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  1. #1
    Join Date
    May 2017
    Posts
    19

    Default How Can You Get a Debt Collection Case Dismissed

    My question involves court procedures for the state of: Texas

    I have been served regarding a civil case in Texas. I am being sued by an apartment complex that I had vacated early due to family health issues.

    1.) Does the serving court have jurisdiction? Our taxes are paid and address is not in the same county as the court papers.

    2.) Last activity on the account was rent paid in February 2013. Is this outside the statute of statute of limitations for Texas?
    I see that the plaintiff petitioned March 2017.

    3.)What circumstances are exempt?
    They are seeking $3880.00 plus court costs, attorney fees, etc. I just had major surgery. I have vestibular problems, severe anxiety, debilitating spinal stenosis, panic attacks, confusion, and I am now deaf in my left ear. I am in hardship, have nothing to my name except a totalled car. I am disabled. I have a current SS attorney and a SSI case in process. This is causing me stress which is adding to my anxiety and panic attacks.

    What are my options?
    Can I file a motion to dismiss or exemption?
    Jurisdiction?
    How should I proceed?
    Do I need an attorney or can I proceed myself?

    I have no way to pay anything. I cannot work. I only receive child support for my son who is 10.
    Thank you

  2. #2
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: What Are My Options for Filing a Motion of Dismissal

    1.) Does the serving court have jurisdiction? Our taxes are paid and address is not in the same county as the court papers.
    You don't say where you are or where the court is or where the plaintiff is but, generally, a lawsuit can be filed where you live or where the contract originated.

    2.) Last activity on the account was rent paid in February 2013. Is this outside the statute of statute of limitations for Texas? I see that the plaintiff petitioned March 2017.
    The statute of limitations is 4 years from the date of default. That's cutting it close. The default date is not the date when the rent was last paid. It's the date when the rent went into default. For example if your rent was due March 1 2013 and wasn't paid the lawsuit would have to be filed by March 1 2017.

    So, when was the rent due date (plus any grace period) and what was the date that the lawsuit was filed with the court?

    3.)What circumstances are exempt?
    They are seeking $3880.00 plus court costs, attorney fees, etc. I just had major surgery. I have vestibular problems, severe anxiety, debilitating spinal stenosis, panic attacks, confusion, and I am now deaf in my left ear. I am in hardship, have nothing to my name except a totalled car. I am disabled. I have a current SS attorney and a SSI case in process. This is causing me stress which is adding to my anxiety and panic attacks.
    There are no circumstances that exempt you from the lawsuit (except bankruptcy). If you owe money, they will get a judgment.

    Where the exemptions apply is to the enforcement of the judgment. You are likely to be judgment proof which means that if you have nothing to get, they get nothing. But that has nothing to do with the lawsuit.

    What are my options?
    Can I file a motion to dismiss or exemption?
    Jurisdiction?
    How should I proceed?
    Your only hope for a dismissal is if the plaintiff messed up on the Statute of Limitations. So give me the dates and lets figure that out.

    Are you being sued in small claims court or in regular civil court? Are you being sued by your former landlord or by a collection agency? Does the plaintiff have a lawyer?


    Do I need an attorney or can I proceed myself?

    I have no way to pay anything. I cannot work. I only receive child support for my son who is 10.

  3. #3
    Join Date
    May 2017
    Posts
    19

    Default Re: What Are My Options for Filing a Motion of Dismissal

    The contract originated in Williamson County. I am in Bastrop County. The court is in Travis County.

    The lawsuit was filed in Travis County on 3/2/2017. According to their attached Lease (EXHIBIT “1”) states, “ In the event that Resident fails to pay Monthly Rent on or before the first day of any month, Resident shall be deemed in default of this Lease.” It also states, “ Resident shall pay the monthly rent identified on page 1 each month in advance and without any demand, deduction, or offset whatsoever on or before the first day of each month with no grace period.” Unfortunately, I do not have a copy of the original Lease I signed which was damaged in an old storage unit. I DO have a bill sent to me that shows that I had not paid rent for March 1st.

    I was served a JUSTICE CIVIL CITATION. I am being sued by FUND APARTMENT COMMUNITY NAME. Yes, the plaintiff has a lawyer.

  4. #4
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: What Are My Options for Filing a Motion of Dismissal

    I doubt if you'll get anywhere on the venue (location) issue since all three counties seem to be within reasonable driving distance of each other.

    As for the statute of limitations, that's a tough question.

    You probably won't need your copy of the lease. The Plaintiff has already given you enough information.

    You defaulted on March 1 2013. You have a document showing that. You are apparently not disputing that date. Right?

    The lawsuit was filed with the court on March 2, 2017.

    To me, that's 4 years and 1 day.

    However, here's the wording of the statute:

    CIVIL PRACTICE AND REMEDIES CODE - TITLE 2. TRIAL, JUDGMENT, AND APPEAL - SUBTITLE B. TRIAL MATTERS - CHAPTER 16. LIMITATIONS - SUBCHAPTER A. LIMITATIONS OF PERSONAL ACTIONS

    Sec. 16.004. FOUR-YEAR LIMITATIONS PERIOD. (a) A person must bring suit on the following actions not later than four years after the day the cause of action accrues:
    (3) debt
    http://law.justia.com/codes/texas/20...-b/chapter-16/

    I found an article on Texas SOLs and in it found the following on Page 2:

    B. When Does the Statute of Limitations
    Accrue?
    Accrual is the date when the statute of
    limitations begins to run, or, stated another way,
    when the plaintiff first has a legal claim. The
    accrual date can be defined by statute or under
    the common law. Under Texas’ common law,
    there are two methods for determining the
    accrual date: the legal-injury rule and the
    continuing-tort doctrine. When a claim accrues
    is a question of law for the courts to determine.
    Under the legal-injury rule, a plaintiff’s
    cause of action accrues on the date when the
    defendant’s act causes a legal injury. Lubbock
    Cty. v. Trammel’s Lubbock Bail Bonds, 80
    S.W.3d 580, 585 (Tex. 2002). Even if the legal
    injury is very slight, the statute of limitations
    begins to run. Atkins v. Crosland, 417 S.W.2d
    150, 153 (Tex. 1967).
    http://www.cooperscully.com/uploads/...%20-%20TLS.pdf

    According to that the SOL begins to run ON THE DATE when your default causes a legal injury which, according to the Plaintiff was March 1 2013.

    I haven't had time to read those case decisions. You'll have to whether I read them or not because you'll have to raise the SOL as an affirmative defense and move for dismissal if the Plaintiff is a day late and you'll have to quote portions of the decisions that apply.

    You can find the cases on Google Scholar. There may be others. We can go into that later.

    https://scholar.google.com/scholar?hl=en&as_sdt=4,44

    By putting the case name in the search bar.

    Meantime, tell me more about the summons and complaint.

    Are you instructed to just appear in court or are you instructed to file an answer within a certain number of days. If the latter, give me the date you were served and the number of days you have to file an answer.

    And please list all of the allegations in the complaint. Quote them word for word.

    Keep in mind that I'm not an attorney and a don't give legal advice but I will endeavor to steer you in a helpful direction.

  5. #5
    Join Date
    May 2017
    Posts
    19

    Default Re: What Are My Options for Filing a Motion of Dismissal

    I was served this past Wednesday 5/24/17. My answer is due by the end of the 14th day after I was served. It states, "Your answer is due by the end of the 14th day after you were served these papers. So, June 9th. To be safe, I would answer as soon as possible. June 8th at latest. I am concerned about typing all the information from the papers on the forum if it is a public forum. Is there a way we can communicate in a private message? Also, the process server mentioned that I should call the court and tell them my situation regarding my health. I did not know if I should do that. Thanks

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