Donald D. DeGrasse - Amex collection attorney (profile and critique of pleadings)

DEBT COLLECTION ATTORNEY - INDIVIDUAL PROFILE 

Donald D. DeGrasse 

Donald D. ‘Don’ Degrasse is a debt collection lawyer based in Houston, Texas. In addition to creditor-debtor litigation (which involves large numbers of American Express debt suits), Degrasse lists Commercial Litigation and Real Estate as practice areas. He is a prolific litigator in the trial courts covering a broad array of civil cases, but is not very active in the courts of appeals.

Mr. Degrasse’s law degree is from Indiana University School of Law, where he completed his studies with a JD degree in 1979. He obtained his Texas bar license in 1981.

Attorney DeGrasse's Texas Bar Card Number is 05641800. In addition to the courts of the State of Texas, he is admitted to practice in the US Tax Court and in the U.S. District Court (and Bankruptcy Court) for the Southern District of Texas. Information available from the State Bar of Texas web site indicates that Attorney DeGrasse has no public disciplinary history.

PARTNERS / COLLEAGUES IN SAME FIRM: Robert L. Rolnick (name partner); Kevin T. McGuire

TYPICAL DEGRASSE PETITION IN A DEBT SUIT 

CAUSES OF ACTION: BREACH OF WRITTEN CONTRACT AND ACCOUNT STATED 

What does a typical DeGrasse petition in a debt suit contains (--> Sample DeGrasse Petition)

As causes of action in original creditor suits DeGrasse pleads Breach of Written Contract and Account Stated, each in a separate paragraph (IV and V, respectively).

DeGrasse's two theories are based on the same set of facts. Indeed, the section on "Account Stated" incorporates the allegations that precede it in full. It adds references to account statements sent by the original creditor, and alleges that there were never disputed by the defendant. DeGrasse seeks the same amount of damages on both theories. Unlike Anh Regent's pleading, DeGrasse's do not make any reference to acceleration of maturity of the revolving balance on the account, but characterize the pleaded-for amount of damages as "due and owing" on the account.

DISCOVERY WITHIN THE BODY OF THE PETITION

DeGrasse pleads discovery level 1. His petition template includes Requests for Disclosure and Request for Admission as numbered paragraphs, although the inclusion of the latter is not authorized by the rules of civil procedure, which specifically instruct litigants not to file discovery requests with the court. More on that topic below.

Although they contain discovery requests, DeGrasse's original petitions do not have a designated FACTS or FACTUAL BACKGROUND section separate and apart from the paragraphs devoted to the causes of actions; nor do they contain a CONCLUSION, or PRAYER section denominated as such. The untitled last paragraph lists the damages beings sought, including the amount of "the balance due, owing, and unpaid under the Agreement", court cost, post-judgment interest, and "any further relief to which the Plaintiff may show itself justly entitled." The prayer and list of damages does not include an express request for attorney's fees.

Requests for Admissions. DeGrasse's standard sets of "Requests for Admissions" comprise propositions sought to be admitted numbered with lower-case letters starting with a) through m) or w). There is more than one version of requests for admissions and they differ in length.

MOTIONS FOR SUMMARY JUDGMENT BY DEGRASSE 

In Amex debt suits DeGrasse acknowledges that American Express is a Utah bank, and that Utah law is relevant to the case. He nevertheless moves for summary judgment under Texas law on causes of action for breach of contract and account stated, and does not expressly ask for judicial notice and application of Utah law. When the issue comes up in litigation, DeGrasse argues that Amex is entitled to judgment regardless of whether Texas law or Utah law applies.

DEGRASSE MOVES FOR SUMMARY JUDGMENT ON DEEMED ADMISSIONS

DeGrasse is one of those debt collection attorneys who inserts request for admission into his pleading so as to take advantage of deemed admissions should the defendant fail to answer them. The practice of embedding discovery requests into pleadings is not proper under the rule of civil procedure (which state that discovery shall not be filed), but is not uncommon either. Some debt collection attorneys do it routinely while others do not. Those that do, typically get away with it.

The proper method of serving discovery at the same time as the citation and original petition is to prepare two documents separately, obtain a citation referencing both documents; file the pleading only with the court; but have both the petition and the discovery requests served on the defendant with the citation. Allen L. Adkins, who set a high standard in debt collection litigation and also authored CLE materials, followed that practice as a matter of law firm policy. Few other do. 

Injecting requests for admission into the initial pleading can confuse defendants because the deadline to answer the lawsuit differs from the deadline to answer discovery requests. Additionally, a defendant may be under the impression that the filing of a general denial will also deny the requested admissions, i.e. that it is enough to answer the lawsuit, only to be faced with a motion based on deemed admissions a few weeks later.

DeGrasse routinely files motions for summary judgment based, at least in part, on deemed admissions. Because he has the requests for admissions served as an integral component of the petition itself, he can rely on the return of service in the court's file not only as proof that the lawsuit papers were served on the defendant (for default judgment purposes) but as proof that requests for admissions were also served; and since the requests for admissions are part of the pleadings, their substance is also on file. The rules do not condone this stratagem, but it often works. Moreover, in a default scenario, no one is there to object in any event, and courts typically do not enforce pleading rules proactively.

RELATED TOPICS AND BLOG POSTS 

Deemed admissions: Trap for the unwary
Disputing the existence of deemed admissions
Motion to strike or withdraw deemed admissions after failure to answer requests for admissions (RFAs)

DEGRASSE NAME SPELLING VARIANTS

This prolific Texas litigator has a compound surname. It is rendered as one word in his address block with the G in Grasse sometimes capitalized within the character string. On his signature, however, the De and the Grasse sometimes appear as separate words, and both are capitalized. Differences in the appearance of the signature on different documents suggests that Attorney DeGrasse (or someone on his behalf) actually signs in person, rather than using a signature stamp or e-signing with an image of his signature. DeGrasse's cover letters do not contain the name of a secretary, paralegal, or other clerical staff.

ADDRESS OF DONALD D. DeGRASSE of DeGRASSE & ROLNICK 

Donald D. DeGrasse
DeGRASSE & ROLNICK
6363 Woodway, Suite 975
Houston, Texas 77057-1713
Tel.: (713) 840-9111
Fax: (713) 840-7263

Web address: www.degrasserolnick.com  

Christopher D. Osborn (attorney profile)

Christopher D. Osborn Attorney Profile 

Christopher David Osborn a/k/a Chris Osborn used to be associated with ZWICKER & ASSOCIATES and was attorney of record in hundreds if not thousands of cases. His association with ZWICKER ended in Spring 2012, and he was replaced by Attorney Joseph M. O’Bell.  

Osborn went solo and practices as Osborn Law Firm, P.C. in Georgetown, Taylor, and surrounding counties, with a much broader scope in terms of type of legal matters handled than was the case during his tenure with ZWICKER.  

  

Osborn was licensed by the Texas Supreme Court in November 2002. His law degree is from Tulane University, from which he graduated in May 2002 with the Doctor Juris degree necessary for a career as a lawyer. He is also admitted to practice in the four federal District Courts in Texas. According to his State Bar profile (certified  6/5/2013), Osborn does not have a public disciplinary history. Osborn’s State Bar of Texas card number is 24037221.  

Notable opposing party 

In 2009 Christopher D. Osborn was the attorney of record for American Express Centurion Bank in a lawsuit against John Devine in Montgomery County. District Court Judge Fred Edwards granted his motion for final summary judgment, but the attorney's fee component was later reversed by the Ninth Court of Appeals in Beaumont. Devine complained about the cursory nature of Osborn's run-of-the mill fee affidavit and had filed his own counter-affidavit based on expertise on the matter of attorney's fees as a Texas lawyer (but without mentioning that he had been a Harris County district judge). Edwards got de-selected when voters rejected his bid for reelection in the primary, while Devine went on to beat Texas Supreme Court incumbent Medina in the Republican primary and now sits on that court after an easy win in the general election without a Democratic opponent. Edwards has since gone into ADR (special judge, arbitrator, mediator) while Medina joined  Brent Coon & Associates in Houston, right across from the Old Harris County Courthouse. At least he does not have to commute to Austin any more, and, on authority of Chief Jefferson, private law practice is more lucrative in any event, at least after a stint on the state's highest civil court. 

11/24/2014 UPDATE: Judge Edwards is deceased per Texas Bar Journal "memorials" (obit) section.

  

Joseph M O'Bell - Texas Debt Collection Attorney (2013 profile)

Joseph Marse O’Bell - Individual Attorney Debt Collector Profile 

Joseph O’Bell earned his law degree (JD) at Thomas M. Cooley Law School in 2008, and was admitted to the practice of law in the State of Texas in November 2009. He also admitted to practice in the four federal judicial districts in Texas. Based on his profile with the State Bar of Texas (dated 04/24/2013) O’Bell does not have any public disciplinary or sanctions history.

O’Bell’s SBOT profile reports the firm size for ZWICKER & ASSOCIATES as 25-40. The profile of one of his colleagues (Troy Bolen) quotes the number as 2-5. It is possible the discrepancy reflects inclusion/exclusion of appearance attorneys, i.e. local lawyers who go to court for ZWICKER & ASSOCIATES in various parts of the state for hearings and trials, but do not themselves sign pleadings or motions.  O’Bell’s Texas Bar Card Number is 24070351.

CLERICAL STAFF: Jennifer Falk, Litigation Associate

Casey Balduff, File Clerk

Katherine Shramek, Litigation Assistant  

CLIENTS AND CASES

O’Bell is listed as attorney of record in 228 cases in Harris County District Courts. This compares to almost 600 for his colleague Troy D. Bolen. Bell represents banks almost exclusively. The client list includes the following:

DISCOVER BANK

GE CAPITAL RETAIL BANK formerly known as GE Money Bank aka GEMB 

NORDSTROM FSB 

AMERICAN EXPRESS ENTITIES: TWO BANKS AND A NON-BANK WITH SIMILAR NAMES

AMERICAN EXPRESS CENTURION BANK

AMERICAN EXPRESS BANK, FSB

AMERICAN EXPRESS TRAVEL RELATED SERVICES   

OBELL's CASES ON APPEAL 

O'Bell was the attorney of record for the bank in LeBeau v. GE Capital Retail Bank, a case in which the Fort Worth Court of Appeals affirmed a summary judgment in the creditor's favor that was based on deemed admissions. 

An attorney name search for O'Bell brings up a few more cases, mostly involving Discover Bank card debt. 

Joseph O'Bell appellate case in Texas courts of appeals (click to enlarge the list)

Troy Bolen - Texas Debt Collection Attorney Review (2013)(updated 2014)

Troy Dean Bolen – Individual Debt Collection Attorney (profile)

Troy Bolen is a debt collection attorney with a law firm active in debt collection in numerous states: ZWICKER & ASSOCIATES, P.C.  

Bolen received his JD from South Texas College of Law in December of 1999 and obtained his Texas law license in 2008. Attorney Bolen’s statutory profile on the State Bar of Texas web site was certified on 09/19/2012 and does not reflect any disciplinary or sanctions history. Troy Dean Bolen’s Bar Card Number is 24006199.

NAME VARIANTS / ALIAS: Troy Bolen, Troy D. Bolen  

ADDRESS:

Troy D. Bolen   24006199
ZWICKER & ASSOCIATES, P.C.
1 Chisholm Trail, Suite 301
Round Rock, Texas 78681

Fax: (512) 218-0477

ALTERNATIVE RENDITION OF ADDRESS:

BOLEN TROY DEAN
ZWICKER & ASSOCIATES P.C.
OLD TOWN SQUARE,
1 CHISHOLM TRAIL, STE 301
ROUND ROCK TEXAS 78681
5122180488
5122180477

TEXAS-BASED COLLEAGUES AT ZWICKER: 

Joseph M. O’Bell, Audrie L. Lawton, Laura L. Bedford  
  

STAFF MEMBERS: Kirsten Roadhouse, Litigation Assistant

Process servers/civil process companies used for service of citation: ABC Legal

CLIENTS AND CASES AND VOLUME OF CASES 

Troy Dean Bolen is listed as attorney of record in 939 cases in Harris County District Courts as of February 8, 2014. The total of cases for 2013 is 804. This includes several dozen filed on the last day of the year. 

The client list includes the following financial institutions:

TD BANK USA NA (AS SUCCESSOR IN INTEREST TO TARGET NATIONAL BANK)

AMERICAN EXPRESS CENTURION BANK

AMERICAN EXPRESS BANK, FSB

DISCOVER BANK

GE CAPITAL RETAIL BANK

NORDSTROM FSB

AMERICAN EXPRESS TRAVEL RELATED SERVICES  

Troy Bolen is shown as attorney of record in 181 cases filed in 2013 in Fort Bend County District Courts. The caseload composition matches the one in neighboring Harris County. Bolen's cases include collection suits by Discover Bank, Target National Bank and TD Bank USA, N.A. (Target NB's successor); the two AMEX Banks (American Express Bank, FSB, and American Express Centurion Bank); and GE Capital Retail Bank.

TYPICAL PLEADINGS
  

Like most other debt collection attorneys Bolen files pleadings generated with a document production system that inserts a few case-specific details (name of defendant, a few digits of the account number, and the amount for which judgment is sought) into a template. For that reason, the pleadings filed in the numerous cases look the same, contain the same allegations (except for the amount), and are based on the same legal theory: breach of written contract. Attorneys’ fees are not requested in the standard pleadings (as of 2013). 
   
The template for original petitions filed by ZWICKER& ASSOCIATES attorneys in Texas was updated in 2013 in light of the Texas Supreme Court’s adoption of the expedited actions rule and the changes in discovery practice related to it.  

SAMPLE PETITION WITH PARAGRAPH REFERENCING THE EXPEDITED ACTION RULE

BREACH OF CONTRACT PARAGRAPH IN AMEX PETITION

BREACH OF CONTRACT PARAGRAPH IN DISCOVER BANK PETITION

TROY BOLEN SIGNATURE SAMPLE AND CONTACT INFO FROM CIVIL FILING SHEET

Troy Bolen signature samples, Bar number, and address information from Civil Case Info Sheet
in Discover Bank debt collection lawsuit

This profile page on Texas attorney Troy D. Bolen was last revised or updated on:  2/8/2014. Additional exhibits from recently filed litigation were added.

EXAMPLE OF DEBT SUIT PETITION FILED BY TROY BOLEN IN AMEX SUIT IN 2014

ZWICKER AND ASSOCIATES - Review of Debt Collection Firm

Profile of Debt Collection Firm 

ZWICKER & ASSOCIATES, P.C. 

This is a major national debt-collection lawfirm that represents leading financial institutions (among them American Express and Discover Bank) in mass debt litigation. It operates through attorneys licensed in the states in which debt litigation is performed.

Zwicker correspondence reflects that this lawfirm has attorneys licensed in the following states: Arizona, California, Connecticut, Florida, Georgia, Idaho, Illinois, Kentucky, Maryland, Massachusetts, Michigan, New Jersey, New Hampshire, New York, Ohio, Oregon, Tennessee, Texas, Virginia, Washington, West Virginia, and District of Columbia (not a state).

Zwicker’s mailing address: Zwicker’s debt litigation in Texas is handled from a single office in Round Rock, Texas 78681.

TEXAS LAWYERS ASSOCIATED WITH ZWICKER & ASSOCIATES

As of June 2013, the following Texas-licensed attorneys are associated with Zwicker & Associates:  
Troy D. Bolen, Joseph M. O’Bell, Audrie L. Lawton, Laura L. Bedford. O’Bell replaced Christopher D. Osborn, who left the firm early in 2012. According to her SBOT profile, Megan D. Naglreiter still works for Zwicker, too, but her name is not listed on Zwicker's current address block. 

Other attorney who handled Texas litigation for ZWICKER in the past: Kendall Lauren Bryant, now with the Ryan Law Firm LLP in Austin. 

How many lawyer are affiliated with Zwicker?

It is unclear how many lawyers work for Zwicker in Texas. The firm’s court-filed papers list four, but the firm-size information on the state bar’s website, which is submitted by each attorney separately, is inconsistent on that matter. 
  

O’Bell’s profile reports the firm size for ZWICKER & ASSOCIATES as 25-40. The profile of one of his colleagues (Troy Bolen) quotes the number as 2-5. The discrepancy may reflect inclusion and exclusion of appearance attorneys, respectively. Appearance attorneys are local lawyers who go to court for law firms with multi-city operations (such as ZWICKER & ASSOCIATES) in various parts of the state for hearings and trials, but do not themselves sign pleadings or motions. The use of local counsel for court appearances makes mass litigation conducted simultaneously in many parts of the state more economical and logistically feasible because it reduces the need for attorney travel. It can also be beneficial in other respects. Although local counsel who work as contractors may be of varying caliber, they are usually familiar with their local courts, including the judges and their staff, and how things are done in different courthouses around the state. A lawyer from out-to-town is often at a competitive disadvantage and more prone to make errors or commit a faux pas.

TYPICAL PLEADINGS FILED BY ZWICKER ATTORNEYS 

Like others in the business of debt collection, Zwicker attorneys file pleadings generated with a document production system that inserts a few case-specific details (name of defendant, a few digits of the account number, and the amount for which judgment is sought) into a template. As a result, the petitions filed in multiple cases handled by this attorney have the same look, make the same allegations (except for the amount of the debt), and are based on the same legal theory: breach of contract. 

The standard petition filed by attorneys associated with ZWICKER AND ASSOCIATES is titled “PLAINTIFF’S ORIGINAL PETITION” and does not include discovery requests either within the petition itself or as a separate attachment. Some other debt plaintiffs makes such requests within the petition, and use a document title that makes reference to discovery, e.g. Plaintiff’s Original Petition and First Request for Admissions and Production of Documents. Others serve discovery request with the petition, but as separate documents. In that case, the citation should include a mention of the additional documents, otherwise there may not be official proof of service.  

As of June 2013, the standard petition does not include a request for attorney’s fees.  In the past, Zwicker attorneys requested such fees in their petitions, typically $400-$500 dollars per case.

EXAMPLE OF PETITION FILED BY ZWICKER LAW FIRM IN JANUARY 2014

EXAMPLE OF MOTION FOR DEFAULT JUDGMENT FILED BY ZWICKER ATTORNEYS IN TEXAS 

EXAMPLE OF MOTION TO RETAIN CASE ON THE DOCKET (AFTER DWOP NOTICE) 

Sample motion to retain to prevent DWOP - filed by Zwicker in Amex Debt suit 

Nathanial D. Kitz - Review of RSIEH Debt Collection Attorney

Nathanial D. Kitz – Individual profile of debt collection attorney

Texas-licensed attorney Nathanial D Kitz is associated with the debt collection law firm RAUSCH, STURM, ISRAEL, ENERSON & HORNIK, LLC, whose offices are located in Addison, Texas ("RAUSCH"). Kitz appears as attorney in charge in lawsuits filed on behalf of credit card issuers such as CAPITAL ONE BANK USA N.A. and  CITIBANK (SOUTH DAKOTA) N.A., now CITIBANK, N.A..

Attorney Kitz's Texas bar card number is 24080988

ADDRESS AND LAW FIRM AFFILIATION OF DEBT COLLECTION ATTORNEY NATHANIAL (not Nathaniel) KITZ

Nathanial D. Kitz

RAUSCH, STURM, ISRAEL, ENERSON & HORNIK, LLC  ("RSIEH") 

15851 N. Dallas Parkway, Suite 245

Addison TX 75001

Fax: (877) 492-5185

NAMES OF COLLEAGUES AT RSIEH 

The firm address block on pleadings and motions signed and filed by Attorney Kitz lists the names of numerous other Texas attorneys associated with the same firm.  As of 2013, the roster included the following in addition to Nathanial D. Kitz:

Seung W. Chae

Shaun G. Brown

Michael R. Castro

Timothy A. Gasaway

Fallon Hamilton

Jeffrey S. Kramer

Steve Javandoost

Jamila B. Lloyd

Yvonne Mikulik

The mailing address for all of these debt collection attorneys is the same office in Addison, Texas, which is a suburb of Dallas. But the firm's attorneys file lawsuit in many counties around the state.

Kitz's signature is not legible. He typically circles his name on the list of attorneys to identify himself as the signer, and as responsible for the pleading. (--> Rule 13 of the TRCP).

TYPICAL PLEADINGS FILED BY ATTORNEY KITZ

Kitz and his colleagues at the RAUSCH law firm file pleading generated with document production software that inserts case-specific data, such defendant's name and the amount sued for, into electronic templates. As a result, the initial pleadings in hundreds of cases look alike. The same is true of motions.  

The typical initial pleading filed by RAUSCH attorneys is titled "Plaintiff's Original Petition & First Discovery Requests". (In Texas state courts, the initial document is called the Original Petition. In federal court, and in many other states, the document filed to commence a civil action is called Complaint.) Not all debt collection attorneys attach discovery requests to their pleadings. RAUSCH attorneys do, which explains that additional language in the title of its pleadings.

ANATOMY OF A TYPICAL RAUSCH PETITION

TITLE AND LENGTH. A typical petition filed by attorneys with the RAUSCH law firm consists of three single-spaced pages divided into 19 numbered paragraphs and sections designated with letters A through K. Because it is more detailed and single-spaced, it looks busier than the pleadings filed by other law firms in similar cases. It also contains more details and citations to legal cases, albeit from different states.

CAUSE OF ACTION. Although it is longer than comparable petition, the sole theory of recovery invoked by a typical RAUSCH petition is Breach of Contract.

FACTS: WHAT'S INCLUDED AND WHAT NOT.  In contrast to the initial pleadings filed by debt collection attorneys operating independently or working for other lawfirms, RAUSCH petitions contain a section of Facts that contains the variable information for the particular case. It identifies the issuing bank and the account upon which the suit is based with the last four digits of the credit card/account number. It also provides the charge-off date and states the total balance due "plus interest". No details are given regarding additional interest, the rate of such interest, or the starting date for accrual, which could be the charge-off date of the date the suit was filed. One can only speculate.  

The prayer at the end of the petition asks for "actual damages" in the amount matching the amount alleged as  the total due on the account in the fact section, and requests "pre-judgment" and "post-judgment interest" without any further details and without specifying whether either form of interest is based on contract or statute. (--> statutory interest, judgment interest).

RAUSCH petitions differ from more basic pleadings filed by other attorneys for credit card companies (or debt buyers) in that they contain several less common, if not unique, paragraphs.

A paragraph on Damages characterizes the debt claim as liquidated (--> liquidated damages) and reiterates the amount alleged as "due" in the fact section, but at the same time qualifies the assertion of the amount of damages with the phrase "at least" preceding the amount and "plus interest" following it.  This very short paragraph on damages does not state an interest rate either.

As of 2013, RAUSCH petitions do not seek attorney's fees. Therefore, there is no paragraph on such fees.

A paragraph titled "Miscellany" identifies Plaintiff's attorneys as debt collectors, and advises the defendant that the undersigned attorney is attempting to collect a debt. This paragraph was presumably inserted into the pleading template as a safeguard against and preempt claims of that the law firm and its attorneys failed to comply with notice and disclosure requirements of the FDCPA.

The final paragraph preceding the prayer references "Plaintiff's First Discovery Request", which is attached as a separate document. This is the correct procedure for serving discovery requests contemporaneously with the citation and original petition. Some attorneys routinely flout the rule that prohibits the court-filing of discovery requests by including them within the body of their petitions. Incorporating discovery requests into the petition itself necessarily results in them being filed with the pleading.

STANDARD SET OF DISCOVERY REQUESTS PROPOUNDED BY RAUSCH ATTORNEYS 

The RAUSCH law firms' standard set of discovery requests in debt collection suits is served together with the citation and original petition (whose title expressly refers to the discovery requests). It consists of all four types of paper discovery: Requests for Disclosure; Requests for Production; Requests for Admission; and Plaintiff's First Set of Interrogatories. The latter (with are also called ROGs in the legal community) includes a pre-printed form for verification under oath with a blank jurat for the notary public. (See Sample verification of ROGS and jurat).

ANATOMY OF A TYPICAL PMSJ FILED BY ATTORNEY NATHANIAL KITZ

[not available at this time]

RAUSCH MSJ analyzed

ANATOMY OF TYPICAL RAUSCH PMSJ

The RAUSCH debt collection lawfirm's standard motion for summary judgment (PMSJ) consists of five unpaginated pages subdivided into four sections enumerated with Roman numerals:

I SUMMARY OF THE ARGUMENT

II EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

III ARGUMENT AND AUTHORITIES

IV CONCLUSION AND PRAYER

The structure is common and unremarkable. So is the title: Plaintiff's Motion for Summary Judgment. 

(--> Sample RAUSCH PMSJ).

BASIS OF RAUSCH MOTIONS FOR SUMMARY JUDGMENT

The Argument and Authorities section recites the well-know evidentiary standard for summary judgment (traditional summary judgment, rather no-evidence summary judgment), and identifies the sole basis on which summary judgment is sought: Breach of Contract

            

Although RAUSCH typically relies on a contract that has a choice of law clause specifying that the law of another state, it only cites to Texas and federal cases. RAUSCH attorneys are not known for filing motions for judicial notice of foreign law and therefore routinely waive the choice-of-law issue.

            

DAMAGES SOUGHT BY SUMMARY JUDGMENT

            

As may be expected, the dollar amount of damages for which RAUSCH seeks summary judgment matches the amount stated in its original petition as the balance "due". There may, however, be a minor discrepancy between pleadings and motion. What has been seen at least some RAUSCH cases is that the petition includes a request for prejudgment interest, but the motion for summary judgment seeks post-judgment interest only. Except to the extent interest accrued before the judgment is included in the "outstanding balance" amount, the MSJ does not claim pre-judgment as a separate item of damages. While the proposed judgment attached to the motion has a line-item for prejudgment interest, the amount is shown as $0.00. Of course, this scenario may not be present in all cases, and a caveat is warranted in that regard. After all, the fact that the template for the judgment contains a data field for the amount of prejudgment interest suggests that the value may not always be zero. 

            

CATCH-ALL REQUEST FOR UNSPECIFIED ADDITIONAL RELIEF

            

Like the pleading template, RAUSCH's PMSJ template includes a request for "all further relief to which Plaintiff may be entitled." This is clearly inappropriate in the context of summary judgment, because the summary judgment motion itself must state the basis, and must be accompanied by conclusive evidence to show the movant's entitlement to relief. If the nature of the additional relief is not even specified, it cannot be known what kind of evidence would be needed to meet the summary judgment standard on that nebulous component of a plaintiff's claim. It is well-settled that a trial court commits reversible error if it grants more relief than expressly sought in the motion and supported by competent evidence.  

            

THE SUMMARY JUDGMENT EVIDENCE

To support a motion for summary judgment, RAUSCH attorneys typically file a Business Records Affidavit with attachments. The characteristics vary depending on the identity of the creditor, and therefore need to be analyzed separately. 

REGENT & ASSOCIATES Lawfirm review [heading for extinction in 2015]

Regents & Associates - Review of Houston Debt Collection Boutique Firm

REGENT & ASSOCIATES LAWFIRM REPRESENTS AN ARRAY OF CREDITORS, BOTH BANKS AND DEBT BUYERS

Anh Regent has his own law firm and operates out of Houston [or rather did so until recently (see April 2015 update below]. He also owned a collections firm that had its privileges to do business forfeited for failure to pay state tax. 

UPDATE: Anh Regent has lost most of his clients, who they are now his creditors in his bankruptcy case, filed in March 2015 in Houston (Southern District of Texas / Bankruptcy Court). He also owes his process server (big time - six-figure amount), venders, banks (Chase), the IRS, and numerous other creditors. He let go most or all of his staff because he could not pay them any more, and defaulted on his office lease. He also owes for unpaid salary. He is basically history in the debt collection world. His clients are now trying to collect from him and he also has a dozen-or-so lawsuits pending in which he is the named defendant himself or represented the defendant (most of them for FDCPA actions).  He is also being accused of have taken his client's money (advanced for costs of filing lawsuits) and having diverted it to unknown purposes. 

The original post continues below. Because of the lease termination, the listed address is no longer accurate. 

   

WHICH PLAINTIFFS DOES REGENT SUE FOR?

Regent & Associates handles debt collection suits for numerous banks and assignees. Among them: American Express; Bank of America (FIA); Discover Bank; LVNV Funding LLC; Portfolio Recovery Associates; Equable Ascent Financial, LLC; Hilco Receivables.

TYPICAL PLEADINGS

Mr. Regent is one of those debt collection attorneys who sues on various theories of recovery, sometimes even quantum meruit, and even mixes them up within a single paragraph. Uniquely, among his peers, he typically pleads for a judgment on a slash/slash-whatever-works theory titled “SUIT ON OPEN & STATED ACCOUNT/DEBT/BREACH OF CONTRACT" in a single paragraph. (--> Sample debt suit petition filed by Regent & Associates).

Regent also represents creditors in appellate litigation on occasion. One significant case is Tully v. Citibank(South Dakota), N.A.. In that case, it was the debtor who appealed after he ended up with a judgment in the trial court, so the appeal itself wasn’t Regent’s choice. Regent handled the defense of the summary judgment on appeal himself, however, and lost.

KEY APPELLATE CASE INVOLVED DEBT SUIT BY REGENT 

In Tully, Regent had pleaded three theories of recovery and had been successful in persuading the trial court to grant his motion for summary judgment. No one theory was specifically singled out in the judgment.  But the court of appeals reversed, holding that a credit card debt suit could not be litigated as a sworn account, that quantum meruit – an equitable theory -- was precluded in the presence of the contract, and that there was a fact issue as to the amount owed. Therefore, summary judgment on the contract claim was error also.

In Tully v. Citibank the court of appeals expressly held that the bank could not recover under its quantum meruit theory because the summary judgment evidence conclusively established that a contract existed. Though not discussed in the opinion, the contract was actually a requirement of federal law (--> TILA). The Truth in Lending Act just uses slightly different terminology: Disclosure of credit terms to the consumer (hence "TILA Disclosures", sometimes also called “TIL Disclosures”).
  

But that has not stopped Regent from invoking quantum meruit in debt litigation after the adverse outcome in Tully, at least occasionally.

LAW FIRM ADDRESS IN HOUSTON:

Anh H. Regent

            REGENT & ASSOCIATES

            2650 Fountain View Dr., Ste 233

            Houston, Texas 77057

            Fax: (713) 490-7075 

Anh H. Regent - Review and critique of standard pleadings filed by this Houston-based debt collection attorney [who is now a debtor in bankruptcy[

Anh Huynh Regent – Profile of debt collection attorney

Anh Regent (not Ann; this is a guy) has his own lawfirm, REGENT & ASSOCIATES, based in Houston, which specializes in debt collection, and has numerous corporate clients, including major credit card banks.

2015 UPDATE: Anh Regent filed for bankruptcy in March 2015 in the Southern District of Texas. He owes his process servers several hundred thousand dollars and one of his (former) debt buyer clients says he absconded with money advanced for payment of filing fees in cases he never filed. He also owes $200,000 to Chase, and smaller amounts to numerous other creditors. Anh Regent is a defendant (or represented the defendant) in numerous actions in which debtors allege that he or his firm violated the Fair Debt Collection Practices Act (FDCPA).    
   

NATURE OF PLEADINGS FILED BY ANH REGENT 

  

Regent files initial pleadings that are longer than those prepared by other debt collection attorneys because they include discovery requests as numbered sections, of which there are seven to nine, counting all. Some also includes attachments (or claim to include them, though they are actually omitted). 

  

Regent's original petition template is unique in pleading a hybrid causes of action titled "SUIT ON OPEN & STATED ACCOUNT/DEBT/BREACH OF CONTRACT" in a single paragraph. Although this is confusing, Regent has been presenting different banks' and debt buyer's cause of action or causes of action against the defendant in such fashion for years. Presumably it is meant to invoke the common-law cause of action of "suit on open account" (which is not applicable to credit card debt claims under long-standing precedents because the creditor does not sell goods or service); account stated (which has been approved for credit card debt collection by several courts of appeals in Texas, but not by all), and breach of contract, which is the correct and obvious legal theory for a debt claim based on a credit card agreement. As for "debt" generally, it is not a cause of action, and it is not clear what legal theory Regent intends to invoke by including it. 

  

DISCOVERY REQUESTS WITHIN THE BODY OF THE PLEADING 
[not proper under the TRCP]

  

The inclusion of discovery request within a pleading is a practice of dubious validity under the rules of civil procedure. One court of appeals has already taken Regent to task for embedding discovery requests within his petition, thus confounding the distinct purposes of pleadings and discovery, in violation of the TRCP, and creating confusion regarding the applicable due date for the answer to the lawsuit and the due date for discovery responses (which is longer). 

Be that as it may, it rarely becomes an issue. Pro se defendants generally do not know that the rules state that discovery is not to be filed, and consumer attorneys probably do not consider it worthwhile objecting, since the plaintiff can simply re-serve the discovery requests by fax or certified mail later. The improper form of service may, however, provide a defense for deemed admissions, or additional grounds for a motion to strike them. It may also provide a basis for an attack on a default judgment. 

           

Regent's typical petition encompasses two types of requests: Requests for Admissions, and Requests for Disclosures. Other debt suit attorneys also serve interrogatories with the citation and petition, but as separate document that also includes other discovery requests.

The purpose of requests for admissions is to use deemed admissions in lieu of evidence for summary judgment, or for default judgment purposes. Deemed admissions result automatically when the Defendant fails to respond to requests for admissions by the deadline. In the case of such default, all propositions which the cardholder is asked to admit, are considered admitted. (--> Deemed admissions in debt suit litigation). 
  
Requests for admissions are not supposed to be embedded in pleadings, but Anh Regent deliberately flouts that rule, and rarely gets taken to account when he uses the deemed admissions so obtained for default judgment purposes. See excerpt from motion for default judgment below:  

Regent uses the tactic because he can then use the return of citation, i.e. the proof that the petition was served, to also prove that the requests for admissions were served.

REGENT PLEADINGS IN COMPARATIVE VIEW

Regent's typical original petition also differs from pleadings filed by other debt collections attorneys in that it alleges (in the fact section) that the revolving balance was accelerated by the original creditor. The pleading typically does not identify the original creditor, however, unless the plaintiff expressly sues as assignee of such-and-such bank, and the original creditor thus appears in the case style.  

ATTORNEY FEES. Regent pleads for attorneys fees in a separate paragraph. He does not plead for a specific amount, but one of the items in the enumerated list of requests for admission asks the defendant to admit that a specific dollar figure is reasonable. That  dollar amount is 25% of the amount that the petition alleges is owed by the defendant.

SUIT-ON-ACCOUNT THEORIES. Regent pleads "open account" as a theory of recovery, and moves for summary judgment on it, as an alternative to breach of contract and account stated (discussed elsewhere). Suit on account, however, presupposes a sales transaction from the creditor to the debtor, and that does not apply in credit card debt cases. Under long-standing appellate decisions, the open account theory fails for the same reason the sworn account theory fails. Sworn account is, after all, not a theory of recovery, it is merely an expedited procedure for bringing a common-law open account suit by attaching verification and documentation to the original petition. If the procedural requisites of Rule 185 are not satisfied, the Plaintiff must prove its common-law account claim under the normal evidentiary standard. But the standard of proof does not affect the substantive requirement that the claim be based on sale of goods or services by the claimant to the defendant.

ORIGINAL CREDITOR SUITS VS LAWSUIT BY DEBT BUYERS. Regent apparently uses the same petition template for original creditors suits and collection suits by debt buyers. Some references in the standard pleading are in the disjunctive ("either/or") form so as to cover alternative scenarios, e.g. reference to "the terms of the agreement with Plaintiff/Plaintiff's predecessor in interest."  Discovery requests similarly refer to "Plaintiff or Plaintiff's predecessor in interest."

VENUE PARAGRAPH. Regent asserts alternative basis why venue would be appropriate in the county in which suit is filed: (1) because this is where the contract was signed; (2) where the Defendant resides, or (3) where the events giving rise to Plaintiff's claim occurred. What is noteworthy here is the inclusion of the first. Credit card accounts typically do not involve signed contracts, and even signed applications are rarely produced as summary judgment or trial exhibits.

APPELLATE REVIEW OF REGENT PLEADINGS 

One court of appeals  has had occasion to examine the quality and sufficiency of Regent's pleading in an appeal from a default judgment. Applying a more exacting standard because a default judgment was involved, it found fault with it for multiple reasons, and reversed the default judgment because none of the theories of recovery that Regent urged on appeal was supported by proper allegations in the petition. Hankston v. Equable Ascent Financial, 382 S.W.3d 631 (Tex.App.- Beaumont - 2012, no petition to Texas Supreme Court).

Here is an excerpt from what the appellate panel had to say about Regent's pleading:

In this case appellee, claiming to be the current owner of an indebtedness, sued two defendants. The pleading references supporting "attached documentation[,]" but neither the underlying contract nor an assignment is attached to the petition. 

Neither the petition nor any attached document names the original lender. The petition includes only an account number, but does not name the defendant who opened the account or signed the contract. See Lambert v. Dealers Elec. Supply, Inc., 629 S.W.2d 61, 63 (Tex.App.-Dallas 1981, writ ref'd n.r.e.) (op. on reh'g) ("[O]nly those matters alleged in the body of the petition are matters upon which defendant is placed upon notice that plaintiff intends to prove upon trial."). 

Appellant's name is misspelled in the preamble, the only place in the petition other than the style where he is named, and the petition (filed in Orange County) does not provide the appellant's residence (in Harris County), although that was known. See Tex.R. Civ. P. 79. The body of the pleading refers to only one defendant, though not by name, an allegation consistent with appellant's argument that he did not sign the contract or open the account. See Lambert, 629 S.W.2d at 63. But appellee seeks to hold both defendants liable for the alleged amount.

In the petition, appellee also states: "However, this amount may not include any payments or credits occurring after the date of this petition or the date of the affidavit of [p]laintiff's representative." The attached "affidavit" appears to be dated eleven months before the default judgment is signed, and refers to a single unnamed "defendant." The affidavit is an apparent attempt to support a suit on account under Rule 185, but the affidavit does not state the "claim is, within the knowledge of affiant, just and true...." See Tex.R. Civ. P. 185; see also Griswold, 249 S.W.2d at 61(reversing default judgment because affidavit did not meet the requirements of Rule 185). Although the affidavit uses the singular "defendant," it does not state which defendant allegedly owes the debt. 

The petition contains no assertion that the account was "for goods, wares and merchandise," for material furnished, for personal services rendered, or for labor done or furnished. See Tex.R. Civ. P. 185; see also Hollingsworth v. Nw. Nat'l Ins. Co., 522 S.W.2d 242, 245 (Tex. Civ.App.-Texarkana 1975, no writ). Furthermore, appellee was not a party to the original transaction. SeeVolvo Petroleum, Inc. v. Getty Oil Co., 717 S.W.2d 134, 138 (Tex.App.-Houston [14th Dist.] 1986, no writ) ("Such accounts, though verified, are hearsay as to such parties[.]"), overruled on other grounds by Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex.1995).

Appellee argues that the pleading nevertheless is sufficient as a suit on an open account and on an account stated. But the petition does not include an allegation that the appellant agreed that the balance alleged to be due is correct. See E. Dev. & Inv. Corp. v. City of San Antonio, 557 S.W.2d 823, 824-26 (Tex.Civ.App.-San Antonio 1977, writ ref'd n.r.e.); Unit, Inc. v. Ten Eyck-Shaw, Inc., 524 S.W.2d 330, 334 (Tex.Civ.App.-Dallas 1975, writ ref'd n.r.e.). Rather, the petition itself includes an assertion that the amount may not reflect all payments made. And while the appellee also attempts to assert an action for quantum meruit, the pleading contains no assertion that appellee provided valuable services or materials to appellant. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). Also, the discovery requests in the petition reference an express contract. See id. ("Generally, a party may recover under quantum meruit only when there is no express contract[.]").

ALL THREE THEORIES PLEADED BY REGENT FAILED IN TULLY VS. CITIBANK 

In Tully v Citibank, the Texarkana Court of Appeals held that the cardholder’s affidavit filed to counter Citibank’s motion for summary judgment was conclusory and therefore was ineffective, but that it did not matter because Citibank had not met its burden of proof on its only potentially viable theory of recovery: breach of contract. With respect to the other two theories on which Regent had moved for summary judgment, the court held that they were not viable as a matter of law.

The court rejected the proposition that the credit card suit can be brought as a sworn account suit, which a number of other courts of appeals have confirmed also; and held that Citibank could not recover in quantum meruit because it had proven the existence of a contract. The rule has long been that equitable remedies are not available when a plaintiff has a legal remedy for breach of contract. -- > Expresss contract defense to non-contract theories of recovery 

The opinion does not specifically address the implications of a credit card bank withholding the contract (so that it is not before the court), and moving for summary judgment only on the quantum meruit theory. That litigation tactic should fail because a written contract was required under federal law, and the plaintiff’s decision to withhold it does not alter the fact that the relationship between the parties was necessarily a contractual one. --> In re Tran, 351 B.R. 440, 445 (Bankr. S.D. Tex. 2006), aff'd, 369 B.R. 312 (S.D. Tex. 2007)(contract required by TILA).