Consumer Debt Litigation (mostly Texas): State of Texas (AG Ken Paxton) v Samara Portfolio Management, LLC, Joseph Onwuteaka - One Amicus' Take on $25mil Penalty Price Tag for Venue Violations:

Thursday, September 21, 2017

State of Texas (AG Ken Paxton) v Samara Portfolio Management, LLC, Joseph Onwuteaka - One Amicus' Take on $25mil Penalty Price Tag for Venue Violations:

Trial Court Cause No. 2013-35721

THE STATE OF TEXAS, ACTING BY § IN THE DISTRICT COURT

AND THROUGH THE ATTORNEY §

GENERAL, KEN PAXTON §

Plaintiff §

VS. § OF HARRIS COUNTY, TEXAS

SAMARA PORTFOLIO MANAGEMENT, LLC,

LAW OFFICE OF JOSEPH ONWUTEAKA, and §

JOSEPH ONWUTEAKA, individually § 80^TH JUDICIAL DISTRICT

Defendants

Amicus Curiae Brief

in Support of New Trial on the Portion of Judgment

Imposing Penalties for Venue Violations

TO THE HONORABLE LARRY WEIMAN, STATE DISTRICT JUDGE.

Comes now the undersigned, as AMICUS CURIAE herein, and files this brief in support of a new trial in this case in the interest of justice with respect to one of the three types of code violations for which the three Defendants were held liable.[1]

Background

Judgment in this civil consumer-protection enforcement action was finally entered on July 14, 2017, following a multi-day trial to Harris County jury in June. It was initiated four years earlier by then-Attorney General Greg Abbott in 2013 in the name of the State of Texas and in the public interest. [2]

The jury delivered its verdict on June 7, 2017, and found for the State of Texas on its claim for damages in the form of statutory penalties plus attorney’s fees, but did not award the consumers affected by the wrongful conduct of the Defendants any monetary relief.

The jury found, inter alia, that each of the three Defendants had violated Texas law on numerous occasions by filing debt collection suits against Texas consumers in a county in which said consumers did not reside and in which they had not signed the underlying contract.[3]

The unanimous jury found 898 distinct violations by each of the three Defendants and assessed damages in the character of civil penalties in the amount of $6,286,000 against Samara Portfolio Management, LLC; $8,980,000 against the Law Office of Joseph Onwuteaka, P.C.; and $7,633,000 against Defendant Joseph Onwuteaka, Individually.[4]

Summary of the Argument

The judgment should be set aside, and the venue-violations claims should be retried, because the jury did not hear evidence that the Texas Attorney General engages in the very same conduct for which he brought the three Defendants to justice, and for which the Attorney General obtained a judgment that will likely wipe them out financially, without much benefit to the affected consumer-debtors.

The judgment awards all of the millions of dollars in monetary relief solely to the State of Texas, and that windfall is unwarranted under the circumstance of this case.

The proximate victims of the wrongful conduct were the consumer-debtors who were sued in the wrong venue, and they stand to receive no portion of the windfall under the signed final judgment.

The Court should set aside the judgment for the additional reason that the monetary penalties are grossly disproportionate, considering the nature of the wrongful conduct, and would likely be reversed on appeal, if not by the First or Fourteenth, by the Texas Supreme Court. This has happened before when a court tried to send a message to a debt buyer by imposing a much smaller penalty for questionable litigation conduct. See Unifund CCR Partners v. Villa, 299 S.W.3d 92 (Tex. 2009) (Granting, without hearing oral argument, petition for review reversing the court of appeals' judgment affirming an award of $18,685.00 to debt suit defendant Villa as sanctions and rendering judgment that Villa take nothing on his claim for costs for inconvenience and harassment).

What message will it send if the jury’s verdict in this case is thrown out on appeal and the Defendants get to gloat that they have been vindicated? What message will it send when abuse at the hands of a shyster-at-law, committed as a pattern and practice as proven to the jury at trial of this case, is officially condoned as treatment rightly inflicted upon the affected consumer-defendants qua deadbeats?

Finally, when a case is prosecuted by the State in the public interest, the public should receive a full hearing too, without the Attorney General interposing himself as a gate-keeper and coming to court with unclean hands -- as will be detailed below - and keeping the entirety of the spoils, rather than providing meaningful relief to those affected by the Defendants’ wrongdoing.

Argument and Empirical Support

A. The Texas Attorney General engages in the same type of conduct

Based on the content of the live pleading upon which this case was tried and based on the charge of the court, neither trial judge nor jury had opportunity to consider the equities of the case in light of the fact that the Office of the Texas Attorney General, under the leadership of Ken Paxton, routinely engages in the very same litigation conduct that forms the crux of the complaint against the Defendants in this case: suing scores of Texas residents in a county in which they do not reside (and many others who are not even residents of this state).

The Texas Attorney General does so in the collection of student loans administered by the Texas Higher Education Coordinating Board (THECB).

AMICUS EXHIBIT A-1

LOCUS OF DEFENDANT WHEN SUED IN TRAVIS COUNTY, AND LOCUS ON LOAN APPLICATION/NOTE

THECB COLLECTION SUITS FILED IN JANUARY 2017 (N=95).

The Attorney General does not violate any law in doing so. In fact, the Texas Education Code requires that all collection suits on loans administered by the Texas Higher Education Coordinating Board be filed in Travis County.[5]

When venue is challenged, the Attorney General files a response asserting that venue is not only proper, but mandatory, in Travis County, citing the special venue law.[6]

At the receiving end, however, the consequences are no different for the defendants: Whether consumers who do not reside in Houston are served with suit papers from Justice of the Peace Patronella on orders of Joseph Onwuteaka litigating from the comfort of his office in Houston or Sugarland. Or whether non-Austinites are served with citation issued on orders of an Assistant Attorney General overseeing the OAG’s well-oiled litigation machine in Austin, Texas.

Here is what one pro-se litigant had to say about being sued in Austin while struggling to make a living in Midland, Texas: “I filed an original answer with the court by the established deadline of January 30^th 2017,” citing to Barcode # 1178782. “It would be very difficult for me to appear in person since I live several hours away in Midland.” See Cause No. C-1-CV-16-011009 in Travis County Court at law No. 2.

This is not just one man’s gripe. It is an issue that is systemic and affects hundreds of other borrowers and guarantors of student loans.

Amicus Exhibit A-1 details the place of residence of the defendants sued by the Texas Attorney General in January 2017 on THECB loans.[7] All 95 defendants were sued in Austin, Travis County, but only nine (9) lived there at the time the petition was filed.[8] The vast majority of Defendants lives elsewhere in Texas, 11 were sued long-arm out of State (within the United States), and one was sued out of the country, in Japan.

B. The Texas Attorney General routinely moves for default judgment not only against out-of-county defendants, but defendants who have answered

In C-1-CV-16-011009 the pro-se defendant also complained that he had not been given notice. The docket does, in fact, reflect that his narrative answer was docketed on January 30, 2017, and that a motion for default judgment was filed on February 22, 2017. Even allowing for a delay in posting on the Travis County Clerk’s electronic docketing system, the answer had already been on file for weeks when the Attorney General filed his motion for default.

This is not an isolated case.[9] Much rather, it appears that the student loan collection unit of the Attorney General’s Office does not have a quality-control process in place to prevent the submission of motions for default with answers on file.

If the OAG maintained the Travis County’ Clerk’s URLs for active cases in its case management database, a case status check could be done in less than a minute by simply clicking the hotlink to the case docket, followed by a click on the >Document Events button under the Civil Events tab. See below:

Under Ken Paxton’s stewardship, however, and with Ken Paxton’s name on the signature block, Assistant Attorney General John C. Adams routinely represents to the court that the requirements for default judgment have been met when that is not true in all cases, and when the truth could easily have been ascertained.

This questionable practice, however, affects only a small percentage of student loan collection cases because most defendants never file an answer at all. Another dubious practice is much more ubiquitous.

C. The Texas Attorney General routinely engages in deceptive conduct in debt collection against borrowers and their co-signers

In Cause No. C-1-CV-17-000942 the Attorney General obtained a default judgment for $14,435.99 and $2,000.00 in "reasonable attorney's fees." The default judgment additionally awards interest at the rate of 9% on the $14,435.99 amount. It was signed by a visiting judge, JD Phillips, on April 13, 2017.

The case may appear unremarkable at first glance. This is, after all, but one of numerous THECB collection cases, and a high proportion of them result in default judgments in due course, usually within two months.

But a closer examination reveals a more troubling story. The facts as they appear of record themselves tell this story, rather than merely a hand-penned “sob story” by an unrepresented litigation that attorneys and judges may not be willing to credit, and may not be will to even consider at all unless it contains the magic words “general denial.”

The College Access Loan (“CAL”) at issue in Cause No. C-1-CV-17-000942 was applied for in 1994, and the Defendant had signed the note in Palestine, TX (Anderson County) as guarantor for his step-child on June 21. 1994.

Twenty-two and a half years later, on January 31, 2017, the Attorney General sued him, and he was served by private process server in Chandler, Henderson County, TX 75758 on February 15, 2017.

In its petition, the Attorney General averred that "Plaintiff requests that Defendant be cited to appear and answer, and that, on final hearing, Plaintiff have judgment of and from Defendant the principal sum of 5,000.00 plus interest, reasonable collection costs, and other charges which have lawfully accrued, according to the note's/notes' terms, attorney fees of not less than 1,000.00, post judgment interest, and such other and further relief to which Plaintiff may be justly entitled either at law or in equity. See ORIGINAL PETITION, Bar Code ID 1179774.

***

The 5,000.00 amount of loan principal was underlined and rendered in bold font. It stands out from the surrounding text.

But the judgment that followed it was for a total of $16,435.99 (sum of $14,435.99 and $2,000.00 in attorney’s fees), which is almost thrice the amount set forth in the petition. See DEFAULT JUDGMENT, Bar Code ID 1206924.

In the collection of state education loans, the Texas Attorney General routinely represents in the initial pleadings (which are rarely amended) that the debt is much smaller than the amount that his office already knows it will hold the defendant liable for, thereby inducing defendants not to question or contest the claim.

Most student loan defendants do not file an answer. The Attorney General then promptly moves for default judgment with an AFFIDAVIT IN SUPPORT OF FINAL JUDGMENT BY DEFAULT signed by Cheryl Bellesen, Manager, Student Loan Collection, Bankruptcy and Collections Division of the Office of the Attorney General and an "AFFIDAVIT IN SUPPORT OF ATTORNEY'S FEES" signed by John C. Adams.[10]

Unlike the original petition that preceded it, the Bellesen Affidavit attached to the motion for default judgment will state the full amount of the debt claimed as outstanding, including accrued interest and late fees, if any. The Adams fee affidavit will be for $1,500, $2,500, or $5,000, depending on the order of magnitude of the principal claim plus finance charges.[11]

Put on the defense, the Attorney General would no doubt retort that the petition accurately states the principal amount of the loan was $5,000.00, which matches the amount shown on the attached “CAL” note with the signed guaranty of payment. And he would likely argue that use of the two words "plus interest" does not rule that the accrued interest may actually be a multiple of the principal amount. State-court pleading standards satisfied.

Regarding the method of accruing the interest, the Texas pleading rules do not require disclosure of the contract rate sought in a petition. And as for attorney's fees, the petition did not need to state that $2,000.00 would be sought in the default or summary judgment because it stated "not less" than $1,000.00 and left open the possibility that fees might be higher.

And he would be right in a formalistic sense.[12] The petition was not technically false. It was just deceptive, designed to mislead the Defendant. In a very clever and calculated way. In a way one might expect an unscrupulous private debt collector to operate. Someone like Joseph Onwuteaka.

A person of ordinary intelligence would have looked at the dollar figure - rendered and bold font for emphasis - and thought he was being sued for $5,000.00, rather than for $14,435.99, almost three times (3x) that much.

The average co-signing step parent - now on the receiving end of a lawsuit - may have missed the dollar figure for the attorney's fees because it was not shown in bold digits; but if he read carefully, it would have been reasonable for him to conclude that he was being sued for $1,000.00 in legal fees, rather than twice that.

And he might have thought it best to just let the AG have his way, rather than seek out a lawyer and put up a fight. After all, he was just being sued for a total of $6,000.00, one thousand of that being fees. Nor would the defendant know that the paperwork was generated by a computer system, and that the filing attorney’s attention to the case consisted of little more than signing the boilerplate pleading, motion for judgment, and fee affidavit.

A default judgment was duly entered in Cause No. C-1-CV-17-000942. With interest now quantified as $9,435.99 on top of the $5,000.00 amount of principal, and attorney’s fees doubled up to $2,000.00

"The Court [...] finds that Defendant is indebted to Plaintiff for the principal sum of $ 5,000.00, interest in the amount of $9,435.99, late charges in the amount of $0.00 for a total sum of $14,435.99 plus 9.00% interest thereon per annum from the date of this judgment until paid. The Court further finds that Plaintiff is entitled to reasonable attorney's fees in the amount of $ 2,000.00."

Case closed as of April 13, 2017, date of the judgment. Plenary power expired. Res judicata.

A judgment-debtor on the default judgment would not even know the amount of the judgment entered because the notice sent by Travis County Clerk does not include that information. When discovered, plenary power will likely have expired, and the appellate deadline will likely have passed.

Amicus Exhibit A-2 shows that the Attorney General routines understates the amount of attorney’s fees by pleading for $1,000.00 in College Access Loan cases (“CL00” pleading template) and $750 in Texas B-On-Time loan cases (“BT00” version), but routinely seeks and obtains much higher awards with dispositive motions and supporting fee affidavits in both types of student loan cases.

AMICUS EXHIBIT A-2

ATTORNEY FEE ENHANCEMENT UPON JUDGMENT IN CASES FILED IN DECEMBER 2016 THAT HAD RECEIVED DEFAULT JUDGMENT AS OF SEPTEMBER 7, 2017

(N=44 of 98)

CAUSE NO	Case Status	Judgment Type		Signing Judge	Date of Judgment	Atty Fees	Judgment Amount	Pleaded for Fees	Fee Factor x Multiplier\|%
C-1-CV-16-011717	DISPOSED		DJ	VJ	4/13/2017	5000	26732	750	6.66667	667%
C-1-CV-16-011620	DISPOSED		DJ	TTW	2/17/2017	5000	30143	1000	5	500%
C-1-CV-16-011710	DISPOSED		DJ	EMS	2/23/2017	5000	34198	1000	5	500%
C-1-CV-16-011756	DISPOSED		DJ	TTW	3/2/2017	5000	36565	1000	5	500%
C-1-CV-16-011757	DISPOSED		DJ	TTW	2/23/2017	5000	36534	1000	5	500%
C-1-CV-16-011839	DISPOSED		DJ	EMS	6/2/2017	5000	71224	1000	5	500%
C-1-CV-16-011977	DISPOSED		DJ	EMS	2/28/2017	5000	37854	1000	5	500%
C-1-CV-16-011990	DISPOSED		DJ	EMS	2/28/2017	5000	46333	1000	5	500%
C-1-CV-16-012386	DISPOSED		DJ	EMS	3/30/2017	5000	59523	1000	5	500%
C-1-CV-16-012387	DISPOSED		DJ	EMS	3/30/2017	5000	59523	1000	5	500%
C-1-CV-16-012392	DISPOSED		DJ	EMS	3/8/2017	5000	57221	1000	5	500%
C-1-CV-16-011975	DISPOSED		DJ	TTW	4/21/2017	5000	37950	1000	5	500%
C-1-CV-16-011867	DISPOSED		DJ	EMS	1/6/2017	2500	24139	1000	2.5	250%
C-1-CV-16-011699	DISPOSED		DJ	EMS	3/20/2017	2000	10423	NO $	#VALUE!	n/a
C-1-CV-16-011718	DISPOSED		DJ	TTW	2/23/2017	2000	14464	NO $	#VALUE!	n/a
C-1-CV-16-011688	DISPOSED		DJ	TTW	1/30/2017	2000	10074	750	2.66667	267%
C-1-CV-16-011861	DISPOSED		DJ	EMS	2/17/2017	2000	12675	750	2.66667	267%
C-1-CV-16-011981	DISPOSED		DJ	VJ	4/13/2017	2000	15125	750	2.66667	267%
C-1-CV-16-011983	DISPOSED		DJ	EMS	2/23/2017	2000	10683	750	2.66667	267%
C-1-CV-16-012372	DISPOSED		DJ	TTW	4/14/2017	2000	17814	750	2.66667	267%
C-1-CV-16-011705	DISPOSED		DJ	EMS	2/23/2017	2000	10823	750	2.66667	267%
C-1-CV-16-011679	DISPOSED		DJ	EMS	2/23/2017	2000	14739	1000	2	200%
C-1-CV-16-011683	DISPOSED		DJ	TTW	3/20/2017	2000	11684	1000	2	200%
C-1-CV-16-011707	DISPOSED		DJ	TTW	3/6/2017	2000	14766	1000	2	200%
C-1-CV-16-011755	DISPOSED		DJ	EMS	3/20/2017	2000	10017	1000	2	200%
C-1-CV-16-011866	DISPOSED		DJ	TTW	2/15/2017	2000	11735	1000	2	200%
C-1-CV-16-011954	DISPOSED		DJ	TTW	2/15/2017	2000	11408	1000	2	200%
C-1-CV-16-011972	DISPOSED		DJ	EMS	3/20/2017	2000	15518	1000	2	200%
C-1-CV-16-011974	DISPOSED		DJ	TTW	2/15/2017	2000	15754	1000	2	200%
C-1-CV-16-012373	DISPOSED		DJ	TTW	7/28/2017	2000	16517	1000	2	200%
C-1-CV-16-011778	DISPOSED		DJ	EMS	2/23/2017	1500	9977	NO $	#VALUE!	n/a
C-1-CV-16-011987	DISPOSED		DJ	TTW	3/20/2017	1500	6829	NO $	#VALUE!	n/a
C-1-CV-16-011716	DISPOSED		DJ	TTW	1/25/2017	1500	5637	750	2	200%
C-1-CV-16-011854	DISPOSED		DJ	EMS	2/17/2017	1500	7852	750	2	200%
C-1-CV-16-011860	DISPOSED		DJ	TTW	2/24/2017	1500	7445	750	2	200%
C-1-CV-16-011982	DISPOSED		DJ	TTW	2/21/2017	1500	6803	750	2	200%
C-1-CV-16-011985	DISPOSED		DJ	TTW	2/21/2017	1500	6896	750	2	200%
C-1-CV-16-012421	DISPOSED		DJ	TTW	4/14/2017	1500	7577	750	2	200%
C-1-CV-16-011953	DISPOSED		DJ	EMS	2/27/2017	1500	8545	1000	1.5	150%
C-1-CV-16-011970	DISPOSED		DJ	EMS	3/20/2017	1500	6675	1000	1.5	150%
C-1-CV-16-011971	DISPOSED		DJ	TTW	2/15/2017	1500	6646	1000	1.5	150%
C-1-CV-16-012382	DISPOSED		DJ	EMS	6/16/2017	1500	7767	1000	1.5	150%
C-1-CV-16-012385	DISPOSED		DJ	TTW	2/23/2017	1500	7677	1000	1.5	150%
C-1-CV-16-012388	DISPOSED		DJ	TTW	2/23/2017	1500	8114	1000	1.5	150%

Total DJ Cases:	44		DJ		Total $$$:	117500	886595	36750	3.19728	320%
Mean value:					Mean:	2670	20150	835	3.19728	320%

The ample statistical data for a month’s worth of cases compels the conclusion that this is done deliberately and systematically.

D. The Texas Attorney General routinely engages in fee-bloating and double-dipping

Under Ken Paxton’s stewardship of the Attorney General’s Office, the State of Texas routinely sues two people on the same debt.

This is also part of the current business model.

Many of the THECB loans are co-signed. The Attorney General regularly sues both the student borrower and the co-signer/guarantor, but not in the same lawsuit so as to obtain a judgment that holds them jointly and severally liable for the debt that they are jointly responsible for. Instead, he files two separate suits, one against each obligor, and obtains two separate judgments on the very same debt. He also claims and routinely receives awards of attorney’s fees in the same amount, one in each lawsuit, thereby doubling the amount of fees awarded.[13]

Because the second case is the electronic equivalent of a carbon copy of the first, the cost of processing the second is marginal, the only difference being the name and other identifying information for the Defendant and the cause number.[14] The boilerplate pleadings do not even distinguish whether a defendant is being sued as principal obligor or as a co-signer/guarantor.

Leaving aside court filing fees, which are assessed for each case filed by the court’s clerk, the costs of litigation for the second suit, which is virtually identical to the first, would be a fraction of the first for the OAG. Assistant Attorney General John C. Adams nevertheless routinely swears that this legal work in both cases is worth $1,500, $2,500, or $5,000, depending on the size of the amount outstanding. See AMICUS EXHIBIT A-3. Also see the exemplar below.

2 Judgment on same debt entered in Cause Nos.

C-1-CV-16-012386 (parent) and C-1-CV-16-012387 (student)

$5,000.00 in attorney’s fees x 2

AMICUS EXHIBIT A-3

EXEMPLAR OF TWO SUITS AND TWO JUDGMENTS ON SAME DEBT

WITH HOTLINKS TO DOCKETS

C-1-CV-16-011756 Bottom of Form		C-1-CV-16-011757
SUIT AGAINST PARENT		SUIT AGAINST STUDENT
GOINS MARVIN LEE		GOINS KHADYSHA Z
OPN:CV ORIGINAL PETITION	1162152	OPN:CV ORIGINAL PETITION	1162149
MOT:CV DEFAULT JUDGMENT	1189015	MOT:CV DEFAULT JUDGMENT	1186625
DSP:CV DEFAULT JUDGMENT	1191996	DSP:CV DEFAULT JUDGMENT	1189044

But the small marginal cost of an additional collection suit is not merely a feature of the second action (of two) against borrower and co-signer, respectively. It applies to all THECB student loan suits because they are prosecuted with the same litigation software and templates. Barring exceptional circumstances,[15] the collection suits therefore cost the same to produce (measured in staff resources) regardless of the amount in controversy.[16] And in Travis County courts at law, default judgments are granted without hearings. So no live court appearance is necessary.

A single Assistant Attorney General is responsible for student loan collection suit and signs as attorney-in-charge. He swears that $250.00 is the reasonable value of an hour of his time. That may be unobjectionable for an attorney of his experience, but hearings (in the few cases that require them) are requested for 5 minutes only,[17] and the cost of document production is negligible. In order to justify a $2,500.00 fee award in a single case under Lodestar principles, Adams would have to spend ten hours on a single case, rather than ten minutes.[18]

Under Ken Paxton’s leadership, the attorney-in-charge of THECB student loan collection engages in egregious fee padding as a pattern and practice, and routinely shifts the inflated fees to Texas student obligors and their co-signers.

With very few exceptions, the Travis County courts at law grant the full amount of fees requested, because that amount is sworn to by Assistant AG Adams under penalties of perjury to support the State’s motions for default and for summary judgment.[19]

A Janus-faced Attorney General

Under the stewardship of Ken Paxton, the Office of the Texas Attorney General’s engages in some of the very same harmful practices for which the Defendants in this lawsuit had millions of dollars in penalties entered against them. Harmful to Texas consumers/debtors.

Unlike the non-governmental defendants in this action, the Attorney General does not and cannot violate the venue laws of this State by suing Texans and former students of institutions of higher education in Texas by the hundreds and – over the years – by the thousands in Travis County (Austin, Texas) regardless where they may live because a special venue provision has been enacted for the Attorney General’s convenience.

For better or worse, that is the Texas Legislature’s doing.

But the Texas Legislature has not decreed that the OAG should engage in massive deception in the collection of student loan balances owed to the Texas Higher Education Coordinating Board, and has not authorized the Attorney General to file disingenuous affidavits regarding the true cost of legal work performed by a single Assistant Attorney General handling a caseload of more than 1000 mass-litigation cases per year, and claiming reasonable fees between $1,500 and $5,000 in each default case, for a total annual amount aggregating to millions.

If it be good public policy to turn student loan collection into a profit center, the Texas Legislature should enact special legislation to exempt the Attorney General and his staff from the requirement to tell the truth under oath in a legal proceeding. The truth about the efficiencies of mass litigation in the age of efiling, and the precipitous drop in marginal costs of each additional lawsuit churched out by the electronic-age equivalent of a lawsuit mill.

The current practice under AG Ken Paxton’s watch, and in his name, is for a state employee to routinely misrepresent the true per-unit cost of collection litigation and to thereby beef up the budget of the Attorney General’s office, and cross-subsidize other parts of the agency and, at least indirectly, the state government. At the expense of people struggling to repay student loans either as borrowers or as guarantors. A good number of the latter category are of advanced age.[20] Some are sued decades after the loan was made.

The Link

What does the Attorney General’s gouging of student loan obligors have to do with this lawsuit? -- Quite a bit.

In assessing penalties, if any, the jurors in State of Texas v Samara Portfolio et al were asked to consider, inter alia, (1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited act or practice; (2) the amount necessary to deter future violations; and (3) any other matter that justice may require.

If the jury had heard that being sued in a distant venue is a fate suffered by many of their peers around the State and beyond its borders, and that the indignity was being inflicted upon them by the very same Texas Attorney General that urged them to throw the books at Onwuteaka and his company, they might very well have come to different conclusions regarding the gravity of Onwuteaka’s misconduct.

At the minimum, they might have concluded that Attorney General Ken Paxton is a hypocrite. The members of the jury would have been entitled to weigh the balance of equities under the circumstances because they were to consider “any other matter that justice may require.”

While the Attorney General may not be subject to estoppel or quasi-estoppel for inequitable conduct in a formal legal sense,[21] the jury might very well have taken into account that the Office of the Attorney General, under the leadership of Ken Paxton, squeezes money from consumer-debtors utilizing means that -- although legal at least in part for the Attorney General due to his special status – are nevertheless no less reprehensible than those employed on a comparable scale by Joseph Onwuteaka and his ilk.

Judge Weiman instructed jurors to inflict punishment as they see fit in their discretion.[22]

Specifically, the jury was advised to impose punishment on the defendants as a warning and example to the wrongdoer, and to others, so as to deter the same or similar conduct in the future.

It was clearly up to the jury to exercise its own moral judgment within the parameters of the law. That discretion included the discretion not to reward the State with millions of dollars in civil fines for conduct harmful and unfair to consumer-debtors that the State, through its Attorney General, itself engages in with predictable regularity and with impunity.

The jury should have had an opportunity to hear about the Attorney General’s own patterns and practices in the business of debt collection, the institutionalized pattern of deception in dealing with student loan obligors under his leadership, and his lack of clean hands.

Equal Protection Concerns

This Court should additionally have an opportunity to assess the constitutionality of the disparate treatment of Texas consumers sued for unpaid obligations based on who is suing them; whether the distinction between OAG and private collection attorneys passes muster under the rational-basis test, and – if the answer is no – whether the appropriate remedy is to strike down the venue provisions of the Texas Debt Collection Act (and other applicable statutes that might provide a basis for liability) or to strike down the exclusive venue provision of the Texas Education Code to rectify the constitutionally impermissible disparity. See Sessions v. Morales-Santana, __ U.S. ___ (June 12, 2017) ("[W]hen the `right invoked is that to equal treatment,' the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class." Heckler v. Mathews, 465 U. S. 728, 740 (1984) (quoting Iowa-Des Moines Nat. Bank v. Bennett, 284 U. S. 239, 247 (1931); emphasis deleted). "How equality is accomplished . . . is a matter on which the Constitution is silent." Levin v. Commerce Energy, Inc., 560 U. S. 413, 426-427 (2010)).”

The Injunction Is a Paper Tiger in PDF

Under the final judgment entered in this civil consumer protection enforcement case, the only purported benefit for the affected Texas consumers against whom venue violations were committed is an injunction prohibiting the Defendants from collecting the ill-gotten judgments against them. See FINAL JUDGMENT AND PERMANENT INJUNCTION, p. 5, part III, ¶10.

A. This injunction is close to meaningless because it is easily circumvented

All Samara Portfolio Management, LLC has to do to render this injunction ineffective is to sell the judgments to another debt buyer, who can then proceed to collect on them as owner, rather than as an agent for the enjoined defendants who would be bound by the injunction. Alternatively, the State of Texas may acquire the ill-gotten judgments against the consumer-debtors by executing on Samara’s assets, and will then be in the position to go after the consumer debtors instead of Samara Portfolio and Onwuteaka doing it themselves. The appointment of a receiver would make no difference for the affected consumer-debtors either, as the receiver would then be duty-bound to either liquidate Samara’s assets or collect from the consumers/judgment-debtors directly.[23]

B. Texas consumers more broadly speaking will not benefit either

Sub-paragraph ‘c.’ of Injunction paragraph 10 also purports to enjoins venue violations beyond the 898 individuals listed on Exhibit B.[24]

This may be more than merely symbolic, but it does not accomplish much, as it is duplicative. Both federal and state law already prohibit the conduct that the Defendants are enjoined from committing, and under the relevant statutes, abused consumers would be entitled to seek actual damages (if any), a statutory penalty amount regardless of actual damages, and their attorney’s fees; -- none of which any single Texas consumer has received through the efforts of the Attorney General in this case.

Additionally, it is doubtful that future consumers sued in the wrong venue would have standing to enforce paragraph 10c of the permanent injunction unless the Attorney General were to agree to do it on their behalf. Which is unlikely, given that the primary objective of Attorney General Ken Paxton evidently consists of using consumer-protection litigation as a revenue source, as illustrated in this very case, in addition to the general policy priorities articulated by the current Attorney General in his formal budgeting documents.[25]

It is unlikely that the two entity defendants in this case would have any assets left after the execution of the State’s judgment against them. It is also unlikely that the natural-person Defendant in this case, Joseph Onwuteaka, would have any non-exempt assets left after all writs of execution and writs of garnishment have been executed. Therefore, there would be no economic incentive for the Attorney General to come to the aid of future victims of venue-violation by these Defendants.

Conclusion

Wherefore, premises considered, the undersigned AMICUS CURIAE urges the Court to take judicial notice of the judicial case-data presented in, and hot-linked to, from this brief,[26] vacate the final judgment entered in this consumer protection action, and re-set the case for a new trial to allow for consideration of the issues raised in this brief in the interest of justice and in the interest of Texas consumers/debtors, for whose benefit and protection this case was ostensibly filed by then-Attorney General Greg Abbott in 2013.

AMICUS EXHIBIT A-1

LOCUS OF DEFENDANT WHEN SUED IN TRAVIS COUNTY, AND LOCUS ON LOAN APPLICATION/NOTE

THECB COLLECTION SUITS FILED IN JANUARY 2017 (N=95)

Seq LOCUS OF D

CAUSE NO

STATUS

D SUED IN

STATE

ZIP

NOTE SIGNED IN

Out-of-Country

C-1-CV-17-000747

DISPOSED

JAPAN

HOUSTON, TX

Out-of-State

C-1-CV-17-000955

DISPOSED

FREEMONT

94539

GONZALES TX

Out-of-State

C-1-CV-17-000561

DISPOSED

DENVER

80216

AUSTIN, TX

Out-of-State

C-1-CV-17-000858

DISPOSED

GLENDALE

80246

WICHITA FALLS, TX

Out-of-State

C-1-CV-17-000359

CV PENDING

GAINESVILLE

32608

SAN ANTONIO, TX

Out-of-State

C-1-CV-17-000941

CV PENDING

FORT LAUDERDALE

33308

DALLAS, TX

Out-of-State

C-1-CV-17-000551

DISPOSED

BATON ROUGE

70815

BATON ROUGHT, LA

Out-of-State

C-1-CV-17-000552

DISPOSED

BATON ROUGE

70815

WACO, TX

Out-of-State

C-1-CV-17-000377

DISPOSED

HATTIESBURG

39401

HUNTSVILLE, TX

Out-of-State

C-1-CV-17-000829

DISPOSED

NEW YORK

10029

RICHLAND HILL TX

Out-of-State

C-1-CV-17-000544

DISPOSED

MOORE

74160

NORMAN, OK

Out-of-State

C-1-CV-17-000951

CV PENDING

DUPONT

98327

CONROE, TX

Out-of-County

C-1-CV-17-000831

DISPOSED

ABILENE

79601

ABILENE, TX

Out-of-County

C-1-CV-17-000736

DISPOSED

ABILENE

79603

ABILENE, TX

Out-of-County

C-1-CV-17-000383

DISPOSED

ARLINGTON

76002

GLENN HEIGHTS, TX

Out-of-County

C-1-CV-17-000365

CV PENDING

ATS

ARLINGTON

76014

ARLINGTON, TX

Out-of-County

C-1-CV-17-000367

CV PENDING

ARLINGTON

76014

ARLINGTON, TX

Out-of-County

C-1-CV-17-000380

CV PENDING

ARLINGTON

76014

ARLINGTON, TX

In Home City

C-1-CV-17-000810

CV PENDING

AUSTIN

78704

AUSTIN, TX

In Home City

C-1-CV-17-000715

CV PENDING (?)

AUSTIN

78721

SAN BENITO, TX

In Home City

C-1-CV-17-000746

DISPOSED

AUSTIN

78723

BEDFORD, TX

In Home City

C-1-CV-17-000814

DISPOSED

AUSTIN

78735

MESQUITE TX

In Home City

C-1-CV-17-000854

DISPOSED

AUSTIN

78735

CEDAR PARK, TX

In Home City

C-1-CV-17-000808

CV PENDING

AUSTIN

78739

TRAVIS COUNTY TX

In Home City

C-1-CV-17-000743

DISPOSED

AUSTIN

78745

AUSTIN, TX

In Home City

C-1-CV-17-000711

DISPOSED

AUSTIN

78746

AUSTIN, TX

In Home City

C-1-CV-17-000555

DISPOSED

AUSTIN

87826

SAN ANTONIO

Out of County

C-1-CV-17-000360

DISPOSED

BEDFORD

76021

BEDFORD, TX

Out of County

C-1-CV-17-000361

DISPOSED

NONSUIT

BEDFORD

76021

BEDFORD, TX

Out of County

C-1-CV-17-000378

DISPOSED

BEDFORD

76021

BEDFORD, TX

Out of County

C-1-CV-17-000851

DISPOSED

CEDAR PARK

78613

CEDAR PARK, TX

Out of County

C-1-CV-17-000942

DISPOSED

CHANDLER

75758

PALESTINE, TX

Out of County

C-1-CV-17-000952

CV PENDING

CONROE

77303

CONROE, TX

Out of County

C-1-CV-17-000835

CV PENDING

CORPUS CHRISTI

78411

CORPUS CHRISTI, TX

Out of County

C-1-CV-17-000820

DISPOSED

CORPUS CHRISTI

78412

CORPUS CHRISTI, TX

Out of County

C-1-CV-17-000742

DISPOSED

DALLAS

75034

GARLAND, TX

Out of County

C-1-CV-17-000940

CV PENDING

DALLAS

75205

BRIDGEPORT, TX

Out of County

C-1-CV-17-000358

CV PENDING

DALLAS

75206

DALLAS, TX

Out of County

C-1-CV-17-000560

DISPOSED

DALLAS

75216

DALLAS, TX

Out of County

C-1-CV-17-000722

CV PENDING

DALLAS

75216

DALLAS, TX

Out of County

C-1-CV-17-000837

DISPOSED

DALLAS

75224

DALLAS, TX

Out of County

C-1-CV-17-000372

DISPOSED

DALLAS

75243

DALLAS, TX

Out of County

C-1-CV-17-000827

CV PENDING

DALLAS

75244

LEWISVILLE, TX

Out of County

C-1-CV-17-000373

DISPOSED

NONSUIT

DALLAS

75287

TYLOR, TX

Out of County

C-1-CV-17-000962

DISPOSED

DALLAS

75287

DENTON TX

Out of County

C-1-CV-17-000364

CV PENDING

DENTON

76207

LEWISVILLE, TX

Out of County

C-1-CV-17-000857

DISPOSED

EL PASO

79907

EL PASO, TX

Out of County

C-1-CV-17-000546

DISPOSED

FLORESVILLE

78114

FLORESVILLE, TX

Out of County

C-1-CV-17-000547

DISPOSED

FLORESVILLE

78114

FLORESVILLE, TX

Out of County

C-1-CV-17-000753

CV PENDING

FORT WORTH

76105

FORT WORTH, TX

Out of County

C-1-CV-17-000553

CV PENDING

FORT WORTH

76107

EL PASO, TX

Out of County

C-1-CV-17-000557

CV PENDING

FORT WORTH

76107

EL PASO, TX

Out of County

C-1-CV-17-000748

DISPOSED

FORT WORTH

76137

WATAUGA, TX

Out of County

C-1-CV-17-000741

DISPOSED

FORT WORTH

76177

FORT WORTH, TX

Out of County

C-1-CV-17-000542

DISPOSED

FRISCO

75035

CARROLTON

Out of County

C-1-CV-17-000382

DISPOSED

GLENN HEIGHTS

75154

GLENN HEIGHTS, TX

Out of County

C-1-CV-17-000937

DISPOSED

GLENN HEIGHTS

75154

ROWLETT, TX

Out of County

C-1-CV-17-000363

CV PENDING

HOUSTON

77008

SAN MARCOS, TX

Out of County

C-1-CV-17-000384

CV PENDING

HOUSTON

77008

SAN MARCOS, TX

Out of County

C-1-CV-17-000852

DISPOSED

HOUSTON

77016

HOUSTON, TX

Out of County

C-1-CV-17-000853

DISPOSED

HOUSTON

77016

HOUSTON, TX

Out of County

C-1-CV-17-000828

DISPOSED

HOUSTON

77038

HOUSTON, TX

Out of County

C-1-CV-17-000713

DISPOSED

HOUSTON

77043

HOUSTON, TX

Out of County

C-1-CV-17-000752

CV PENDING

HOUSTON

77064

EAGLE PASS, TX

Out of County

C-1-CV-17-000948

DISPOSED

HOUSTON

77069

DESOTO, TX

Out of County

C-1-CV-17-000717

CV PENDING

HOUSTON

77079

FORT WORTH, TX

Out of County

C-1-CV-17-000559

DISPOSED

HOUSTON

77082

FORT WORTH, TX

Out of County

C-1-CV-17-000821

DISPOSED

HOUSTON

77089

HOUSTON, TX

Out of County

C-1-CV-17-000744

DISPOSED

HOUSTON

77096

KILLEEN, TX

Out of County

C-1-CV-17-000550

CV PENDING

KINGSLAND

78639

KINGSLAND, TX

Out of County

C-1-CV-17-000809

DISPOSED

LAREDO

78045

FORT WORTH, TX

Out of County

C-1-CV-17-000813

DISPOSED

LEANDER

78641

MESQUITE TX

Out of County

C-1-CV-17-000959

CV PENDING

ATS

LEWISVILLE

75067

PLANO, TX

Out of County

C-1-CV-17-000811

CV PENDING

MCKINNEY

75070

FRISCO, TX

Out of County

C-1-CV-17-000819

CV PENDING

MESQUITE

75191

MESQUITE, TX

Out of County

C-1-CV-17-000953

CV PENDING

ATS

MISSION

78573

MISSION, TX

Out of County

C-1-CV-17-000817

DISPOSED

PASADENA

77504

HOUSTON, TX

Out of County

C-1-CV-17-000549

DISPOSED

PFLUGERVILLE

78660

PFLUGERVILLE, TX

Out of County

C-1-CV-17-000739

DISPOSED

NONSUIT

RICHMOND

77406

RICHMOND, TC

Out of County

C-1-CV-17-000740

DISPOSED

NONSUIT

RICHMOND

77469

RICHMOND, TC

Out of County

C-1-CV-17-000725

DISPOSED

SAN ANGELO

76905

ABILENE, TX

Out of County

C-1-CV-17-000562

DISPOSED

SAN ANTONIO

78201

SEGUIN, TX

Out of County

C-1-CV-17-000719

DISPOSED

SAN ANTONIO

78227

SAN ANTONIO, TX

Out of County

C-1-CV-17-000366

CV PENDING

ATS

SAN ANTONIO

78228

SAN ANTONIO, TX

Out of County

C-1-CV-17-000938

DISPOSED

SAN ANTONIO

78230

EAGLE PASS, TX

Out of County

C-1-CV-17-000745

DISPOSED

SAN ANTONIO

78238

ELMENDORF, TX

Out of County

C-1-CV-17-000963

CV PENDING

ATS

SAN ANTONIO

78247

SAN ANTONIO, TX

Out of County

C-1-CV-17-000399

DISPOSED

SAN ANTONIO

78249

SAN ANTONIO, TX

Out of County

C-1-CV-17-000379

CV PENDING

SAN MARCOS

78666

SAN MARCOS, TX

Out of County

C-1-CV-17-000818

DISPOSED

SPRING

77373

HOUSTON, TX

Out of County

C-1-CV-17-000716

DISPOSED

SPRING BRANCH

78070

SAN ANTONIO, TX

Out of County

C-1-CV-17-000718

DISPOSED

SPRING BRANCH

78070

SAN ANTONIO, TX

Out of County

C-1-CV-17-000548

DISPOSED

TAYLOR

76574

PFLUGERVILLE, TX

Out of County

C-1-CV-17-000528

CV PENDING

TEXARKANA

75501

OVERTON, TX

Out of County

C-1-CV-17-000856

DISPOSED

WICHITA FALLS

76305

WICHITA FALLS, TX

Seq

CAUSE NO

STATUS

D SUED IN

STATE

ZIP

NOTE SIGNED IN

[1] This amicus brief does not address the propriety of judgment with respect to violations of the Texas Identity Theft Enforcement and Protection Act, Tex. Bus & Com. Code §521.001 et seq, or noncompliance with the license requirement under the Motor Vehicle Installment Sales Finance Act. Tex. Fin. Code. §348.501.

[2] The State’s live pleading at trial was filed on June 5, 2017 during the trial (presumably with leave of court) in the name of current incumbent Attorney General Ken Paxton. It nevertheless states on page 2 that “[t]his action is brought by Attorney General Greg Abbott by and through his Consumer Protection Division, in the name of the State of Texas and the public interest. See PLAINTIFF’S THIRD AMENDED PETITION AND APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION, p. 2, ¶¶3.-5.

[3] All such collection suits were filed in a single court, Harris County Justice Court Precinct 1, Place 2, presided over by Justice of the Peace David M. Patronella.

[4] JURY ANSWERS TO QUESTION NO. 2 and 3, respectively.

[5] See Tex. Edu. Code §52.39. (“When any person who has received or cosigned as a guarantor for a loan authorized by this chapter has failed or refused to make as many as six monthly payments due in accordance with an executed note, then the full amount of the remaining principal and interest becomes due and payable immediately, and the amount due, the person's name and last known address, and other necessary information shall be reported by the board to the attorney general. Suit for the remaining sum shall be instituted by the attorney general, unless the attorney general finds reasonable justification for delaying suit and so advises the board in writing. Venue for a suit arising under this section is exclusively conferred on a court of competent jurisdiction in Travis County.”) (emphasis added).

[6] See Cause No. C-1-CV-17-002981. Motion to Transfer Venue, Barcode ID 1220369, and State’s Response to Motion to Transfer Venue, Barcode ID 1220568.

[7] Some collection cases involve conditional grants rather than conventional loans. The lawsuits were identified by using the Travis County Clerk’s website, which has party name and attorney name search functionality that also allows for delimitation of time-frames. Defendant address information at time of suit appears on page 1 of each petition. Locus at time of application/note is contained on the attached exhibit(s).

[8] Based on the Defendant address information in the petitions, which is not always up to date or correct.

[9] In Cause No. C-1-CV-16-011994 Catherine Jones, Court Operations Officer to the Honorable Judge Todd T. Wong, County Court at Law No 1. of Travis County informed Kathy Buxton, Legal Secretary, Student Loan Collections, at the Bankruptcy and Collections Division of the OAG that the “court is unable to sign the default because defendant has filed answer.” See Document with Bar Code ID 1185869 labeled PLD:CV LETTER TO COUNSEL. In Cause No. C-1-CV-16-012378 Priscela Valladares, Court Operations Officer for The Honorable Judge Eric M. Shepperd, County Court at Law No. 2 of Travis County, notified Asst. AG John Adams directly that “Judge Shepperd cannot sign this order as the defendant has filed an Answer to this lawsuit.” See Document with Bar Code ID 1196968 labeled. PLD:CV FILE COPY OF LETTER.

[10] Notarized by Katherine M. Buxton, Notary without bond and Legal Secretary, Student Loan Collections.

[11] The principal amount varies greatly based on the number of promissory notes on which suit is brought. Neither the AG’s pleadings nor its motions break down the amounts for each loan. Only the draft judgment does so, which is necessary to account for different interest rates for different loans. Bellesen does not attache account records or other business records to support her testimony even in cases where some payments were made on a loan, as reflected in the petition that sates the original amount of the loan and the amount of outstanding principal separately. Nor does she provide any information on the calculation of interest. The promissory notes and disclosure statements themselves only show the contract rate and the origination fee percentage.

[12] Pleadings are to be liberally construed in favor of the pleader, particularly when the complaining party has not filed any special exceptions. Lohmann v. Lohmann, 62 S.W.3d 875, 880-81 (Tex.App.-El Paso 2001, no pet.). The purpose of the pleading is to give notice of the claim involved. In re Pecht, 874 S.W.2d 797, 804 (Tex.App.-Texarkana 1994, no writ). A general request for attorney's fees in the prayer of the pleading is itself sufficient to authorize the award of attorney's fees. See Morgan v. Morgan, 657 S.W.2d 484, 491 (Tex.App.-Houston [1st Dist.] 1983, writ dism'd).

[13] In some rare cases in which the defendants hire an attorney, the two contemporaneous suits are consolidated, and the duplicative fee claims are pared down.

[14] Where the guaranty is on a separate page rather than merely a section or box on the loan note signed by the student applicant, there may be a 1-page discrepancy in the attachments.

[15] This would include cases in which defendants hire lawyers to defend them, which is rare, certainly less the 5% of the caseload.

[16] There may be a slight difference in the speed of document assembly in cases that involve multiple promissory notes as opposed to just a single one. But when two different types of loans (CAL and BT) are involved, the AG simply files two lawsuits against the same Defendant to avoid having to customize the pleadings.

[17] See, e.g., Cause Nos. C-1-CV-16-012378, C-1-CV-16-011844, C-1-CV-16-011863, C-1-CV-16-011865, C-1-CV-16-011969, C-1-CV-16-012423

[18] The lodestar method of determining what constitutes a reasonable attorney's fee involves two steps: (1) determining the reasonable hours spent by counsel and a reasonable hourly rate for such work, and (2) multiplying the number of such hours by the applicable rate, "the product of which is the base fee or lodestar." El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). "[A] party applying for an award of attorney's fees under the lodestar method bears the burden of documenting the hours expended on the litigation and the value of those hours." Id. at 761. Sufficient evidence should include, "at a minimum, documentation of the services performed, who performed them and at what hourly rate, when they were performed, and how much time the work required." Id. at 764. Contemporaneous evidence may be unavailable, but it is permissible for attorneys to reconstruct their work to provide the factfinder with sufficient information. Long v. Griffin, 442 S.W.3d 253, 256 (Tex. 2014).

[19] The exceptions occur in contested cases, but not always.

[20] See generally, Office for Older Americans & Office for Students and Young Consumers. Snapshot of older consumers and student loan debt. Washington, DC: Consumer Financial Protection Bureau (2017).

Available at http://files.consumerfinance.gov/f/documents/201701_cfpb_OA-Student-Loan-Snapshot.pdf

[21] Quasi-estoppel precludes a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken. Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). Quasi-estoppel applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit. See id. Quasi-estoppel requires mutuality of parties and may not be asserted by or against a "stranger" to the transaction that gave rise to the estoppel. See Swilley v. McCain, 374 S.W.2d 871, 875-76 (Tex. 1964); Am. Sur. Co. of N.Y. v. Martinez, 73 S.W.2d 109, 113 (Tex. Civ. App.-El Paso 1934, writ ref'd); Thomas v. C & M Jones Invs., LP, No. 03-14-00374-CV, 2016 WL 3924429, at *4 n.14 (Tex. App.-Austin July 15, 2016, no pet.) (mem. op.); Deutsche Bank Nat'l Trust Co. v. Stockdick Land Co., 367 S.W.3d 308, 315 n.13 (Tex. App.-Houston [14th Dist.] 2012, pet. denied) (op. on reh'g).

[22] The trial court shall submit instructions and definitions as shall be proper to enable the jury to reach a verdict and which are raised by the written pleadings and the evidence. Tex. R. Civ. P. 277, 278.

[23] The affected consumers/judgment debtors would be in a similar condition if the Defendants were to file for bankruptcy. As a part of "core proceedings" bankruptcy courts have the authority to sell property and liquidate assets of the bankruptcy estate. See 28 U.S.C. § 157(b)(2)(N),(O)(2006).

[24] Sub-paragraphs a and b have been struck from paragraph 10, and the remaining paragraphs have not been re-numbered. For clarity, it would be desirable if a superseding judgment were to be issued from which the text struck from the State’s proposed judgment is removed, with sections renumbered. Additionally, the exhibits referenced in final judgment as filed are not actually docketed as exhibits pertaining to the judgment, but are located elsewhere. See JUDGMENT (SIGNED), Doc ID 75993690 (8 pages only) and Plaintiff’s Motion for Entry of Final Judgement and Permanent Injunction, Doc ID 758772009 (3 pages and four Exhibits denoted A through D with separate Document ID numbers).

The final judgment, as e-filed, therefore requires resort to extraneous documents for completeness. Those documents are attached to a motion as exhibits, rather than filed separately by the Court Reporter.

At the minimum, the extraneous exhibits should be identified within the FINAL JUDGMENT AND PERMANENT INJUNCTION by their respective unique document ID numbers.

[25] See LEGISLATIVE APPROPRIATIONS REQUEST FOR FISCAL YEARS 2018 AND 2019. Submitted to the Office of the Governor, Budget Division and the Legislative Budget Board by the Office of the Attorney General, Ken Paxton. August 25, 2016, p. 37 (“The OAG has emerged as a significant source of both revenue and fiscal savings for the state. In FY 2015, the civil litigation divisions filed 27,247 lawsuits against violators and debtors, recovering over $160 million to GR for the State of Texas and its citizens harmed by wrongful conduct. Importantly, the agency self-funds part of this strategy through attorney fees awarded to the OAG in successful litigation. The OAG’s civil litigation divisions have yielded significant revenue for the state treasury and savings from cost avoidance for the state.”)

Available at https://www.texasattorneygeneral.gov/files/agency/lar_fy18-19.pdf.

[26] Appellate courts would be entitled to take notice of facts not noticed by a trial court. Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521 (1961). Langdale v. Villamil, 813 S.W.2d 187, 190 (Tex.App.-Houston [14th Dist.] 1991, no writ) (acknowledging that a court may take judicial notice of matters of public record, whether requested by a party or on its own motion, for the first time on appeal); Lazarides v. Farris, 367 S.W.3d 788, 799 (Tex.App.-Houston [14th Dist.] 2012, no pet.) (taking judicial notice that the minutes were available on the city's website). See also In re First Marblehead Corp. Secs. Litig., 639 F. Supp. 2d 145, 148 (D. Mass. 2009) (citing In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 19 (1st Cir. 2003) ("[M]atters of public record are fair game in adjudicating Rule 12(b)(6) motions, and a court's reference to such matters does not convert a motion to dismiss into a motion for summary judgment.")).

1 comment:

AnonymousSeptember 29, 2017 at 9:27 AM
This motion for new trial was denied on September 15, 2017 by Judge Larry Weiman 80th District Court.
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Thursday, September 21, 2017

State of Texas (AG Ken Paxton) v Samara Portfolio Management, LLC, Joseph Onwuteaka - One Amicus' Take on $25mil Penalty Price Tag for Venue Violations:

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Legal Stuff and Warnings to Pro Se Litigants