Author Topic: Original Answer (Plea to SMJ)  (Read 4034 times)

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Bruno the JDB Killer

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Re: Original Answer (Plea to SMJ)
« Reply #15 on: August 05, 2014 04:37:22 PM »
I don't see anything in the JP rules that covers want of prosecution. It probably never becomes an issue. The problem you would have with this is that it is strictly a court procedure. I see nothing that says you can file a motion to request it.

Usually you'll see something that gives the authority....by action of the court or by motion of a party, something like that. I don't see that in any TX rule for this subject. 165a gives the reasons, but it doesn't mention how long the case can sit.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

carnegie_IB

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Re: Original Answer (Plea to SMJ)
« Reply #16 on: August 05, 2014 04:48:38 PM »
I don't see anything in the JP rules that covers want of prosecution. It probably never becomes an issue. The problem you would have with this is that it is strictly a court procedure. I see nothing that says you can file a motion to request it.

Usually you'll see something that gives the authority....by action of the court or by motion of a party, something like that. I don't see that in any TX rule for this subject. 165a gives the reasons, but it doesn't mention how long the case can sit.

How about I create a summary disposition [AKA Summary Judgment] or motion to Dismiss and ask the judge to start discovery.

I can give rule 500.3 a shot and couple that with the lack of delivery endorsement on the original citation and use the citation as proof. Is that a reasonable thing to try.

As far as time tables, do not know the rule, but I recall it is ONE YEAR. I have had two or more cases dropped like this. They just send a postcard in the mail as a reminder and then drop it 30 days later.  It is a purging process of sorts in Austin.


cgoodwin

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Re: Original Answer (Plea to SMJ)
« Reply #17 on: August 05, 2014 04:50:40 PM »
I'm still confused by the point of the thread.  :vbconfused:

They answer was not an answer, but what I assume is a MTD, since Dilatory Pleas are not used in Pleading Pattern cases.

Is the question whether the court has jurisdiction?

Then there is a mention of service. Since you answered the claim, any questions of service have already been waived.

So, what is the question or statement for this thread?

Edit: Updated while typing.

You cannot file a MSJ or MTD AND ask the judge to start discovery.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

Bruno the JDB Killer

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Re: Original Answer (Plea to SMJ)
« Reply #18 on: August 05, 2014 04:51:21 PM »
All courts do this, but not all courts make this available by motion. A dismissal really won't help you much, they will just have you properly served and you'll be back to square one, unless TX tolls the SOL for bad service and it runs out.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Bruno the JDB Killer

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Re: Original Answer (Plea to SMJ)
« Reply #19 on: August 05, 2014 04:57:23 PM »
RULE 503.2. SUMMARY DISPOSITION
(a) Motion. A party may file a sworn motion for summary disposition of all or part of a claim or defense without a trial. The motion must set out all supporting facts. All documents on which the motion relies must be attached. The motion must be granted if it shows that:  (1) there are no genuinely disputed facts that would prevent a judgment in favor of the party;
(2) there is no evidence of one or more essential elements of a defense which the
defendant must prove to defeat the plaintiff’s claim; or
(3) there is no evidence of one or more essential elements of the plaintiff’s claim.
(b) Response. The party opposing the motion may file a sworn written response to the motion.
(c) Hearing. The court must not consider a motion for summary disposition until it has been on file for at least 14 days. The judge may consider evidence offered by the parties at the hearing. By agreement of the parties, the judge may decide the motion and response without a hearing.
(d) Order. The judge may enter judgment as to the entire case or may specify the facts that are established and direct such further proceedings in the case as are just.


The only mention of dismissal in JP Court is for failure to appear.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

carnegie_IB

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Re: Original Answer (Plea to SMJ)
« Reply #20 on: August 05, 2014 05:05:03 PM »
RULE 503.2. SUMMARY DISPOSITION
(a) Motion. A party may file a sworn motion for summary disposition of all or part of a claim or defense without a trial. The motion must set out all supporting facts. All documents on which the motion relies must be attached. The motion must be granted if it shows that:  (1) there are no genuinely disputed facts that would prevent a judgment in favor of the party;
(2) there is no evidence of one or more essential elements of a defense which the
defendant must prove to defeat the plaintiff’s claim; or
(3) there is no evidence of one or more essential elements of the plaintiff’s claim.
(b) Response. The party opposing the motion may file a sworn written response to the motion.
(c) Hearing. The court must not consider a motion for summary disposition until it has been on file for at least 14 days. The judge may consider evidence offered by the parties at the hearing. By agreement of the parties, the judge may decide the motion and response without a hearing.
(d) Order. The judge may enter judgment as to the entire case or may specify the facts that are established and direct such further proceedings in the case as are just.


The only mention of dismissal in JP Court is for failure to appear.

Then how about this. I spoke with the court clerk and they are going to have the Judge Look at this Motion again.

DEFENDANT’S MOTION TO VACATE ORDER FOR PLAINTIFF POSTPONEMENT

TO THE HONORABLE JUDGE OF SAID COURT:
Comes now  (“Defendant”) pleads this motion to vacate order for BARCLAYS
BANK DELAWARE, (the “Plaintiff”) Postponement.

GROUNDS FOR MOTION

Defendant appeared on May 22, 2014 to argue it's Motion to Dismiss. Plaintiff did not provide timely
notice to Postpone.

1. According to Rule 501.4 (b) Timing of Service of papers other than citation. A document
must be served not less than 3 days before the time specified for the hearing.

2. Defendant claims that it was not duly noticed by the Plaintiff's Motion for Postponement
signed May 21, 2014.

3. Defendant requests the Court to Vacate the Plaintiff's Motion for Postponement.

4. Given the foregoing, Defendant was not duly noticed.

5. Given the foregoing, Defendant asserts the Plaintiff failed to appear and requests the
Court to Grant it's Motion to Dismiss with Prejudice.

PRAYER
6. Wherefore, Defendant prays that the Court (1) vacate the order granting the Plaintiff's
Motion for Postponement (2) grant Defendant's motion to dismiss Plaintiff's lawsuit with
prejudice, and (3) grant Defendant such other and further relief as the Court deems
equitable or warranted.

Respectfully submitted,
Defendant, Pro Se
« Last Edit: August 05, 2014 05:32:45 PM by carnegie_IB »

Bruno the JDB Killer

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Re: Original Answer (Plea to SMJ)
« Reply #21 on: August 05, 2014 05:27:44 PM »
How much time did the court give them?
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

carnegie_IB

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Re: Original Answer (Plea to SMJ)
« Reply #22 on: August 05, 2014 05:42:49 PM »
we were both notified of the hearing 30 days prior to the hearing date set by the judge.

1. I show up to argue my motion to dismiss and find out the Plaintiff get's a postponement

The clerk told me they called me the day before and left a message letting me know the hearing was postponed. (I DID NOT Get that message).

Nevertheless, the Plaintiff DID NOT notify me of this motion, I just show up and it was granted. I was upset.

2. Later I get a Denial of my motion to dismiss because I did not show up to the new hearing date.
3. I file a motion to vacate that order because I was not notified. (Judge VACATES) and resets my date to 9/18/14

Now that the motion is alive again. (it is UGLY, poorly written whatever, but it is ALIVE)
so after learning about y'all and use of rules.
4. I file a motion to vacate the postponement order because I was not notified for that one either.

My hope is that it could prove Plaintiff's failure to appear, and the judge would be left with no other option but to dismiss the case.

what do you want to bet. The Plaintiff tries to postpone again and I do not get notified. I hope he does. Maybe then I get another chance to go for failure to appear.

In Texas, one can postpone I think three times.









« Last Edit: August 05, 2014 07:05:33 PM by carnegie_IB »

carnegie_IB

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Re: Original Answer (Plea to SMJ)
« Reply #23 on: August 05, 2014 07:52:00 PM »
we were both notified of the hearing 30 days prior to the hearing date set by the judge.

1. I show up to argue my motion to dismiss and find out the Plaintiff get's a postponement

The clerk told me they called me the day before and left a message letting me know the hearing was postponed. (I DID NOT Get that message).

Nevertheless, the Plaintiff DID NOT notify me of this motion, I just show up and it was granted. I was upset.

2. Later I get a Denial of my motion to dismiss because I did not show up to the new hearing date (July 17, 2014).
3. I file a motion to vacate that order because I was not notified. (Judge VACATES) and resets my date to 9/18/14

Now that the motion is alive again. (it is UGLY, poorly written whatever, but it is ALIVE)
so after learning about y'all and use of rules.
4. I file a motion to vacate the postponement order because I was not notified for that one either.

My hope is that it could prove Plaintiff's failure to appear, and the judge would be left with no other option but to dismiss the case.

what do you want to bet. The Plaintiff tries to postpone again and I do not get notified. I hope he does. Maybe then I get another chance to go for failure to appear.

In Texas, one can postpone I think three times.

 

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