Legal

Cause No. D-n GN-0n-00nnnn

PLAINTIFF BANK OF GEORGIA

Plaintiff

v.

DEFENDANT

Defendant

§
§

IN THE DISTRICT COURT

OF SOME COUNTY, TEXAS

SOME JUDICIAL DISTRICT

MOTION FOR SUMMARY JUDGMENT

and
AMENDED MOTION TO DISMISS/BAR ACTION

Comes now the Defendant and moves this honorable court for Summary Judgment, also amending Defendant’s prior Motion to Dismiss/Bar Action so as to be merged and supplanted by this Motion for Summary Judgment.

In support of this Motion for Summary Judgment, Defendant avers that the pleadings as of the date of are sufficient to establish the facts and law of this cause.

SUMMARY OF CAUSE

Plaintiff originates this cause on 24 August 1999 by filing the following:

Notice of Filing Foreign Judgment Pursuant to Code 35.004 of the Texas Civil Practices and Remedies Code, filed 24 Aug 1999.

Affidavit in Support of Filing Foreign Judgment, filed 24 August 1999.

Authenticated copy of the Foreign Judgment Order, entered in the state of Virginia on 4 June 1986.

2.	Plaintiff on 15 September 1999 sends to Defendant a copy of all the pleadings and supporting documents in Item 1, above, by certified, return-receipt mail – three weeks after original filings. The Certificate of Service is also dated 15 September 1999. No explanation is provided by Plaintiff for the three-week delay in service.
3.	Defendant on 22 September 1999 files an answer in Objection to Plaintiff’s Notice of Filing Foreign Judgment. Defendant attaches an Affidavit of Texas residency from 1984 to present, and presumptive evidence of such residency. Defendant pleads as a defense that the ten year limitations on Filing a Foreign Judgment under Texas Civil Practices and Remedies Code §16.066(b) has run, forever barring Plaintiff’s cause to file said Foreign Judgment. Despite Plaintiff’s unexplained delay in providing service on said Notice of Filing Foreign Judgment by three weeks, Defendant’s answer in Objection is timely filed.
4.	Plaintiff on 28 September 1999 submitted a letter request to the Clerk of Court for an abstract of the Texas Judgment. Said request for abstract is premature, as the cause is now joined and contested, requiring judicial disposition.

ISSUES AT LAW

The applicable controlling Texas law in this cause for domesticating said foreign judgment are §35.003 for filing in Texas, §35.004 for Notice of Filing, and §16.066(b) as a defense against filing in Texas, said sections of the Texas Civil Practices and Remedies Code bring neither contradictory nor exclusionary. The application of §16.066(b) as a bar to the filing of a Foreign Judgment is settled Texas law [see 07-1039, THE EVEREST GROUP, L.L.C. v. SAMUEL DABNEY WARE; from Dallas County; 5th district (05-05-01575-CV, 238 SW3d 855, 10-19-07, pet. denied )(domestication of foreign judgment reversed)].
Said Foreign Judgment on its face exceeds the ten year limitations period set forth in §16.066(b) by three years. The only issue remaining to be established under §16.066(b) is Defendant’s Texas residency for the ten year limit period.

ISSUES OF FACT

Said Foreign Judgment as a valid 1986 Judgment is not contested. The Defendant has established in his answer in Objection, by Affidavit and documentary evidence, satisfaction of the required Texas residency during the ten year limitations period required under §16.066(b), said Texas residency not challenged or impugned by Plaintiff. At thirteen years, said Foreign Judgment is already three years past the ten year limitations of §16.066(b). There are no issues of fact contested in the pleadings.

ISSUES OF DELAY - The delay by Plaintiff’s in furnishing notice and copies to Defendant is noted only to preserve Defendant’s right to plead such delay should Plaintiff subsequently contest the timeliness of Defendant’s responses. Defendant has timely pleaded his defense and subsequent motions, and no issue of timeliness has been raised by Plaintiff.

DISCUSSION

The law is properly stated, and clear. Under the Texas Civil Practices and Remedies Code, an action brought on a Foreign Judgment under §35.003 and §35.004 is barred under §16.066(b) if the action brought in Texas is more than ten years after the Foreign Judgment was originally rendered, and the Defendant was a Texas resident during said ten-year period. On the face of the Foreign Judgment, the ten year limitations has already run, the time beginning on 4 June 1986, the date of the Foreign Judgment, and running to 24 August 1999, the date of the Texas action, the period between being more than thirteen years. The Texas residency of Defendant during said ten year limitation is established by affidavit and uncontroverted documentary evidence. There are no pleaded issues of fact by the parties requiring resolution by trial. This cause is ripe for Summary Judgment.

PRAYER FOR RELIEF

Defendant prays for Summary Judgment against Plaintiff, dismissing with prejudice Plaintiff’s cause to file said Foreign Judgment, striking and removing said Foreign Judgment from the Texas court record and docket, canceling and revoking any actions initiated by plaintiff for satisfaction or recovery on the Foreign Judgment, canceling or revoking any writs of attachment initiated or in process against Defendant’s property, and forever barring said Foreign Judgment from being brought again in Texas.

Defendant, Pro Se

address

Somewhere, Texas

phone number

DEFENDANT