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Notice of Submission Request on Plaintiff's Motion got Summary Judgment


legalqs
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Hi, all!

I am new here but have been reading a lot of the informative postings! I have questions of my own, too. So, let me first explain my situation. I am being sued by Citibank (seemingly represented by Allen L. Adkins in Lubbock, TX) over credit card debt. I am working with a debt settlement outfit, and have been researching much information online, as I think I am now close to hiring a local attorney to 'clean up' the lawsuit cases that do not seem to want to settle. I am in Texas.

So, after my initial denial answer to the debt (filed with County Clerk and Adkins, and requesting proof of the debt, and the interest), and a court date being set for March, 2010, they have now made a motion for Summary Judgment. As 'evidence,' they have submitted copies of credit card statements going back to 2001 (the account is years older than this) with beginning statement balance of ~$1,800. And, they have included an affidavit of a Recovery Operations Support Representative, who obviously did not actually witness any signature, or any other matter in creation of the account. Further, they just included an account agreement from 2007!

Thus, the document makes an 'Account Stated Argument and Authorities,' with 3 points: A) Account Stated Elements, B) Plaintiff's Summary Judgment Evidence Proves Each Element of Plaintiff's Account Stated Claim, and C) Burden of Proof Shifts to the Defendant.

As possible responses, I have considered requesting the original signed contract, additional terms throughout the life of the account, express need for live testimony from person who signed affidavit and her supervisor to personally attest to witnessing the creation of the account (for obvious reasons), authenticating data contained in all the statements, and provide specific proof on exactly what reference sources were used for each instance of interest rate charged (I found this to be particularly effective in 14th Court of Appeals No. 14-04-01131-CV Hay vs. Citibank).

So, opinions and advice? (Please!)

Thanks in advance!!!

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Well..... you have your work cut out for you. I'm thinking Motion to strike, strike, strike. Did you file a discovery? I'm wondering how they can submit all this evidence without you having an opportunity to review the evidence being used against you. I would check your civil rules on that. Seems highly improper.

Also you need to file your opposing motion. It will take a lot of work. thats the best advice I can give you. Perhaps someone with more experience in Texas can give some better advice.

I found this while doing a search for info. It was written by an Texas lawyer so it's has case law and arguments you can use in Texas. It might give you some idea of how to argue your motion.

Here is the link:

http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf

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You need to review the Texas Rules of Civil Procedure. You are going to have to file an affidavit creating an issue of material fact.

A lot of motions are heard on submission in Texas.

The validity of a Motion to Strike the affidavit depends on what statements are made in the affidavit.

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I thought you would object to the MSJ and prepare your support brief. You would write in your brief your supporting information. In your brief you could request that the affidavit be stricken as hearsay because they have not been employed by the OC and don’t have “Personal Knowledge” of account. I would also look at assignment. Also did they schedule a hearing for the MSJ?

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  • 7 months later...
Legalqs,

What happened in your situation? My hearing is in August. I just spoke with my attorney yesterday and he told me to try to settle. I'm scared. Can you please help?

It would help if you could tell more about your situation. It might be good that you have an attorney and then on the other hand . . . sometimes they don't give the best advice! smilie4.gif

It never hurts to get more than one opinion and try and not be afraid. Talking about it and knowing what to expect can help settle your nerves and know that you're among friends! BTW, welcome to the forum! :)++

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Thanks, Linda.

Actually, I am being sued by CitiCards and I have an attorney. They filed for a motion summary of judgment. My attorney wants to settle, and I am willing to do so. I am now married and afraid they may go after my hubby too. I live in Texas and his name is only on the house, not mine. I have no property, but we do have a joint account. Texas is not a garnishing state, so they can't garnish my wages, but they can freeze my account? If they do this, how will I live? Will they take all my money? I'm so scared.

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