You might take at a look at my thread (http://www.infinitecredit.com/forums...ad.php?t=1991). In it, I post the contents of Preston State Bank v. Jordan. This was a case of the OC suing the debtor. I think it goes to show what an OC must provide in terms of proof to win their case. Make sure your OC has those items. Being Citibank, they may just have it though. When was the account first opened?

[neil5623]

I decided to not mess with a MD. I found a defense based on a case from the appeals court above this one that I hope will continue to work. An attorney said to include a few requests for admissions, but I sort of want to keep a low profile and hope they don't start looking real hard at this one. The admissions that I drafted have nothing to do with my defense. If Plaintiff's attorney has to start doing something, think they would start looking harder? I need to file the answer today.

1. Defendant disputed accuracy of said account with Plaintiff prior to Plaintiff turning account over to Plaintiff’s attorney.
2. Defendant informed Plaintiff’s attorney that said account was in dispute status.
3. Defendant communicated to Plaintiff’s attorney the status of the account being in dispute in writing.
4. Plaintiff retained said account in an Open status for over one year with the intention of maximizing balance of said account through the application of usurious and egregious fees and interest rate.
5. Plaintiff applies egregious and excessive interest rates and fees for the purpose of accelerating the balance on defaulted accounts.
6. Defendant was not served process on this suit until more than two (2) months after suit was filed.
7. No attempt to serve Defendant was made prior to actual service.
8. Plaintiff did not use Due Diligence in effecting a timely service.

[hannah]

Neil, this isn't an answer. You need answer the actual complaint not just state what you think are reasons for it to be dismissed. You will need to answer each allegation and assert your affirmative defenses and counterclaims, if any.

Here is a copy of something Dixiedrifter wrote about answering a lawsuit. I hope he doesn't mind me using it as I can't remember if I got it off AoC or not. It's a good outline of how to answer a lawsuit. Remember, though, that not all of the defenses need to be used nor may they be appropriate to your case.

Originally Posted by Dixiedrifter

The first thing to do when you get served with a summons is to obtain a copy of the RCP and read and study the whole thing. From this you can learn which motions to file, how long you have to file them, and what types of discovery is allowed.

The second thing to do is file your answer and counterclaims. You have a set time frame which is defined in your RCP to file. If you fail to answer, or answer inappropriatly, the plaintiff will be granted a default judgment or summary judgment. This principle is called estoppel, which basically means if you don't use it, you lose it.

A basic answer is divided into five parts and is called, the caption, the actual answers to the allegations, your affirmative defenses, your counterclaims, and the prayer for relief.

The Caption

The caption part is pretty simple. It is simply the top part of the complaint, and all you have to do is to copy this part onto your answer. Just use what was on the plaintiff's complaint/summons. Some versions of Microsoft Word contains a pleading wizard to assist you in creating a caption.

The Answer

The next part is the actual answer part which you will begin by stating "COMES NOW, Defenant <YOUR NAME> in answer to Plaintiff <THEIR NAME>'s Complaint.

You will see numbered paragraphs on the complaint. It is crucial to deny each one even if they are correct and true, except for any paragraph that contains personal information relating to you that is 100% correct which you can admit. Remember, their job as a plaintiff is to prove everything, and you don't want to help them out one tiny bit. A very simple, effective, and professional way to do this is to say:

Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in paragraph xx of the Complaint, and based on that denies generally and specifically each and every allegation contained therein.

If you do this correctly you will have numerous denial statements above, one for each numbered paragraph.

Affirmative Defenses

The next part of the answer consists of your affirmative defenses. Keeping with the estoppel principle, if you do not state an affirmative defense, you may lose the right to assert it later. That is why in your affirmative defense section, you will want to list as many affirmative defenses as possible, whether they apply or not. Your general answers and large list of specific and non specific affirmative defenses is called a �boiler