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this8384 · Jan 20, 2009, 12:13 PM

Originally Posted by ScottGem

I'm going to jump in here. The way I interpret 28.003 is this:

1) A third party assigned the collection of a debt cannot use small claims court. This means if The original lender contracted with ABC Collections to recover the amount, they can't use small claims.

2) An INDIVIDUAL lending money can't use Small Claims, but I don't beleive that applies to an institution. The keyword is person. If this applied to a bank it would have said person or organization.

3) This goes back to (1). Not sure why they would have such a redundant clause. It MIGHT be interpreted to mean an agency who buys debt for the purpose of collections, but I don't think so.

But really, do you want to try to invoke this? Lets say Arrow cannot use Small Claims to collect. So you get the suit dismissed. So Arrow turns around and sues you in Civil Court. Frankly, I would rather it stay in Small Claims as the judge is likely to be more consumer friendly.

Very true. Although I've found some debt collectors to be extremely shady; they'll try anything and everything to get their money, whether it's legal or not.

txtxcal · Jan 20, 2009, 12:23 PM

ScottGem,

I appreciate your feedback. Apparently, the law is not as clear cut as I thought it was. The bottom line for me is that they are never going to get a penny from me. I am pretty much judgement proof. My only income is social security and I have no savings to speak of. So I will fight this suit any way I can. My hope is that the plaintiff will realize this and drop the suit. If not, then I'm am now studying how to proceed with Discovery.

Thanks again for your feedback.

ScottGem · Jan 20, 2009, 12:26 PM

Frankly, if you are judgement proof I would not bother fighting it. Or at least not fighting it so hard. Inability to pay is NOT a legal defense. Therefore, if your only defense is that you can't afford to pay, then they WILL get a judgement, they just won't be able to do anything with it.

JudyKayTee · Jan 20, 2009, 12:44 PM

Originally Posted by ScottGem

I'm going to jump in here. The way I interpret 28.003 is this:

1) A third party assigned the collection of a debt cannot use small claims court. This means if The original lender contracted with ABC Collections to recover the amount, they can't use small claims.

2) An INDIVIDUAL lending money can't use Small Claims, but I don't beleive that applies to an institution. The keyword is person. If this applied to a bank it would have said person or organization.

3) This goes back to (1). Not sure why they would have such a redundant clause. It MIGHT be interpreted to mean an agency who buys debt for the purpose of collections, but I don't think so.

But really, do you want to try to invoke this? Lets say Arrow cannot use Small Claims to collect. So you get the suit dismissed. So Arrow turns around and sues you in Civil Court. Frankly, I would rather it stay in Small Claims as the judge is likely to be more consumer friendly.

I looked at the Statute and then case law - it seems to go both ways. Third parties cannot take action, a collection agency is not a third party, a variety of decisions. There seems to be a very thin line and not a clear explanation of "collection agency."

As I said right at the beginning I still think rather than allowing a default Judgment I would at least file a response, possibly a Motion, citing the law and asking for a decision. Maybe the collection company is just flexing, maybe not, but why let them go ahead if they are prohibited by Law - ?

But, again, how much time and energy does OP want to spend?

txtxcal · Jan 20, 2009, 12:49 PM

I certainly won't let them have a default judgement. Besides, I am retired and have enough time on my hands to study law and civil procedure. I'm not a lawyer but I am enjoying playing one in real life.

JudyKayTee · Jan 20, 2009, 12:51 PM

Originally Posted by txtxcal

I certainly won't let them have a default judgement. Besides, I am retired and have enough time on my hands to study law and civil procedure. I'm not a lawyer but I am enjoying playing one in real life.

Then send your letter or file your response/motion, whatever the Court requires - always copy to the "other side," of course.

And if you could come back and let us know how this plays out, I would be very grateful. This one is a puzzle for those of us not in Texas!

txtxcal · Feb 23, 2009, 01:57 PM

I filed my Motion to Dismiss on February 2 and have not heard anything yet. In the meantime, the plaintiff sent me a request for admissions and a request for production of documents. I can handle that but I'm wondering if there's some way I can find out what's happening with my motion.

ScottGem · Feb 23, 2009, 02:43 PM

What is probably going to happen is the court will collect motions and rule on them at the hearing.

As for what the plaintiff sent you, did they send you verificatiuon of the debt? Did you request it? If they haven't verified the debt, then you respond to their inquiries that you can't respoind until they veirfy.

txtxcal · Feb 23, 2009, 03:31 PM

That's what I did. I answered all their questions with either a denial or "Insufficient Information".

this8384 · Feb 23, 2009, 03:32 PM

Just to clarify: you did send a request for verification of debt? Or you simply responded with "insufficient information"?

JudyKayTee · Feb 23, 2009, 03:42 PM

Originally Posted by this8384

Just to clarify: you did send a request for verification of debt? Or you simply responded with "insufficient information"?

You beat me to it - was it simply an answer or an answer and defense/request for info?

txtxcal · Feb 23, 2009, 04:10 PM

No, I did not send a request for verification. What are the ramifications of that?

txtxcal · Feb 24, 2009, 09:22 AM

Originally Posted by txtxcal

No, I did not send a request for verification. What are the ramifications of that?

My plan was to request this information after the pre-trial conference. My understanding is that this is when the formal discovery period begins. If my motion to dismiss is granted, I won't have to bother with the requests for disclosure. If not, I would be given time to complete my discovery.

this8384 · Feb 24, 2009, 09:28 AM

You should request verification of debt immediately. If they cannot prove it, then the case will be dismissed automatically. It's much easier than going to a pre-trial, having your dismissal denied, having a trial scheduled, THEN requesting verification and filing for dismissal again in the incident the creditor can't verify the debt.

txtxcal · Feb 24, 2009, 09:31 AM

Should I put my request in the "Request for Disclosure" format?

this8384 · Feb 24, 2009, 09:39 AM

That I'm not sure of. I would think you'd be able to send a letter directly to them requesting verification of debt. Tell them that you want the document(s) that have your signature on them. Send it certified, so you'll have proof they received the letter.

txtxcal · Feb 24, 2009, 09:59 AM

Would sending them a letter now speed up the process? I'm really not interested in speeding things up. In case I lose, I may consider filing for bankruptcy. But I did that 7 years ago and I'm not eligible to file again until December of this year.

this8384 · Feb 24, 2009, 10:05 AM

If it were me personally, I'd rather speed it up and get it done and over with. Dragging it out isn't going to help anything; if you can file for bankruptcy, it doesn't really matter if the trial is finished or not.

ScottGem · Feb 24, 2009, 10:19 AM

I think I said this earlier, but Small Claims courts are more informal. There is no need to to submit things in specific forms and formats. A simple letter that says you need verification of the debt to include copies of original contracts, payment scheduled and their right to collect will suffice.

txtxcal · Feb 25, 2009, 11:10 AM

Originally Posted by ScottGem

I think I said this earlier, but Small Claims courts are more informal. There is no need to to submit things in specific forms and formats. A simple letter that says you need verification of the debt to include copies of original contracts, payment scheduled and their right to collect will suffice.

I received Plaintiffs response to my motion to dismiss today. They claim that their suit was filed in Justice Court, not Small Claims Court. The title of the citation I received from the court read "Justice Court/Small Claims". Can anyone explain this to me?