Denying requests for admissions (RFAs) vs. failing to answer them altogether: What are the consequences?

DEEMED ADMISSIONS CAN BE USED AS EVIDENCE 

BUT NOT EXPRESS DENIALS OF REQUESTED ADMISSIONS 

In Medina v. Zuniga, the Texas Supreme Court recently reversed sanctions imposed on a defendant for having failed to admit matters addressing liability in response to spate of requests for admissions (RFAs) served at the inception of the law suit, where the defendant later stipulated to having been at fault, and only contested gross negligence at trial.* The case is a fact-intensive personal injury case arising from a vehicle-pedestrian collision and has nothing to do with debt collection.

* See TEX. CIV. PRAC. & REM. CODE § 41.001(11) (defining gross negligence as an act or omission that (1) objectively “involves an extreme degree of risk” and (2) the actor proceeds to perform “with conscious indifference” despite an “actual, subjective awareness of the risk”).

"REQUESTS FOR ADMISSIONS ARE NO METHOD FOR TRYING THE MERITS"

Medina v. Zuniga, No. 17-0498 (Tex. Apr. 26, 2019)
(sanctions for failure to admit requests for admissions reversed) 

That said, REQUESTS FOR ADMISSIONS are routinely served on defendants in consumer debt collection cases by certain debt collection attorneys for certain creditors, and they are designed to be merit-preclusive if they are not denied, meaning that the creditor can then rely on deemed admission to get a judgment.

DENY, DENY, DENY 

The received wisdom among consumer debt defense attorneys is that RFAs can be safely denied as a routine defensive litigation practice, lest they be used as substitutes for evidence supporting the debt claim.

The Texas Supreme Court's opinion in Medina v. Zuniga supports the proposition that an arguably insincere denial does not amount to sanctionable conduct because a defendant should be able to hold the plaintiff to its burden of proof, and should not be forced to either concede liability (by answering "Admitted" to RFAs that go to the merits) or face risk sanctions for answering "Denied".

Note that the Texas Supreme Court's most recent holding on the matter is also in line with rule 92 of the Texas Rules of Civil Procedure, which authorizes a blanket "general denial" rather than requiring a defendant to set forth a response denying or admitting each allegation in the plaintiff's petition one by one. (Some affirmative defenses, however, require a verified denial, and some conditions precedent, if applicable, require a specific denial, rather than merely an all-purpose general one). 

DEEMED ADMISSIONS 

The problem with ignoring requests for admissions, by contrast, is a more serious one. If RFAs are not answered, the propositions requested to be admitted are deemed true without any need for other proof. If a battery of deemed admissions covers the essential elements of the plaintiff's claims, they relieve the plaintiff of the burden to prove the claim with competent evidence on the merits. In many debt collection cases, courts have upheld summary judgments granted based entirely, or in part, on deemed admissions, even on issues such as standing to sue and amount of attorney's fees sought by the creditor's attorney.

BEWARE OF RFAs SERVED TOGETHER WITH SUIT PAPERS, OR EMBEDDED IN THE PETITION 

Some collection law firms routinely serve a REQUEST FOR ADMISSIONS together with the CITATION and the ORIGINAL PETITION, and then rely on the executed RETURN OF CITATION (or alternative proof of service, such as a sworn declaration by a private process server) to establish that the RFAs were served on the same date the citation was served, and that the requests are deemed admitted because they went unanswered within the 50 days that followed.

This practice can create a problem for defendants even in cases where the defendant promptly hires an attorney to answer the freshly-filed collection lawsuit in response to a debt-defense attorney's solicitation letter.

If the suit papers (citation, petition, and requests for admission, which are sometimes included in the petition itself rather than appearing on a separate document) are still in the hands of the process server, it is possible that the defendant may get served in person after her attorney has already filed an original answer. The defendant may end up ignoring the requests for admission, trusting the attorney to take care of everything. But the attorney will then likely fail to answer (deny) the RFAs by the due date if his office is unaware that the client has been served with requests for admissions in the interim, together with the citation. The Defendant's answer to the law suit will preclude a default judgment, but the creditor could still use deemed admissions to support a motion for summary judgment, or raise the matter of deemed admissions at trial.

All may not be lost, because the attorney can still file a MOTION TO STRIKE DEEMED ADMISSIONS (sometimes called a motion to un-deem), but there is no guarantee that the trial court will grant it. And a deemed admissions problem must, of course, be detected in time to take proper remedial action. When deemed admissions are brought up at trial, it may be too late.

More on requests for admissions and deemed admissions:
 -->  Dealing with a deemed admissions problem in a  consumer debt collection case |  Labeau v. GE Capital Retail Bank: Deemed admissions used against bank customer | Disputing the existence of deemed admissions |

Disputing the Existence of Deemed Admissions

Facing alleged deemed admissions, and disputing them   

This post discusses fact issues relating to the existence of deemed admissions, and related defense strategies, which are procedural and evidentiary in nature. Separate blog posts address, or will address, other defensive strategies:  (1) A motion to strike or un-deem, which is appropriate in a situation when the existence of deemed admissions cannot be in good faith denied; and (2) a challenge to deemed admissions on the grounds of legal sufficiency (or rather insufficiency) when the plaintiff offers no other evidence, or the other evidence is either not sufficient to entitle the plaintiff to judgment, or not admissible. The latter strategy may even be invoked post-judgment and/or on appeal.

THE DEEMED ADMISSIONS RULE 

Rule 198.1 of the Texas Rules of Civil Procedure entitles a litigant to serve requests for admissions on another party. Tex. R. Civ. P. 198.1. Depending upon the time they are served, the party to whom they are addressed has thirty or fifty days to respond to them. Tex. R. Civ. P. 198.2(a). Should the receiving party's response be untimely or nonexistent, each request is deemed admitted without the necessity of a court order. Id. at 198.2(c).

Texas Rule governing Requests for Admission (RFA) and Deemed Admissions
(click on image to enlarge)

DISPUTING THE EXISTENCE OF DEEMED ADMISSIONS

Parties may use deemed admissions as a substitute for evidence, either for summary judgment purposes, or at trial. While the rule states that no court order is required for deemed admissions to arise under the rules governing requests for admissions, the proponent of deemed admissions must nevertheless establish that deemed admissions even exist in order to take advantage of them.

Such proof has two components: Proof of service on a specific date, and proof of non-response before the date responses were due, based on the date of service.

When facing a motion for summary judgment based on deemed admissions, a defendant may have several options, depending on the circumstances: (1) filing evidence of non-receipt in the form of an affidavit, and thereby rebutting any presumption of receipt; (2) pointing to lack of anything giving rise to a presumption of receipt in the first instance; (3) pointing to absence of a certificate of discovery mentioning service of a request for admissions, or failing to show the date of such service (combined with the absence of evidence of service).

At trial, the defendant may testify about non-receipt, but if he or she is represented by counsel, the client's testimony about non-receipt would carry (even) less weight because any request would have been served upon his or her attorney of record pursuant to Rule 8. The best evidence of non-receipt may be an returned envelope bearing notation or rubber stamp to the effect that delivery was attempted but not successful. That evidence, of course, would be in the possession of the attorney or law firm that tried to serve the requests and may then be trying to rely on deemed admissions.

Were the requests for admissions served? ... and if so, when? 

In order to rely on deemed admissions in lieu of evidence, the proponent must  establish that the requests for admissions were served in compliance with the rules of civil procedure.  Such a showing can be made with with a certificate of discovery and a certificate of service appended to the requests for admissions.

The difference between the two is that a certificate of service is to be filed with the court, while discovery requests themselves are not supposed to be filed with the court. Therefore, if the proponent wishes to rely on the latter, it must attach a copy of the certificate of service that certifies that the RFAs were properly served upon the defendant or his/her attorney of record on such and such date. The date is essential because it controls the deadline to respond.

Unless the request for admissions itself is already on file with the court (a practice the rules do not condone), the proponent will also have to submit a copy of the requests. Otherwise, the court would not know what propositions the other party admitted by failing to respond. Even if deemed admissions exist, the nature of the admissions must be such as to establish the essential elements of the Plaintiff's claims (or the Defendant's affirmative defense, should the defendant wish to use deemed admissions against the Plaintiff.) Therefore, the existence of deemed admissions does not necessarily guarantee that the party in whose favor they operate will win.

The presumption of receipt is rebuttable, assuming it even arises in the first instance  

Service in conformity with Rule 21a, as certified by means of a certificate of service, creates a presumption of receipt.

Rule 21a of the Tex R. Civ. P. provides for several methods of service.
Regular first class mail is not one of them. Certified mail is.

A certificate by a party or attorney of record is prima facie evidence of the fact of service. Accordingly, rule 21a creates a presumption that documents mailed as provided in the rule were received by the addressee.
However, the opposing party may rebut that presumption by offering proof that the document was not received. The rule expressly provides for this situation by stating that "[n]othing herein shall preclude any party from offering proof that the notice or instrument was not received".

But there is twist: Even when a party does not receive actual notice of requests for admissions, where the serving party has complied with the requirements of rule 21a, "constructive notice" may be established if the serving party presents evidence "that the intended recipient engaged in instances of selective acceptance or refusal of certified mail relating to the case." To take advantage of the exception, the proponent of deemed admissions must adduce additional extrinsic evidence to establish that the defendant was dodging service of the discovery requests.

Is there evidence of non-response? And if so, is such evidence competent? 

Deemed admissions arise automatically if the party to whom they are directed does not respond. Therefore, in order to used deemed admissions in lieu of evidence, the proponent must not only establish fact and date of service, but also of non-response by the other party before the deadline.

That proof requirement is most easily met with a response that affirmatively reflects its untimeliness. If the other party never responded at all, however, the proof requirement is more difficult because the absence of a response could have been caused by other reasons, such as mail having been lost by the post office (probably a dubious claim in most cases given that the rules require certified or registered, rather than regular mail) or the response having been lost or misplaced, or misfiled, in the law office handling the plaintiff's case. Debt collection attorneys typically work in (or for) high-volume law offices, so a certain error rate in processing mail can be expected. Additionally, because of the high volume, it is likely that no one person will handle all incoming mail, with the effect that no one person will know what happened to any one particular piece of mail or a particular fax.  

Unless the court is satisfied that the absence of a certificate of service certifying service of responses to request of admissions is sufficient, the proponent of deemed admissions will have to present sworn testimony as to nonreceipt. For summary judgment purposes, this would be in the form of an affidavit; on occasion of a trial, it would have to be through live testimony, or an affidavit to which the Defendant does not object on hearsay or other grounds.

A plaintiff's attempt to establish nonreceipt is typically subject to challenge on the grounds that the witness/affiant does not have or would not have personal knowledge. For summary judgment purposes, the affiant would have to establish non-receipt based on routine business duty to process and record incoming mail. The attorney of record will hardly be the one to process mail pertaining to hundreds, if not thousands, of pending case and will arguably not be in a position to establish the fact of nonresponse based on absence of a response in the files of the lawfirm that handles litigation for the bank of debt buyer. Additionally, attorney testimony is frowned upon because attorneys are not supposed to appear as witnesses, at least not on substantive matters other than reasonableness and necessity of attorney's fees.

As for establishing non-receipt at trial, it is normally not practical to have a legal secretary, mail processor, file clerk or law firm staffer appear as a witness; and in many cases it is not even practical for the attorney of record to whom all documents are to be mailed under Rule 8) to try the case.

Rule 8 of the TRCP requires that  motions and discovery be directed
 to the attorney of record of a represented party.

Many big debt collection lawfirms use an attorney other than the one that signed the first pleading or even a local appearance attorneys. An attorney who merely handles the trial portion of a case would not be in a position to know that a discovery response was not received (not to mention, never served) merely because she does not actually have the document in her briefcase, or in the on-line folder made available for her use on the law firm's secure website or cloud storage facility. The trial court judge may or may not believe her representation about what was served and received, or not received, but statements of attorneys and argument in court are not generally not admissible evidence, and are accordingly objectionable.

OTHER DEEMED ADMISSIONS ISSUES AND DEFENSIVE STRATEGIES

In addition to challenging the existence of deemed admissions on procedural grounds with respect to evidence of service and non-receipt, deemed admissions can also be dealt with in other ways, which are the subject of separate blog posts:

RELATED POSTS 

Motion to un-deem deemed admissions / Motion to strike deemed admissions
Are the deemed admissions legally sufficient for judgment?

Rule 198.3 is the basis for a motion to "un-deem" deemed admissions,
although it does not use that term.

Deemed admissions - Trap for the pro se defendant
The problem of deemed admissions - How does it happen and what can be done about it?

CASELAW SNIPPET REGARDING PURPOSE OF REQUESTS FOR ADMISSION AND MISUSE OF DEEMED ADMISSIONS TO PRECLUDE RESOLUTION ON THE MERITS

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

REQUESTS 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 and wasting attorney time on.

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. Some Creditors' law firms nevertheless create that impression by combining request for admission with interrogatories and attaching a form with blanks for "verification" of discovery responses under oath. 

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). It's not unheard of that the Creditor nevertheless requests are default judgment even before the 50 days are up.

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. And whether the fact statements are true or not is no longer an issue.

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 of sale.

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 relevant 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. But judges and appellate justices may find that argument more appealing in family law cases, rather than in debt collection cases. In many instances, deemed admission have been upheld as sufficient to function as a substitute for competent evidence in debt cases. 

Still, if a proper motion to strike deemed admissions is promptly filed in trial court, it may very well succeed.

Missing the deadline to respond to request for admissions will 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. Sometimes even defendants with lawyers lose on the deemed admissions issue. 

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 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 CONSIDERATIONS AND 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 in the Creditor's pleading.

Plaintiffs can avoid the effect of deemed admissions against them by nonsuiting the pending action, Defendants do not have that option, but could try to get the case moved to arbitration if the contract contains an arbitration clause (motion to compel arbitration) and argue in arbitration that the deemed admissions only apply in court because they arise from the Texas Rules of Civil Procedure, which do not govern the arbitration