Preview
FILED
6/15/2022 8:46 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Madison McCarrier DEPUTY
CAUSE NO. DC-21-09178
AMOS FINANCIAL, LLC § IN THE DISTRICT COURT
Plaintiffi §
§
V. § OF DALLAS COUNTY, TEXAS
§
ICAN FINANCIAL, INC.; RAYMOND §
MACDONALD §
Defendants. § 95TH JUDICIAL DISTRICT
DEFENDANT ICAN FINANCIAL, INC.’S MOTION FOR A NEW TRIAL
COMES NOW, Defendant iCan Financial, Inc., asks the Court to grant a new trial in
the interest of justice and fairness.
INTRODUCTION
1. Plaintiff Amos Financial, LLC filed its Original Petition for claims against
Defendant iCan Financial, Inc. and Raymond MacDonald.
2. Plaintiff obtained a Final Default Judgment but failed to serve Defendant’s counsel
with citation.
BACKGROUND
3. The Court signed a default judgment for Plaintiff on April 29, 2022.
4. Both Plaintiff and Defendant iCan Financial, Inc. was negotiating the terms of an
agreed settlement, when to the defendant’s surprise, Plaintiff obtained a final default judgment.
ARGUMENT & AUTHORITIES
5. A court should grant a new trial if the citation is not in strict compliance with all
applicable rules. See Verlander Enters., Inc. v. Graham, 932 S.W. 2d 259, 262 (Tex. App. —El
Paso 1996, no writ).
6. The Court should grant a new trial because the citation did not contain the name
and address of Defendant’s attorney. Tex. R. Civ. P. 99(b)(9). Plaintiff’ s counsel and Defendant
Page 1 of 5
iCan Financial, Inc. have had several exchanged email correspondence prior to the issuance of the
citation. Counsel for the plaintiff and Defendant had been discussing the terms of a proposed
agreed settlement and dismissal prior to issuance of the citation. Plaintiff’s counsel failed to serve
Defendant’s counsel with the citation.
7. The Court should grant a new trial because the citation did not identify the date
Plaintiff filed the petition. Tex. R. CiV. P. 99(b)(4); Hance v. Cogswell, 307 S.W. 2d 277, 278-79
(Tex. App. —Austin 1957, no writ). The citation contains the date the citation request was made
(December 28, 2021) and it contains the date the citation was served upon the Secretary of State
(December 28, 2021) but the citation fails to identify the date the plaintiff filed the petition.
8. If a Court signs a default judgment against a defendant who was not properly
served, the defendant is deprived of due process. See Peralta v. Heights Med. Cm, Inc. 485 U.S.
80, 84 (1988); LBL Oil Co. v. Int’l Power Servs., Ina, 777 S.W. 2d 390, 290-91 (Tex. 1989). A
court should grant a new trial if the service of citation is not in strict compliance with all applicable
rules. See Primate Constr., Inc. v. Silver, 884 S.W. 2d 151, 152 (Tex. 1994).
9. When a defendant does not file an answer because of a mistake or an accident, a
court should set aside the default judgment and grant a new trial if the defendant can meet the
requirements of Crada’ock v. Sunshine Bus Lines, Inc. 133 S.W. 2d 124, 126 (Tex. 1939).
a. The failure to file an answer was not intentional or the result of conscious
indifference, but was a mistake or an accident. Sutherland v. Spencer, 376. S.W.
3d 752, 754-55 (Tex. 2012); In re R.R., 209 S.W. 3d 112, 114-115 (Tex. 2006);
Estate 0f Pollack v. McMurrey, 858 S.W. 2d 388, 391 (Tex. 1993); Craddock,
133 S.W. 2d at 126.
b. Defendant has a meritorious defense. In re R.R., 209 S.W. 3d at 114-15; Ivy v.
Carrell, 407 S.W. 2d 212, 214 (Tex. 1966); Craddock, 133 S.W. 2d at 126.
Estate 0fPollack, 858 S.W. 2d at 392; Ivy, 407 S.W. 2d at 214.
c. Demonstrate that granting a new trial will not cause delay or otherwise injury
the plaintiff. In re RR, 209 S.W. 3d at 114-15; Craddock 133 S.W. 2d at 126.
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10. The Court should grant a new trial because Defendant’s failure to answer was not
intentional but was accidental. Specifically:
a. Defendant is familiar with the Plaintiff and has had a relationship with the
plaintiff for many years. As a result of Defendant’s relationship with the
Plaintiff and the communications with Plaintiff’s counsel, Defendant retained
counsel to review the terms of the proposed agreed settlement and dismissal
and instructed counsel to review the terms and advise in an effort to resolve the
one remaining issue between Plaintiff and Defendant.
Plaintiff and Defendant has resolved all matters concerning this suit, with the
exception of the Confession of Judgment given to the Defendant. While
awaiting this document for review and consideration, plaintiff and his counsel
appeared and obtained a final default judgment. The Final Default Judgment
presented to the court differs from the proposed agreed judgment presented to
the Defendant. Furthermore, both Plaintiff and Plaintiff’s counsel was well
aware that counsel for Defendant had been retained but had not formally
appeared in the case at the Defendant’s request considering the personal
relationship and communications with Plaintiff’s counsel.
Although, at Defendant’s request, Defendant’s counsel had not formally
appeared in the case, Defendant’s counsel noticed the pre-trial conference had
not approached and in following up on the case discovered that Plaintiff had
obtained said judgment before the scheduling order issued and served upon the
Defendant.
During the course of the proceeding the matter was dismissed for want of
prosecution. Plaintiff filed its 3rd Motion to Retain the case on
April 6, 2022 and failed to serve notice of the hearing to be held on the Motion
to Retain the case. Considering the parties were in communication and the
matter was almost resolved prior to the case being dismissed, defendant did not
object to the reinstatement of the case. After the case was reinstated for the third
(3) time, Defendant’s counsel did not send any correspondence to advise that
the case was reinstated and wanted to resume discussions regarding an agreed
settlement and dismissal. Rather than serve Defendant’s counsel with citation,
plaintiff proceeded to obtain a Final Default Judgment.
Defendant received the citation but did not inform its counsel that Defendant
received the citation because of the ongoing discussions between the parties to
reach an agreement. Defendant had been in direct communication with the
Plaintiff and Plaintiff s counsel and believed in good faith that the matter would
be resolved with the agreement.
Defendant’s failure to file an answer was not intentional but was indeed an
accident or mistake. Defendant was completely surprised by the entry of the
Page 3 of 5
Final Default Judgment. If Plaintiff had served Defendant’s counsel with the
citation an answer would have been filed. Plaintiff failed to serve Defendant’s
counsel with notice of a prior hearing in the case and did not make any effort to
serve Defendant’s counsel with citation.
11. The Court should grant a new trial because Defendant has a meritorious defense.
Specifically, Plaintiff mislead the Court regarding the intentions of the parties. Defendant and
Plaintiff had agreed to resolve this dispute, but the Final Judgment presented to the Court does not
address the terms as negotiated and agreed.
12. The Court should grant a new trial because a new trial will not cause delay or
otherwise injure Plaintiff. Neither party would be prejudiced if the Final Default Judgment is
vacated, the matter reopened, and a new trial is granted.
PRAYER
13. For these reasons, and in the interest of justice and fairness, Defendant asks the
Court to grant a new trial.
Respectfully Submitted:
/s/ Bredric Ber
Bredric Berry
Texas Bar No. 24117165
bberry@rberry1aw.net
J elicia Walker
Texas Bar No. 24128119
jl@thejllawfirm.com
Ruby Berry Law Group, PLLC
2617 Bissonnet Street Suite 200 #456
Houston, Texas 77005
P: 713-324-8886
F: 713-766-5009
Attorneys for Defendant iCan Financial, Inc.
Page 4 of 5
CERTIFICATE OF SERVICE
I hereby cettify that a true and conect copy of the above and foregoing instrument was
served upon all parties Via E-Service in accordance with the Texas Rules of Civil Procedure
on June 15, 2022.
/s/ Bredric Berg
Bredric Berry
Page 5 of 5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Bredric Berry on behalf of Bredric Berry
Bar No. 24117165
bberry@rberrylaw.net
Envelope ID: 65450043
Status as of 6/15/2022 9:41 AM CST
Associated Case Party: ICAN FINANCIAL INC.
Name BarN umber Email TimestampSubmitted Status
Bredric Berry bberry@rberrylaw.net 6/15/2022 8:46:33 AM SENT
BeJay Chambers bchambers@icanfinancial.com 6/15/2022 8:46:33 AM SENT
Jelicia Walker jl@thejllawfirm.com 6/15/2022 8:46:33 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Paul A. Hoefker 9772800 phoefker@aldridgepite.com 6/15/2022 8:46:33 AM SENT
Raymond MacDonald rmacdonald@icanfinancial.com 6/15/2022 8:46:33 AM SENT
Preview
FILED 6/15/2022 8:46 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Madison McCarrier DEPUTY CAUSE NO. DC-21-09178 AMOS FINANCIAL, LLC § IN THE DISTRICT COURT Plaintiffi § § V. § OF DALLAS COUNTY, TEXAS § ICAN FINANCIAL, INC.; RAYMOND § MACDONALD § Defendants. § 95TH JUDICIAL DISTRICT DEFENDANT ICAN FINANCIAL, INC.’S MOTION FOR A NEW TRIAL COMES NOW, Defendant iCan Financial, Inc., asks the Court to grant a new trial in the interest of justice and fairness. INTRODUCTION 1. Plaintiff Amos Financial, LLC filed its Original Petition for claims against Defendant iCan Financial, Inc. and Raymond MacDonald. 2. Plaintiff obtained a Final Default Judgment but failed to serve Defendant’s counsel with citation. BACKGROUND 3. The Court signed a default judgment for Plaintiff on April 29, 2022. 4. Both Plaintiff and Defendant iCan Financial, Inc. was negotiating the terms of an agreed settlement, when to the defendant’s surprise, Plaintiff obtained a final default judgment. ARGUMENT & AUTHORITIES 5. A court should grant a new trial if the citation is not in strict compliance with all applicable rules. See Verlander Enters., Inc. v. Graham, 932 S.W. 2d 259, 262 (Tex. App. —El Paso 1996, no writ). 6. The Court should grant a new trial because the citation did not contain the name and address of Defendant’s attorney. Tex. R. Civ. P. 99(b)(9). Plaintiff’ s counsel and Defendant Page 1 of 5 iCan Financial, Inc. have had several exchanged email correspondence prior to the issuance of the citation. Counsel for the plaintiff and Defendant had been discussing the terms of a proposed agreed settlement and dismissal prior to issuance of the citation. Plaintiff’s counsel failed to serve Defendant’s counsel with the citation. 7. The Court should grant a new trial because the citation did not identify the date Plaintiff filed the petition. Tex. R. CiV. P. 99(b)(4); Hance v. Cogswell, 307 S.W. 2d 277, 278-79 (Tex. App. —Austin 1957, no writ). The citation contains the date the citation request was made (December 28, 2021) and it contains the date the citation was served upon the Secretary of State (December 28, 2021) but the citation fails to identify the date the plaintiff filed the petition. 8. If a Court signs a default judgment against a defendant who was not properly served, the defendant is deprived of due process. See Peralta v. Heights Med. Cm, Inc. 485 U.S. 80, 84 (1988); LBL Oil Co. v. Int’l Power Servs., Ina, 777 S.W. 2d 390, 290-91 (Tex. 1989). A court should grant a new trial if the service of citation is not in strict compliance with all applicable rules. See Primate Constr., Inc. v. Silver, 884 S.W. 2d 151, 152 (Tex. 1994). 9. When a defendant does not file an answer because of a mistake or an accident, a court should set aside the default judgment and grant a new trial if the defendant can meet the requirements of Crada’ock v. Sunshine Bus Lines, Inc. 133 S.W. 2d 124, 126 (Tex. 1939). a. The failure to file an answer was not intentional or the result of conscious indifference, but was a mistake or an accident. Sutherland v. Spencer, 376. S.W. 3d 752, 754-55 (Tex. 2012); In re R.R., 209 S.W. 3d 112, 114-115 (Tex. 2006); Estate 0f Pollack v. McMurrey, 858 S.W. 2d 388, 391 (Tex. 1993); Craddock, 133 S.W. 2d at 126. b. Defendant has a meritorious defense. In re R.R., 209 S.W. 3d at 114-15; Ivy v. Carrell, 407 S.W. 2d 212, 214 (Tex. 1966); Craddock, 133 S.W. 2d at 126. Estate 0fPollack, 858 S.W. 2d at 392; Ivy, 407 S.W. 2d at 214. c. Demonstrate that granting a new trial will not cause delay or otherwise injury the plaintiff. In re RR, 209 S.W. 3d at 114-15; Craddock 133 S.W. 2d at 126. Page 2 of 5 10. The Court should grant a new trial because Defendant’s failure to answer was not intentional but was accidental. Specifically: a. Defendant is familiar with the Plaintiff and has had a relationship with the plaintiff for many years. As a result of Defendant’s relationship with the Plaintiff and the communications with Plaintiff’s counsel, Defendant retained counsel to review the terms of the proposed agreed settlement and dismissal and instructed counsel to review the terms and advise in an effort to resolve the one remaining issue between Plaintiff and Defendant. Plaintiff and Defendant has resolved all matters concerning this suit, with the exception of the Confession of Judgment given to the Defendant. While awaiting this document for review and consideration, plaintiff and his counsel appeared and obtained a final default judgment. The Final Default Judgment presented to the court differs from the proposed agreed judgment presented to the Defendant. Furthermore, both Plaintiff and Plaintiff’s counsel was well aware that counsel for Defendant had been retained but had not formally appeared in the case at the Defendant’s request considering the personal relationship and communications with Plaintiff’s counsel. Although, at Defendant’s request, Defendant’s counsel had not formally appeared in the case, Defendant’s counsel noticed the pre-trial conference had not approached and in following up on the case discovered that Plaintiff had obtained said judgment before the scheduling order issued and served upon the Defendant. During the course of the proceeding the matter was dismissed for want of prosecution. Plaintiff filed its 3rd Motion to Retain the case on April 6, 2022 and failed to serve notice of the hearing to be held on the Motion to Retain the case. Considering the parties were in communication and the matter was almost resolved prior to the case being dismissed, defendant did not object to the reinstatement of the case. After the case was reinstated for the third (3) time, Defendant’s counsel did not send any correspondence to advise that the case was reinstated and wanted to resume discussions regarding an agreed settlement and dismissal. Rather than serve Defendant’s counsel with citation, plaintiff proceeded to obtain a Final Default Judgment. Defendant received the citation but did not inform its counsel that Defendant received the citation because of the ongoing discussions between the parties to reach an agreement. Defendant had been in direct communication with the Plaintiff and Plaintiff s counsel and believed in good faith that the matter would be resolved with the agreement. Defendant’s failure to file an answer was not intentional but was indeed an accident or mistake. Defendant was completely surprised by the entry of the Page 3 of 5 Final Default Judgment. If Plaintiff had served Defendant’s counsel with the citation an answer would have been filed. Plaintiff failed to serve Defendant’s counsel with notice of a prior hearing in the case and did not make any effort to serve Defendant’s counsel with citation. 11. The Court should grant a new trial because Defendant has a meritorious defense. Specifically, Plaintiff mislead the Court regarding the intentions of the parties. Defendant and Plaintiff had agreed to resolve this dispute, but the Final Judgment presented to the Court does not address the terms as negotiated and agreed. 12. The Court should grant a new trial because a new trial will not cause delay or otherwise injure Plaintiff. Neither party would be prejudiced if the Final Default Judgment is vacated, the matter reopened, and a new trial is granted. PRAYER 13. For these reasons, and in the interest of justice and fairness, Defendant asks the Court to grant a new trial. Respectfully Submitted: /s/ Bredric Ber Bredric Berry Texas Bar No. 24117165 bberry@rberry1aw.net J elicia Walker Texas Bar No. 24128119 jl@thejllawfirm.com Ruby Berry Law Group, PLLC 2617 Bissonnet Street Suite 200 #456 Houston, Texas 77005 P: 713-324-8886 F: 713-766-5009 Attorneys for Defendant iCan Financial, Inc. Page 4 of 5 CERTIFICATE OF SERVICE I hereby cettify that a true and conect copy of the above and foregoing instrument was served upon all parties Via E-Service in accordance with the Texas Rules of Civil Procedure on June 15, 2022. /s/ Bredric Berg Bredric Berry Page 5 of 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Bredric Berry on behalf of Bredric Berry Bar No. 24117165 bberry@rberrylaw.net Envelope ID: 65450043 Status as of 6/15/2022 9:41 AM CST Associated Case Party: ICAN FINANCIAL INC. Name BarN umber Email TimestampSubmitted Status Bredric Berry bberry@rberrylaw.net 6/15/2022 8:46:33 AM SENT BeJay Chambers bchambers@icanfinancial.com 6/15/2022 8:46:33 AM SENT Jelicia Walker jl@thejllawfirm.com 6/15/2022 8:46:33 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Paul A. Hoefker 9772800 phoefker@aldridgepite.com 6/15/2022 8:46:33 AM SENT Raymond MacDonald rmacdonald@icanfinancial.com 6/15/2022 8:46:33 AM SENT