Rose M. Geister v. Discover Bank
03-15-00471-CV
| Tex. App. | Dec 8, 2015Background
- Pro se appellant Rose M. Geister was sued by Discover Bank (represented by Zwicker & Associates) for an alleged credit‑card debt; trial court granted plaintiff's motion for summary judgment.
- Geister contends she timely sent two written requests for debt validation under the FDCPA (Nov. 17, 2014 and May 7, 2015) and never received adequate validation.
- She argues plaintiff relied on a generic, robo‑signed business‑records affidavit and an unsigned customer agreement to establish the debt and amount.
- Geister alleges procedural and due‑process defects at the summary‑judgment hearing: she says the judge mischaracterized the record (stating both parties were present and argued), improperly limited her ability to present testimony, and the court reporter's transcript was altered.
- She also raises substantive defenses: failure to validate the debt within FDCPA time limits, statute‑of‑frauds concerns, and inequity where the creditor allegedly charged off the debt (possible 1099‑C consequences).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Sufficiency of plaintiff's summary‑judgment proof to show contract and amount owed | Plaintiff relied on account records and a litigation‑support affidavit to establish account balance and terms. | Geister argues the affidavit is robo‑signed and lacks foundation; no original signed cardmember agreement or adequate foundation for business records was produced. | The brief contends plaintiff failed to meet its evidentiary foundation burden for business records (court review is required even if unopposed). |
| 2. FDCPA debt‑validation defense (15 U.S.C. §1692g) | Plaintiff asserts it provided adequate documentation and is entitled to judgment. | Geister claims she timely disputed the debt, plaintiff did not validate within §1692g(b) and thus collection (and suit) was improper. | Appellant argues that obtaining judgment after a timely dispute violates §1692g(b) and can support reversal. |
| 3. Procedural fairness / due process at summary‑judgment hearing | Plaintiff contends summary‑judgment procedure was proper; oral testimony not required. | Geister alleges the judge misrepresented the hearing, limited her testimony, and accepted false filings; she asserts denial of access/due process. | Appellant asserts these procedural errors and alleged misrepresentations constitute abuse of discretion and warrant vacatur. |
| 4. Charge‑off / 1099‑C inequity defense | Plaintiff contends it may enforce the account despite prior accounting/charge‑off. | Geister contends Discover charged off the account (tax 1099‑C issue), creating an equitable bar or factual issue about enforceability/amount. | Appellant argues charge‑off/1099‑C evidence raises fact issues making summary judgment improper absent plaintiff proof. |
Key Cases Cited
- Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983) (due‑process/access‑to‑courts balancing test)
- Boddie v. Connecticut, 401 U.S. 371 (1971) (right of access to courts)
- Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) (requirement that movant submit evidentiary proof in admissible form on summary judgment)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (standard of review for traditional summary judgment)
- Unifund CCR Partners v. Youngman, 89 A.D.3d 1377 (4th Dep't 2011) (business‑records foundation and necessity of personal knowledge for third‑party record affidavits)