Credit Card Debt Suits | Limitations Defense not properly pleaded | Unifund CCR Partners v. Weaver, 51 Tex. Sup. Ct. J. 1375, 262 SW3d 796 (Tex. 2008) (per curiam)

Unifund CCR Partners v. Weaver (Tex. 2008),
No. 07-0682, 51 Tex. Sup. Ct. J. 1375 (Tex. Aug. 29, 2008)(per curiam)
(credit card debt suit)(discovery : proper manner to object to discovery request not followed, deemed
admissions, presumption of receipt created by certificate of service rebutted with affidavit)(statute of
limitations defense not properly pleaded as affirmative defense in debt collection action)
Related concepts: credit card suit, deemed admissions, objections to discovery requests, limitations
defense
Case details: UNIFUND CCR PARTNERS v. KENNETH F. WEAVER; from McLennan County;
10th district (10-06-00207-CV, 231 SW3d 441, 07-11-07, pet. granted)
Disposition: Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review
and without hearing oral argument, the Court reverses the court of appeals' judgment and renders
judgment for the plaintiff/creditor.
Link to online opinion on Supreme Court web site: Click --> pdf version of the opinion, for html
version, click case name at the top)
Ebriefs for this case: Petition for Review & Appellant's Brief on the Merits only
Opinion in the court below: Unifund CCR Partners, assignee of Exxon/Mobil Platinum v. Weaver (Tex.
App.- Waco [10th Dist.] July 11, 2007, pet. granted)("Because Unifund’s motion for summary judgment
was based on alleged deemed admissions, but in fact Weaver’s responses to those admission were on
file, we hold that the trial court erred in granting the motion based on alleged deemed admissions.")
Dissenting opinion in the court of appeals below by Justice Tom Gray
Commentary: Texas Supreme Court lets debt collector win with deemed admissions
Related Links: Credit C ard D ebt Collection C ases - Decisions from the Houston Courts of Appeals
Unifund sanctioned for bringing suit to collect debt that had been discharged in bankruptcy

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Unifund CCR Partners v. Weaver, 262 S.W.3d 796 (Tex. 2008) (per
curiam)
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PER CURIAM

Unifund CCR Partners sued Kenneth Weaver to recover an unpaid credit card debt. Unifund
attached to its citation requests for disclosure and admissions. Shortly after he was served,
Weaver, acting pro se, filed a letter answer with his responses to the requests attached. Weaver’
s response to each request for admission was identical: “DEFENSE: TEXAS CIVIL PRACTICE
& REMEDIES {SECTION 16.004{A}{3},” which is the four-year statute of limitations on debt
collection actions. The face of the response shows a copy was sent to Unifund’s attorney, and
Weaver’s signature appears underneath the text, “CERTIFICATE OF SERVICE.” But the record
does not show that Weaver actually served Unifund with his responses. Tex. R. Civ. P. 198.2(a)
(requiring that the responding party serve written response on the requesting party).

Unifund filed a motion for summary judgment asserting that the facts set out in its requests for
admissions were automatically admitted when Weaver failed to timely serve his responses. Tex.
R. Civ. P. 198.2(c) (considering request admitted if no timely response served). Along with its
motion, Unifund filed an affidavit from its attorney supporting its claim that Weaver failed to serve
it with a response to its requests for admissions. Weaver did not file a response to the summary
judgment motion, and it was granted by the trial court. Weaver appealed, asserting in his brief
that he had served his responses timely. The court of appeals reversed the trial court’s judgment
because Weaver’s responses to Unifund’s request for admissions were on file when the
summary judgment motion was granted. 231 S.W.3d 441, 442–43 (Tex. App.—Waco 2007).

We reverse for two reasons.

First, Weaver failed to raise a fact issue regarding his claim that he timely served his responses.
Although Weaver’s certificate of service raised a presumption of service under Texas Rule of
Civil Procedure 21a, Unifund rebutted that presumption with the affidavit asserting that it was not
timely served within the fifty days prescribed by Rule 198.2(a). See Cliff v. Huggins, 724 S.W.2d
778, 780 (Tex. 1987); see also Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (per
curiam). And while Weaver claims in his brief that his responses were timely served, “we do not
consider factual assertions that appear solely in briefs and are not supported by the record.”
Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 789 (Tex. 2006).

The first time Weaver asserted that he properly served Unifund by filing his responses with the
court was in a post-judgment filing. However, a party who fails to expressly present to the trial
court any written response in opposition to a motion for summary judgment waives the right to
raise any arguments or issues post-judgment. See Tex. R. Civ. P. 166a(c) (“Issues not expressly
presented to the trial court by written motion, answer or other response shall not be considered
on appeal as grounds for reversal.”); see also McConnell v. Southside Indep. Sch. Dist. 858 S.W.
2d 337, 341, 343 (Tex. 1993); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979).

Moreover, even if we broadly construe Weaver’s post-judgment filing, Weaver waived his right to
challenge the deemed admissions. In Wheeler v. Green, we acknowledged that, under special
circumstances, a party could bring a request to withdraw deemed admissions for the first time in
a motion for new trial. 157 S.W.3d 439, 442 (Tex. 2005) (per curiam) (“[E]quitable principles
allowing these arguments to be raised in a motion for new trial do not apply if a party realizes its
mistake before judgment and has other avenues of relief available.”). In Wheeler, a pro se party
responded to a request for admissions two days after the Rule 198.2(a) deadline because of a
misunderstanding regarding the “mailbox rule.” Id. at 441–42. The requesting party filed a motion
for summary judgment asserting a failure to respond. Id. at 441. In that case, the requesting party
had in fact been served with the response, albeit untimely. Id. We concluded that “nothing in [the]
record suggest[ed] that before summary judgment was granted, [the responding party] realized
that her responses were late, that she needed to move to withdraw deemed admissions, or that
she needed to file a response to the summary judgment raising either argument.” Id. at 442. As a
result, we held the that responding party was entitled to raise the issue of the mistake for the first
time in her motion for new trial. Id. In contrast, even if we construe Weaver’s post-judgment filing
as a motion for new trial, Unifund’s motion for summary judgment put him on notice of the
deficiency of his response: that Unifund never received the response because Weaver had not
served, or attempted to serve, the response on Unifund. See Mathis, 166 S.W.3d at 744–46
(discussing standard for granting a new trial); Stoner v. Thompson, 578 S.W.2d 679, 684-85
(Tex. 1979). Weaver knew of his mistake before judgment and could have responded to Unifund’
s motion, but because he did not, he waived his right to raise the issue thereafter.

The second reason we reverse is that Weaver’s responses, even if they could be considered, are
not proper objections to the requests. The court of appeals held that Weaver’s responses to the
requests for admissions could, “indulging every reasonable inference in [his] favor,” be construed
as objections. 231 S.W.3d 441, 443 n.1. We disagree. To constitute a valid objection, a party
“must state specifically the legal or factual basis for the objection and the extent to which the party
is refusing to comply with the request.” Tex. R. Civ. P. 193.2(a). Citing the four-year statute of
limitations on debt actions is not a proper objection.

A limitations defense is an affirmative defense, which is in the nature of a confession and
avoidance. Tex. R. App. P. 94. As such, it must be asserted in a pleading. Tex. R. Civ. P. 45; see
also In re L.A.M. & Assocs., 975 S.W.2d 80, 84 (Tex. App.—San Antonio 1998, orig.
proceeding).

Accordingly, we grant Unifund’s petition for review and, without hearing oral argument, reverse
the court of appeals’ judgment and render judgment in favor of Unifund. See Tex. R. App. P. 59.1.

OPINION DELIVERED: August 29, 2008

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OPINION OF THE WACO COURT OF APPEALS
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Unifund CCR Partners, as assignee of Exxon/Mobil Platinum, sued Kenneth Weaver to recover for unpaid credit card
charges in the amount of $11,556.76. Weaver, appearing pro se, filed a letter answer. Unifund moved for and obtained
summary judgment. Weaver, still pro se, appeals. We will reverse and remand.

Unifund filed suit on October 21, 2005. With its petition, Unifund served Weaver with a request for disclosure and requests
for admissions on November 3. On November 7, Weaver filed a letter response, which Unifund asserts the trial court
treated as an answer. (Appellee’s Brief at 1). Included and filed with Weaver’s letter were responses to the requests for
disclosure and admissions, all of which have a certificate of service. All of these items are in the clerk’s record. (Clerk’s
Record at 11-17).

Unifund filed a motion for summary judgment, asserting that Weaver had failed to respond to the requests for admissions,
which establish Weaver’s debt liability on the credit card account. Filed with Unifund’s motion was its attorney’s affidavit,
which states in pertinent part: “Defendant failed to serve upon Plaintiff a written response to the Request for Admissions
within 50 days of service.” Weaver did not file a response to Unifund’s summary judgment motion. Based on the alleged
deemed admissions, the trial court granted Unifund’s summary judgment motion.

We review the decision to grant a summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215 (Tex. 2003). The standards for reviewing a traditional motion for summary judgment are well established. The movant
has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a
matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54
S.W.3d 401, 413 (Tex. App.—Waco 2001, pet. denied). In deciding whether there is a disputed material fact issue
precluding summary judgment, evidence favorable to the nonmovant will be taken as true, and every reasonable inference
must be indulged in favor of the nonmovant and any doubts resolved in his favor. Nixon v. Mr. Prop. Management Co., 690
S.W.2d 546, 548-49 (Tex. 1985).

In what Unifund refers to as Weaver’s third issue, Weaver asserts that he did in fact respond to the requests for
admissions: “The Plaintiff’s attorney stated on his Motion for a Hearing for a Summary Judgment that the Defendant did
not answer requests for disclosures and request for admissions. Yet the record shows that the Defendant did indeed su[b]
mit those answers on November 5, 2005.” On this issue, Unifund inadequately addresses Weaver’s allegation that he
answered the requests for admissions, merely arguing that Weaver failed to properly present it to the trial court. On the
issue of whether Weaver responded to the requests for admissions, he did, as those responses are in the clerk’s record.

On the issue of whether Weaver served his responses on Unifund, a factual dispute exists. Weaver’s responses, along
with his “letter answer,” include a generic certificate of service. Unifund did not move for a default judgment and it asserts
that the trial court treated Weaver’s letter as an answer. From these events, we can infer that Unifund had notice of or
received Weaver’s answer, which was included with his responses to the requests for admissions. But whether Weaver
served his responses on Unifund is ultimately of no consequence because they were filed in the trial court.

Under Rule 166a(c), summary judgment may only be rendered if the “discovery responses referenced or set forth in the
motion . . . and . . . the admissions . . . of the parties . . . on file at the time of the hearing . . . show that . . . there is no
genuine issue as to any material fact. . . .” Tex. R. Civ. P. 166a(c). Because Unifund’s motion for summary judgment was
based on alleged deemed admissions, but in fact Weaver’s responses to those admission were on file, we hold that the
trial court erred in granting the motion based on alleged deemed admissions.[1]

We sustain Weaver’s third issue, and we need not address his other issues. We reverse the judgment, and remand the
cause to the trial court.

BILL VANCE

Justice

Before Chief Justice Gray, Justice Vance, Justice Reyna

(Chief Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed July 11, 2007

[1] We also address Weaver’s responses to the requests for admissions. Unless a party responding to a request for
admission states an objection or asserts a privilege, the party “must specifically admit or deny the request or explain in
detail the reasons that the responding party cannot admit or deny the request.” Tex. R. Civ. P. 198.2(b). Weaver’s
response to each request was: “Defense: Texas Civil Practice & Remedies (Section 16.004(a)(3).” Plainly, this was an
invocation of the four-year statute of limitations on a debt cause of action, and indulging every reasonable inference in
Weaver’s favor, as we must, this invocation is most reasonably construed as an objection to each request on the ground
that the debt claim is barred by limitations. No hearing on Weaver’s objections to the request for admissions was held.
See Tex. R. Civ. P. 193.4(a). Thus, not only are there no deemed admissions, there are no admissions at all to support the
judgment.