Rosales v. Rausch, Sturm, Israel, Enerson & Hornik, LLP et al

Western District of Texas, txwd-5:2019-cv-01255

Exhibit B

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Our File No. 3489422 Case No. 2019CV01350 PORTFOLIO RECOVERY ASSOCIATES, LLC § In the County Court at Law No. _____ Plaintiff § § of v. § CRYSTAL ROSALES § BEXAR County Texas § Defendant(s) § § PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT COMES NOW Plaintiff PORTFOLIO RECOVERY ASSOCIATES, LLC ("Plaintiff") and files this Motion for Default Judgment against Defendant(s) CRYSTAL ROSALES ("Defendant") in the above-styled lawsuit. In support of its Motion, Plaintiff would respectfully show as follows: I. INTRODUCTION Plaintiff filed suit against Defendant on or about January 31, 2019 seeking to recover from Defendant under the Account Stated cause of action. Defendant was served with citation and a copy of Plaintiff's Petition on April 12, 2019. Citation and proof of service were returned to the Court and have been on file with the court for at least ten days. Despite having been duly served herein, Defendant has wholly failed to file an Answer or any other pleading constituting an Answer to 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 no record of Defendant being enlisted in the United States Military. Defendant's last known address is as follows: CRYSTAL ROSALES 368 HAWTHORNE SAN ANTONIO TX 78214 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 Copy from re:SearchTX III. ARGUMENT & AUTHORITIES A. Plaintiff Has Met Procedural Requirements for Entry of Default Judgment "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 Copy from re:SearchTX at 836. Liquidated damages are damages that can be accurately calculated from (1) the factual allegations in the petition and (2) a written instrument attached to the petition. Affidavits, copies of invoices and account statements setting forth the balance owed on an account have been held to satisfy the requirements for establishing liquidated damages. Id. at 837; see also Barganier v. Saddlebrook Apartments, 104 S.W.3d 171, 173 (Tex. App.—Waco 2003, no 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.—Houston [14th Dist.] 2001, no pet.). 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, Plaintiff respectfully requests that this Court grant Plaintiff's Motion for Default Judgment and award Plaintiff the relief requested in Plaintiff's Petition, less any credits that have been received after the date of the filing of the petition, by signing and entering the attached proposed Default Judgment. Respectfully Submitted, RAUSCH STURM ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION JASMINE NECOLE COOKS, SBN 24089624 STEVE JAVANDOOST, SBN 24055735 MICHAEL J. GARZA, SBN 24083056 JESSICA OLSEN-ZHANG, SBN 24099761 ROBERTO JARAMILLO, SBN 24098772 MEGAN HALE, SBN 24087654 BRANDON E. BOWLIN, SBN 24084917 JOHN KETTLER, SBN 24089374 MADELEINE HAYES, SBN 24106067 BRANDI MARIE ADDISON, SBN 24094342 JESSE DOW LOCKHART, SBN 24082089 COLIN PATRICK BROGAN, SBN 24096499 15660 N. Dallas Parkway, Suite 350 Dallas TX 75248 Toll Free - (877) 215-2552 Fax - Dallas (877) 492-5185 E-mail: lawfirmTX@rsieh.com ATTORNEY FOR PLAINTIFF 3489422 Copy from re:SearchTX