Wednesday, July 31, 2013

Deemed Admissions - How it happens and what can be done about them


REQUEST FOR ADMISSION & DEEMED ADMISSIONS 

Deemed admissions are one of the traps for the unwary; -- traps for those innocent of knowledge about how the rules of discovery and procedure operate.-- > Self-represented litigants.

Deemed admissions are different from admissions in the normal sense of the word. An admission ordinarily is a statement, either verbal or written, in which the person making it concedes that an allegation by the opponent is true. Such admissions can be made in a lawsuit, either as formal judicial admissions or as stipulations. Deemed admissions, by contrast, are not deliberate, but result from default.  All the defendant has to do to create a deemed admissions problem is do nothing, -- do nothing after having been served with requests for admissions, that is.

REQUESTS FOR ADMISSIONS AND THE HARSH CONSEQUENCES OF FAILING TO RESPOND

Requests for admissions are one of the tools of written discovery (-- > paper discovery). Their official justification is to allow the parties to narrow the issues in the litigation, and the burdens of proof associated with them, by eliminating those on which there is no real disagreement and those issues that are not really worth fighting over.

Requests for admissions come in sets of affirmative statements that are to be either admitted or denied. A space is often provided next to or below each enumerated request for admissions for such responses, or both words (ADMITTED and DENIED) are printed after each statement, and the person answering is to check or circle the applicable one. Unlike interrogatories, the responses do not have to be sworn to.

Requests for admissions may be served with the original petition or separately at a later time. If they are served separately, the Defendant has 30 days to respond (and three additional days if the requests were delivered by mail). If they are served with the citation and original petition, the defendant has an additional 20 days to respond, for a total of 50 (to respond to the requests for admissions, not the lawsuit itself).

The failure to meet the applicable deadline automatically results in the statements that the plaintiff requested be admitted (or denied) being considered admitted without any “yes” or “no”; “true” or “false”; or “admitted” or “denied”.  The defendant is “deemed” to have admitted everything by not affirmatively denying the statements by written response before the deadline. No court order is needed for this to happen. Deemed admissions are triggered automatically.

Deemed admissions have draconian consequences because the Plaintiff can use them as a substitute for actual proof to support its case. Assuming the admissions were properly phrased and cover all elements on which the Plaintiff has the burden of proof, the admissions alone are sufficient to support a motion for summary judgment or one for default judgment (which the Plaintiff's attorney may file in lieu of an MSJ if the Defendant never filed an answer to the lawsuit either). If the Plaintiff does not file either type of dispositive motion, it can still use the deemed admissions at trial too, -- either in lieu of evidence, or to supplement whatever other evidence it can marshal. The typical evidence at trial consists of cardmember agreement and account statements filed under business records affidavit; and -- in the case of debt suits by assignees of the original creditor - proof of transfer of title, typically a bill of sale, or several such bills.

Rule 198.1 Requests for Admissions (click to enlarge image of rule text)
Rule governing Requests for Admission - Deemed Admissions - Withdrawal and Amendment

HOW TO FIX A DEEMED ADMISSIONS PROBLEM:  MOTION TO STRIKE OR “UN-DEEM” AS A REMEDY

A deemed admissions problem is not necessarily fatal because the party that ends up with such admissions by operation of the rule may file a motion to have the deemed admissions struck or withdrawn. In a case decided a few years ago the Texas Supreme Court, actually set the applicable standard pretty low, meaning that the excuse for failing to answer the requests for admissions in time does not have to be a very good one. The Supreme Court reasoned that cases should be decided on the merits, and on the strength of the evidence, not merely because of an oversight by one of the parties. -- > Nonmerits adjudication.

Missing the deadline to respond will thus likely be considered an excusable mistake, but the problem can only be fixed if a proper motion is filed, heard, and granted.  If that does not happen, a final judgment can be based on deemed admissions even if the Plaintiff does not have good evidence and would otherwise lose. With deemed admissions, the creditor or debt buyer can still prevail because it can use the deemed admissions as a substitute for missing proof or for inadmissible or otherwise defective evidence.

Assuming they even realize the consequences of not having responded to requests for admission, unrepresented defendants typically do not know how to go about fixing the problem. That is yet another juncture in a debt suit where the benefits of legal representation come in.  If the debtor hires counsel in time, the deemed admissions can likely be dealt with. If no not motion to undeem is filed, the available remedy will be waived, and the courts of appeals will almost certainly affirm the judgment even if a defendant manages to find an attorney to handle the appeal (unless there is another serious problem that provides a basis for a viable appeal).  Also see -- > failure to preserve error in the trial court; -- > frequent errors in appeals.

AFFIRMATIVE DEFENSES AND DEEMED ADMISSIONS

Deemed admissions may or may not neutralize affirmative defenses. It depends whether the requests for admission were directed at the elements of the affirmative defense, or elicited an admission that the defendant did not have any evidence to support those elements or a particular defense, such as limitations. A specific admission may also prove fatal because it negates an essential element of an affirmative defense, such as an admission that the last payment on the account was made less than four yours before the lawsuit was filed.

THE PURPOSES OF REQUESTS FOR ADMISSIONS AND THEIR MISUSE TO SUBVERT ADJUDICATION ON THE MERITS (caselaw clip)



DEEMED ADMISSIONS: AMPLIFICATION AND ADDITIONAL TOPICS 

The Deemed Admissions Rule
Are Deemed Admissions a valid substitute for evidence?
Motion for summary judgment based on deemed admissions
Motion to strike or un-deem Deemed Admissions
Disputing a claim of deemed admission on the ground that deemed admissions don't exist

OTHER OPTIONS TO DEAL WITH DEEMED ADMISSIONS

When the deemed admissions do not cover all the bases (i.e. all essential elements on which the plaintiff has the burden of proof.)
When deemed admissions contradict each other, or create a conflict with other evidence
Disputing the existence of deemed admissions by raising an issue as to service and proof of non-receipt
Escaping the effects of deemed admissions by invoking the right to arbitrate (if the underlying contract provides for arbitration)
Challenging deemed admissions based on requests for admission embedded

Plaintiffs can avoid the effect of deemed admissions against them by nonsuiting the pending action


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