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  1. #1
    marchita25 is offline Junior Member
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    Being sued for debt in texas

    What is the name of your state? Texas. I have just been served today with papers from past debt. What excatly can they do to me? Garnish my wages, bank accounts. the car i own? There were sending papers to my ex-husbands address to try to settle and i did not recieve any of them. The debt is from 2004. What is my next step? Anything would be helpful now, I am 6 weeks away from having a baby and stress is not what i need!What is the name of your state?What is the name of your state?What is the name of your state?
  2. #2
    Debt Guy is offline Senior Member
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    Take a deep breath and slow down.

    Texas does not allow a wage garnishment.

    Texas is also very generous in terms of exemptions from asset attachments.

    A judgment creditor can grab your bank account -- but not until after you have been sued and a judgment awarded.

    So, you are in OK shape right at this minute.

    How old is this debt? When was the last time a payment was made?

    How much money are we talking about?

    Read the papers you received regarding the lawsuit. When is your answer due?
  3. #3
    marchita25 is offline Junior Member
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    I have twenty days to respond. The debt is $8,406.00. They said the card was charged off and to profit and loss by the issuer on May 14th 2004. I really think it has been along time before that since i last used it. What happens if I do not show up in court? There are a whole bunch of facts to be atmitted or denied that they want me to answer and i guess send in. Thanks for your quick reply!
  4. #4
    Texas Pooh is offline Member
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    You have twenty days and then a Monday to respond. In Texas, answers are always due on Monday following twenty days after service. It sounds like you were also served with Requests For Admissions, but those aren't due for 50 days after service.

    If you don't file an answer, a default judgment will be entered, and then collection begins. As suggested by Debt Guy, that's not the easiest thing to do in Texas. However, you still need to avoid a judgment.

    First, file an answer to the lawsuit. You don't even need to go to court to do this - it can be done through the mail (there's lots of advice about how to do that in this forum). It can be very simple: I deny the debt. Be sure and send a copy, certified, to the lawyer for the Plaintiff.

    Next, do some research - find your bills and figure out when you last made a payment. Then you'll know if the statute of limitations applies.

    Remember to file Responses to the Admissions if you haven't settled before the 50 day mark - you don't want to let those go. If you do, they are deemed to be "admitted", which means its the same as if you answered "yes" to each question.

    In the meanwhile, sit down and take a hard look at your finances. If you owe this money, figure out what a reasonable payment plan might be and make an offer to the Plaintiff. Again, there's lots of advice on this forum about how to negotiate a settlement.

    No need to panic! Come back for more help as you need it.

    And congratulations on the new Texan - there are never enough of them!
  5. #5
    Debt Guy is offline Senior Member
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    Marchita

    It is critical you determine the last payment date.

    You said "they said the card was charged off May 14, 2004". OK, first 99% of the time charge -off is 6 months after the last payment. That would put your last payment at sometime in December 2003.

    The statute of limitation in Texas is 4 years. It starts to run from the date of first default. DOFD is typically 30 days after the last payment. That would put your DOFD sometime in January 2004. That also means the debt was out of statute in January 2008.

    Being out of statute means that you have an affirmative defense to the lawsuit and it will be tossed.

    You absolutely must file an answer to this lawsuit. If you don't you are toast.

    There are two ways to deal with the OOS defense. The easy way and the hard way.

    The easy way is for you to prove the date of last payment. You file your answer, assert your defense of SOL, move to dismiss the case and attach your proof to the answer. You should right now call the original creditor and beg for copies of statements that show(1) the last payment on the account and (2) all succeeding statements until the account was charged off.

    The hard way is for you to make the Plaintiff prove the debt is not OOS. You file your answer, assert your defense of SOL, and proceed to discovery to require the Plaintiff to prove prove the DOFD.

    I know that I am talking over your head right now with all these acronyms and legal mumbo-jumbo.

    Unless you can hire an attorney or get some free legal help, you will have to do this yourself. We will try to walk you through it but no one here can do it for you.

    Are you willing to put effort into this to make it go away?
    Last edited by Debt Guy; 04-09-2008 at 09:03 PM.
  6. #6
    marchita25 is offline Junior Member
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    Thank you!

    Thank you for your help. That makes alot more sense to me! There was a paper dated for Jan 2008 that was exhibit A, But i never receved it, It was sent to my ex-husbands house. I will get on the phone tomorrow or monday and try to get all the charge statements. Work is too busy today. I do have a right to request them even though the account is closed right? I will let you know how it goes! Thank you so much for the advice..I can breathe again knowing there is light at the end...
  7. #7
    NASCAR_Devil is offline Junior Member
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    Quote Originally Posted by marchita25 View Post
    Thank you for your help. That makes alot more sense to me! There was a paper dated for Jan 2008 that was exhibit A, But i never receved it, It was sent to my ex-husbands house. I will get on the phone tomorrow or monday and try to get all the charge statements. Work is too busy today. I do have a right to request them even though the account is closed right? I will let you know how it goes! Thank you so much for the advice..I can breathe again knowing there is light at the end...
    How is this reported on your credit reports? When was the last time you made a payment on the account? SOL in TX is 4 years from the DOLP, not Date of First Default as posted above,and is an affirmative defense to a suit. Date of First Default is for reporting purposes.
    Last edited by NASCAR_Devil; 04-10-2008 at 01:56 PM.
  8. #8
    Debt Guy is offline Senior Member
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    I do have a right to request them even though the account is closed right?

    You have the right to request the statements from the Original Creditor. You don't have the power to force the OC to give anything unless they are subpoenaed in discovery. It is possible that the OC no longer has statement copies -- which could be a good thing for you since it probably means that the Plaintiff does not have any hard support for the SOL.

    As ND suggested, it would be a good idea to take a look at your credit report to see what it says in the tradeline as reported by the OC. But, the credit report itself is usually not sufficient evidence to convince the judge of the date of last payment. If the credit report is the best you can come up with, then you got with what you got.

    You should also look through old bank statements, checkbooks and such. Also, look for any correspondence from the original creditor. You might get lucky and find something probative.

    Let us know what you find.
  9. #9
    mctexas is offline Junior Member
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    debt in tx

    hope i can get advise on this. i have the same issue that marchita25. i received summons for 20 days from today (following Monday?) it is regarding a CC that was opened by my dad. I have spoken to him about it and he told me that i was an addtl card holder. i never opened the card or believe that i ever used the card. the letter that i got is a "request for disclosures and request for admissions. I am really worried. what can i do?
  10. #10
    marchita25 is offline Junior Member
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    credit report

    I called the OC and they transferred me to another company, they said they do not have any files on my account, they sold them to somebody else...Well after calling a few more people that told me the same things i finally got a hold of the law offices that have my account now. I asked her for my statements and she said that if i hired a lawer everything would be done through them, She could no send me anything. So Then i did a few credit checks and all they say is last reported is 5-2004 and aug-2004. They all say transferred to another lender. I have hit a BRICK Wall!
  11. #11
    Texas Pooh is offline Member
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    You have not hit a brick wall, just a speed bump.

    You'll have to answer the lawsuit by the deadline, answer their discovery and then request discovery of your own. The discovery will force them to provide you with the information related to the amount of the debt and all payments made. That will help you determine if the SOL is applicable. If it is, you can amend your answer to add that defense.

    Take a look at the discovery they served on you as a guide post for how to draft your discovery - you'll just do it in reverse (e.g., you might ask for all documents related to the alleged debt; in an interogatory, you might ask to set forth all payments made on the account). Remember that discovery must be answered thirty (or thirty-four, if you serve it by certified mail) days after service.

    I know you have a baby on the way, but there's no need to panic - it doesn't have to be done all at once.
  12. #12
    Fizzle1979 is offline Member
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    What is the name of the company that is suing you? They must have a bond on file with the TX SOS office in order to comply with the Texas Finance Code. If they do not have a bond, they would be in big trouble in my opinion.
  13. #13
    Debt Guy is offline Senior Member
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    If it is, you can amend your answer to add that defense.

    This case really hinges on the SOL. Since the attorney for the creditor refuses to voluntarily provide documents, it makes more sense to me to just flatly assert the SOL as a defense in her answer. She believes it to be true but just cannot prove without the cooperation of the Plaintiff. Do you see any penalty to her for stating the debt is time barred?

    What is the name of the company that is suing you? They must have a bond on file with the TX SOS office in order to comply with the Texas Finance Code.

    How does the OP determine if a bond exists?

    If they do not have a bond, they would be in big trouble in my opinion.

    Assuming the bond does not exist, what does the OP do? In most states such matters are regulatory and not an issue before the court. What I mean is that a complaint to the licensing authority might elicit a slap on the wrist and a demand to buy a license.

    Can the OP use the absence of a bond to cause the case to be dismissed? How would the OP do that? Is it a part of the answer or a motion to dismiss? If the latter, the OP will need some case law precedent -- do you have any?

    Lets helps this lady get this done.
  14. #14
    Texas Pooh is offline Member
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    SOL Defense -

    no absolute downside to including it now, other than a motion to strike by the other side before the discovery is complete, in which case OP may not be able to defend. I generally recommend that the party get discovery first. In addition, in this case, OP was a bit overwhelmed, and my thought was to just get a simple answer on file to prevent a default. However, your way is equally correct and just fine.

    Bond issue -

    red herring and bad advise. You don't need a bond to sue anyone. The Tx Finance Code requires a bond for third-party debt collectors; a claim can be brought against the bond for violation of Texas debt collection statutes. It has nothing to do with litigation.

    The Texas Secretary of State's website has a search for such bonds.
  15. #15
    Chien is offline Senior Member
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    Thank God for the courtly demeanor of you both. Iíve been around the block with Fizz once and my patience is exhausted. My sentiments echo DCís:
    [url]http://forum.freeadvice.com/showthread.php?t=403520[/url]

    Fizz, ďthe forum is intended to enable consumers to benefit from the experience of other consumersĒ. Whatís yours?

    [url]http://forum.freeadvice.com/showthread.php?t=404359[/url]
    Researching restrictive endorsements would have gotten the OP . . .zip. But you didnít try yourself, did you?

    [url]http://forum.freeadvice.com/showthread.php?t=403520[/url]
    The OP has been served. If no other forum offering ďpositive resultsĒ is found before judgment is entered, did you intend to offer the same advice about dealing with that?

    [url]http://forum.freeadvice.com/showthread.php?t=403132[/url]
    DG just said it before anyone else. What and why? Did it occur to you to mention the significance and the reason to investigate? Did you know? And if, hypothetically, there was no bond and one was needed, what then? TP had to clarify.

    [url]http://forum.freeadvice.com/showthread.php?t=404386[/url]
    ďDo you remember being served and not showing upĒ? Excellent and useful, Fizz. Do you remember being born? No? Well, OP, if you donít either, you probably donít exist, so donít worry about the garnishment. (Existential.)

    For every post Iíve ever made on FA, Iíve spent more time confirming the information than Iíve spent posting. You apparently donít feel the same imperative. DG says you know your state. Iíll accept his opinion, but Texas Pooh is fortunately from the same state, and you donít hold a match, much less a candle. Itís fortuitous counter-balance.

    To the mods - don't lock it. Iíd rather move on and let Fizz continue to show his merits. Maybe DC will get his wish. A worthy counterpoint Fizz is not, but sound advice is here.

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