Citibank's motion for continuance of trial

[bmc100]

here is what you do. Call the attorney representing Citi. tell them that you will agree to a continuance, but not to the 120 days. Tell them you will file an objection to their motion to stick with a 30 day extension.

How long has it been so far since you were served?

How long was discovery?

If it has been a year or more, make sure that you state that too much time has elapsed since the court process as begun and allowing another 120 days for the Plaintiff to try to prove their case is a waste of the time and resources of this court.

I am not sure if TX has motion hearings, but get an objection in, if there is not an objecion, the court will grant what they are asking for.

That electronic check is garbage, it holds no weight. If the electronic check was legit, it would show the person's full name as to the caller who made payment.

[elbeto77]

Originally Posted by bmc100

here is what you do. Call the attorney representing Citi. tell them that you will agree to a continuance, but not to the 120 days. Tell them you will file an objection to their motion to stick with a 30 day extension.

How long has it been so far since you were served?

How long was discovery?

If it has been a year or more, make sure that you state that too much time has elapsed since the court process as begun and allowing another 120 days for the Plaintiff to try to prove their case is a waste of the time and resources of this court.

I am not sure if TX has motion hearings, but get an objection in, if there is not an objecion, the court will grant what they are asking for.

That electronic check is garbage, it holds no weight. If the electronic check was legit, it would show the person's full name as to the caller who made payment.

How long has it been so far since you were served? Aug 12, 2011.

How long was discovery? The standard 30 days

If it has been a year or more, make sure that you state that too much time has elapsed since the court process as begun and allowing another 120 days for the Plaintiff to try to prove their case is a waste of the time and resources of this court. It will only be 6 months, since the start of all this.

I am not sure if TX has motion hearings, but get an objection in, if there is not an objection, the court will grant what they are asking for. The date is set for Feb 28, 2012, so i wonder if i have sufficient time to submit a motion or objection?

That electronic check is garbage, it holds no weight. If the electronic check was legit, it would show the person's full name as to the caller who made payment. That's good to know.

[elbeto77]

I am reading that they need to give me 21 days before trial to advice me of Oral Hearing for Continuance of Trial and i did not receive until February 13, 2012, so it seems that they are no abiding by the time frame needed to advise me of this change.

NOTIVE OF SUMMARY JUDGMENT HEARING - ORAL HEARING OR "HEARING"
BY SUBMISSION
Although an oral hearing on a motion for summary judgment is not mandatory, notice of hearing or submission of
a summary judgment motion is required. See Martin v. Martin, Martin, & Richards, Inc., 989 S.W.2d 357, 359
(Tex. 1998). The rules of civil procedure afford the nonmovant twenty-one days' notice before a summary
judgment hearing. Tex. R. Civ. P. 166a(c). The nonmovant may “file and serve opposing affidavits or other
written response” not later than seven days before the hearing date. Id. Without notice of the hearing date, the
nonmovant would not know when his response is due. Whiteside v. Ford Motor Credit Co., 220 S.W.3d 191, 194
(Tex. App.-Dallas 2007, no pet.) (citing Martin, 989 S.W.2d at 359).
The Fourteenth Amendment of the United States Constitution protects against deprivation of life, liberty, or
property by the State “without due process of law.” U.S. Const. amend. XIV, § 1. The Texas Constitution states
that no citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner
disfranchised, except by the “due course of law of the land.” Tex. Const. art. I, § 9. At a minimum, due process
requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. See Campbell
v. Stucki, 220 S.W.3d 562, 570 (Tex. App.-Tyler 2007, no pet.). When a hearing has been scheduled on a
motion and the trial court grants that motion before the scheduled hearing date, the trial court violates the non-
moving party's procedural due process right to be heard. See id. (trial court violated due process where hearing
scheduled regarding motion and notice provided, but trial court granted motion before scheduled hearing date);
see also Mosser v. Plano Three Venture, 893 S.W.2d 8, 13 (Tex. App.-Dallas 1994, no writ) (it would violate due
process to require nonmovant, who did not receive actual or constructive notice of summary judgment hearing,
to meet Craddock requirements to obtain new trial); Averitt v. Bruton Paint & Floor Co., 773 S.W.2d 574, 576
(Tex. App.-Dallas 1989, no writ) (defendant did not appear at hearing on motion to compel discovery and trial
court entered default judgment, but trial court abused discretion when it denied defendant's motion for new trial
because motion showed defendant did not receive notice of hearing satisfying requirements of Craddock by
establishing his conduct was not intentional or consciously indifferent); Limestone Constr., Inc. v. Summit
Commercial Indus. Props., Inc., 143 S.W.3d 538 (Tex. App.-Austin 2004, no pet.) (nonmovant failed to respond
or appear at hearing and trial court granted summary judgment, but trial court abused discretion when it denied
motion for new trial because nonmovant established it did not receive notice of motion or hearing).

PRESERVATION OF ERROR REGARDING INSUFFICIENT NOTICE REQUIRED
In a summary judgment proceeding, the nonmovant is entitled to 21-days notice of the hearing or submission.
Tex. R. Civ. P. 166a(c). When the motion is served by certified mail or by facsimile, three additional days are
added to the prescribed period. See Tex. R. Civ. P. 21a. As a result, a nonmovant is entitled to a minimum of 24-
days notice of a hearing or of the submission date if he has been served by certified mail or by facsimile. See
Tex. R. Civ. P. 21a, 166a(c); Lewis v. Blake, 876 S.W.2d 314, 316 (Tex. 1994). The notice provision serves to
provide the nonmovant with a full opportunity to respond to the merits. See Stephens v. Turtle Creek
Apartments, Ltd., 875 S.W.2d 25, 26 (Tex. App.--Houston [14th Dist.] 1994, no writ). Nonetheless, lack of proper
notice of a summary judgment hearing is a non-jurisdictional defect that the nonmovant can waive. See May v.
Nacogdoches Mem'l Hosp., 61 S.W.3d 623, 626 (Tex. App.--Tyler 2001, no pet.); see also White v. Wah, 789 S.
W.2d 312, 319 (Tex. App.--Houston [1st Dist.] 1990, no writ).
Preservation of Complaint Regarding Late Notice To preserve error, a nonmovant, who receives notice that
is untimely but sufficient to enable the nonmovant to attend the summary judgment hearing, must file a motion for
continuance or raise the late-notice complaint in writing, supported by affidavit evidence. May, 61 S.W.3d at 626;
Rios v. Texas Bank, 948 S.W.2d 30, 33 (Tex. App.--Houston [14th Dist.] 1997, no writ). The nonmovant should
also raise the issue before the trial court at the summary judgment hearing. May, 61 S.W.3d at 626; Rios, 948 S.
W.2d at 33.
Motion for New Trial - Too Late A nonmovant may not preserve a complaint that he received late notice in a
post-trial motion. See Nguyen v. Short, How, Frels, & Heitz, P.C., 108 S.W.3d 558, 561 (Tex. App.--Dallas 2003,
pet. denied). A nonmovant may preserve error in a post-trial motion only when he complains that he was not
given notice of the summary judgment hearing or that he was deprived of his right to seek leave to file additional
affidavits or other written response. See id. at 560-61; May, 61 S.W.3d at 626.
Hatler v. Moore Wallace North America, Inc. (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley)
(21 days vs 24 days notice prior to summary judgment hearing depending on method of service;
requirement for preservation of complaint about inadequate notice in the trial court)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Chief Justice Radack, Justices Alcala and Higley
01-07-00181-CV Paul Hatler v. Moore Wallace North America, Inc.
Appeal from 268th District Court of Fort Bend County
Trial Court Judge: Hon. Brady G. Elliott

[elbeto77]

Well it seems that i need to be at the Oral Hearing scheduled for February 28th explaining why i oppose to Citibank continuance of trial. I wonder if the judge will except my request, being that Citibank should have had all documentation gathered and ready before the scheduled court date of March 16th. Any other reasons I could tell the judge that you guys could offer?

[racecar]

you can copy and paste from that pdf-highlight what you want then hit ctrl then c then right click your mouse and hit paste.remember on the top of the pdf look for the mouse pointer click it,next to the hand,then you can highlight.

next the forms-hightlight copy and paste,use their forms against them.
where it says plaintiff you make it say defendant,Interrogatories, Admissions, and Production.This is one of the best pdf's for texas defendants.
Good luck on your case.

http://www.martindale.com/members/Ar...asr-828238.pdf

[BV80]

The rules you posted were regarding a summary judgment hearing. Your upcoming hearing is not for a summary judgment. The 21 day rule may not apply to a hearing for a continuance. It could...I don't know. You need to search your rules some more.

[legaleagle]

Raise the issue that this is a major national bank that accepted billions in bailout money from the taxpayer. Now they seek to sue those taxpayers, but cannot come up with the records needed in a reasonable amount of time. Why? Perhaps it is because Citibank is busy defending thousands of counterclaims connected to their illegal interest rates which are unsupported by the agreements required under South Dakota law. Either way, it isn't your problem, it's theirs. No documents? Dismiss the case today.

[elbeto77]

Originally Posted by legaleagle

Raise the issue that this is a major national bank that accepted billions in bailout money from the taxpayer. Now they seek to sue those taxpayers, but cannot come up with the records needed in a reasonable amount of time. Why? Perhaps it is because Citibank is busy defending thousands of counterclaims connected to their illegal interest rates which are unsupported by the agreements required under South Dakota law. Either way, it isn't your problem, it's theirs. No documents? Dismiss the case today.

I agree with you and these big banks seem to think that double dipping is perfectly ok. I wonder if the judge will be appalled by me making those objection you mentioned, as to why the Plaintiff should not receive more time.

I was think of telling the judge this:

Your Honor,

I object to the motion for continuance of trial on the basis that Plaintiff brought suit on August 26, 2011 and has had sufficient time to produce all documentation needed to move forward with its case. I ask that the motion for continuance be denied, due to Plaintiffs Lack of Preparation and Negligence in preparing for this case.

[elbeto77]

Originally Posted by racecar

you can copy and paste from that pdf-highlight what you want then hit ctrl then c then right click your mouse and hit paste.remember on the top of the pdf look for the mouse pointer click it,next to the hand,then you can highlight.

next the forms-hightlight copy and paste,use their forms against them.
where it says plaintiff you make it say defendant,Interrogatories, Admissions, and Production.This is one of the best pdf's for texas defendants.
Good luck on your case.

http://www.martindale.com/members/Ar...asr-828238.pdf

Thanks

[legaleagle]

Plaintiff is currently in the process of compiling documents for the purpose of filing a Motion for Summary Judgment at least twenty-one days prior to trial.

I think you are on the right track, just stress the fact that they had six months to produce the documents they needed and could not do it. Now they want more time so they can file MSJ against you? What are these documents they are looking for? When are you going to get to see them, if they exist at all? Maybe you should file your own, considering they virtually admitted that they cannot prove their case after six months. Did you ever get a "written agreement" from them in discovery? Not the generic cardholder agreement, either. If not ask for it in discovery. Use that exact term.

[elbeto77]

Originally Posted by legaleagle

Plaintiff is currently in the process of compiling documents for the purpose of filing a Motion for Summary Judgment at least twenty-one days prior to trial.

I think you are on the right track, just stress the fact that they had six months to produce the documents they needed and could not do it. Now they want more time so they can file MSJ against you? What are these documents they are looking for? When are you going to get to see them, if they exist at all? Maybe you should file your own, considering they virtually admitted that they cannot prove their case after six months. Did you ever get a "written agreement" from them in discovery? Not the generic cardholder agreement, either. If not ask for it in discovery. Use that exact term.

I never received a written agreement just a bunch of statements from the time the account was opened until 2011 and a check over the phone image.

[legaleagle]

Send them these, they are tailored for this creditor.


Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

[elbeto77]

Originally Posted by legaleagle

Send them these, they are tailored for this creditor.


Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

Wow, thanks. Am i still able to request documents, even though I have already sent them request for all the other standard requests already and received them within the allotted time?

[legaleagle]

You'll have to look at your rules for discovery to see if there are any restrictions. Most states let you conduct a reasonable amount of discovery. The way they respond to this stuff will be critical. I guarantee you, no jdb lawyer knows anything about this stuff.

[elbeto77]

Originally Posted by legaleagle

You'll have to look at your rules for discovery to see if there are any restrictions. Most states let you conduct a reasonable amount of discovery. The way they respond to this stuff will be critical. I guarantee you, no jdb lawyer knows anything about this stuff.

This is for an OC, so will see how this does with them. I have my big day on Tuesday, so lets see what the judge says when i present my case as to why they should not get extended time.

[legaleagle]

I haven t been able to find anything whether i can file a motion to ask the judge to grant the plaintiff less than 120 days


You object to this, you don't file a separate motion.

[elbeto77]

Originally Posted by legaleagle

I haven t been able to find anything whether i can file a motion to ask the judge to grant the plaintiff less than 120 days


You object to this, you don't file a separate motion.

I will request this tomorrow at the oral hearing. Also the Plaintiff's attorney field a Motion for Summary Judgment, since i did not respond to the Discovery in the required time frame.

II.
ARGUMENT AND LEGAL AUTHORITIES

Admitted admissions:

When Plaintiff field its Original Petition, it was accompanied by Request for Admissions which were served with the citation September 21, 2011. Defendant did not respond to this discovery within the required time period. Defendant has admitted the following:

15. Admit or deny that you are not a member of any military service with assignments or orders that would give you a right to delay under the law.

[legaleagle]

Discovery issues usually defeat a MSJ. Just say you didn't receive it if that is the case, or say you responded if that is the case. Usually you'll get some time to fix this. They should have sent you a meet and confer letter followed by a motion to compel if you did not respond to the letter. Did they do this? If not, they violated court rules. If they did and you ignored it, you have a problem. You represent yourself, so you are held to the same standards as a lawyer.

[elbeto77]

Originally Posted by legaleagle

Discovery issues usually defeat a MSJ. Just say you didn't receive it if that is the case, or say you responded if that is the case. Usually you'll get some time to fix this. They should have sent you a meet and confer letter followed by a motion to compel if you did not respond to the letter. Did they do this? If not, they violated court rules. If they did and you ignored it, you have a problem. You represent yourself, so you are held to the same standards as a lawyer.

I did receive it, but responded a few days late within the allotted time. I have not received a meet or confer letter at all The judge granted them the extension they requested and she told me to get an Attorney and respond to the summary judgment they sent me, since it needs to be filed within 7 days of receiving it. I am just overwhelmed with this whole process and feel that these a holes are backed by the courts in their efforts.

[Oarman1954]

So what was the outcome?