Jump to content

Citibank's motion for continuance of trial


elbeto77
 Share

Recommended Posts

OK, so the Citibank (Plaintiff) & Allen Adkins their (Attorney) set a non-jury trial for next month and I now have received a copy of a motion letter submitted to the courts requesting Plaintiff's motion for continuance of trial. Here is what the document states below.

CITIBANK, N.A.

vs.

Me

Plaintiff's Motion For Continuance Of Trial

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW, CITIBANK, Plaintiff, and files this motion for Continuance of Trial which is currently scheduled for March 6, 2012, and would respectfully show the Court as follows:

1. This is the first request for continuance in this case

2. 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.

3. This cause of action was filed on or about August 19, 2011.

4. This case involves a suit to recover a credit card debt. Plaintiff's counsel believes this matter may be resolved through settlement or summary judgment.

5. The parties have not made an unconditional announcement of ready. Additional discovery may be necessary.

6. In light of the foregoing, Plaintiff's counsel respectfully request that this Court continue the trial which is currently scheduled on March 6, 2012 for at least 120 days. This Motion for Continuance of Trial is not being sought for delay only, but so that justice may be done.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that this Motion for Continuance of Trial be granted.

CERTIFICATE OF CONFERENCE

I have been unsuccessful in my attempts to discuss this matter with the Defendant/Defendants counsel as said Defendant/Defendants counsel has not returned my telephone calls.

NOTICE OF ORAL HEARING ON PLAINTIFF'S MOTION FOR CONTINUANCE OF TRIAL.

TO: Defendant, Me, 12345 Somewhere, City State 77041

Please take notice that an Oral Hearing on Plaintiff's Motion for Continuance of Trial is scheduled for Tuesday, February 28, 2012 at 11:00 A.M., IN THE COURTROOM OF THE COUNTY COURT AT LAW NO. 4 OF HARRIS County, Texas.

So my questions are:

Why is the Plaintiff and their Attorney setting court dates, if they don't even have all the necessary documents to proceed with the suit?

Can i file a motion to have the judge dismiss this suit, since they are trying to delay the trial?

Link to comment
Share on other sites

This means that they don't have what they need. You may not be able to block the continuance totally. If you can't, you might want to see if you can get it significantly reduced. 120 days to get documents that they should have had at or not long after the time they filed is totally absurd.

Link to comment
Share on other sites

Well they sent me statements from when the account was opened until Feb-March 2011 statement and have also submitted a copy of a check image. What more could they need to gather to prove their case?

As for the oral hearing is set for Feb 28,2012, do i need to be present, and if so, can I object to the motion that they are requesting extension?

Link to comment
Share on other sites

Figure that they'll probably get the continuance because its their first one. When they asked for one with me, we were on a much tighter time schedule and they never would have gotten a 120 day continuance, but they might have gotten a 30 day continuance. I figured they were going to get one, so I rather firmly told them 10 days. If you can't stop it, you might be able to at least control it.

Link to comment
Share on other sites

allocation of judicial resources than summary judgment. As this is a contested matter, trial with questioning of witnesses(which they don't have) is fairer for both parties than a summary judgment proceeding.

Then you gut the continuance with reasons trial is mandatory. For instance you can say that plaintiff's have not been diligent in the prosecution of the case and have had ample time to bring pre trial motions. A trial with questioning of witnesses is preffered to hearsay declarations and will be a waste when their are found to be issues for trial.

As you are unrepresented a summary proceeding would allow them to use the summary proceeding to test their case before voluntary dismissal and would cause undue burden to you for having to prepare for SJ motion and then complying with all the pre trial necessities for trial.

and announce that you are ready for trial on the day of the Continuance motion and require a list of witnesses.

check the texas statutes for declarations and witness lists and every other pretrial motion including Motions in limine, subpoena of a witness. and get that ready.

If they do want to grant the motion, in the alternative have the discovery cutoff date remain the same.

These are some things you can do and it will seem like they are dragging azz. You can also show that they don't need SJ if they have a case for trial.

Link to comment
Share on other sites

Law Office of Tom M. Thomas II

4144 N. Central Expressway, Suite 870

Dallas, TX 75204

Se Habla Español Tel: 214-691-6200

Fax: 214-691-6205

Toll Free: 1-855-898-DEBT (3328)

info@creditcardlawsuitdefense.com

Allen L. Adkins & Associates PC

The Law Office of Allen L. Adkins, P.C. is located in Lubbock, TX. If you are involved in an Allen L. Adkins lawsuit, there’s a good chance that you’ve been sued for a credit card debt that is somehow related to Citibank (South Dakota), N.A., since this law office is Citibank’s primary Texas debt collection law firm. In addition to credit card debt, this law firm has also been known to collect defaulted auto loans, business loans, personal credit union loans, department store loans, revolving lines of personal credit, mortgage loans, and student loans. Mr. Allen Adkins’ debt collection practice covers the entire state of Texas and takes one of the more aggressive approaches to prosecuting credit card lawsuits.

Allen L. Adkins lawsuits almost always contain a considerable amount of written discovery, including the Plaintiff’s First Set of Requests for Admissions, Plaintiff’s Request for Disclosure, Plaintiff’s First Set of Interrogatories, and Plaintiff’s First Set of Request for Production. Including discovery within the collection lawsuit is a common debt collection litigation technique that also has the effect of laying an incredibly explosive and dangerous landmine right in front of your feet - if the discovery is not timely and properly responded to or objected to, all objections are waived and you could be sanctioned by the Court (i.e. fined or worse) for failing to respond. Worse yet, all Requests for Admissions are “deemed admitted” and can be used against you at trial or in a summary judgment proceeding (like a trial based on documents alone). There are many Citibank lawsuits in Texas that were lost by consumers who timely answered the lawsuit, but who failed to respond to Citibank’s written discovery requests, thinking that the lawsuit answer was all that was required. I see this situation time and time again, almost on a daily basis.

Also keep in mind that the internet is saturated with misinformation and bad advice. Contrary to what you might have read about this lawyer and his practice, Allen Adkins files Citibank Original Creditor cases – he does not buy bad debts and Citibank cases are not defined as Debt Buyer cases. Don’t ignore an Allen Adkins/Citibank lawsuit because of something you have read elsewhere on the internet. If you do, you are likely to end up with a judgment against you.

If you have been sued by Allen Adkins for a Citibank or other credit card debt, I would be happy to visit with you about defending your case. There is no consultation fee.

Link to comment
Share on other sites

Summary judgment is more efficient than a trial, in my opinion. The purpose of MSJ is to show the court that there is no material fact in dispute, and that there is no reason to waste court time with a trial that will only lead to the same conclusion. If they have a day one statement history and a cancelled check with the poster's name on it establishing payment, and they can show that there was no dispute of the account, they have a really good case for account stated. I have no clue as to what he can raise as a viable issue in the face of that much evidence.

Link to comment
Share on other sites

Check image,Is that a copy of the check you used that you signed,or is it a check that is blank but has your name typed in that does not look like the checks the banks send.does the check have an account number and your name and address.Just checking to see if its not fake evidence made by the other side. Did affiant swear that the image is a true and correct copy of the check?

Edited by racecar
Link to comment
Share on other sites

So i take it that the plaintiff is trying to submit a Motion for Summary Judgement, due to the evidence they have and obviously believe that by doing so the court will grant it?

2. 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.

Link to comment
Share on other sites

I think its a bluff,that type of check would mean nothing,other than its some type of over the phone check thing they made to scare you in to settling with them. Can you object to their request for 120 days.Can you file no-evidence motion for summary judgment so that justice may be done.Statements from when the account was opened until Feb-March 2011 are nothing more then statements.Study up and get your case dismissed.You can do it many others have.

https://docs.google.com/viewer?a=v&q=cache:1UiopHtbybYJ:www.tex-app.org/articles/57986_01.pdf+&hl=en&gl=us&pid=bl&srcid=ADGEESgGiPwUIf4GhpIgKiqdYEqKS-IzE-BWmCYuLEppHHLRRc9WrmScrH5gc-PiTWXuYjGBNdanW8xFDkuPAvE-vR_S7GkNMNobmazOWjWEMw-4wtUF5BKmW77-hjnybv_Jdn7kzTD2&sig=AHIEtbR368T--YTS2GPko6PB-gJQtZLIkg

In considering a no-evidence motion for summary

judgment, the evidence is reviewed in a light most

favorable to the non-movant, disregarding all contrary

evidence and inferences. Id. at 751. A no-evidence

summary judgment is appropriate when:

(a) there is a complete absence of evidence of a

vital fact;

(B) the court is barred by rules of law or of

evidence from giving weight to the only

evidence offered to prove a vital fact;

© the evidence offered to prove a vital fact is

no more than a mere scintilla; or

(d) the evidence conclusively establishes the

opposite of the vital fact.

Id. As the party with the burden at trial, the non-

movant has the burden of providing evidence sufficient

to create a material fact on issue challenged by the

motion. Marsaglia v. University of Texas, El Paso, 22

S.W.3d 1, (Tex. App.—El Paso 1999, pet. denied). A

no-evidence summary judgment motion should not be

granted if the non-movant submits more than a scintilla

of probative evidence to raise a genuine issue of

material fact as to the element challenged. King

Ranch, Inc., 118 S.W.3d at 751.

The non-movant satisfies its burden if it submits

probative evidence that rises to a level that would

allow reasonable and fair-minded people to differ in

their conclusion. Id. The burden is not met if the

evidence is so weak that it creates no more than “mere

surmise or suspicion” of a fact. Id.

Edited by racecar
Link to comment
Share on other sites

I think its a bluff,that type of check would mean nothing,other than its some type of over the phone check thing they made to scare you in to settling with them. Can you object to their request for 120 days.Can you file no-evidence motion for summary judgment so that justice may be done.Statements from when the account was opened until Feb-March 2011 are nothing more then statements.Study up and get your case dismissed.You can do it many others have.

https://docs.google.com/viewer?a=v&q=cache:1UiopHtbybYJ:www.tex-app.org/articles/57986_01.pdf+&hl=en&gl=us&pid=bl&srcid=ADGEESgGiPwUIf4GhpIgKiqdYEqKS-IzE-BWmCYuLEppHHLRRc9WrmScrH5gc-PiTWXuYjGBNdanW8xFDkuPAvE-vR_S7GkNMNobmazOWjWEMw-4wtUF5BKmW77-hjnybv_Jdn7kzTD2&sig=AHIEtbR368T--YTS2GPko6PB-gJQtZLIkg

In considering a no-evidence motion for summary

judgment, the evidence is reviewed in a light most

favorable to the non-movant, disregarding all contrary

evidence and inferences. Id. at 751. A no-evidence

summary judgment is appropriate when:

(a) there is a complete absence of evidence of a

vital fact;

(B) the court is barred by rules of law or of

evidence from giving weight to the only

evidence offered to prove a vital fact;

© the evidence offered to prove a vital fact is

no more than a mere scintilla; or

(d) the evidence conclusively establishes the

opposite of the vital fact.

Id. As the party with the burden at trial, the non-

movant has the burden of providing evidence sufficient

to create a material fact on issue challenged by the

motion. Marsaglia v. University of Texas, El Paso, 22

S.W.3d 1, (Tex. App.—El Paso 1999, pet. denied). A

no-evidence summary judgment motion should not be

granted if the non-movant submits more than a scintilla

of probative evidence to raise a genuine issue of

material fact as to the element challenged. King

Ranch, Inc., 118 S.W.3d at 751.

The non-movant satisfies its burden if it submits

probative evidence that rises to a level that would

allow reasonable and fair-minded people to differ in

their conclusion. Id. The burden is not met if the

evidence is so weak that it creates no more than “mere

surmise or suspicion” of a fact. Id.

It just seems fishy to me that they are pleading for a motion to extended the court date out 120 days and that they are preparing documents for a summary judgment. I would think that they would have their ducks in a row and proceed with the date they have scheduled.

Can you object to their request for 120 days? I will check with the courts or do research, since this is all new to me. If anyone out there knows please feel free to chime in

Can you file no-evidence motion for summary judgment so that justice may be done. I will also look into this as well.

Thanks for the link!:)

Link to comment
Share on other sites

A no-evidence summary judgment motion under Rule 166a(i) is essentially a motion for a

pretrial directed verdict; it requires the nonmoving party to present evidence raising a genuine

issue of material fact supporting each element contested in the motion. Tex. R. Civ. P. 166a(i);

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006).

STANDARD OF REVIEW ON APPEAL. When reviewing a no-evidence summary judgment,

we “review the evidence presented by the motion and response in the light most favorable to the

party against whom the summary judgment was rendered, crediting evidence favorable to that

party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not.” Mack Trucks, 206 S.W.3d at 582 (citing City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)).

MUST STATE ON WHICH ELEMENT THERE IS NO EVIDENCE. It is well settled that a trial

court cannot grant a summary judgment motion on grounds not presented in the motion. Brewer

& Pritchard, P.C., 73 S.W.3d at 204; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912

(Tex. 1997). Our no-evidence summary judgment rule similarly requires that the moving party

identify the grounds for the motion:

After adequate time for discovery, a party without presenting summary judgment evidence may

move for summary judgment on the ground that there is no evidence of one or more essential

elements of a claim or defense on which an adverse party would have the burden of proof at trial.

The motion must state the elements as to which there is no evidence. The court must

grant the motion unless the respondent produces summary judgment evidence raising a

genuine issue of material fact. Tex. R. Civ. P. 166a(i). We have further explained that “[t]he

motion must be specific in challenging the evidentiary support for an element of a claim or

defense; paragraph (i) does not authorize conclusory motions or general no-evidence

challenges to an opponent’s case.” Id. at Comment–1997.

RATIONALE FOR REQUIREMENT THAT GROUND / ELEMENT BE STATED.

The underlying purpose of this requirement “is to provide the opposing party with adequate

information for opposing the motion, and to define the issues for the purpose of summary

judgment.” Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex. 1978). We have

analogized this purpose to that of the “fair notice” pleading requirements of Rules 45(B) and

47(a). Id. at 772-73; see also Tex. R. Civ. P. 45(B) (requiring a party’s pleadings to give “fair

notice” to the opponent); Tex. R. Civ. P. 47(a) (requiring a plaintiff’s pleadings to give “fair

notice of the claim involved”).

Link to comment
Share on other sites

They simply stated that they needed more time to get the documents ready for a summary judgment. So i don't understand what the move and doesn't the State of Texas requires that you state why you are needing to

1. General Requirements

A motion for summary judgment must rest on the grounds expressly

presented in the motion.11 Unless a claim or affirmative defense is

specifically addressed in the motion for summary judgment, a court cannot

grant summary judgment on it.12 The motion must state, with specificity,

the grounds upon which the movant is relying.13 The rationale for this

requirement is to force the movant to define the issues and give the

nonmovant adequate notice for opposing the motion.

Link to comment
Share on other sites

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 and if i should file a motion to have the judge dismiss, since they filed last year in August. I would think that if you bring suite on someone you should have all paper work ready before the trial. Any help would be appreciated.

Link to comment
Share on other sites

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.

Link to comment
Share on other sites

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.

Link to comment
Share on other sites

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©. 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©. 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©; 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

Link to comment
Share on other sites

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?

Link to comment
Share on other sites

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/Article_Atachment.aspx?od=1306405&id=828198&filename=asr-828238.pdf

Edited by racecar
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.