Preview
22-CCV-071295 Electronically Filed
7/27/2022 9:52 AM
Fort Bend County - Court at Law 4 Laura Richard
County Clerk
Fort Bend County, Texas
NO.
BANK OF AMERICA, N.A. § IN THE COUNTY COURT
vs. § ATLAWNO.
ROBERTO MARTINEZ § FORT BEND COUNTY, TEXAS
Our Filet A2208845
ORIGINAL PETIFION
Plaintiff, BANK OF AMERICA, N.A., through its attorneys, claims as follows:
i. Plaintiff intends to conduct discovery under Level I of Texas Rule of Civil Procedure-
190.2, and affirmatively pleads that this suit is governed by the expedited-actions process in Texas
Rule of Civil Procedure 169 because this suit seeks only monetary relief of $250,000 or less,
including damages of any kind, penalties and costs.
2. The Court has jurisdiction over this. lawsuit because the amount in controversy
exceeds this Court’s minimum jurisdictional requirements.
Sh Venue for this action is-proper in this Court because the Defendant is.a resident of
this county.
4, Plaintiff is a national banking association organized and existing under the laws of
the United States of America and having its principal place of business in-Charlotte, North Carolina,
3. Plaintiff is a wholly-owned subsidiary of. Bank of America Corporation and the
successor-in-interest to FIA Card Services, N.A. (“FIA”), formerly known as MBNA AmericaBank,
N.A. FIA was merged into and under the charter and title of Plaintiff effective October 1, 2014.
6. Defendant, ROBERTO MARTINEZ is an adult individual residing in this county, who
may be served with citation at [BIN cHMonp Tx 77407-0846.
wh Defendant applied for and received a credit account, account number
eeeeeoe which is owned and administered by Plaintiff (the “Account”). Defendant used.or authorized the use of the Account for the acquisition of goods, services, balance-transfers or cash
advances in accordance with the customer agreement (“Agreement”) governing use of the Account
with Plaintiff.
8. Defendant breached the Agreement by failing to make periodic payments as required
thereby and the Account was subsequently charged-off. The entire balance on the Account is owed
to Plaintiff and is presently due and payable in full.
9. The current Account balance is $5,552.26 , which includes any applicable payments
and credits. The Account is not accruing post charge-off interest.
FIRST CAUSE OF ACTION - ACCOUNT STATED
10. _ Plaintiffincorporates herein by reference, the allegations contained in paragraphs 1-9
above.
11. A party is entitled to relief-under the common law cause of action for account
stated when (1) transactions between the parties give rise to-indebtedness of one to the other; (2)
an agreement, express or implied, between the parties fixes an:amount due; and (3) the one to be
charged makes a promise, express or implied, to pay the indebtedness. Arrimplied agreement can
arise from the acts and conduct of the parties.
12. Defendant’s-use of the Account for the acquisition of goods, services, balance
transfers or cash advances in accordance with the customer agreement, represented a periodic
account, for which the Plaintiff generated regular monthly statements. Defendants liable to Plaintiff
for the Account balance,
CONDITIONS PRECEDENT
13. Through its undersigned attorney, Plaintiff has demanded payment from Defendant,
but Defendant has not satisfied such demand, Plaintiffhas performed all conditions precedent to thefiling of this action, or all such conditions-precedent have occurred.
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be cited to
appear and answer herein, and that upon final hearing, Plaintiff have judgment against Defendant
for:
a. $5,552.26, which is the-balance due on the Account; and
db. all court costs.
Respectfully submitted,
dl R. Redman (SBN: 24033112)**
Teri S. Mace (SBN: 12759480)*
Todd L. Hinds (SBN: 24103640)**
~ Marlei E, Thames (SBN: 24125221)*
Larysa Polunin (SBN: 24122991)**
Reneé Casas (SBN: 24107728)**
Couch Lambert, LL€
*Dallas Office:
4144 North Central Expressway, Ste. 1260
Dallas, Texas 75204
**Houston Office:
6200 Savoy, Ste. 440
Houston, Texas 77036
***Mfailing Address:
3501 N. Causeway, Ste. 800
Metairie, LA 70002
(866) 282-3853
servicetx@gulfsouthlegal.com
ATTORNEYS FOR PLAINTIFFCIVIL PROCESS REQUEST
FOR EACH PARTY SERVED YOU MUST FURNISH ONE (1) COPY OF THE PLEADING
FOR WRITS FURNISH TWO (2) COPIES OF THE PLEADING PER PARTY TO BE SERVED
SERVICE TO BE ISSUED ON (Please list exacity as the name appears in the pleading to be served):
CASE NUMBER:
CURRENT COURT: FORT BEND COUNTY COURT TBD
TYPE OF INSTRUMENT TO BE SERVED (See Reverse For Types):Citation; Original Petition;
FILE DATE OF MOTION:
Month/ Day/ Year
1. NAME: ROBERTO MARTINEZ
ADDRESS: i &|CHIVOND, TX 77407-0846
AGENT, (if applicable):
TYPE OF SERVICE/PROCESS TO BE ISSUED(see reverse for specific type):
SERVICE BY (check one):
ATTORNEY PICK-UP CONSTABLE
CIVIL PROCESS SERVER Authorized Person to Pick-up:
Phone:
MAIL CERTIFIED MAIL
PUBLICATION:
Type of Publication: COURTHOUSE DOOR, or:
NEWSPAPER OF YOUR CHOICE:
[X] OTHER, explain:_Please email requested documents to efiletx@ezmessenger.com or mail to EZ Messenger 9210 S Western Ave Suite A-3 Oklahoma
City, OK 73139. Thank you.
FEES HIE HHI ISIE THIEEI SETTER TEI EET TTR EI TE TE TERT R IRI TR TR I RI TR TRI ER ER TRI ER IRI RA ER IR IER,
2. NAME:
ADDRESS:
AGENT, (if applicable):
TYPE OF SERVICE/PROCESS TO BE ISSUED(see reverse for specific type):
SERVICE BY (check one):
ATTORNEY PICK-UP CONSTABLE
CIVIL PROCESS SERVER Authorized Person to Pick-up: Phone:
MAIL CERTIFIED MAIL
PUBLICATION:
Type of Publication: COURTHOUSE DOOR, or:
NEWSPAPER OF YOUR CHOICE:
OTHER, explain:
ATTORNEY (OR ATTORNEY'S AGENT) REQUESTING SERVICE:
NAME:_EZ Messenger TEXAS BAR NO./ID NO..
MAILING ADDRESS: __9210 S. Western Avenue, Suite A-3, Oklahoma City, OK 73139
PHONE NUMBER: 214 748-4200 FAX NUMBER:
area code phone number
EMAIL ADDRESS: __ efiletx@ezmessenger.com
Page 1 of 2ISERVICE REQUESTS WHICH CANNOT BE PROCESSED BY THIS OFFICE WILL BE HELD FOR 30 DAYS PRIOR TO.
CANCELLATION. FEES WILL BE REFUNDED ONLY UPON REQUEST, OR AT THE DISPOSITION OF THE CASE.
SERVICE REQUESTS MAY BE REINSTATED UPON APPROPRIATE ACTION BY THE PARTIES.
INSTRUMENTS TO BE SERVED:
(Fill In Instrument Sequence Number, i.e. 1st, 2nd, etc.)
ORIGINAL PETITION
AMENDED PETITION
SUPPLEMENTAL PETITION
COUNTERCLAIM
AMENDED COUNTERCLAIM
SUPPLEMENTAL COUNTERCLAIM
CROSS-ACTION:
AMENDED CROSS-ACTION
SUPPLEMENTAL CROSS-ACTION
THIRD-PARTY PETITION:
AMENDED THIRD-PARTY PETITION
SUPPLEMENTAL THIRD-PARTY PETITION
INTERVENTION:
AMENDED INTERVENTION
SUPPLEMENTAL INTERVENTION
INJUNCTION
MOTION TO MODIFY
SHOW CAUSE ORDER
TEMPORARY RESTRAINING ORDER
BILL OF DISCOVERY:
ORDER TO:
(specify)
MOTION TO:
(specify)
Page 2 of 2
PROCESS TYPES:
NON WRIT:
CITATION
ALIAS CITATION
PLURIES CITATION
SECRETARY OF STATE CITATION
COMMISSIONER OF INSURANCE
HIGHWAY COMMISSIONER
CITATION BY PUBLICATION
NOTICE
SHORT FORM NOTICE
PRECEPT (SHOW CAUSE)
RULE 106 SERVICE
SUBPOENA
WRITS:
ATTACHMENT (PROPERTY)
ATACHMENT (WITNESS)
ATTACHMENT (PERSON)
CERTIORARI
EXECUTION
EXECUTION AND ORDER OF SALE
GARNISHMENT BEFORE JUDGMENT
GARNISHMENT AFTER JUDGMENT
HABEAS CORPUS
INJUNCTION
TEMPORARY RESTRAINING ORDER
PROTECTIVE ORDER (FAMILY CODE)
PROTECTIVE ORDER (CIVIL CODE)
POSSESSION (PERSON)
POSSESSION (PROPERTY)
SCIRE FACIAS
SEQUESTRATION
SUPERSEDEAS
Preview
22-CCV-071295 Electronically Filed 7/27/2022 9:52 AM Fort Bend County - Court at Law 4 Laura Richard County Clerk Fort Bend County, Texas NO. BANK OF AMERICA, N.A. § IN THE COUNTY COURT vs. § ATLAWNO. ROBERTO MARTINEZ § FORT BEND COUNTY, TEXAS Our Filet A2208845 ORIGINAL PETIFION Plaintiff, BANK OF AMERICA, N.A., through its attorneys, claims as follows: i. Plaintiff intends to conduct discovery under Level I of Texas Rule of Civil Procedure- 190.2, and affirmatively pleads that this suit is governed by the expedited-actions process in Texas Rule of Civil Procedure 169 because this suit seeks only monetary relief of $250,000 or less, including damages of any kind, penalties and costs. 2. The Court has jurisdiction over this. lawsuit because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. Sh Venue for this action is-proper in this Court because the Defendant is.a resident of this county. 4, Plaintiff is a national banking association organized and existing under the laws of the United States of America and having its principal place of business in-Charlotte, North Carolina, 3. Plaintiff is a wholly-owned subsidiary of. Bank of America Corporation and the successor-in-interest to FIA Card Services, N.A. (“FIA”), formerly known as MBNA AmericaBank, N.A. FIA was merged into and under the charter and title of Plaintiff effective October 1, 2014. 6. Defendant, ROBERTO MARTINEZ is an adult individual residing in this county, who may be served with citation at [BIN cHMonp Tx 77407-0846. wh Defendant applied for and received a credit account, account number eeeeeoe which is owned and administered by Plaintiff (the “Account”). Defendant used.or authorized the use of the Account for the acquisition of goods, services, balance-transfers or cash advances in accordance with the customer agreement (“Agreement”) governing use of the Account with Plaintiff. 8. Defendant breached the Agreement by failing to make periodic payments as required thereby and the Account was subsequently charged-off. The entire balance on the Account is owed to Plaintiff and is presently due and payable in full. 9. The current Account balance is $5,552.26 , which includes any applicable payments and credits. The Account is not accruing post charge-off interest. FIRST CAUSE OF ACTION - ACCOUNT STATED 10. _ Plaintiffincorporates herein by reference, the allegations contained in paragraphs 1-9 above. 11. A party is entitled to relief-under the common law cause of action for account stated when (1) transactions between the parties give rise to-indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an:amount due; and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness. Arrimplied agreement can arise from the acts and conduct of the parties. 12. Defendant’s-use of the Account for the acquisition of goods, services, balance transfers or cash advances in accordance with the customer agreement, represented a periodic account, for which the Plaintiff generated regular monthly statements. Defendants liable to Plaintiff for the Account balance, CONDITIONS PRECEDENT 13. Through its undersigned attorney, Plaintiff has demanded payment from Defendant, but Defendant has not satisfied such demand, Plaintiffhas performed all conditions precedent to thefiling of this action, or all such conditions-precedent have occurred. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be cited to appear and answer herein, and that upon final hearing, Plaintiff have judgment against Defendant for: a. $5,552.26, which is the-balance due on the Account; and db. all court costs. Respectfully submitted, dl R. Redman (SBN: 24033112)** Teri S. Mace (SBN: 12759480)* Todd L. Hinds (SBN: 24103640)** ~ Marlei E, Thames (SBN: 24125221)* Larysa Polunin (SBN: 24122991)** Reneé Casas (SBN: 24107728)** Couch Lambert, LL€ *Dallas Office: 4144 North Central Expressway, Ste. 1260 Dallas, Texas 75204 **Houston Office: 6200 Savoy, Ste. 440 Houston, Texas 77036 ***Mfailing Address: 3501 N. Causeway, Ste. 800 Metairie, LA 70002 (866) 282-3853 servicetx@gulfsouthlegal.com ATTORNEYS FOR PLAINTIFFCIVIL PROCESS REQUEST FOR EACH PARTY SERVED YOU MUST FURNISH ONE (1) COPY OF THE PLEADING FOR WRITS FURNISH TWO (2) COPIES OF THE PLEADING PER PARTY TO BE SERVED SERVICE TO BE ISSUED ON (Please list exacity as the name appears in the pleading to be served): CASE NUMBER: CURRENT COURT: FORT BEND COUNTY COURT TBD TYPE OF INSTRUMENT TO BE SERVED (See Reverse For Types):Citation; Original Petition; FILE DATE OF MOTION: Month/ Day/ Year 1. NAME: ROBERTO MARTINEZ ADDRESS: i &|CHIVOND, TX 77407-0846 AGENT, (if applicable): TYPE OF SERVICE/PROCESS TO BE ISSUED(see reverse for specific type): SERVICE BY (check one): ATTORNEY PICK-UP CONSTABLE CIVIL PROCESS SERVER Authorized Person to Pick-up: Phone: MAIL CERTIFIED MAIL PUBLICATION: Type of Publication: COURTHOUSE DOOR, or: NEWSPAPER OF YOUR CHOICE: [X] OTHER, explain:_Please email requested documents to efiletx@ezmessenger.com or mail to EZ Messenger 9210 S Western Ave Suite A-3 Oklahoma City, OK 73139. Thank you. FEES HIE HHI ISIE THIEEI SETTER TEI EET TTR EI TE TE TERT R IRI TR TR I RI TR TRI ER ER TRI ER IRI RA ER IR IER, 2. NAME: ADDRESS: AGENT, (if applicable): TYPE OF SERVICE/PROCESS TO BE ISSUED(see reverse for specific type): SERVICE BY (check one): ATTORNEY PICK-UP CONSTABLE CIVIL PROCESS SERVER Authorized Person to Pick-up: Phone: MAIL CERTIFIED MAIL PUBLICATION: Type of Publication: COURTHOUSE DOOR, or: NEWSPAPER OF YOUR CHOICE: OTHER, explain: ATTORNEY (OR ATTORNEY'S AGENT) REQUESTING SERVICE: NAME:_EZ Messenger TEXAS BAR NO./ID NO.. MAILING ADDRESS: __9210 S. Western Avenue, Suite A-3, Oklahoma City, OK 73139 PHONE NUMBER: 214 748-4200 FAX NUMBER: area code phone number EMAIL ADDRESS: __ efiletx@ezmessenger.com Page 1 of 2ISERVICE REQUESTS WHICH CANNOT BE PROCESSED BY THIS OFFICE WILL BE HELD FOR 30 DAYS PRIOR TO. CANCELLATION. FEES WILL BE REFUNDED ONLY UPON REQUEST, OR AT THE DISPOSITION OF THE CASE. SERVICE REQUESTS MAY BE REINSTATED UPON APPROPRIATE ACTION BY THE PARTIES. INSTRUMENTS TO BE SERVED: (Fill In Instrument Sequence Number, i.e. 1st, 2nd, etc.) ORIGINAL PETITION AMENDED PETITION SUPPLEMENTAL PETITION COUNTERCLAIM AMENDED COUNTERCLAIM SUPPLEMENTAL COUNTERCLAIM CROSS-ACTION: AMENDED CROSS-ACTION SUPPLEMENTAL CROSS-ACTION THIRD-PARTY PETITION: AMENDED THIRD-PARTY PETITION SUPPLEMENTAL THIRD-PARTY PETITION INTERVENTION: AMENDED INTERVENTION SUPPLEMENTAL INTERVENTION INJUNCTION MOTION TO MODIFY SHOW CAUSE ORDER TEMPORARY RESTRAINING ORDER BILL OF DISCOVERY: ORDER TO: (specify) MOTION TO: (specify) Page 2 of 2 PROCESS TYPES: NON WRIT: CITATION ALIAS CITATION PLURIES CITATION SECRETARY OF STATE CITATION COMMISSIONER OF INSURANCE HIGHWAY COMMISSIONER CITATION BY PUBLICATION NOTICE SHORT FORM NOTICE PRECEPT (SHOW CAUSE) RULE 106 SERVICE SUBPOENA WRITS: ATTACHMENT (PROPERTY) ATACHMENT (WITNESS) ATTACHMENT (PERSON) CERTIORARI EXECUTION EXECUTION AND ORDER OF SALE GARNISHMENT BEFORE JUDGMENT GARNISHMENT AFTER JUDGMENT HABEAS CORPUS INJUNCTION TEMPORARY RESTRAINING ORDER PROTECTIVE ORDER (FAMILY CODE) PROTECTIVE ORDER (CIVIL CODE) POSSESSION (PERSON) POSSESSION (PROPERTY) SCIRE FACIAS SEQUESTRATION SUPERSEDEAS