Motion to Amend Judgment in INVESTMENT RETRIEVERS, INC. vs. GABRIELA ESPINOZA, et al| Trellis.Law

On May 15, 2019 a Motion,Ex Parte was filed involving a dispute between Investment Retrievers, Inc., and Espinoza, Gabriela, Espinoza Torres, Jorge L, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
9/25/2020 2:17 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker—Ayodele DEPUTY

CAUSE NO. DC-19-06955
INVESTMENT RETRIEVERS, INC., W IN THE DISTRICT COURT OF
Plaintiff,

VS.

GABRIELA ESPINOZA AKA GABRIELA
298th JUDICIAL DISTRICT
MARTINEZ AND JORGE L ESPINOZA mommmommmommom

TORRES AKA JORGE ESPINOZA
TORRES AKA JORGE E TORRES AKA
JORGE ESPINOZA AKA JORGE
TORRES, DALLAS COUNTY, TEXAS
Defendant.

MOTION FOR SANCTIONS AND RESPONSE TO
PLAINTIFF’S OBJECTIONS,
DEFENDANTS’ MOTION TO MODIFY JUDGMENT TO A TAKE NOTHING FOR
LACK OF STANDING
COMES NOW, Plaintiff, Investment Retrievers, Inc., and ﬁles its Objections, Motion for

Sanctions and Response to Defendants’ Motion to Modify Judgment to a Take Nothing

Judgement (Motion).

I. OBJECTIONS AND MOTION FOR SANCTIONS DUE TO NON—SERVICE

1. OBJECTION 1: Plaintiff objects to Defendants’ Motion as Plaintiff has not been

properly served with such. Plaintiff obtained knowledge 0f the Motion only after its counsel, Mr.

Carl Tucker received notice 0f a hearing regarding the Motion. As of the date of ﬁling this

Response, Plaintiffhas not been properly served by Defendants of said Motion. See Exhibits 1 and

2 attached and incorporated herein, afﬁdavits 0f Carl Tucker and Kevin Jones, respectively.

Without proper service, the Motion is not properly before the Court and cannot go forward.

Defendants must ﬁle and serve their post judgment motion While the Court has plenary power.

Tex. R. CiV. P. 21(a) states that the motion “must be served 0n all other parties....” Emphases

added. Because Defendants did not properly serve Plaintiff with their motion before the Court 10st

Plaintiff’s Objections, Sanctions and Response to Defendants’ Motion to Modify 1
plenary power, the Motion is not properly before the Court and is thus without power to rule upon

such Motion. In the alternative, Plaintiff requests that the Motion be denied. Plaintiff is providing

an Order but in no way such action waives its argument that the Motion is outside the plenary

power of the Court.

2. SANCTIONS: Plaintiff requests that the Court impose sanctions on Mr. Robert Clark

for failure to serve Plaintiff (through its counsel of record) with the Motion. Mr. Clark is required

to serve Plaintiff with its pleadings under Tex. R. Civ. P. 21 and 21a. Rule 21(a) states that the

motion “must be served on all other parties….” Emphases added. It appears from the Motion

printed from the Court’s website that Mr. Clark emailed efiling@pcpusa.net. This is not an email

address of Plaintiff’s counsel and has never been an email address of Plaintiff’s counsel. Plaintiff

hereby requests that the Court take judicial notice of its file and compare the Automated Certificate

of eService attached to the Motion and the Plaintiff’s Original petition showing Mr. Tucker’s email

address as ctuckerlaw@gmail.com. See Exhibit 3 attached and incorporated herein, a copy of

Defendants’ Motion and Plaintiff Original Petition for convenience sake. “…[I]f a party does not

serve or deliver to other parties copies of pleadings, motions, or other papers as required by Rules

21 and 21a, the court can impose sanctions.” Union City Body Co., Inc. v. Ramirez, 911 S.W.2d

196, 200 (Tex. App.—San Antonio 1995, no pet.). Under Tex. R. Civ. P. 21b a court may impose

sanctions listed in Tex. R. Civ. P. 215.2(b) for failing to serve a motion on a party. This Court may

strike Defendants’ Motion and/or impose sanctions upon the attorney (Mr. Robert Clark) for costs

and reasonable attorney fees. Tex. R. Civ. P. 215.2(b)(5) & (8). See also, Johnson v. Smith, 857

S.W.2d 612, 617 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding). “Indeed, if a party does

not serve or deliver to other parties copies of pleadings, motions, or other papers as required

by Rules 21 and 21a, the court can impose sanctions.” Union City Body Co., Inc. v. Ramirez, 911

Plaintiff’s Objections, Sanctions and Response to Defendants’ Motion to Modify 2
S.W.2d 196, 200 (Tex. App.—San Antonio 1995, no pet.). “Nor is there any question that failing

to serve motions or pleadings in the manner prescribed by rules 21 and 21a violates accepted and

customary rules of practice, if not rules of procedure. See, e.g., Texas Lawyer's Creed--A Mandate

for Professionalism III, 7 ("I will not serve motions or pleadings in any manner that unfairly limits

another party's opportunity to respond."). We do not invite or encourage attorneys to surprise one

another with an onslaught of last-minute motions, pleadings, or briefs, perhaps aimed at some

pretrial tactical advantage. To do so puts opposing counsel, not to mention the trial court, in a

precarious position.” Id. at 200-201. A reasonable attorney fee for responding to this Motion is

$1,662.50 and continues to be incurred. See Exhibit 1 attached and incorporated herein.

3. OBJECTION 2: Plaintiff objects to the affidavits of Jorge L. Espinoza and Gabriela

Espinoza Martinez (Defendants) as they lack personal knowledge. It is not enough that an affidavit

state that the affiant has personal knowledge, it must state how the affiant has personal knowledge.

Tex. R. Evid. 104(b) and 602. Rule 602 states in part: “A witness may testify to a matter only if

evidence is introduced sufficient to support a finding that the witness has personal knowledge of

the matter.” Defendants attempt to testify that they have read the Motion and that paragraphs 1-5

are within their personal knowledge. However, the Defendants never state how they know they

have a meritorious defense that Plaintiff never owned the claim or that the granting of a new trial

would not injure Plaintiff anything it was due (paragraph 2 of the Motion). Further, Defendants do

not state how they know there was a lack of standing (or that they even know what this means)

and there was never an assignment from dealer Trophy Nissan to Nissan Motor Acceptance

Corporation (paragraph 5 of the Motion). Plaintiff requests that the Defendant’s affidavits be

stricken from the record and thus the Motion be denied for lack of support and proof.

II. MOTION SHOULD BE DENIED

Plaintiff’s Objections, Sanctions and Response to Defendants’ Motion to Modify 3
4. In addition to the arguments above, Plaintiff further requests that Defendants’ Motion

be denied because the record contains facts to supports that Nissan Motor Acceptance

Corporation (NMAC) had a contract with the Defendants to finance the vehicle at issue. Paul

Petrunin testified at trial. He is employed by NMAC and testified that NMAC financed the

vehicle at issue under the terms of the contract. He further testified that NMAC was assigned the

account and contract at issue in this case. Either of these facts support the requirement that

NMAC had a contract with the Defendants that NMAC later assigned to Plaintiff.

5. Likewise, Plaintiff’s business records affidavit (BRA) and attached documents were

admitted into evidence and contain sufficient proof that NMAC financed the purchase of the

vehicle at issue and that NMAC was assigned the account contained within the contract. Either

of these two facts support ownership of the account sufficient to prove ownership. See Exhibit 4.

The contract for the purchase of the vehicle states on page 8 of the BRA to contact NMAC

regarding the account. Page 10 of the 30-page BRA shows a signed application signed by both

Defendants requesting NMAC finance the vehicle. Page 12-13 is a notice letter to the Defendants

from NMAC stating that the Defendants broke their “promises in our agreement.” Emphasis
--
added. The second notice letter, page 15, shows the Defendants owe NMAC for a deficiency

after the sale of the vehicle by NMAC. The Salefile attached to the Bill of Sale from NMAC to

Plaintiff is also proof of NMAC’s ownership of the account (BRA pages 17-22). The Salefile

contains the same information as in the signed contract and application. It has the same

Defendant information, the same vehicle information that exactly matches the contract (make,

model, year, and VIN number of the vehicle). It also has the same sale date and original loan

date as the signed contract. Further, it has the dates of repossession and sale of the vehicle that

matches the notice letters to the Defendant. This information is all from NMAC and thus is proof

Plaintiff’s Objections, Sanctions and Response to Defendants’ Motion to Modify 4
of ownership of the account. It is the only reasonable explanation of how NMAC knows this

information. The Document Activity History Report (BRA pages 23-24) is further proof of

ownership. These pages show the transfer of the contract and account contained therein from the

dealership to NMAC. The contract number (page 4 BRA) of 1723779804 is present on the

Document Activity History Report as well, listed as Universal App ID, Lender Ref ID, and the

contract app id. Further, that document shows the “Owning Organization” as “NMAC”. The

transfer is shown in the boxes under “Additional Event Information”. In the box under that

heading, entitled “Additional Information,” it shows that the Defendants are the applicants by

first and last name; the dealer as Trophy Nissan and the buyer as NMAC. Finally, the payment

history (BRA pages 26-29) shows NMAC name at the top of the first page. It further shows the

same amount financed of $52,929.53, VIN number, year, make and model of the vehicle that

matches the signed contract. Any number of these facts are sufficient by themselves, but when

taken together there is ample proof of ownership of the account by NMAC to sufficiently convey

such to Plaintiff.

6. The burden of proof for Plaintiff is by a preponderance of evidence. This standard is

often termed a “more likely than not” standard. Defendants would have the Court apply a higher

standard, but such is not the law. Plaintiff’s evidence as reviewed above is more than sufficient

to meet its standard on the issue of whether NMAC had sufficient title of the account at issue to

transfer it to Plaintiff.

7. Defendants have not produced any evidence to the contrary. All evidence admitted at

trial is sufficient and has not been controverted.

III. CONCLUSION AND PRAYER

Plaintiff’s Objections, Sanctions and Response to Defendants’ Motion to Modify 5
V
Plaintiff has properly proved that NMAC owned the account at issue and therefore had

sufficient title to transfer that account to Plaintiff. Plaintiff requests that the Court sustain its

objections, sanction Defense counsel, and deny the Defendants’ Motion.

Respectfully submitted

____________________________________
Carl Tucker
State Bar No. 20265100
Law Office of Carl Tucker PLLC
2028 E Ben White Blvd #240-1650
Austin Texas 78741
Tel: (866) 457-4107
Fax: (214) 594-7862
ctuckerlaw@gmail.com
Attorney for the Plaintiff,
Investment Retrievers, Inc.

V
CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 25th day of September, 2020, a true and
correct copy of the foregoing instrument was served on all parties and/or counsel of record in
accordance with Rule 21a, Tex. R. Civ. P.
_____________________________
Carl Tucker

Plaintiff’s Objections, Sanctions and Response to Defendants’ Motion to Modify 6
EXHIBIT 1
CAUSE NO. DC-l9-06955
DC-19-06955

INC.,
INVESTMENT RETRIEVERS, INC., § IN THE DISTRICT COURT OF
§
Plaintiff,
Plaintiff, §
§
§
§
vs.
VS. §
§
§
GABRIELA ESPINOZA AKA GABRIELA § 298th JUDICIAL DISTRICT
§ 298th
MARTINEZ AND JORGE L ESPINOZA §
§
TORRES AKA JORGE ESPINOZA §
§
TORRES AKA JORGE E TORRES AKA
TORRESAKAJORGEETORRESAKA §
§
JORGE ESPINOZA AKA JORGE §
§
TORRES, § DALLASCOUNTY,TEXAS
§ DALLAS COUNTY, TEXAS
Defendant.
Defendant.

PLAINTIFF'S MOTION FOR SANCTIONS
AFFIDAVIT IN SUPPORT OF PLAINTIFF’S

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TOBOLOWSKY, EMILY Track Judge’s New Case

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Document Filed Date

September 25, 2020

Case Filing Date

May 15, 2019

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Motion,Ex Parte: INVESTMENT RETRIEVERS, INC. vs. GABRIELA ESPINOZA, et al

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