[neil5623]

So nobody responded to my previous posting of my response, but that's OK since there has been so much activity since then. Here it is again, with some modification to the VALIDATION section at the end. Visited with an attorney friend who gave me some great pointers on the affidavit that they used on the MSJ. I will supply those after the hearing, provided I get some decent input from this post. Ignore the Due Diligence section. Had some sleepless nights thinking about how I can file against Citi or the CA/Attorney. More on that later.

[HighestAppeal]

Originally Posted by neil5623

So nobody responded to my previous posting of my response, but that's OK since there has been so much activity since then. Here it is again, with some modification to the VALIDATION section at the end. Visited with an attorney friend who gave me some great pointers on the affidavit that they used on the MSJ. I will supply those after the hearing, provided I get some decent input from this post. Ignore the Due Diligence section. Had some sleepless nights thinking about how I can file against Citi or the CA/Attorney. More on that later.

Neil, this is pretty good. Definitely presented in a professional manner. A couple of substantive points:

1. Due diligence: Can you find case law that says Texas considers two months to be a lack of due diligence? Without that, a judge might not buy your argument just because you think it's too long. Some cases don't get serrved for much longer than that.

2. Account stated: You say "However, all of them are concerned with transactions between a Buyer and a Seller, where the Seller held the account in question."

Are all these cases for the sale of goods? Account stated cases often reflect a series of transactions between a supplier of some kind - say, for building materials - and a buyer who uses those materials. If so, don't just say "buyer" and "seller" - go into more detail about those transactions and how they differ. Contracts for the sale of goods are treated differently in most states because they fall fighting the Uniform Commercial Code. Even if it's a distinction without a difference, a judge might buy it anyway.
Your Preston State Bank case - what does that say? Does it support your claim? If so, go into more detail about how it is like your case and unlike the other cases.

The Glasco case does not apply to your situtation. Say that. All those cases, you describe them in one sentence but you don't say what your point is. Are they DIFFERENT from your case, and therefore don't apply, or are they LIKE your case, and therefore should apply? It's not at all clear. Make it more clear.

3. Breach of contract: Pretty good. I'd make this edit: "Plaintiff asserts a breach of contract between Plaintiff and Defendant occurred and ***has*** CLAIMS a right to collect on said theory"

4. Adhesion: Eh. Stated about as well as can be made. I doubt a court would go for that, because of the far-ranging consequences.

5. Validation: Very well done. Go one more step: The FDCPA actually PROHIBTS collection activity until validation - therefore entry of judgment against you is prohibited by Federal law.

One final point. This is a response to P's motion for summary judgment. In most states, they must show undisputed facts that entitle them to judgment. If you can show that there are material facts in dispute, you beat the Motion. Often an affidavit from you will do the trick. Check your local rules of civil procedure and applicable case law on MSJ's.

[neil5623]

Thank you very much for taking the time to look at this. About your last paragraph - are you saying to add a notarized affidavit where I swear/certify, based on belief and knowledge that there is/are material fact in dispute, and therefore MSJ should not be granted; and leave it at that, or does it need more detail and specifics?

For the validation section, they violated TX law too. I need to add that also.

[neil5623]

When I countersue for continued collection activity, not sure who I should go after. The attorney who is handling this has been the same from Day 1. He was with a large firm when it started and sent the first dunning letter and did not validate. He has since started his own firm, taking me with him. He then sent out another dunning letter that he probably will not follow up on my validation request.

I am thinking the caption should read:

ME
vs.
ATTORNEY, dba ORIGINAL LAW FIRM and NEW LAW FIRM

[HighestAppeal]

Originally Posted by neil5623

Thank you very much for taking the time to look at this. About your last paragraph - are you saying to add a notarized affidavit where I swear/certify, based on belief and knowledge that there is/are material fact in dispute, and therefore MSJ should not be granted; and leave it at that, or does it need more detail and specifics?

For the validation section, they violated TX law too. I need to add that also.

Depending on your state law, your affidavit would probably need to state specific facts which contradict the ones they have asserted.

For example: their affidavit says the stop light was red when you sped through it, crashing into the little old lady crossing the road. Your affidavit should say, if you can truthfully do so, that:

1. The light was green;
2. You were not speeding; and
3. The little old lady hurled herself at your car in an attempt to commit suicide.

Maybe not #3. But you get the idea.

[HighestAppeal]

Originally Posted by neil5623

When I countersue for continued collection activity, not sure who I should go after. The attorney who is handling this has been the same from Day 1. He was with a large firm when it started and sent the first dunning letter and did not validate. He has since started his own firm, taking me with him. He then sent out another dunning letter that he probably will not follow up on my validation request.

I am thinking the caption should read:

ME
vs.
ATTORNEY, dba ORIGINAL LAW FIRM and NEW LAW FIRM

Well, under the FDCPA, I think you have three defendants.

NEIL,
Plaintiff,

v.

DEWEY CHEATHAM, ESQ.,
RAPE AND PILLAGE, P.A., and
THUG AND ASSOCIATES, P.A.,
Defendants.
-------------------------------------/

[DUSTY]

Does your state have a requirement that you be notified if someone obtains a 'debt'.
Mine requires notice within 30 days. Some other states have similar provisions. Although we've never found it argued that it makes the debt 'uncollectable'.

[neil5623]

Originally Posted by HighestAppeal

Well, under the FDCPA, I think you have three defendants.

NEIL,
Plaintiff,

v.

DEWEY CHEATHAM, ESQ.,
RAPE AND PILLAGE, P.A., and
THUG AND ASSOCIATES, P.A.,
Defendants.
-------------------------------------/

Is this to mean that the person dropping the ball is liable, and the firm they work for is also separately liable?

If that is the case, I will have as Defendants

DEWEY CHEATHAM, ESQ.,
RAPE AND PILLAGE, P.A., and
CHEATHAM AND ASSOCIATES, P.A.,
Defendants.

[HighestAppeal]

Originally Posted by neil5623

Is this to mean that the person dropping the ball is liable, and the firm they work for is also separately liable?

If that is the case, I will have as Defendants

DEWEY CHEATHAM, ESQ.,
RAPE AND PILLAGE, P.A., and
CHEATHAM AND ASSOCIATES, P.A.,
Defendants.

Under the FDCPA each "debt collector" is liable. A "debt collector" is defined (and I'm paraphrasing here) as a person who engages in the collection of consumer debt. The courts consider debt collection companies as "persons" as well as the individuals who engage in the specific prohibited conduct. If Joe Dirtbag calls you from Black Hat, Inc., and threatens to arrest your grandmother unless you pay your debt, both Joe and Black Hat are proper defendants under the FDCPA as I understand it.

[hannah]

In WV, original creditors are also liable for violations of state debt collection law under the WVCCPA. Check your state definitions to see if OC's there fall under state law for collection violations. Under the FDCPA only a debt collector as defined in the definitions in the Act itself are liable.

[neil5623]

Just checked my Exxon gas card balance. Sounds like Citibank is taking over managing their accounts. WOO HOO!!

[ilovemydogs]

Originally Posted by neil5623

So nobody responded to my previous posting of my response, but that's OK since there has been so much activity since then. Here it is again, with some modification to the VALIDATION section at the end. Visited with an attorney friend who gave me some great pointers on the affidavit that they used on the MSJ. I will supply those after the hearing, provided I get some decent input from this post. Ignore the Due Diligence section. Had some sleepless nights thinking about how I can file against Citi or the CA/Attorney. More on that later.

If OC is NOT CITI, thenof course the CA and or JDB cannot legally say CITI is the plaintiff.
How did you find out that CITI is not still the owner of the account? On your crs did it state 0 balance and or sold or transferred? If it just stated charge off did you call CITI to get more info?
BTW your paper read great. : )
ILMD

[neil5623]

OC is Citi, but the attorney sent letters stating that they (the attorney) is a debt collector attempting to collect a debt. Someone from the firm called me way back whenever wanting to set up payment arrangements.

Today I received a response to my response to their MSJ. The hearing is Monday. I may be able to object to it because of the timeliness issue, but then I may not want to because he hangs himself again in a few spots. He responded to just a few of my arguments, cited a case that appears to confirm this is an account stated. Also said in reference to my initial C&D letter that started "This account is in dispute," that since I did not request validation, he was not obligated to provide any. WELL NOW, SEEMS LIKE THE STATUTE PLAINLY STATES THAT "(b) If the consumer notifies the debt collector in writing
within the thirty-day period described in subsection (a)
that the debt, or any portion thereof, is disputed" THEN HE IS TO VERIFY. He brought up Plain Text Interpretation on another rule, so that can work against him.

He says that Citi, as OC, is not subject to FDTPA, yet his first dunning letter reads exactly like a CA dunning letter, in that IF I DISPUTE WITHIN 30 DAYS, HE WILL VERIFY. HE DID NOT, AND SAYS HE DID NOT HAVE TO, and therefore did not raise a GENUINE ISSUE OF FACT concerning the FDCPA to preclude SJ.

Nothing was said about my comment about the affidavit. Hmmm.... That's another story.

As long as the judge does not have his mind firmly made up to grant SJ, I think I got em by the balls. As long as I don't freeze!!!

[Hedwig]

Originally Posted by neil5623

Just checked my Exxon gas card balance. Sounds like Citibank is taking over managing their accounts. WOO HOO!!

I got a notice in the mail that Citi was taking over my ExxonMobil account.

[roybean]

I think CITI is trying to keep up with its competitors.

[jlynn]

Originally Posted by neil5623

He says that Citi, as OC, is not subject to FDTPA, yet his first dunning letter reads exactly like a CA dunning letter, in that IF I DISPUTE WITHIN 30 DAYS, HE WILL VERIFY. HE DID NOT, AND SAYS HE DID NOT HAVE TO, and therefore did not raise a GENUINE ISSUE OF FACT concerning the FDCPA to preclude SJ.

Nothing was said about my comment about the affidavit. Hmmm.... That's another story.

As long as the judge does not have his mind firmly made up to grant SJ, I think I got em by the balls. As long as I don't freeze!!!

I'm getting a bit confused over state vs fed laws here, but FYI, although he is a debt collector as defined by the FDCPA, he MAY not be a 3rd party debt collector as defined under Texas law - attorneys are treated differently.

[Pale Rider]

Originally Posted by neil5623

He responded to just a few of my arguments, cited a case that appears to confirm this is an account stated.

Are they saying this is a "sworn account"?

[Pale Rider]

On due diligence:


"Some form of service must be accomplished. Even if the defendant has actual notice of the suit, lack of proper service will void a default judgment. Wilson v. Dunn, 800 S.W.2d 833, 836–37 (Tex. 1990); Deanne v. Deanne, 689 S.W.2d 262, 263 (Tex. App.—Waco 1985, no writ). The plaintiff must exercise diligence in the issuance and service of citation if the lawsuit was filed close to the deadline for the applicable statute of limitation. The mere filing of a suit, without diligence in effecting service, will not toll limitations. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990); Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam)."

[neil5623]

Quote