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Texas Debt Case - how do I file a dismissal?

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C

central texas

Junior Member
What is the name of your state? Texas

Hi, first time poster - thanks in advance for the input!

I was served with a civil citation in February for old credit card debt. The account number they had for me was wrong - I'm honestly no sure where they got that number from. However, I did my homework and filed my answer in the time provided along with affirmative defenses, a request for admissions and a request for production. I sent all this to the Plaintiff's lawyers along with a DV letter certified return receipt with signature. The DV letter required a response within 30 days. They have not responded to any of this - the DV or discovery, and it has been well over 30 days.

Can I file a motion to dismiss on the grounds that the Plaintiff did not respond to the DV or to discovery? If so, how? If not, what should I do instead?

Thanks again!
 


T

Texas Pooh

Member
If by DV, you mean debt verification, such letters have no meaning in litigation and don't require a response.

Discovery - request for admissions, and production - require a response in 34 days after service by certified mail.

If there has been no response, you file a motion for summary judgment based on the deemed responses. In other words, you ask the court for judgment in your favor because the answers to admissions (which you treat as if they are all answered "yes") establish no claim against you.

If that won't work (for example, because the questions, answered in the affirmative, don't establish that there is no claim), you file a motion to compel answers and requests for production. If that is granted, the court will compel them to answer by a date certain. If they don't, then you file a motion to dismiss for lack of prosecution.
 
C

central texas

Junior Member
Thanks for the help!

How does one actually go about filing for a summary judgment? Are there standard forms I pick up and fill out at the clerk's office, or is it something I need to write up entirely on my own accord? If the latter is the case, are there templates for this sort of thing?

It has been over 34 days now since I submitted discovery requests by certified mail. Where is that law (the 34 days law) written so I may cite it in my motion?

Thanks again!!!
 
T

Texas Pooh

Member
Rule 21a of the Texas Rules of Civil Procedure governs service. You can find the rules in various places, including here: http://www.stcl.edu/library/TexasRulesProject/IndextoRules.htm.

Rule 166a is the rule for motions for summary judgment. I'm not aware of any templates for motions for summary judgment except on fee-based legal research sites (like Westlaw or Lexis) that could help you. You'll have to hit a law library and ask for help there. They should provide access to both services. Sorry - I realize that may not be much help - motions for summary judgment are usually lawyer-drafted.
 
R

Rexlan

Senior Member
Texas Pooh said:
If by DV, you mean debt verification, such letters have no meaning in litigation and don't require a response.
QUOTE]
Not to nit pick but I sort of disagree here. This is a critical step because the Plaintiff in this case has no standing and may not peruse collection unless the debt is verified after it is requested. Additionally, the Plaintiff cannot notify any of the credit reporting services.

This was a very good move by the OP. If the Plaintiff in this case continues to peruse the collection and ignores the verification request they are subject to some civil penalties.

You need to look over the original complaint carefully to determine if the validation is already there. If not, I would motion for a summary judgment on the basis of failure to state a claim and lack of a verified debt. Unfortunately the lazy court will probably let the Plaintiff amend.

Also, if the case is dismissed be sure it is done with prejudice so it will be resolved forever. You need to go see a lawyer now before you get this messed up and while you are in a good position. The questions you've asked makes it clear you will require help beyond what you will find here.
Click to expand...
 
T

Texas Pooh

Member
Not to nit pick but I sort of disagree here. This is a critical step because the Plaintiff in this case has no standing and may not peruse collection unless the debt is verified after it is requested. Additionally, the Plaintiff cannot notify any of the credit reporting services.

This is a critical step because the Plaintiff in this case has no standing and may not peruse collection unless the debt is verified after it is requested. Additionally, the Plaintiff cannot notify any of the credit reporting services.

I respectfully disagree. First of all, the Fifth Circuit (which would include Texas), has ruled that, in general, attorneys are not debt collectors, covered by the FDCPA, unless debt collecting is their primarly business. The case is Garrett v. Derbes, 110 F.3d 317, 318 (5th Cir. 1997). Thus, the validation process of the FDCPA is generally inapplicable.

Further, most courts (including those in Texas) have held that the petition is itself the verification, since it provides the name of the creditor and the amount claimed. If the defendant wants the debt proven in a litigation proceeding, the proper procedure is discovery (as done by OP) not a verification letter.

If the Plaintiff in this case continues to peruse the collection and ignores the verification request they are subject to some civil penalties.

Verification is a concept that applies to credit reporting issues, not to litigation. You are completely correct that Plaintiff must verify the debt before purusing non-litigation activities once requested; however, they are not required to either stop litigation already intitiated or to stop reporting to the credit reporting agencies while a verification letter has been sent. If you have a statute/case law on either or those two concepts, I'd like to see it, please.
 
R

Rexlan

Senior Member
Texas Pooh said:
Not to nit pick but I sort of disagree here. This is a critical step because the Plaintiff in this case has no standing and may not peruse collection unless the debt is verified after it is requested. Additionally, the Plaintiff cannot notify any of the credit reporting services.

This is a critical step because the Plaintiff in this case has no standing and may not peruse collection unless the debt is verified after it is requested. Additionally, the Plaintiff cannot notify any of the credit reporting services.

I respectfully disagree. First of all, the Fifth Circuit (which would include Texas), has ruled that, in general, attorneys are not debt collectors, covered by the FDCPA, unless debt collecting is their primarly business. The case is Garrett v. Derbes, 110 F.3d 317, 318 (5th Cir. 1997). Thus, the validation process of the FDCPA is generally inapplicable.

Further, most courts (including those in Texas) have held that the petition is itself the verification, since it provides the name of the creditor and the amount claimed. If the defendant wants the debt proven in a litigation proceeding, the proper procedure is discovery (as done by OP) not a verification letter.

If the Plaintiff in this case continues to peruse the collection and ignores the verification request they are subject to some civil penalties.

Verification is a concept that applies to credit reporting issues, not to litigation. You are completely correct that Plaintiff must verify the debt before purusing non-litigation activities once requested; however, they are not required to either stop litigation already intitiated or to stop reporting to the credit reporting agencies while a verification letter has been sent. If you have a statute/case law on either or those two concepts, I'd like to see it, please.
Click to expand...
We disagree then
 
C

central texas

Junior Member
Thanks for the input, it's really helpful.

So if i file a motion for summary judgment, I'm guessing there will be a hearing or something on it? Or is it simply decided by the judge?

Furthermore, how permanent is the judgment? Meaning - can the Plaintiff file suit again at a later date? Is there such thing as a summary judgment with prejudice?

Thanks again!
 
T

Texas Pooh

Member
You'll have to check with the Court that your matter is pending in. Some judges hear summary judgment motions, some do not and decide on the papers. The clerk will tell you.

If granted, a summary judgment is final and is as good as a judgment at trial. Thus, the matter is over forever (e.g., you get summary judgment denying their claims, you can not be sued again).
 
C

central texas

Junior Member
Am I able to add additional admissions at this time? There are gaps in my request for admissions that I would like to address. Can I file and mail a second request for admission, or did I only get one shot at it?

Thanks!
 
T

Texas Pooh

Member
Discovery must be complete thirty days before the trial date, unless the court issued an order changing the deadline.

So, count back 34 days from the discovery deadline (64 days before trial if there is no other deadline), and that's the last day you can send discovery.

You can send a Second Request for Admissions if you'd like, and even a third if necessary! Same with production. However, you are limited in the total number of interrogatories.
 
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