FYI Read this case regarding Unifund (Texas Court)

[mwhizz]

This is rather lengthy but it has some good arguments in regards to authenticating affidavits.

If this needs to be moved to Case Law I apologize

Unifund CCR Partners - new opinion

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MEMORANDUM OPINION

Court of Appeals of Texas,
Fort Worth.

Deni L. LUKE, Appellant
v.
UNIFUND CCR PARTNERS, Appellee.

No. 2-06-444-CV.

Aug. 31, 2007.


Appellant Deni L. Luke appeals the trial court's grant of summary judgment in favor of appellee Unifund CCR Partners. We reverse and remand.

BACKGROUND

Appellee sued Appellant in 2005 for default in payment on her credit card account (the “Account”), which it claimed to have acquired from Appellant's previous creditor. It contended that Appellant's default breached the account agreement such that the Account's total balance of $23,596.60 was due, that Appellee made a timely demand for Appellant to pay the amount due, and that Appellant failed to do so.

Appellee included requests for admissions and for disclosures in its petition. FN2 Appellant did not respond to this request for admissions.FN3 She filed a general denial.FN4 Appellee moved for summary judgment and attached various affidavits and other documentation to support its motion. In her late-filed response, Appellant objected to some of Appellee's evidence and contended that Appellee was not entitled to summary judgment on its contract, account stated, or quantum meruit claims, or to attorney's fees,FN5 but she did not file a motion to withdraw or amend the admissions deemed admitted from Appellee's petition. See Tex.R. Civ. P. 198.3. The trial court granted summary judgment, awarding Appellee $22,938.87 as the “principal amount awarded,” “interest on principal awarded” of 29.74%, attorney's fees of $3,500, and conditional attorney's fees of $3,500.00.


FN2. The parties later signed a rule 11 agreement that withdrew Appellee's requests for disclosure. See Tex.R. Civ. P. 11.


FN3. Appellant did respond to Appellee's second request for admissions; Appellee attached these responses to its motion for summary judgment.


FN4. Appellant also attempted to raise the affirmative defenses of limitations and statute of frauds, asserted that she had no contractual relationship with Appellee, and claimed that Appellee had violated federal and Texas law in its attempt to collect the debt. Appellant did not verify by affidavit her contentions with regard to her denial that she executed any instrument in writing upon which Appellee's claims were based or with regard to her denial of indebtedness to Appellee. See Tex.R. Civ. P. 93(7), (10).


FN5. At what would have otherwise been the hearing on the motion for summary judgment, the trial court heard Appellant's argument for allowing a late-filed response and decided to allow it. The trial court announced that it would subsequently consider everything on submission.




SUMMARY JUDGMENT

In a single issue, Appellant argues that the trial court erred by granting summary judgment for Appellee, complaining that Appellee was not entitled to summary judgment based on the deemed admissions and that the trial court erred by overruling her objections to the Angela Freckman and Kim Kenney affidavits. She also contends that the affidavit submitted by Sandra Rogers was substantively defective and that Appellee was not entitled to summary judgment based on the theories in its petition, nor was Appellee entitled to attorney's fees.



Standard Of Review

In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Sw. Elec. Power Co., 73 S .W.3d at 215.

A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See Tex.R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). Evidence that favors the movant's position will not be considered unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).



Deemed Admissions

When a party fails to answer a request for admissions, the matters therein are deemed admitted. Tex.R. Civ. P. 198.2(c). Such admissions are “conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission.” Tex.R. Civ. P. 198.3. The court may permit a party to withdraw deemed admissions if the party shows good cause for the withdrawal and the court finds that the parties relying on the admissions will not be unduly prejudiced and the presentation of the merits of the action will be subserved by the withdrawal. Id. Appellant never filed a motion to withdraw or to amend the deemed admissions in Appellee's first request for admissions.

Admissions of fact on file at the time of a summary judgment hearing are proper summary judgment proof and thus will support a motion for summary judgment. Tex.R. Civ. P. 166a(c); See Acevedo v. Comm'n For Lawyer Discipline, 131 S.W.3d 99, 105 (Tex.App.-San Antonio 2004, pet. denied); CEBI Metal Sanayi Ve Ticaret A.S. v. Garcia, 108 S.W.3d 464, 466 (Tex.App.-Houston [14th Dist.] 2003, no pet.). While answers constituting admissions of law are not binding on a court, a request for admission may properly ask a party to apply the law to a set of facts. See Tex.R. Civ. P. 198.1; Duong v. Bank One, N.A., 169 S.W.3d 246, 251 (Tex.App.-Fort Worth 2005, no pet.). Answers to these types of requests are competent summary judgment evidence. See Duong, 169 S.W.3d at 251.

Appellant contends that her responses to Appellee's second request for admissions, attached as an exhibit to Appellee's motion for summary judgment, effectively negated Appellee's ability to rely on the deemed admissions from Appellee's first request for admissions.FN6 We disagree. We have held that admissions, once made or deemed by the court, may not be contradicted by any evidence, whether in the form of live testimony or summary judgment affidavits. See Smith v. Home Indem. Co., 683 S.W.2d 559, 562 (Tex.App.-Fort Worth 1985, no writ). Denials to requests for admissions are not summary judgment evidence. Americana Motel, Inc. v. Johnson, 610 S.W.2d 143, 143 (Tex.1980); Denton Constr. Co. v. Mike's Elec. Co., 621 S.W.2d 846, 848 (Tex.App.-Fort Worth 1981, writ ref'd n.r.e.). When an answering party denies or refuses to make an admission of fact, such refusal is nothing more than a refusal to admit a fact; it is not evidence of any fact except the fact of refusal. See Newman v. Utica Nat. Ins. Co. of Tex., 868 S.W.2d 5, 8 (Tex.App.-Houston [1st Dist.] 1993, writ denied); Am. Commc'n Telecomm., Inc. v. Commerce N. Bank, 691 S.W.2d 44, 48 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.); Carbonit Houston, Inc. v. Exchange Bank, 628 S.W.2d 826, 829 (Tex.App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.).


FN6. To support her contentions, Appellant relies on Marshall v. Vise, 767 S.W.2d 699 (Tex.1989) and Houston First Am. Sav. v. Musick, 650 S.W.2d 764 (Tex.1983). Marshall holds that a party relying upon an opponent's pleadings as judicial admissions of fact must protect the record by objecting at trial to the introduction of controverting evidence and to the submission of any issue bearing on the facts admitted, or he waives the right to rely on them. 767 S.W.2d at 700 (citing Musick, 650 S.W.2d at 769).

Our sister courts have disputed whether Marshall is limited to trial situations. Compare Acevedo, 131 S.W.3d at 105 n. 3 (stating that a summary judgment hearing is considered a “trial” for purposes of amended pleadings under Texas Rule of Civil Procedure 63; therefore, the court could “conceive of no reason it would not be considered a ‘trial’ for purposes of the Marshall rule”) with Beasley v. Burns, 7 S.W.3d 768, 770 (Tex.App.-Texarkana 1999, pet. denied) (stating that the Marshall rule does not apply to summary judgment).


Appellant, although represented by counsel, ignored Appellee's first request for admissions and they went unanswered, without a motion to extend time for answering, or any other limiting motion, right through the summary judgment hearing. Neither did Appellant ever move the court to withdraw or amend the admissions. Therefore, those statements in the first request for admissions were deemed admitted. See Tex.R. Civ. P. 198. Having already admitted the twenty-nine statements contained in the first request for admissions by failing to respond, Appellant's subsequent denials in the second request for admissions containing sixty-one statements, even though some were the same or similar to the initial request for admissions, had no effect on her original admissions. See Newman, 868 S.W.2d at 8; cf. Wheeler v. Green, 157 S.W.3d 439, 441-42, 444 (Tex.2005) (holding that, when nothing in the record suggested that pro se mother realized that she needed to move to withdraw deemed admissions before trial court granted summary judgment in suit to modify her child's managing conservatorship, the trial court should have granted a new trial and allowed the deemed admissions to be withdrawn when her responses to the request for admissions were two days late). We overrule this portion of Appellant's sole issue.



Material Facts

The first request for admissions stated the following:

(1) [Appellee] (or [Appellee's] predecessor) offered an extension of credit to [Appellant] in exchange for [Appellant's] promise to repay money lent.

(2) Based on [Appellant's] request, [Appellee] (or [Appellee's] predecessor) opened the account.

(3) [Appellee] is the owner of the indebtedness on the account.

(4) [Appellee] (or [Appellee's] predecessor in interest) and [Appellant] entered into an agreement to create a charge agreement for credit.

(5) [Appellant] has understood from the time the account was opened that [Appellee's] predecessor in interest made a loan on behalf of [Appellant] for the amount requested.

(6) [Appellant] has understood from the time the account was opened that [Appellant] is required and obligated to repay all charges or fees incurred on the account.

(7) [Appellant] purchased goods and services and/or services using the credit provided by [Appellee's] predecessor in interest.

(8) [Appellant] made payments on the account.

(9) After the account was opened, [Appellant] received monthly statements showing the remaining balance on the account, along with the minimum monthly payment required.

(10) Since the account was opened, [Appellant] has not notified [Appellee] (or [Appellee's] predecessor in interest) of a dispute or error regarding any information contained in a monthly statement.

(11) [Appellant] presently owes [Appellee] the amount of $23,596 .60.

(12) The attached statement accurately states the amount of money that [Appellant] owes to [Appellee] on the account

(13) [Appellant] has breached [Appellant's] contract with [Appellee] (or [Appellee's] predecessor in interest).

(14) [Appellant's] breach has damaged [Appellee] in the amount of $23,596.60.

(15) [Appellee] made demand on [Appellant] before filing suit, for payment of the outstanding balance due at that time.

(16) You received a demand letter from [Appellee] or [Appellee's] predecessor in interest or [Appellee's] attorneys for payment of the account.

(17) At no time prior to the filing of this suit did [Appellant] or [Appellant's] representative request verification of the debt from [Appellee] or its agents.

(18) At no time prior to the filing of this suit did [Appellant] or [Appellant's] representative dispute the debt owing on the account.

(19) [Appellant] is not a member of any military service with assignments or orders that would give [Appellant] a right to delay under the law.

(20) [Appellant] has no defense to this suit, and judgment should be granted as prayed for.

(21) At least [sic] should be awarded to [Appellee] as attorney's fees in this suit.

(22) The contractual interest rate of at least 18% per year was agreed to by [Appellee] and [Appellant].

(23) The “Unifund Statement” attached hereto is a true and correct copy of the business record maintained by [Appellee].

(24) The account summary statement attached hereto is a true and correct copy of the business record maintained by [Appellee].

(25) By the terms of the agreement, [Appellee] is entitled to charge [Appellant] late fees if [Appellant's] monthly payments are late.

(26) The collection of any fees, charges, or expenses is expressly authorized by [Appellant's] agreement with [Appellee] (or [Appellee's] predecessor).

(27) [Appellee] and [Appellee's] predecessor in interest ha[ve] applied all just and lawful offsets to the account.

(28) If [Appellant] or [Appellant's] representatives requested verification of the debt from [Appellee], [Appellee] verified the debt prior to filing this lawsuit.

(29) [Appellee] or [Appellee's] predecessor in interest performed the terms, conditions and actions required under and described in the [Appellant's] agreement with [Appellee].



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