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FILED
2/22/2022 11:52 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Marissa Gomez DEPUTY
NO. DC20~-07433-B
TIMOTHY G. PLETTA, Indv. and IN THE DISTRICT COURT
d/b/a Law Office of Timothy G
Pletta and as Trustee for the
ANN HENNUM & TIMOTHY GERARD
PLETTA REVOCABLE TRUST, ANN H
PLETTA, Indv. and MARIELLA L.
PLETTA,
Plaintiff,
vs.
HERITAGE HOUSE CLOCKS, INC.
d/b/a Heritage House Clocks,
a Franchise Tax Ended Texas
Corporation, VALENTINO s. DALLAS COUNTY, TEXAS
MARCHESONI, Indv. and d/b/a
Heritage House Clocks
NICHOLAS MARCHESONI, Indv. and
d/b/a Heritage House Clocks
GLENDA MARCHESONI, Indv. and
d/b/a Heritage House Clocks,
B&R WILEY FAMILY, GP., L.L.C.,
B&R WILEY FAMILY, L.P., d/b/a
Servpro of Mesquite, Kaufman
County and Cedar Creek, BRANDON
J. WILEY a/k/a BRANDON JOE WILEY,
REGINA L. WILEY a/k/a REGINA LYNN
WILEY, JENNIFER EVARTT, EDWARD
EVARTT, a/k/a EDWARD EVART III
a/k/a EDWARD DEAN EVARTT a/k/a
EDDIE EVARTT and ALLSTATE
INSURANCE COMPANY,
Defendant. 134 JUDICIAL DISTRICT
COUNTER-DEFENDANT PLETTA'S MOTION FOR LEAVE TO
ACCEPT LATE SUPPLEMENTAL PETITION
COMES NOW, TIMOTHY G. PLETTA, Indv . ("Counter-Defendant" or
"Pletta") in the above-referenced and cause numbered action who
files this its Motion for Leave to Accept Late Supplemental
Petition directed to B&R WILEY FAMILY, L.P., d/b/a Servpro of
COUNTER-DEFENDANT PLETTA'S MOTION FOR
LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page i
Mesquite, Kaufman County and Cedar Creek ("Counter-Plaintiff" or
collectively "Servpro") and in support would respectfully show unto
the Court the following:
I
Deadline February 4, 2022
As Pletta seeks affirmative relief in its Supplemental
Petition, a copy of which is attached hereto as Exhibit uae and
incorporated herein by reference, the applicable deadline was
February 4, 2022.
Ir.
Inadvertent Omission of Texas Debt Collection Ac
Pletta would show the substance of the Supplemental Petition
is based upon Servpro's unlawful debt collection violations set
forth in the Texas Debt Collection Act pursuant to Texas Finance
Code § 392.000, et seq. and mirrors its Original Counterclaim which
is based upon Servpro's identical unlawful debt collection
violations pursuant to violations of the Federal Fair Debt
Collection Practices Act set forth in 1692g(b), noting however, the
Texas Act permits a claims against a first party debt collector
pursuant to Texas Finance Code § 392.001(6), which was
inadvertently left out of the Original Counterclaim and demand
despite the numerous first party allegations for violations of
same.
COUNTER-DEFENDANT PLETTA'S MOTION FOR
LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page 2
IIT.
No Prejudice - Only Justice to be Done
Pletta would show there will be no surprise, harm or prejudice
to Servpro incurred by the granting of leave, as Pletta has already
alleged facts in its petition and demand sufficient to support it
Texas Debt Collection Practices Act claim pursuant to Texas Finance
Code § 392.000, et seq. and as such, Pletta’s Motion for Leave to
Accept Late Supplemental Petition is brought so that justice may be
done.
COUNTER-DEFENDANT PLETTA'S MOTION FOR
LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page 3
WHEREFORE, PREMISES CONSIDERED, Pletta prays that this matter
be set for hearing with notice to Servpro and upon final hearing
hereof this Court grant Pletta's Motion for Leave to Accept Late
Supplemental Petition, and for such other and further relief at
law or in equity, to which Pletta may be justly entitled
Respectfully submitted
LAW OFFICE OF TIMOTHY G. PLETTA
wo Goal ea —
TIMOTHY PLETTA
State Ba: No 16071800
150 Bethel Road
Coppell, Texas 75019
Telephone (972) 462-0321
Facsimile (972) 462-0465
AttorneyPletta@HotMail.Com
ATTORNEY FOR PLAINTIFF,
TIMOTHY G. PLETTA, Indv. and
a/b/a Law Office of Timothy G.
Pletta and as Trustee for the
ANN HENNUM & TIMOTHY GERARD
PLETTA REVOCABLE TRUST, ANN #H.
PLETTA, Indv. 1d MARIELLA L.
PLETTA
ATTORNEY FOR COUNTER-DEFENDANT
TIMOTHY G. PLETTA
COUNTER-DEFENDANT PLETTA'S MOTION FOR
LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page 4
CERTIFICATE OF CONFERENCE
I hereby certify in order to resolve this dispute without the
necessity of court intervention, I have confirmed Servpro opposes
this Motion for Leave to Accept Late Supplemental Petition; and
therefore, this Motionis presented to the court for determination.
Undlefe i
TIMOTHY GL PLETTA
ERTIFICATE OF SERVICE
This is to certify a true and correct copy of this Pletta's
Motion for Leave to Accept Late Supplemental Petition has been made
upon all parties via e-file, on this the 2ist day of February,
2022.
Nol)
TIMOTHY G. pe TA
—
COUNTER-DEFENDANT PLETTA'S MOTION FOR
LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page 5
VERIFICATION
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned Notary Public, on this day
personally appeared TIMOTHY GERARD PLETTA, who being by me duly
sworn on his oath deposed and said that he is the Attorney for
Counter-Defendant Pletta in the above-referenced and cause numbered
action, and that he has read the above and foregoing Motion EO
Leave to Accept Late Supplemental Petition and that every statement
contained therein is within his personal knowledge and is true and
correct.
UdbQat—
TIMOTHY PRSTTA!
SUBSCRIBED AND SWORN TO BEFORE ME on this the 21st day of
February 2022, to certify which witness my hand and official seal.
My commission expires:
NOTARY STAMP
iecte
Aae i _ nh, COMET
yh
No ceed Publi cCc, State of Texas tEs teMs
a4
Notary's printed name
COUNTER-DEFENDANT PLETTA'S MOTION FOR
LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page 6
Exhibit "A"
NO. DC20-07433-B
TIMOTHY G. PLETTA, Indv. and IN THE DISTRICT COURT
d/b/a Law Office of Timothy G
Pletta and as Trustee for the
ANN HENNUM & TIMOTHY GERARD
PLETTA REVOCABLE TRUST, ANN H
PLETTA, Indv. and MARIELLA L.
PLETTA,
Plaintiff,
vs.
HERITAGE HOUSE CLOCKS, Inc.
d/b/a Heritage House Clocks,
a Franchise Tax Ended Texas
Corporation, VALENTINO S. DALLAS COUNTY, TEXAS
MARCHESONI, Indv. and d/b/a
Heritage House Clocks
NICHOLAS MARCHESONI, Indv. and
d/b/a Heritage House Clocks
GLENDA MARCHESONT, Indv. and
d/b/a Heritage House Clocks,
B&R WILEY FAMILY, GP., L.L.c.,
B&R WILEY FAMILY, L.P. d/b/a
Serv Pro of Mesquite, Kaufman
County and Cedar Creek, BRANDON
J. WILEY a/k/a BRANDON JOE WILEY,
REGINA L. WILEY a/k/a REGINA LYNN
WILEY, JENNIFER EVARTT, EDWARD
EVARTT, a/k/a EDWARD EVART III
a/k/a EDWARD DEAN EVARTT a/k/a
EDDIE EVARTT and ALLSTATE
INSURANCE COMPANY,
Defendant. 134 JUDICIAL DISTRICT
COUNTER-DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM
COMES NOW, TIMOTHY G. PLETTA, Indv. ("Counter-Defendant" or
collectively as *Pletta") ans he above-referenced and cause
numbered action complaining of B&R WILEY FAMILY, L.P. d/b/a Serv
Pro of Mesquite, Kaufman County and Cedar Creek ("Counter-
Plaintiff" or collectively as “Servpro") and for supplemental
causes of action would show unto the Court the following:
COUNTER-DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 1
VIII.
VIOLATIONS OF THE TEXAS DEBT COLLECTION PRACTICES ACT
8.01 Plaintiff incorporates by reference the preceding as if
the same were set fully herein and in the alternative would show
the following:
8.01 Pletta is a consumer pursuant to the Texas Debt
Collection Practices Act pursuant to Texas Finance Code §
392.001(1).
8.02 Servpro is a first party debt collector under the Texas
Debt Collection Practices Act pursuant to Texas Finance Code §
392.001(6).
8.03 Pletta would show that he made a formal demand for relief
on February 28, 2020 and March 24, 2020, a copy of which is
attached hereto as Exhibit non and incorporated herein by
reference. Included therein, Pletta disputed a debt, requested
verification of a debt and requested all debt collection activity,
all written and verbal communications, to cease and desist.
8.04 Servpro willfully or negligently ignored Pletta's written
demand in its entirety, failed to provide any verification of the
debt and engaged in pattern of abuse, harassment and persistent
unlawful debt collection activities, in violation of:
COUNTER-DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 2
(a) Texas Finance Code § 392.303
(a) (2) prohibits collecting or
attempting to collect interest or a charge, fee, or expense
incidental to the obligation unless the interest or incidental
charge, fee or expense is expressly authorized by the
agreement creating the obligation or legally chargeable to the
consumer.
(b) Texas Finance Code § 392.304(a)(8) prohibits misrepresenting
the character, extent, or amount of a consumer debt...
(c) Texas Finance Code § 392.304{a)
(19) prohibits using any other
false representation or deceptive means to collect a debt...
8.05 Specifically, Servpro made unlawful attempts to collect
Allstate's debt from Pletta, attempts to collect a debt from Pletta
not due by Pletta, has failed and/or refused to provide any
validation of the alleged debt, and worse has admitted (at least)
a portion of the bill "we sent out was an educated guess" a copy of
which is attached hereto as Exhibit "3" and incorporated herein by
reference and forms the basis of this Original and/or Supplemental
Petition and since then, filed an Original Counterclaim and
increased the amount, a copy of which is attached hereto as Exhibit
uae and incorporated herein by reference and forms the basis of
this Supplemental Petition.
8.06 Pletta would show Texas Finance Code § 392.403 provides
for civil liability for violations of Texas Debt Collection
Practices Act. A debt collector who fails to comply with any
provision of the Texas Debt Collection Practices Act is liable to
COUNTER-DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 3
the debtor for actual damages sustained as a result of this chapter
pursuant to Texas Finance Code § 392.403(a)(2); and (3) reasonable
attorney's fees and costs pursuant to Texas Finance Code §
392.403
(b) damages for which Pletta seeks in an amount which
exceeds the minimal jurisdictional limits of this court.
8.07 Pletta would further show Texas Finance Code § 392.404{(a)
provides a violation of this chapter is a deceptive trade practice
under Subsection E, Chapter 17, Business and Commerce Code, and is
the producing cause of Pletta's economic and/or emotional damages
and are actionable under that subchapter, damages for which Pletta
seeks in an amount which exceeds the minimal jurisdictional limits
of this court.
Tx.
ATTORNEY'S FEES
9.01 As a direct and proximate result of Servpros unlawful
debt collection practices, Pletta has been required to employ the
undersigned attorney to file and prosecute this suit.
9.02 Accordingly, Pletta is en led to receive reasonable
attorney's fees, in relation to the work expended, and to be
expended in the prosecution of Pletta's claims through the trial
court and in all levels of the appellate process and costs of suit.
9.03 Pletta is entitled to recover its reasonable attorney's
fees and/or costs herein pursuant to Texas Finance Code §392.403(b)
and/or Texas Business and Commerce Code §§ 17.46, 17.50, et seq. in
an amount not less than Seven Thousand and 00/100ths Dollars
($7,000.00) as required to prepare, file and prosecute this suit.
COUNTER~DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 4
WHEREFORE, PREMISES CONSIDERED, Counter-Plaintiff Pletta prays
that the Counter-Defendant Servpre be cited to appear and answer
herein and, upon final hearing, that Counter-Plaintiff£ Pletta have
Judgment against Counter-Defendant Servpro for Counter-Plaintiff
Pletta's actual damages, punitive damages, attorney's fees, for
costs of suit, for pre- and post-judgment interest and for a take
nothing judgment on Counter-Defendant Servpro's claims for failing
to validate the alleged debt or in the alternative a credit for
that portion not supported by its validation of the debt as
provided by law and for such other further relief, both general and
special, at law or in equity, to which he may show himself justly
entitled.
Respectfully submitted,
LAW OFFICE OF TIMOTHY G. PLETTA
B
TIMOTHY G. PLETTA
State Bar No. 16071800
150 Bethel Road
Coppell, Texas 75019
Telephone: (972) 462-0321
Facsimile: (972) 462-0465
AttorneyPletta@HotMail.com
ATTORNEY FOR PLAINTIFF,
TIMOTHY G. PLETTA, Indv. and
d/b/a Law Office of Timothy G,
Pletta and as Trustee for the
ANN HENNUM & TIMOTHY GERARD
PLETTA REVOCABLE TRUST, ANN H.
PLETTA, Indv. and MARIELLA L.
PLETTA
ATTORNEY FOR COUNTER-DEFENDANT,
TIMOTHY G. PLETTA
COUNTER-DEFENDANT 'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 5
CERTIFICATE OF SERVICE
This is to certify a true and correct copy of this Counter-
Defendant's Original Counterclaim has been made upon all parties
via e-file, on this the day of February, 2022.
TIMOTHY G. PLETTA
COUNTER-DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 6
FINANCE CODE
omecyr
TITLE 5. PRI OTEC! ION OF CONSUMERS OF FINANCIAL SERVICES
CHAPTER 392. DEBT COLLECTION
SUBCHAPTER A. GENERAL PROVISIONS
Se e 392.001. DEFINITIONS. In this chapter;
(1) "Consumer" means an individual who has a consumer debt.
(2) "Consumer debt" means an obligation, or an alleged
obligation, primarily for personal, family, or household purposes and
arising from a transaction or alleged transaction.
(3) "Creditor" means a party, other than a consumer, to a
transaction or alleged transaction involving one or more consumers.
(4) "Credit bureau” means a person who, for compensation,
gathers, records, and disseminates information relating to the
creditworthiness, financial responsibility, and paying habits of, and
similar information regarding, a person for the purpose of furnishing
that information to another person.
(5) "Debt collection" means an action, conduct, or practice in
collecting, or in solici ng for collection, consumer debts that are due
or alleged to be due aa creditor.
(6) "Debt collector" means a person who directly or indirectly
OO CC nn nnnnT nn nn nT Te —— e—™—S—t—S—SS
sell forms represented to be a collection system, device, or scheme
intended to be used to collect consumer debts.
(7) "Third-party debt collector" means a debt collector, as
defined by 15 U.S.C. Section 1692a(6), but does not include an attorney
collecting a debt as an attorney on behalf of and in the name of a client
unless the attorney has nonattorney employees who:
(A) i
ae
(B) regularly make contact with debtors for the purpose of
eo ele cia on or adjustment of debts.
Acts 1997, 75th Leg., ch 1008, Sec. i, eff. Sept. oon Amended by
Acts 1999, Wiotn Lege, ch. 62, Sec. 7.42, Sei: Sept. 1, 1999,
this state;
(2) threateni to institute civil lawsuits or other judicial
proceedings to collect a consumer debt; or
(3) exercising or threatening to exercise a statutory or
Contractual Tight on seizure, repossession, or sale that does not require
court proceedings.
Acts 1997, OCH seq.) ch. 1008, Sec. i, eff. Sept. 1, 1997,
Sec. 392.302. HARASSMENT; ABUSE. in debt collection, a debt
collector may not oppress, harass, Or abuse a person by:
(1) using profane or obscene language or language intended to
abuse unreasonably the hearer or reader;
(2) placing telephone calls without disclosing the name of the
individual making the call and with the intent to annoy, harass, or
threaten a person at the called number;
(3) causing a person to incur a long distance telephone toll,
telegram fee, or other charge by a medium of communication without first
disclosing the name of the person making the communication; or
(4) causing a telephone to ring repeatedly or continuously, or
making repeated or continuous telephone calls, with the intent to harass
a person at the called number.
Acts 1997, 75th Leg., ch. 1008, Sec. i, eff. Sept. 1, Oe
Sec. BO2eS03e UNFA R OR UNCONSCIONABLE MEANS. (a) In debt
collection, a debt collector may not use unfair or unconscionable means
that employ the following practices:
(1) seeking or obtaining a written statement or acknowledgment
in any form that specifies that a consumer's obligation is one incurred
for necessaries of life ace the obligation was not incurred for those
necessaries;
(2) collecting or attempting to collect interest or a charge,
ee, or expense incidental to the obligation unless the interest or
incidental charge, fee, or expense is expressly authorized by the
igreement creating the obligation or legally chargeable to the consumer;
oO
(3) collecting or attempting to collect an obligation under a
(B) name appearing on the face of the credit card while
engaged in the collection of a credit card debt;
(2) failing to maintain a list of all business or professional
names known to be used or formerly used by persons collecting consumer
debts or attempting to collect consumer debts for the debt collector;
(3) representing falsely that the debt collector has
information or something of value for the consumer in order to solicit or
discover information about the consumer;
(4) failing to disclose clearly in any communication with the
debtor the name of the person to whom the debt has been assigned or is
owed when making a demand for money;
{5} in the case of a third-party debt collector, Gaal) eo
disclose, except in a formal pleading made in connection with a legal
action:
(A) that the communication is an attempt to collect a debt
and that any information obtained will be used for that purpose, if the
communication is the initial written or oral communication between the
third-party debt collector and the debtor; or
(B) that the communication is from a= cebt collector, if
the communication is a subsequent written or oral communication between
the third-party debt collector and the debtor;
(6) using a written communication that fails to indicate
clearly the name of the debt collector and the debt collector's street
address or post office box and telephone number if the written notice
refers to a delinquent consumer debt;
(7) using a written communication that demands a response to a
place other than the debt collector’s or creditor's street address or
post office box;
(8) misrepresenting the character, extent, or amount of a
consumer debt, or misrepresenting the consumer debt's status in a
judicial or governmental proceeding;
(9) representing falsely that a debt collector is vouched fdr,
bonded by, or affiliated with, or is an instrumentality, agent, or
official of, this state or an agency of federal, state, or local
government;
(10) using, distributing, or selling a written communication
that simulates or is represented falsely to be a document authorized,
issued, or approved by a court, an official, a governmental agency, or
any other government authority or that creates a false impression about
the communication's source, authorization, or approval;
(11) using a seal, insignia, er design that simulates that of a
governmental agency;
a ing that a consumer debt may be increased by the
(12) represe nt
addition of attorney's fees, investigation fees, service fees, or other
charges if a written contract or statute does not authorize the
additional fees or charges;
(13) representing that a consumer debt will definitely be
increased by the addition of attorney' sS fees, investigation fees, service
fees, or other charges if the award of the fees or charges is subject to
judicial discretion;
(14) representing falsely the status or nature of the services
rendered by the debt collector or the debt collector's business;
(15) using a written communication that violates the United
States postal laws and regulations;
(16) using a communication that purports to be from an attorney
x law firm if Abe Se Noes
(17) representing that a consumer debt is being collected by an
ato rie. it is not;
representing that a consumer debt is being collected by an
(18)
independent, bona fide organization eng
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FILED 2/22/2022 11:52 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Marissa Gomez DEPUTY NO. DC20~-07433-B TIMOTHY G. PLETTA, Indv. and IN THE DISTRICT COURT d/b/a Law Office of Timothy G Pletta and as Trustee for the ANN HENNUM & TIMOTHY GERARD PLETTA REVOCABLE TRUST, ANN H PLETTA, Indv. and MARIELLA L. PLETTA, Plaintiff, vs. HERITAGE HOUSE CLOCKS, INC. d/b/a Heritage House Clocks, a Franchise Tax Ended Texas Corporation, VALENTINO s. DALLAS COUNTY, TEXAS MARCHESONI, Indv. and d/b/a Heritage House Clocks NICHOLAS MARCHESONI, Indv. and d/b/a Heritage House Clocks GLENDA MARCHESONI, Indv. and d/b/a Heritage House Clocks, B&R WILEY FAMILY, GP., L.L.C., B&R WILEY FAMILY, L.P., d/b/a Servpro of Mesquite, Kaufman County and Cedar Creek, BRANDON J. WILEY a/k/a BRANDON JOE WILEY, REGINA L. WILEY a/k/a REGINA LYNN WILEY, JENNIFER EVARTT, EDWARD EVARTT, a/k/a EDWARD EVART III a/k/a EDWARD DEAN EVARTT a/k/a EDDIE EVARTT and ALLSTATE INSURANCE COMPANY, Defendant. 134 JUDICIAL DISTRICT COUNTER-DEFENDANT PLETTA'S MOTION FOR LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION COMES NOW, TIMOTHY G. PLETTA, Indv . ("Counter-Defendant" or "Pletta") in the above-referenced and cause numbered action who files this its Motion for Leave to Accept Late Supplemental Petition directed to B&R WILEY FAMILY, L.P., d/b/a Servpro of COUNTER-DEFENDANT PLETTA'S MOTION FOR LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page i Mesquite, Kaufman County and Cedar Creek ("Counter-Plaintiff" or collectively "Servpro") and in support would respectfully show unto the Court the following: I Deadline February 4, 2022 As Pletta seeks affirmative relief in its Supplemental Petition, a copy of which is attached hereto as Exhibit uae and incorporated herein by reference, the applicable deadline was February 4, 2022. Ir. Inadvertent Omission of Texas Debt Collection Ac Pletta would show the substance of the Supplemental Petition is based upon Servpro's unlawful debt collection violations set forth in the Texas Debt Collection Act pursuant to Texas Finance Code § 392.000, et seq. and mirrors its Original Counterclaim which is based upon Servpro's identical unlawful debt collection violations pursuant to violations of the Federal Fair Debt Collection Practices Act set forth in 1692g(b), noting however, the Texas Act permits a claims against a first party debt collector pursuant to Texas Finance Code § 392.001(6), which was inadvertently left out of the Original Counterclaim and demand despite the numerous first party allegations for violations of same. COUNTER-DEFENDANT PLETTA'S MOTION FOR LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page 2 IIT. No Prejudice - Only Justice to be Done Pletta would show there will be no surprise, harm or prejudice to Servpro incurred by the granting of leave, as Pletta has already alleged facts in its petition and demand sufficient to support it Texas Debt Collection Practices Act claim pursuant to Texas Finance Code § 392.000, et seq. and as such, Pletta’s Motion for Leave to Accept Late Supplemental Petition is brought so that justice may be done. COUNTER-DEFENDANT PLETTA'S MOTION FOR LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page 3 WHEREFORE, PREMISES CONSIDERED, Pletta prays that this matter be set for hearing with notice to Servpro and upon final hearing hereof this Court grant Pletta's Motion for Leave to Accept Late Supplemental Petition, and for such other and further relief at law or in equity, to which Pletta may be justly entitled Respectfully submitted LAW OFFICE OF TIMOTHY G. PLETTA wo Goal ea — TIMOTHY PLETTA State Ba: No 16071800 150 Bethel Road Coppell, Texas 75019 Telephone (972) 462-0321 Facsimile (972) 462-0465 AttorneyPletta@HotMail.Com ATTORNEY FOR PLAINTIFF, TIMOTHY G. PLETTA, Indv. and a/b/a Law Office of Timothy G. Pletta and as Trustee for the ANN HENNUM & TIMOTHY GERARD PLETTA REVOCABLE TRUST, ANN #H. PLETTA, Indv. 1d MARIELLA L. PLETTA ATTORNEY FOR COUNTER-DEFENDANT TIMOTHY G. PLETTA COUNTER-DEFENDANT PLETTA'S MOTION FOR LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page 4 CERTIFICATE OF CONFERENCE I hereby certify in order to resolve this dispute without the necessity of court intervention, I have confirmed Servpro opposes this Motion for Leave to Accept Late Supplemental Petition; and therefore, this Motionis presented to the court for determination. Undlefe i TIMOTHY GL PLETTA ERTIFICATE OF SERVICE This is to certify a true and correct copy of this Pletta's Motion for Leave to Accept Late Supplemental Petition has been made upon all parties via e-file, on this the 2ist day of February, 2022. Nol) TIMOTHY G. pe TA — COUNTER-DEFENDANT PLETTA'S MOTION FOR LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page 5 VERIFICATION STATE OF TEXAS COUNTY OF DALLAS BEFORE ME, the undersigned Notary Public, on this day personally appeared TIMOTHY GERARD PLETTA, who being by me duly sworn on his oath deposed and said that he is the Attorney for Counter-Defendant Pletta in the above-referenced and cause numbered action, and that he has read the above and foregoing Motion EO Leave to Accept Late Supplemental Petition and that every statement contained therein is within his personal knowledge and is true and correct. UdbQat— TIMOTHY PRSTTA! SUBSCRIBED AND SWORN TO BEFORE ME on this the 21st day of February 2022, to certify which witness my hand and official seal. My commission expires: NOTARY STAMP iecte Aae i _ nh, COMET yh No ceed Publi cCc, State of Texas tEs teMs a4 Notary's printed name COUNTER-DEFENDANT PLETTA'S MOTION FOR LEAVE TO ACCEPT LATE SUPPLEMENTAL PETITION Page 6 Exhibit "A" NO. DC20-07433-B TIMOTHY G. PLETTA, Indv. and IN THE DISTRICT COURT d/b/a Law Office of Timothy G Pletta and as Trustee for the ANN HENNUM & TIMOTHY GERARD PLETTA REVOCABLE TRUST, ANN H PLETTA, Indv. and MARIELLA L. PLETTA, Plaintiff, vs. HERITAGE HOUSE CLOCKS, Inc. d/b/a Heritage House Clocks, a Franchise Tax Ended Texas Corporation, VALENTINO S. DALLAS COUNTY, TEXAS MARCHESONI, Indv. and d/b/a Heritage House Clocks NICHOLAS MARCHESONI, Indv. and d/b/a Heritage House Clocks GLENDA MARCHESONT, Indv. and d/b/a Heritage House Clocks, B&R WILEY FAMILY, GP., L.L.c., B&R WILEY FAMILY, L.P. d/b/a Serv Pro of Mesquite, Kaufman County and Cedar Creek, BRANDON J. WILEY a/k/a BRANDON JOE WILEY, REGINA L. WILEY a/k/a REGINA LYNN WILEY, JENNIFER EVARTT, EDWARD EVARTT, a/k/a EDWARD EVART III a/k/a EDWARD DEAN EVARTT a/k/a EDDIE EVARTT and ALLSTATE INSURANCE COMPANY, Defendant. 134 JUDICIAL DISTRICT COUNTER-DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM COMES NOW, TIMOTHY G. PLETTA, Indv. ("Counter-Defendant" or collectively as *Pletta") ans he above-referenced and cause numbered action complaining of B&R WILEY FAMILY, L.P. d/b/a Serv Pro of Mesquite, Kaufman County and Cedar Creek ("Counter- Plaintiff" or collectively as “Servpro") and for supplemental causes of action would show unto the Court the following: COUNTER-DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 1 VIII. VIOLATIONS OF THE TEXAS DEBT COLLECTION PRACTICES ACT 8.01 Plaintiff incorporates by reference the preceding as if the same were set fully herein and in the alternative would show the following: 8.01 Pletta is a consumer pursuant to the Texas Debt Collection Practices Act pursuant to Texas Finance Code § 392.001(1). 8.02 Servpro is a first party debt collector under the Texas Debt Collection Practices Act pursuant to Texas Finance Code § 392.001(6). 8.03 Pletta would show that he made a formal demand for relief on February 28, 2020 and March 24, 2020, a copy of which is attached hereto as Exhibit non and incorporated herein by reference. Included therein, Pletta disputed a debt, requested verification of a debt and requested all debt collection activity, all written and verbal communications, to cease and desist. 8.04 Servpro willfully or negligently ignored Pletta's written demand in its entirety, failed to provide any verification of the debt and engaged in pattern of abuse, harassment and persistent unlawful debt collection activities, in violation of: COUNTER-DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 2 (a) Texas Finance Code § 392.303 (a) (2) prohibits collecting or attempting to collect interest or a charge, fee, or expense incidental to the obligation unless the interest or incidental charge, fee or expense is expressly authorized by the agreement creating the obligation or legally chargeable to the consumer. (b) Texas Finance Code § 392.304(a)(8) prohibits misrepresenting the character, extent, or amount of a consumer debt... (c) Texas Finance Code § 392.304{a) (19) prohibits using any other false representation or deceptive means to collect a debt... 8.05 Specifically, Servpro made unlawful attempts to collect Allstate's debt from Pletta, attempts to collect a debt from Pletta not due by Pletta, has failed and/or refused to provide any validation of the alleged debt, and worse has admitted (at least) a portion of the bill "we sent out was an educated guess" a copy of which is attached hereto as Exhibit "3" and incorporated herein by reference and forms the basis of this Original and/or Supplemental Petition and since then, filed an Original Counterclaim and increased the amount, a copy of which is attached hereto as Exhibit uae and incorporated herein by reference and forms the basis of this Supplemental Petition. 8.06 Pletta would show Texas Finance Code § 392.403 provides for civil liability for violations of Texas Debt Collection Practices Act. A debt collector who fails to comply with any provision of the Texas Debt Collection Practices Act is liable to COUNTER-DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 3 the debtor for actual damages sustained as a result of this chapter pursuant to Texas Finance Code § 392.403(a)(2); and (3) reasonable attorney's fees and costs pursuant to Texas Finance Code § 392.403 (b) damages for which Pletta seeks in an amount which exceeds the minimal jurisdictional limits of this court. 8.07 Pletta would further show Texas Finance Code § 392.404{(a) provides a violation of this chapter is a deceptive trade practice under Subsection E, Chapter 17, Business and Commerce Code, and is the producing cause of Pletta's economic and/or emotional damages and are actionable under that subchapter, damages for which Pletta seeks in an amount which exceeds the minimal jurisdictional limits of this court. Tx. ATTORNEY'S FEES 9.01 As a direct and proximate result of Servpros unlawful debt collection practices, Pletta has been required to employ the undersigned attorney to file and prosecute this suit. 9.02 Accordingly, Pletta is en led to receive reasonable attorney's fees, in relation to the work expended, and to be expended in the prosecution of Pletta's claims through the trial court and in all levels of the appellate process and costs of suit. 9.03 Pletta is entitled to recover its reasonable attorney's fees and/or costs herein pursuant to Texas Finance Code §392.403(b) and/or Texas Business and Commerce Code §§ 17.46, 17.50, et seq. in an amount not less than Seven Thousand and 00/100ths Dollars ($7,000.00) as required to prepare, file and prosecute this suit. COUNTER~DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 4 WHEREFORE, PREMISES CONSIDERED, Counter-Plaintiff Pletta prays that the Counter-Defendant Servpre be cited to appear and answer herein and, upon final hearing, that Counter-Plaintiff£ Pletta have Judgment against Counter-Defendant Servpro for Counter-Plaintiff Pletta's actual damages, punitive damages, attorney's fees, for costs of suit, for pre- and post-judgment interest and for a take nothing judgment on Counter-Defendant Servpro's claims for failing to validate the alleged debt or in the alternative a credit for that portion not supported by its validation of the debt as provided by law and for such other further relief, both general and special, at law or in equity, to which he may show himself justly entitled. Respectfully submitted, LAW OFFICE OF TIMOTHY G. PLETTA B TIMOTHY G. PLETTA State Bar No. 16071800 150 Bethel Road Coppell, Texas 75019 Telephone: (972) 462-0321 Facsimile: (972) 462-0465 AttorneyPletta@HotMail.com ATTORNEY FOR PLAINTIFF, TIMOTHY G. PLETTA, Indv. and d/b/a Law Office of Timothy G, Pletta and as Trustee for the ANN HENNUM & TIMOTHY GERARD PLETTA REVOCABLE TRUST, ANN H. PLETTA, Indv. and MARIELLA L. PLETTA ATTORNEY FOR COUNTER-DEFENDANT, TIMOTHY G. PLETTA COUNTER-DEFENDANT 'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 5 CERTIFICATE OF SERVICE This is to certify a true and correct copy of this Counter- Defendant's Original Counterclaim has been made upon all parties via e-file, on this the day of February, 2022. TIMOTHY G. PLETTA COUNTER-DEFENDANT'S FIRST SUPPLEMENTAL COUNTERCLAIM Page 6 FINANCE CODE omecyr TITLE 5. PRI OTEC! ION OF CONSUMERS OF FINANCIAL SERVICES CHAPTER 392. DEBT COLLECTION SUBCHAPTER A. GENERAL PROVISIONS Se e 392.001. DEFINITIONS. In this chapter; (1) "Consumer" means an individual who has a consumer debt. (2) "Consumer debt" means an obligation, or an alleged obligation, primarily for personal, family, or household purposes and arising from a transaction or alleged transaction. (3) "Creditor" means a party, other than a consumer, to a transaction or alleged transaction involving one or more consumers. (4) "Credit bureau” means a person who, for compensation, gathers, records, and disseminates information relating to the creditworthiness, financial responsibility, and paying habits of, and similar information regarding, a person for the purpose of furnishing that information to another person. (5) "Debt collection" means an action, conduct, or practice in collecting, or in solici ng for collection, consumer debts that are due or alleged to be due aa creditor. (6) "Debt collector" means a person who directly or indirectly OO CC nn nnnnT nn nn nT Te —— e—™—S—t—S—SS sell forms represented to be a collection system, device, or scheme intended to be used to collect consumer debts. (7) "Third-party debt collector" means a debt collector, as defined by 15 U.S.C. Section 1692a(6), but does not include an attorney collecting a debt as an attorney on behalf of and in the name of a client unless the attorney has nonattorney employees who: (A) i ae (B) regularly make contact with debtors for the purpose of eo ele cia on or adjustment of debts. Acts 1997, 75th Leg., ch 1008, Sec. i, eff. Sept. oon Amended by Acts 1999, Wiotn Lege, ch. 62, Sec. 7.42, Sei: Sept. 1, 1999, this state; (2) threateni to institute civil lawsuits or other judicial proceedings to collect a consumer debt; or (3) exercising or threatening to exercise a statutory or Contractual Tight on seizure, repossession, or sale that does not require court proceedings. Acts 1997, OCH seq.) ch. 1008, Sec. i, eff. Sept. 1, 1997, Sec. 392.302. HARASSMENT; ABUSE. in debt collection, a debt collector may not oppress, harass, Or abuse a person by: (1) using profane or obscene language or language intended to abuse unreasonably the hearer or reader; (2) placing telephone calls without disclosing the name of the individual making the call and with the intent to annoy, harass, or threaten a person at the called number; (3) causing a person to incur a long distance telephone toll, telegram fee, or other charge by a medium of communication without first disclosing the name of the person making the communication; or (4) causing a telephone to ring repeatedly or continuously, or making repeated or continuous telephone calls, with the intent to harass a person at the called number. Acts 1997, 75th Leg., ch. 1008, Sec. i, eff. Sept. 1, Oe Sec. BO2eS03e UNFA R OR UNCONSCIONABLE MEANS. (a) In debt collection, a debt collector may not use unfair or unconscionable means that employ the following practices: (1) seeking or obtaining a written statement or acknowledgment in any form that specifies that a consumer's obligation is one incurred for necessaries of life ace the obligation was not incurred for those necessaries; (2) collecting or attempting to collect interest or a charge, ee, or expense incidental to the obligation unless the interest or incidental charge, fee, or expense is expressly authorized by the igreement creating the obligation or legally chargeable to the consumer; oO (3) collecting or attempting to collect an obligation under a (B) name appearing on the face of the credit card while engaged in the collection of a credit card debt; (2) failing to maintain a list of all business or professional names known to be used or formerly used by persons collecting consumer debts or attempting to collect consumer debts for the debt collector; (3) representing falsely that the debt collector has information or something of value for the consumer in order to solicit or discover information about the consumer; (4) failing to disclose clearly in any communication with the debtor the name of the person to whom the debt has been assigned or is owed when making a demand for money; {5} in the case of a third-party debt collector, Gaal) eo disclose, except in a formal pleading made in connection with a legal action: (A) that the communication is an attempt to collect a debt and that any information obtained will be used for that purpose, if the communication is the initial written or oral communication between the third-party debt collector and the debtor; or (B) that the communication is from a= cebt collector, if the communication is a subsequent written or oral communication between the third-party debt collector and the debtor; (6) using a written communication that fails to indicate clearly the name of the debt collector and the debt collector's street address or post office box and telephone number if the written notice refers to a delinquent consumer debt; (7) using a written communication that demands a response to a place other than the debt collector’s or creditor's street address or post office box; (8) misrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the consumer debt's status in a judicial or governmental proceeding; (9) representing falsely that a debt collector is vouched fdr, bonded by, or affiliated with, or is an instrumentality, agent, or official of, this state or an agency of federal, state, or local government; (10) using, distributing, or selling a written communication that simulates or is represented falsely to be a document authorized, issued, or approved by a court, an official, a governmental agency, or any other government authority or that creates a false impression about the communication's source, authorization, or approval; (11) using a seal, insignia, er design that simulates that of a governmental agency; a ing that a consumer debt may be increased by the (12) represe nt addition of attorney's fees, investigation fees, service fees, or other charges if a written contract or statute does not authorize the additional fees or charges; (13) representing that a consumer debt will definitely be increased by the addition of attorney' sS fees, investigation fees, service fees, or other charges if the award of the fees or charges is subject to judicial discretion; (14) representing falsely the status or nature of the services rendered by the debt collector or the debt collector's business; (15) using a written communication that violates the United States postal laws and regulations; (16) using a communication that purports to be from an attorney x law firm if Abe Se Noes (17) representing that a consumer debt is being collected by an ato rie. it is not; representing that a consumer debt is being collected by an (18) independent, bona fide organization eng