Admissibility of Spanish language documents as evidence in civil litigation under Texas Rule of Evidence 1009 (TRE 1009)

This post discusses authentication of foreign language documents for use as evidence with sworn translations pursuant to Texas Rule of Evidence 1009, and challenging the translation offered by the proponent of the foreign-language document as a trial exhibit or as summary judgment evidence. 

SPANISH LANGUAGE VERSIONS OF CONTRACTS AND 

ACCOUNT DOCUMENTATION IN LITIGATION 

Some banks, such as Wells Fargo and Bank of America (FIA Card Services, N.A.), cater to ethnic submarkets by offering written materials, including cardmember agreements and monthly account statements, to customers belonging to various national or ethnic groups in their own language. Not surprisingly, the most common foreign language is Spanish. 

Documents in Spanish thus occasionally also surface in debt litigation; be it in the course of discovery, as attachments to motions for summary judgments, as business records filed under a business records affidavit, or as trial exhibits.

Even if the client speaks the language, such documents should be objected to when offered without certified translation. The language of the courts is English, and even if a judge knows Spanish, counsel for the defense has no obligation to either know a foreign language or incur expense to have a foreign document translated. Without being able to comprehend the writing on the material, the defendant's attorney would be compromised in the rendition of the best possible advice to the client. 

ADMISSION FOR FOREIGN-LANGUAGE DOCUMENTS UNDER TRE 1009

Texas adopted a new rule of evidence in 1998 that provides for a simplified method to make foreign language documents admissible, assuming they otherwise qualify for admission as business records or on some other basis. See Tex. R. Evid. 1009.

Rule 1009 permits the proponent to file an English translation of the foreign language document prepared by a qualified translator and attested to as such by affidavit (now presumably also by sworn declaration under penalty of perjury in lieu of a sworn affidavit).

The rule also permits the opposing party to object to the accuracy of the translation, but the opposing party is not required to have a certified translator do a competing translation. It can rely on other resources or means to evaluate the certified translation offered by the opposing counsel and decide whether to challenge any part thereof.  

What the opponent must do, however, in order avail himself of the right to contest the translation, is to point out with specificity any error or inaccuracy in the translation, and offer an alternative translation of the relevant portions of the text. This must be done in a timely manner.

Otherwise, any objection to the faithfulness of the English-language translation filed by the proponent of admission of the foreign language documents will be waived, and the party will not be permitted to complain of translation error at trial.

TEXT OF TEXAS RULE OF EVIDENCE 1009 (image of TRE 1009) TITLED ‘TRANSLATION OF FOREIGN LANGUAGE DOCUMENTS’

Tex. R. Eviv. 1009 governing translation of foreign language documents (click image to enlarge)

Motions for Summary Judgment (MSJ) filed by Plaintiffs and Defendants in Credit Card Debt Collection Cases

Motions for Summary Judgment in Debt Collection Cases

WHAT IS A MOTION FOR SUMMARY JUDGMENT?

A summary judgment is a disposition of case without trial that ends the case either for good (final summary judgment) or disposes of some issues but not all ends the case only with respect to one defendant if there are several defendants (partial summary judgment, also called "interlocutory"). The vehicle to obtain such a disposition is a motion for summary judgment. 

MOTION FOR FINAL SUMMARY JUDGMENT VS. MOTION SEEKING PARTIAL RELIEF

A summary judgment motion may seek partial relief only, or target one defendant where two or more are being sued, but the more common scenario in debt collection cases is a motion that ask the court to resolve the case in its entirety. Such a motion is called a motion for final summary judgment, although it may not be titled as such. The way the motion is names does not control; the substance is more important.   

TRADITIONAL MSJ VS. NO-EVIDENCE MOTION

Motions for summary judgment can be filed by the Plaintiff or by the Defendant. Under the Texas Rules of Civil Procedure, there are two types of summary judgment motions: traditional motions for summary judgment (sometimes called matter-of-law motions) and no-evidence motions.

A motion for no-evidence summary judgment is filed by the opponent of the party that seeks affirmative relief (in the form of a money judgment) or the opponent of the party that seeks to win with an affirmative defense. Stated differently, a no-evidence motion is filed against the party that has the burden of proof on an issue. Defendants may file such a motion to challenge the evidentiary basis of the Plaintiff’s causes of action while the plaintiff may file such a motion to dispose an affirmative defense the defendant has asserted in his or her answer, such as a limitations defense. 

The motion is called no-evidence motion for a reason. When filing such a motion, the movant avers that the other party has no evidence on one or more elements on which that party has the burden of proof, thereby forcing the nonmovant to show otherwise. It is essential that the element (or elements) be expressly identified in the motion. It is not enough to merely reference the Plaintiff’s theory or theories of recovery. 

If the party against whom the no-evidence motion is filed does not come forth with competent evidence on the challenged element, the motion must be granted.  If the nonmovant does not respond at all, the movant wins by default. The traditional motion, by contrast, cannot be granted by default. This is a key difference between the two types of motions. Other aspects of the summary judgment procedure, however, are identical.

TIME TABLE FOR ALL MOTIONS FOR SUMMARY JUDGMENT

All motions for summary judgment must be served at least 21 days before the hearing or submission date so as to give the nonmovant adequate time to prepare a response. Depending on the method of service, three day may have to be added. As a practical matter, at least 30 days should be allowed.

Some attorneys file and serve the motion with a hearing notice, others do not. In courts or counties in which a fiat (order) is required to set a hearing, it may not be possible for the hearing notice to be served at the same time, because the date may not be immediately known. A date may have to be requested from the clerk, sometimes by phone or by mail. 

A motion for summary judgment may simply be filed without notice of hearing accompanying it, but in order to obtain a ruling on it, the movant must set it for hearing, or request that the clerk or judge do so.  If such a motion is not set for a hearing, the non-movant has no duty to respond, although it may still be wise to do so. 

A summary judgment motion does not necessarily have to be set for an oral hearing. It may be ruled upon by submission if the particular court, or the local rules, provide for this option. But in the case of submission without oral hearing,  a notice of the date of submission is still required because the date set for the hearing or submission controls the deadline for filing a response. If there were no such notice, the opponent would not know when such response is due.

Notices relating to summary judgments can be confusing to unrepresented litigants who have filed an answer. They may not appreciate the difference between trial and summary judgment, and may end up disregarding a notice relating to a summary judgment motion because they believe their case will be called on the day of trial. Sometimes creditors' attorneys file to give proper notice altogether. 

Under the Texas rules, responses to motions for summary judgment are due seven (7) days prior to date of the hearing (or “hearing by submission”). Make that eight (8) to avoid any argument as to how the days should be counted backwards from the hearing or setting date. 

If the deadline is missed, a motion for leave to file late should be filed if the non-movant wants the court to consider the belated response and any accompanying evidence. If the defendant misses the summary judgment proceeding altogether, it may be time to figure out how to move for reconsideration or prepare an appeal from a summary judgment. 

A traditional summary judgment (money judgment for the creditor) can be appealed on the basis that the summary judgment evidence was insufficient even if no response was filed. But see -- > Pitfalls and traps when appealing pro se --> Sample appellate briefs. 

If lack of notice was an issue, however, if may be necessary to file a motion for new trial because the defendant will have to prove that there was no notice, and that will generally require an evidentiary hearing. ---> Motion for New Trial  

Alternatively, the nonmovant could move for a continuance (--> motion for continuance) or a reset of the hearing.

A motion for continuance would also be appropriate if the nonmovant needs additional time to procure documents or if an affidavit is needed to oppose the summary judgment motion that cannot be timely obtained. Generally, the movant for a continuance or reset should be prepared to show that the missing affidavit or materials could not be procured earlier despite reasonable diligence, or that the other party stonewalled and failed to produce documents in the course of discovery even though they were specifically requested and no valid objection was asserted in the first instance, or that the objection was not sustained by the court.  

TRADITIONAL MOTION FOR SUMMARY JUDGMENT

MSJ Filed By the Plaintiff

Attorneys of original creditors and other debt plaintiffs typically file motions for summary judgment, hoping to avoid the need for trial and the hassle of having to show up with live witnesses. Such motions may not even require a court appearance by attorney if the court in which the case is pending entertains such motions upon submission or on a walk-in basis. 

A traditional motion for summary judgment must expressly state the cause of action on which moneydamages are sought, or the grounds for attacking a specific affirmative defense, or several such defenses. --> Creditor causes of action in Texas. 

A plaintiff moving for summary judgment on its own claims must establish all elements of a valid cause of action as a matter of law. This is a higher standard than the preponderance-of-the-evidence standard that applies at trial. Additionally, the court is not supposed to make credibility determinations, weigh evidence, or resolve contradictions in the evidence before it. If those a present, the motion should be denied and the case should go to trial. 

The evidence for summary judgment purposes comes in the form of summary judgment affidavits and documentary exhibits, for the most part. The exhibits will typically be attached to an affidavit. Sometimes they marked with letters (Exhibit A, Exhibit B, Exhibit C), other times with numbers; or a combination of letters and numerals;  sometimes they are not marked at all. 

Occasionally, the motion for summary judgment will be based on deemed admissions, or will invoke the deemed admissions rule in addition to being supported by documentary exhibits attached to an affidavits.    

MSJ Filed By Defendants

Defendants in debt suits can file motions for summary judgment, (click link to subsequent post on this topic) but this is not a very common practice. Some consumer attorneys file no-evidence motions, but in light of the huge number of debt collection cases on court dockets and the incidence of attorney representation, a Defendant's Motion for Summary Judgment (DMSJ) is a rare animal, statistically speaking. 

Pro se defendants generally do not know how to file such summary judgment motions, and attorneys for Defendants will calculate the chances of such a motion being successful and will likely conclude that the likelihood of prevailing is low, or that such a motion would be frivolous altogether. Under Rule 11, a baseless motion can result in sanctions, in addition to making the attorney look bad. 
  
There are, nevertheless some obvious exceptions.

If the debt claim is stale and appears to be barred by the statute of limitations, a traditional motion seeking to prove that the plaintiff’s claim is time-barred may be warranted. (--  > Defendant’s motion for traditional summary judgment on affirmative defense, such as the applicable statute of limitations).

If suit was brought by a debt buyer, and the contract shows a different financial institution as card issuer than the one alleged in the plaintiff’s pleadings or identified as assignor in the assignment proof, it may make sense to challenge the plaintiff’s right to sue based on (want of) privity of contract and standing to sue. Since an assignee has the burden of proof with respect to the alleged assignment of the debt, the lack of privity and want of standing could also be raised by a no-evidence motion.  

TRADITIONAL SJ MOTION VS. TRIAL

There are several important differences between a summary judgment proceeding  and a trial on the merits (which in debt collection cases is almost always a bench trial, i.e. one without jury).  

The most obvious one is that a trial provides occasion for live witness testimony whereas no testimony at all can be received at a summary judgment hearing (with the exception of testimony set forth in timely filed affidavits). That said, many trials of debt collection cases are a very brief affair and either involve no witness testimony, or testimony by the defendant only if called as a witness by the plaintiff’s attorney for the purpose of eliciting admissions. 

Pro se litigants will often volunteer to give testimony "to tell their side of the story", and make themselves subject to cross-examination and impeachment, even if they were not subpoenaed as trial witnesses. Some judges will swear them in as a matter of routine without any questions asked about a subpoena. 

The other exception is attorney testimony about reasonable attorney fees (if any are sought in the case). A plaintiff’s attorney may offer testimony on such fees as an expert witness, and will be subject to cross-examination. Most pro-se litigants have no clue about how to cross-examine a witness, not to mention the plaintiff's attorney, and are not qualified to opine on attorney's fees unless they have the requisite expertise. Some creditors' attorneys are quite unreasonable when they swear to what is reasonable in their own self-serving expert opinion. Others do not seek attorneys fees at all as a matter of policy, or don't insist on them at trial. 

In the vast majority of debt collection cases that go to trial, the debt plaintiff will rely on business records filed under a business records affidavit rather than having a live witness show up to testify on behalf of the bank (or the debt buyer) in court. Most will not bother to subpoena the defendant. Many defendants do not show up anyhow, assuming they even filed an answer in the first place. 

But there is an important difference with respect to affidavits too. 

At trial, the plaintiff cannot adduce facts through a summary judgment affidavit because the rule permitting summary judgment affidavits does not apply at trial, and any testimony by an affiant that goes beyond the scope of laying the predicate for admission of business records would constitute excludable hearsay because the witness’s out-of-court statements are not subject to cross-examination. Hearsay objections may, of course, be waived by failing to make them. Therefore, attorneys for banks and debt buyers may still try to use them when the defendant does not show up for trial, or when the defendant does shows up but is not represented by attorney, and does not know which objections are available. 

The other major difference between summary judgment motions and trials is the applicable standard of proof. At trial, the standard is lower, and the court may weigh conflicting evidence and accord some evidence more weight than other. The judge may also pass judgment on the credibility of live witnesses if there are any. In other words, the trial judge gets to decide who to believe if conflicting stories are being told. A judge is also likely not to believe a witness who contradicts himself, or makes statements that conflict with what appear to be authentic documents, such as account statements with the defendant's name and address on them, particularly when those documents are filed as attachments to a business record affidavit. If a defendants contests correctness, it would be helpful to have documentary proof to back up the testimony. But if the defendant is pro se, he should make sure to study up on predicates for admissibility of documents and evidentiary objections because the attorney for the creditor will surely make objections.     

Finally, the purpose of a trial is a final resolution of the case, meaning that all issues are resolved and that the defendant wins if the plaintiff fails to prove its entitlement to judgment under the lower standard of proof that applies to trials.  An unsuccessful motion for traditional summary judgment, by contrast, does not mean that the non-movant wins the case. An order denying such a motion does not preclude a second, improved motion (if still timely under the scheduling order or similar case management plan) or a similar motion accompanied by better evidence and/or a different affidavit Even a debt plaintiff who fails to succeed with multiple successive motions for summary judgment will still have a chance to makes its case at trial.

RELATED TOPICS AND BLOG POSTS:

Can a defendant in a debt collection suit file a motion for summary judgment? - Yes, but ...
Motions for summary judgment by debt plaintiffs
The summary judgment rule in Texas courts
The summary judgment standards


Last revision: 12/8/2018

Plaintiff's affidavits in debt-collection cases: Summary Judgment Affidavits, Affidavit of Claim, Attorney Fee Affidavits

Affidavits Filed by Debt Collection Attorneys in Credit Card Suits  

WHAT IS AN AFFIDAVIT?

An affidavit is a sworn written statement signed by the person making it (affiant) and by a notary public or other official authorized to administer oaths. The notary’s certification appears at the bottom of the page, or on the last page, and is called the jurat.

DIFFERENT TYPES OF AFFIDAVITS

In debt suits, three types of affidavits are commonly encountered: Affidavits that contain some facts about the case (or purport to do so); business records affidavits, whose purpose is to make documents admissible; and attorney fee affidavits. The first two categories may be combined into a hybrid affidavit.  

Other affidavits may be filed under specific circumstances, such as to establish the process server’s inability to effect service, and to support a motion other than a motion for summary judgment, such as a motion for continuance, or a motion for new trial. Some motions must be sworn (“verified”) or have an affidavit attached. 

An affidavit is always required for a motion for summary judgment, and for default judgment motions that are not set for an oral hearing. If a debt plaintiff seeks attorney’s fees, a fee affidavit must also be filed to support the reasonableness of the amount of fees being sought. Attorney’s fees are not liquidated damages.  

SUMMARY JUDGMENT AFFIDAVITS 

Summary judgment affidavits are governed by the summary judgment rule. They may be used to present testimony to the court that would otherwise constitute hearsay because the witness will not be present and available for cross-examination at the hearing. Such affidavits may not be used for trial, to which the summary judgment rules do not apply. They are specifically authorized for summary judgment proceedings, in which there will be no opportunity for presentation of live witness testimony because an oral hearing is only for attorney argument, assuming an oral hearing takes place at all. Many courts rule on summary judgment motions by submission.  

The quality of affidavits, of course, varies and specific affidavits may not be admissible for summary judgment purposes either, but this will in most cases require a specific objection to the affiant’s qualification, or a challenge on some other basis. Affidavits of assignee’s (debt buyers) are notorious for poor quality (-- > robosigners).

Summary judgment affidavits often do double duty as business records affidavits, even though they are not so titled. Conversely, affidavits can be found that are denominated “BUSINESS RECORDS AFFIDAVIT”, but contain factual averments in addition to the standard predicate language to make business records admissible as an exception to the hearsay rule. One-page affidavits filed by RAUSCH in Target and Capital One debt suits, for example, contain a line indicating when the account was established. 

Affidavits filed in debt collection suits are typically signed by a representative of the Plaintiff, whether that is the original creditor or a debt buyer. In some cases, several affidavits are attached to motions for summary judgment. The additional ones are typically limited-purpose affidavits that provide information on assignment or sale of an individual account or of a portfolio of accounts (“Affidavit of Sale”) or authenticate specific documents (such as a bill of sale or a document regarding a financial institution’s merger or name change).  

AFFIDAVITS ATTACHED TO PLEADINGS 

Leaving aside suits on sworn account and bill-of-review suits, a plaintiff is not required to attach an affidavit to the original pleadings. A number of debt collection plaintiffs nevertheless do so, presumably in aid of default judgment, should the defendant fail to answer after being served with the citation.
 

Occasionally a petition in a credit card debt suits invokes the sworn account rule, which requires that sworn proof be attached. But sworn account is not a proper theory of recovery in a debt collection suits involving a bank debt, and should be challenged on that basis, either by motion for summary judgment, or by special exceptions. 

Affidavits attached to pleadings are typically titled “Affidavit of Claim” or some variation thereof.  In some cases, the plaintiff’s attorney will try to make the affidavit a part of the summary judgment submission by referring to it in the motion and incorporating it by reference. In such case, the affidavit should be dealt with in the defendant’s response, in addition to any affidavit and exhibits attached to the motion for summary judgment itself.

ATTORNEY FEE AFFIDAVITS 

Attorney fee affidavits are limited-purposes affidavits, as the name implies. They also constitute an exception to affidavits for summary judgment generally in that the Plaintiff’s attorney is allowed to sign such an affidavit, and thus appears as a witness. When the attorney testifies on fees incurred in the lawsuit, he or she acts as an expert witness (with respect to reasonableness of fees in the relevant legal market), but also as a fact witness with respect to the efforts made in the specific case, such as time expended, and attorney qualifications and experience, which are relevant to the hourly rate. 

Many law firms representing creditors in mass debt collection litigation do not seek fees, or no longer do so, even though attorney’s fees are authorized by statute (Chapter 38 of the CPRC) in breach of contract cases.
 

Any one attorney’s involvement in such a case is bound to be minimal because the firms that specialize in litigating on behalf of leading card issuers and their assignees all use automated document production systems to generate pleadings, motions, affidavits, and other documents. 

If there is an oral hearing or bench trial, an attorney will have to appear (and incur billable time), but in many instances it will not even be the attorney of record whose signature appeared on the pleading.

AMOUNTS OF FEES IN DEBT COLLECTION CASES 

Among the debt collection attorneys who seek fees, the amounts vary widely, starting with $400 or $500 at the low end up to thousands of dollars at the other end of the scale. The higher amounts are typically seen in cases involving high balances (-- > amount in controversy). Some debt collection attorneys will simply divide the amount by 3 and claim the resulting amount as a reasonable fee for a case of this nature. 

The Texas Supreme Court has set some guidelines for the determination of what is a reasonable amount of fees (-- > Arthur Andersen fee factors), but the criteria are numerous, and vague.  Given such ambiguity, the trial courts have considerable discretion on the matter, and may also take into account variation in the cost of legal services among urban and rural counties. Because there is no hard and fast rule for computing attorney’s fees comparable to the federal “loadstar”, there is also a considerable amount of case law resulting from appellate litigation over the fee factors and their relative weight, fee segregation, and other issues. 

 

Debtors' affidavit in opposition to PMSJ (Plaintiff's Motion for Summary Judgment)

USE OF DEBTOR’S AFFIDAVIT TO OPPOSE CREDITOR’S MOTION FOR SUMMARY JUDGMENT  

-- Is it a good idea?

Fighting fire with fire: the use of counter-affidavits to oppose a debt plaintiff’s motion for summary judgment 

The customary way to oppose a traditional motion for summary  judgment is to file a counter-affidavit that raises a fact issue. If none is filed, some judges will remark on the absence of such an affidavit when there is an oral hearing, and wonder why. 

But the strategy of filing a counter-affidavit to defeat a debt plaintiff’s motion for summary judgment in debt collection cases is not generally very promising because the debtor usually owes the money, and has no good documentary evidence to defeat the Plaintiff’s claim. 

The few reported opinions that discuss counter-affidavit filed by credit card debt defendants highlight the low probability of success. The affidavits typically denied assertions made by the plaintiff or the plaintiff’s affiant, and lacked factual specificity sufficient to raise a genuine issue of material fact. Or so the justices opined, and what justices say in written opinions is highly consequential because trial court judges don’t like to compile a record of being reversed, and therefore pay heed. Not the mention that they are also required to follow the (case) law as pronounced in binding precedent-setting opinions by the court of appeals in their local jurisdiction. Decisions from other courts of appeals may provide more leeway for a trial court judge when cited by an collection attorney, or by his opponent, for that matter.  

Nor are credit card defendants typically in a position to offer meaningful documentary evidence that would be helpful to their effort to defeat the Plaintiff’s claim. 

In the rare case where the Defendant preserved monthly account statements, they will in all likelihood show the same account financials, even if the originals differ in appearance because (some) card issuer create account statements for litigation, and do not always use the correct forms or templates to print the information (which invariably comes from a database) when they do so. Other creditors apparently archive digital images of the original account statements in a database (or at least claim so) and therefore can print copies as litigation exhibits that are identical to the originals except perhaps for color and a line of metadata in the footer of the page (or elsewhere in the margin) that identifies the image in the database and may also include a date.  

A counter-affidavit by the debtor may nevertheless be a good idea under some circumstances 
   

That said, filing a countervailing affidavit may work under special, albeit rare, circumstances: (1) when the defendant is not the person identified by name on the bank’s account statements; (2) when the defendant is willing to admit that he owes money, but that the amount shown on monthly statement(s) or account history ledger is incorrect and the defendant has evidence to either support the claim of error (such as incorrect calculation), or evidence to support a different amount (rather than just denying that the amount is correct). If the affidavit amounts to nothing more than a sworn denial of the damages figure attested to by the plaintiff’s affiant, it will likely be excluded as conclusory. The applicability of that objection is by no means limited to the affidavits of movants for summary judgment. 

DEFENDANT’S AFFIDAVIT IN SUPPORT OF AFFIRMATIVE DEFENSE 

A client affidavit may also be advisable if it is clear that the plaintiff’s claim is time-barred. In that case, it is safe for the client to admit making the last payment in such and such month of such and such year, and that nothing has been paid since (but see --> accrual date of breach of contract claim vs. open-account claim).  Indeed, such affidavit may allow the defendant to cross-move for summary judgment in the defendant’s favor based on the statute of limitations, rather than merely raising a fact issue in that regard in order to defeat the Plaintiff’s motion (-- > Cross-motions for summary judgment by debtor).  

If a debt plaintiff’s claim is time-barred, the admission of liability under the card agreement and the correctness of the amount shown on monthly statements are not prejudicial to the defendant because limitations is an affirmative defense that can be invoked to defeat an otherwise valid and well-documented debt claim. For the same reason, even  deemed admissions on all  essential elements of the plaintiff’s cause of action should not be a problem, unless the admissions include one to the effect that the debt claim is not time barred, or an admission that a payment was made within the four-year time span prior to the filing date.  If that is the case, it may be necessary to file a motion to strike the deemed admissions. 

Thanks to a fairly recent Texas Supreme case, the standard for having deemed admissions set aside is pretty lenient.  

It the plaintiff’s summary judgment evidence contains a series of consecutive monthly statements that reflect that the default occurred more than four years prior to the date suit was filed, it would also make no sense to challenge the authenticity and admissibility of the monthly account statement (or to attack the affiant’s qualifications to lay a proper predicate for admission of account statements as exceptions to the hearsay rule).  

COUNTER-EVIDENCE IS NOT MANDATORY TO SURVIVE TRADITIONAL SUMMARY JUDGMENT MOTION 

Under the Texas rules and caselaw, a traditional motion for summary judgment cannot be won by default because the movant must establish all essential elements of its claim against the opponent, or disprove the defendant's affirmative defense to dispose of such defense. In other words, the burden is on the movant.Therefore, if the movant for summary judgment (creditor) does not adequately support its motion with competent evidence, it does not matter whether or not the defendant filed counter-evidence. That becomes relevant only when the Plaintiff establishes a prima facie case for summary judgment in its favor, and the burden switches to the non-movant to show why summary judgment should nevertheless by denied. No-evidence motions are governed by different rules.

CASELAW SNIP ON APPLICABLE STANDARD 

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