Preview
Electronically Submitted
4' 0:43 PM
'
1/
Our F116
Ngfigafigo ounty Clerk
Case N0. CL_19_1242_H Accepted by: Ester Espinoza
PORTFOLIO RECOVERY ASSOCIATES, LLC § In the County Court at Law No. 8
Plaintiff §
§ of
v. §
EDDIE GUEVARA § HIDALGO County Texas
§
Defendant(s) §
§
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
COMES NOW Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC ("Plaintiff') and files thisMotion for
Default Judgment against Defendant(s) EDDIE GUEVARA ("Defendant") in the above-styled lawsuit. In support 0f its
Motion, Plaintiff would respectfully show as follows:
I. INTRODUCTION
Plaintiff filed suit against Defendant 0n 0r about February 28, 2019 seeking t0 recover from Defendant under the
Account Stated cause of action. Defendant was served with citation and a copy of Plaintiff‘s Petition on March 9, 2019.
Citation and proof 0f service were returned t0 the Court and have been 0n file With the court for at least ten days. Despite
having been duly served herein, Defendant has Wholly failed t0 file an Answer 0r any other pleading constituting an
Answer t0 this lawsuit, and the deadline for filing of such an answer has expired.
Plaintiff has searched the Defense Manpower Data Center website using Defendant's name and Social Security
Number and found n0 record 0f Defendant being enlisted in the United States Military. Defendant's last known address
is as follows:
EDDIE GUEVARA
28 10 MI CIELO
WESLACO TX 78599
II. EXHIBITS IN SUPPORT OF DEFAULT JUDGMENT
In support of its Motion for Default Judgment, Plaintiff attaches hereto and incorporates herein full the following
exhibits:
Exhibit 1 Certificate of Last Known Address
Exhibit 2 Non—Military Declaration and Printout from Defense Manpower Data Center
Exhibit 3 Charge Off
Electronically Submitted
III. ARGUMENT & AUTHORITIES 1/13/2020 10:43 PM
Hidalgo County Clerk
A. Plaintiff Has Met Procedural Requirements for Entry of Default Judgment Accepted by: Ester Espinoza
“At any time after a defendant is required to answer, the plaintiff may take a default judgment if the defendant has
not previously filed an answer, and the citation with the officer’s return has been on file with the clerk for ten days.” Aguilar
v. Livingston, 154 S.W.3d 832, 834 (Tex. App.—Houston [14th Dist.] no writ); see TRCP. 239; see also TRCP. 107. “A
default judgment is properly granted if: (1) the plaintiff files a petition that states a cause of action; (2) the petition invokes
the trial court’s jurisdiction; (3) the petition gives fair notice to the defendant; and (4) the petition does not disclose any
invalidity of the claim on its face.” Oliphant Financial, LLC v. Julio Galaviz, 299 S.W.3d 829, 834 (Tex.App.–Dallas [5th
Dist.], 2009); see also Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex.1988).
In this case, Defendant has been properly served with citation, the return of service has been on file with the Court
for the requisite number of days, and the deadline for Defendant to file an answer has passed. Plaintiff’s Petition states a
cause of action under the Account Stated cause of action against Defendant and provides fair notice of such claim by
identifying the account upon which the claim is made and the balance owed thereon. Further, Plaintiff’s Petition invokes the
jurisdiction of the trial court by setting forth a claim for relief that falls within the jurisdiction of this Court. Lastly, there
is no indication that Plaintiff’s claim is invalid on the face of Plaintiff’s Petition. Accordingly, Plaintiff is procedurally
entitled to entry of default judgment against Defendant.
B. Defendant Has Admitted Liability
A defendant who defaults admits all allegations of facts in the plaintiff’s petition except unliquidated damages.
Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex.App.–Dallas 2005, no pet.); Jackson v. Biotectronics, Inc.,
937 S.W.2d 38, 41 (Tex.App.–Houston [14th Dist.] 1996, no writ); Norton v. Martinez, 935 S.W.2d 898, 901 (Tex.App.–San
Antonio 1996, no writ). In a no-answer default context, judgment can be entered on the pleadings alone, and all facts properly
pled by plaintiff in its petition are deemed admitted. Whitaker v. Rose, No. 14-04-01178-CV (Tex. App.—Houston [14th
Dist.]), citing Morgan v. Compugrapic Corp., 675 S.W.2d 729, 732 (Tex. 1984). Thus, by failing to answer this lawsuit,
Defendant herein has admitted to each and every allegation of fact contained in Plaintiff’s Petition and has admitted all
liability. Oliphant Financial, LLC v. Julio Galaviz, 299 S.W.3d at 836.
C. Plaintiff’s Damages Are Liquidated
“When a plaintiff’s claim is liquidated, and proven by an instrument in writing, the plaintiff may be awarded damages
without the necessity of a hearing or the presentation of evidence.” Oliphant Financial, LLC v. Julio Galaviz, 299 S.W.3d
Electronically Submitted
at 836. Liquidated damages are damages that can be accurately calculated from the factual allegations in the d]0343 PM
( 1) @3633)
(2) a written instrument attached to the petition. Affidavits, copies of invoices and account stateméfigesgfifllgyfoéflfifiégtgfi’ezr;
balance owed on an account have been held t0 satisfy the requirements for establishing liquidated damages. Id. at837; see
also Bargam'er v. Saddlebrook Apartments, 104 S.W.3d 171, 173 (Tex. App.—Waco 2003, n0 pet); Tex. Commerce Bank
v. New, 3 S.W.3d at 515, 516-517 (Tex. 1999); Novosad v.Cunningham, 38 S.W.3d 747, 773 (Tex. App.—Houst0n [14th
Dist] 200 1 ,nopet.). Based on the foregoing authority, Plaintiff s damages in this lawsuit are liquidated and can be accurately
calculated from the factual allegations in the Petition and from the written instrument(s) attached thereto.
III. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffre spectfully requests that this Court grant Plaintiff s
Motion for Default Judgment and award Plaintiffthe reliefrequested in Plaintiff s Petition, less any credits that have
been received after the date of the filing 0f the petition, by signing and entering the attached proposed Default
Judgment.
Respectfully Submitted,
RAUSCH STURM
ATTORNEYS IN THE PRACTICE 0F DEBT COLLECTION
cumsmmm'mmm SBN24025536,0F COUNSELTORAUSCH STURM
15660 N. Dallas Parkway, Suite 350
Dallas TX 75248
T011 Free — (877) 215-2552 Fax - Dallas (877) 492-5185
E-mail: 1awfirmTX@rsieh.com
ATTORNEY FOR PLAINTIFF
3501894
Preview
Electronically Submitted 4' 0:43 PM ' 1/ Our F116 Ngfigafigo ounty Clerk Case N0. CL_19_1242_H Accepted by: Ester Espinoza PORTFOLIO RECOVERY ASSOCIATES, LLC § In the County Court at Law No. 8 Plaintiff § § of v. § EDDIE GUEVARA § HIDALGO County Texas § Defendant(s) § § PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT COMES NOW Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC ("Plaintiff') and files thisMotion for Default Judgment against Defendant(s) EDDIE GUEVARA ("Defendant") in the above-styled lawsuit. In support 0f its Motion, Plaintiff would respectfully show as follows: I. INTRODUCTION Plaintiff filed suit against Defendant 0n 0r about February 28, 2019 seeking t0 recover from Defendant under the Account Stated cause of action. Defendant was served with citation and a copy of Plaintiff‘s Petition on March 9, 2019. Citation and proof 0f service were returned t0 the Court and have been 0n file With the court for at least ten days. Despite having been duly served herein, Defendant has Wholly failed t0 file an Answer 0r any other pleading constituting an Answer t0 this lawsuit, and the deadline for filing of such an answer has expired. Plaintiff has searched the Defense Manpower Data Center website using Defendant's name and Social Security Number and found n0 record 0f Defendant being enlisted in the United States Military. Defendant's last known address is as follows: EDDIE GUEVARA 28 10 MI CIELO WESLACO TX 78599 II. EXHIBITS IN SUPPORT OF DEFAULT JUDGMENT In support of its Motion for Default Judgment, Plaintiff attaches hereto and incorporates herein full the following exhibits: Exhibit 1 Certificate of Last Known Address Exhibit 2 Non—Military Declaration and Printout from Defense Manpower Data Center Exhibit 3 Charge Off Electronically Submitted III. ARGUMENT & AUTHORITIES 1/13/2020 10:43 PM Hidalgo County Clerk A. Plaintiff Has Met Procedural Requirements for Entry of Default Judgment Accepted by: Ester Espinoza “At any time after a defendant is required to answer, the plaintiff may take a default judgment if the defendant has not previously filed an answer, and the citation with the officer’s return has been on file with the clerk for ten days.” Aguilar v. Livingston, 154 S.W.3d 832, 834 (Tex. App.—Houston [14th Dist.] no writ); see TRCP. 239; see also TRCP. 107. “A default judgment is properly granted if: (1) the plaintiff files a petition that states a cause of action; (2) the petition invokes the trial court’s jurisdiction; (3) the petition gives fair notice to the defendant; and (4) the petition does not disclose any invalidity of the claim on its face.” Oliphant Financial, LLC v. Julio Galaviz, 299 S.W.3d 829, 834 (Tex.App.–Dallas [5th Dist.], 2009); see also Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex.1988). In this case, Defendant has been properly served with citation, the return of service has been on file with the Court for the requisite number of days, and the deadline for Defendant to file an answer has passed. Plaintiff’s Petition states a cause of action under the Account Stated cause of action against Defendant and provides fair notice of such claim by identifying the account upon which the claim is made and the balance owed thereon. Further, Plaintiff’s Petition invokes the jurisdiction of the trial court by setting forth a claim for relief that falls within the jurisdiction of this Court. Lastly, there is no indication that Plaintiff’s claim is invalid on the face of Plaintiff’s Petition. Accordingly, Plaintiff is procedurally entitled to entry of default judgment against Defendant. B. Defendant Has Admitted Liability A defendant who defaults admits all allegations of facts in the plaintiff’s petition except unliquidated damages. Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex.App.–Dallas 2005, no pet.); Jackson v. Biotectronics, Inc., 937 S.W.2d 38, 41 (Tex.App.–Houston [14th Dist.] 1996, no writ); Norton v. Martinez, 935 S.W.2d 898, 901 (Tex.App.–San Antonio 1996, no writ). In a no-answer default context, judgment can be entered on the pleadings alone, and all facts properly pled by plaintiff in its petition are deemed admitted. Whitaker v. Rose, No. 14-04-01178-CV (Tex. App.—Houston [14th Dist.]), citing Morgan v. Compugrapic Corp., 675 S.W.2d 729, 732 (Tex. 1984). Thus, by failing to answer this lawsuit, Defendant herein has admitted to each and every allegation of fact contained in Plaintiff’s Petition and has admitted all liability. Oliphant Financial, LLC v. Julio Galaviz, 299 S.W.3d at 836. C. Plaintiff’s Damages Are Liquidated “When a plaintiff’s claim is liquidated, and proven by an instrument in writing, the plaintiff may be awarded damages without the necessity of a hearing or the presentation of evidence.” Oliphant Financial, LLC v. Julio Galaviz, 299 S.W.3d Electronically Submitted at 836. Liquidated damages are damages that can be accurately calculated from the factual allegations in the d]0343 PM ( 1) @3633) (2) a written instrument attached to the petition. Affidavits, copies of invoices and account stateméfigesgfifllgyfoéflfifiégtgfi’ezr; balance owed on an account have been held t0 satisfy the requirements for establishing liquidated damages. Id. at837; see also Bargam'er v. Saddlebrook Apartments, 104 S.W.3d 171, 173 (Tex. App.—Waco 2003, n0 pet); Tex. Commerce Bank v. New, 3 S.W.3d at 515, 516-517 (Tex. 1999); Novosad v.Cunningham, 38 S.W.3d 747, 773 (Tex. App.—Houst0n [14th Dist] 200 1 ,nopet.). Based on the foregoing authority, Plaintiff s damages in this lawsuit are liquidated and can be accurately calculated from the factual allegations in the Petition and from the written instrument(s) attached thereto. III. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffre spectfully requests that this Court grant Plaintiff s Motion for Default Judgment and award Plaintiffthe reliefrequested in Plaintiff s Petition, less any credits that have been received after the date of the filing 0f the petition, by signing and entering the attached proposed Default Judgment. Respectfully Submitted, RAUSCH STURM ATTORNEYS IN THE PRACTICE 0F DEBT COLLECTION cumsmmm'mmm SBN24025536,0F COUNSELTORAUSCH STURM 15660 N. Dallas Parkway, Suite 350 Dallas TX 75248 T011 Free — (877) 215-2552 Fax - Dallas (877) 492-5185 E-mail: 1awfirmTX@rsieh.com ATTORNEY FOR PLAINTIFF 3501894