September 22, 2015
Docket Number: 03-15-00471-CV
Trial Case Number: 14-0679-C
To: Jeffrey D. Kyle, Clerk
Court of Appeals
Third District of Texas
P.O. Box 12547
Austin, Tx. 78711
(512) 463-1733
www.txcourts.gov/3rdcoa.aspx
From: Rose M. Geister, Appellant
156 Granite Shoals Drive
Kyle, Tx. 78640
(512) 644-7221
rmg721@comcast.net
Dear Mr. Kyle;
I would like for this complaint form, details, and what I know to be the
corrections, that should be on the transcript, to be added to my file as
part of my record. I have sent a copy of all, to the Judicial Branch
Certification Commission, on September 12, 2015. They are conducting
an investigation at this time, and they are aware that I have appealed
the case. The Court Reporter in question is Lori Schmid.
Thank you in advance for your time.
L
Rose M. Geister ^RECEIVED\
SEP 2 3 2015
THIRD COURT OFAPPEALS
\ JEFFREY P. KYLE /
/.
JUDICIAL BRANCH CERTIFICATION COMMISSION
COMPLAINT FORM
Submit Form To:
Judicial Branch Certification Commission
Certification Division
PO Box 12066, Austin, TX 78711
(Office) 512-475-4368 (Fax) 512-463-1117
Tofile a complaint against a Certified Court Reporter, a Court Reporting Firm, a Certified
Guardian, a Certified Process Server or a Licensed Court Interpreter, you must complete this
farm. TheComplainanfs identity is not confidential A copy ofthe complaint and any related
documentation may heforwarded to the Respondent, including your name and contact
information. The documents and information provided may be released to the public.
COMPLAINANTS INFORMATION; Yon, as the complaining party
Name:
fiose M- Creis-TEA
Mailing Address:
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City: State: Zip
•KyU ~T*Xd£ Code 7/fcyto
Daytime Alternate Fax:
Phone: ^/a -w>/. 7aa/ Phone:
Email:
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RESPONDENTS INFORMATION: The person or firm yon are complaining about
Name:
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Company or
Firm: H&/f doLtsirry (Lqu&t-qf Ia*£ 7£X^.S Code: 7£ut,
Phone: Fax:
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Email:
LoAt. Sc>frMiv> &C6. (brYS.TK.dS
license, Certification,
or Registration
Number: T&XAS CS£ ^o^ £yf. izlIh/jST
Please select the Respondent's certification, registration or license type:
Efl Court Reporter I Court Reporting Firm |_ Certified Guardian
• Certified Process Server j_ Licensed Court Interpreter
Judicial Branch Certification Commission
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<*.
Please describe your complaint in detail. Include names, dates, locations, and the facts
surrounding your allegations. Attach any supporting documentation to this complaint.
Additional pages may be used ifneeded. Please number any additional pages.
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Date
Judicial Branch Certification Commission
PO Box 12066, Austin, TX 78711
(Office) 512-475-4368 (Fax) 512-463-1117
&&ffC&£7~A^Pf (Website) www.ixcourts.gov/ihcc (Email) ihcCfftxcourts.gov
3.
Ms. Geister: 1. They have entered the court improperly. Paw/ o
The Court: 2. They are suing you, you are not suing them. p^^ ,/
You had a chance to get yourself a lawyer too,
but you chose not to.
Ms. Geister: 3.1 cannot afford a lawyer. /W£ /;
The Court: 4. Iknowl ffrw //
Ms. Geister: 5. Discover is next upto be settled, which will be in a*^
August of 2015. Zwicker and Associates is aware
of this.
Ms. Geister: 6. They are not the credit card company. I have asked
for proof as to what right, or authority, Zwicker has
to collect this debt, and Iwas ignored completely. Af^/^u
No answers from them, even though I put all
questions in the form of requests, or motions,
and filed, and dated all, thru the trial court first.
I do not owe Zwicker and Associates anything.
I do not have any signed contract with them.
Ms. Geister: 7. They have taken their taxcredits, and insurance /W^/3
write-offs.
The Court: 8. Probably. f*(*£\b
Ms. Geister: 9. And, they cannot legally collect on this debt P^(j.^ / ?
afterwards.
The Court: 10.1 am not listening to another word you say.
I have already made up my mind, I am going
to sign this right now for summary judgment/
/W^/3
breach of contract. Pay your bills, that is
what you are supposed to do.
Ms. Geister: 11. There was no signed contract to have breached!! fi(r& /3
1 REPORTER'S RECORD
VOLUME 1 of 1
2 TRIAL COURT CAUSE NO. 14-0679C
APPELLATE COURT CAUSE NO. 03-15-00471-CV
3
ROSE M. GEISTER, IN THE COUNTY COURT
4 APPELLANT
5 VS. HAYS COUNTY, TEXAS
6 DISCOVER BANK, APPELLEE AT LAW NO. 2
7
8
MOTION FOR SUMMARY JUDGMENT
9
10
11 On the 13th day of July, 2015, the following
12 proceedings came on to be heard in the above-entitled
13 and numbered cause before the
14 Honorable David Glickler, the Court, held in
15 San Marcos, Hays County, Texas:
16 Proceedings reported by computerized
17 stenotype machine; Reporter's Record produced by
18 Computer-Assisted Transcription.
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HAYS COUNTY COURT AT LAW
1 APPEARANCES
2
ROSE M. GEISTER, APPELLANT PRO SE:
3
MS. ROSE M. GEISTER, Pro Se
4 156 Granite Shoals Drive
Kyle, Texas 78640
5 512-644-7221
E-mail: rmg721@comcast.e&a
6
7
FOR DISCOVER BANK, APPELLEE (Local Counsel)
8
MR. PAUL VAN "PAUL" SWEARINGEN
9 State Bar No. 19559500
Attorney at Law
10 2802 Colleen Drive
Canyon Lake, Texas 78233-5330
11 Telephone: 830-899-5212
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HAYS COUNTY COURT AT LAW
1 VOLUME 2
2 MOTION FOR SUMMARY JUDGMENT
3 July 13, 2015 Page Vol
4 Appearances 2 vl
5 Case called 4 vl
6 Opening by Mr. Swearingen 4 vl
7 Rebuttal by Ms. Geister 8 vl
8 Court's Ruling 13 vl
9 Reporter's Certificate 15 vl
10 INDEX OF EXHIBITS
11 EXHIBIT DESCRIPTION OFFERED ADMITTED
12 (No exhibits offered.)
13 :////^/T A LJrtJ OP£&tl££>
14 (see f*<£e sj) ,
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HAYS COUNTY COURT AT LAW
1 THE COURT: We'll call
2 Cause No. 14-0679C.
3 MR. SWEARINGEN: I believe the defendant
4 is in the courtroom, Your Honor.
5 THE COURT: Ms. Geister?
6 MS. GEISTER: Yes.
7 THE COURT: Will you come forward
8 please.
9 MS. GEISTER: Yes, sir.
10 THE COURT: Okay. We've been having a
11 little problem with the electronic file this morning.
12 So this is a motion for summary
13 judgment?
14 MR. SWEARINGEN: Yes, Your Honor.
15 THE COURT: All right. Counsel,
16 identify yourself for the record.
17 MR. SWEARINGEN: Yes, Your Honor. May
18 it please the Court.
19 My name is Paul Swearingen. I'm local
20 counsel for Mr. Troy Bolen, who is plaintiff's
21 attorney of record in this case.
22 This is a credit card case, Your Honor,
23 for breach of contract to collect a $7,241.19
24 delinquent balance owed on defendant's credit card
25 account, which was originated by the plaintiff,
HAYS COUNTY COURT AT LAW
1 Discover Bank.
2 The defendant filed a pro se answer in
3 the case but has filed no written response to the
4 plaintiff's motion for summary judgment.
5 Attached to the motion for summary
6 judgment is Exhibit A, which is a business records
7 affidavit made pursuant to Texas Rules of Evidence
8 8036 and 90210, which is a business records exception
9 to the hearsay rule.
10 In the affidavit, the affiant states
11 that she's a legal support specialist for Discover
12 Products, Inc., who is the servicing affiliate of
13 Discover Bank and that she is responsible for, among
14 other things, maintaining the account records
15 pertaining to the Discover card account and
16 interacting with Discover card accountholders with
17 regard to payments owed on those accounts.
18 She states further that the affidavit is
19 made on the basis of her personal knowledge in support
20 of plaintiff's suit on the account against the debtor.
21 She has knowledge regarding the access
22 to the records of the Discover card account and the
23 above-referenced debt — debtor, who is the defendant
24 in this the case, and maintains these records in the
25 ordinary course of business by individuals with
HAYS COUNTY COURT AT LAW
6
1 personal knowledge or by automated process that track
2 the events at or near the time that they occur, and
3 that the same system that records the information also
4 generates periodic statements that are sent to the
5 accountholders. She has personally inspected the
6 records pertaining to the account of the defendant and
7 states that the account is in default because the
8 defendant has not paid the amount due and owing to
9 Discover Bank on the amount, or rather, on the
10 account.
11 She finally states that the defendant's
12 account with Discover Bank is governed by the terms
13 and condition referred to in Discover Bank Products,
14 Inc. '.s term level 23a and attached as a copy of that,
15 which is a copy of the card member agreement governing
16 the transactions between the parties.
17 I would refer Your Honor's attention to
18 Page 2 of that agreement, which states that the use of
19 your account or a card by you or your authorized user,
20 or your failure to cancel your account within 30 days
21 after receiving a card —
22 THE COURT: Counsel, let me interrupt
23 you. I apologize. However, technology is awesome. I
24 don't know what's wrong with my system, but I can't
25 get the file up, so —
HAYS COUNTY COURT AT LAW
1 MR. SWEARINGEN: I have copies of -- of
2 it, Your Honor, if you would like to look at it.
3 THE COURT: I would, please. I glanced
4 at it last week and now --
5 MR. SWEARINGEN: Here -- here's the
6 provision of the card member agreement that I'm
7 referring to, which is highlighted. I think that --
8 MS. GEISTER: Is my signature on that
9 agreement?
10 THE COURT: Ma'am, hold on. You'll get
11 a chance to rebut.
12 MR. SWEARINGEN: Okay. Furthermore, on
13 page -- Pages 14 and 15, billing rights provides that
14 the customer must notify the issuer within 60 days
15 after any error appears on the statement or it's
16 waived.
17 Also attached is a final account
18 statement covering the period of time of which you
19 will find after the -- the customer agreement. A copy
20 of the final account statement dated 1-3-14 to 2-2-14
21 showing the final balance in the amount of $7,241.19,
22 which is the amount for which suit is filed. Also
23 attached are other statements including a statement
24 dated October 24th, '13, to December the 2nd, 2013,
25 showing $49.66 -- 64 cents worth of final purchases on
HAYS COUNTY COURT AT LAW
8
1 the account, and a final payment on the account of
2 $93, which was made on December the 1st 2013.
3 Your Honor, it's our contention that the
4 summary judgment evidence, which is attached to the
5 motion, shows that there's no genuine issue as to any
6 material fact and that plaintiff is entitled to
7 judgment as a matter of law under rule 166a for which
8 we would ask a judgment.
9 THE COURT: Okay. Ms. Geister, now it's
10 your opportunity to address the Court.
11 MS. GEISTER: Okay. First of all, sir,
12 in the Freedom Debt Relief -- and they're well aware
13 of that. I have several things there for that. And
14 they are — they were noted on that, but since I've
15 gone through studying and speaking to lawyers about
16 this, I -- I do not think that they have a right to
17 it. They're not the credit card company. They have
18 no — I have no agreement with them.
19 I'm looking for a motion to dismiss
20 right now.
21 THE COURT: Have you filed a motion to
22 dismiss, ma'am?
23 MS. GEISTER: No. No, sir.
24 THE COURT: Have you filed any challenge
25 to the evidence that's --
HAYS COUNTY COURT AT LAW
1 MS. GEISTER: Yes.
2 THE COURT: -- been presented to --
3 MS. GEISTER: I know I have filed -- I
4 have two — two disputes because they — the first one
5 they just sent me a bunch of junk, nothing to — to
6 address the dispute. I filed -- I filed the sworn
7 denial, a request to produce, a Federal Fair Debt
8 Collection Practices Act debt verification. They've
9 answered none of those for me. Like I said, the first
10 one, they just sent me a bunch of papers, so...
11 THE COURT: Okay. Ma'am, you -- this is
12 a motion for summary judgment. It's a hearing on
13 their motion. Their motion for summary judgment
14 alleges that all the information presented and
15 attached to the motion proves that there is a debt,
16 that you owe --
17 MS. GEISTER: Uh-huh.
18 THE COURT: -- the debt and that they're
19 seeking judgment because there's no issues of fact.
20 You asking questions or making demands doesn't raise
21 issues of fact. There is nothing before this court
22 that indicates that you don't owe this debt. You're
23 challenging this on —
24 MS. GEISTER: I'm not saying that right
25 now.
HAYS COUNTY COURT AT LAW
10
1 THE COURT: I understand, and by not
2 saying that, you're actually proving up his motion for
3 summary j udg ment .
4 Understand that what you may believe
5 your rights to be or may think that — or you've been
6 told — whi c h isn't admissible evidence — your rights
7 to be, in that regard — this is a civil lawsuit.
8 It's been fi led properly, the debt has been
9 trans ferred. They filed a motion — your — your
10 documents don't change the facts or challenge the
11 facts; they request information.
12 MS. GEISTER: And --
13 THE COURT: I do have copies of this, by
14 the way, in the file. Thank you.
15 MS. GEISTER: They never did validate
16 the debt.
17 THE COURT: Okay.
18 MS. GEISTER: That is something that
19 needs to be, you know, done —
20 THE COURT: That's --
21 MS. GEISTER: -- before they can
22 proceed. 1.
23 THE COURT: That's not an issue of fact
24 that would make the debt -- the debt not truthful, nor
25 is it an issue of fact that would challenge the motion
HAYS COUNTY COURT AT LAW
11
1 for summary judgment, so based on the —
2 MS. GEISTER: Okay. But then I complain
3 that they're violating the Statute of Frauds.
4 THE COURT: That doesn't change the fact
5 that this is a hearing on a motion for summary
6 judgment, and there is no evidence contrary to the
7 allegations in the motion for summary judgment.
8 That's the only thing I'm allowed to do here at this
9 point in time. If you wanted to fire -- file a
10 counterpetition, you could have done so. If you
11 wanted to hire an attorney to file a counterpetition
12 and have those issues heard —
13 MS. GEISTER:^. I have no money for stuff
14 like that. That's why I'm here by myself.
15 THE COURT:^/l do understand that.
16 MS. GEISTER: Yeah.
17 THE COURT: I'm also here understanding
18 that they are suing you for $7,200 and change, and
19 there's no issues of fact contrary to that. If they
20 didn't --
21 MS. GEISTER: What -- what does this
22 mean? This has been here the whole time. They're on
23 there.
24 THE COURT: I have --
25 MS. GEISTER: They are on there.
HAYS COUNTY COURT AT LAW
12
1 THE COURT: Honestly, I have no idea
2 what that i s.
3 MS. GEISTER: Freedom Debt Relief,
4 they — they negotiate with them.
5 THE COURT: They're not a party to this
6 lawsuit. They're not in court. They're not —
7 they're not making any legal representations. You're
8 handing me documents that have printed off the
9 internet and that's not competent evidence in a court
10 of law, so I don't know what you've been told or —
11 and none of that is relevant here.
12 I'm here today for one issue, the motion
13 for summary judgment, and is there any contradictory
14 evidence to what the motion has presented and there is
15 none, so based on —
16 MS. GEISTER: There's no original -- I
17 only have a contract with them. That's what I'm
18 saying. They're — ^T,
19 MR. SWEARINGEN: Well, Your Honor, I'd
20 like to respond to that.
21 This -- this is an action by
22 Discover Bank who issued the credit card. This is not
23 by a debt — debt collection agency who purchased the
24 debt. This is the original creditor who sued her.
25 THE COURT: I agree.
HAYS COUNTY COURT AT LAW
13
1 MS. GEISTER: The -- the credit card
2 charged off. They have taken their tax credits, their
3 insurance. / ft frtJJ} i
4 MR. SWEARINGEN: We would object to any
5 oral testimony that she's giving to the summary
6 judgment entering, Your Honor.
7 MS. GEISTER: That's ridiculous.
8 THE COURT: I'm going to find for the
9 plaintiff on the motion for summary judgment.
10 MS. GEISTER: I would like to appeal,
11 sir.
12 THE COURT: You can --
13 MR. SWEARINGEN: I have not noted the
14 court, Your Honor, on the judgment whether it's No. 1
15 or No. 2.
16 THE COURT: We're No. 2.
17 Ms. Geister, you can certainly file your
18 notice of appeal and follow the appropriate
19 procedures.
20 MS. GEISTER: All right.
21 THE COURT: My bailiff will get you to
22 the clerk's office to get you copies of the judgment.
23 MR. SWEARINGEN: Thank you, Your Honor.
24 THE COURT: You're welcome.
25 MR. SWEARINGEN: May we be excused?
HAYS COUNTY COURT AT LAW
14
1 THE COURT: Yes, you may.
2 MR. SWEARINGEN: Thank you.
3 MS. GEISTER: Do I get a copy of that?
4 THE COURT: If you'll follow my bailiff
5 down to the clerk's office.
6 MS. GEISTER: Okay. Sure.
7 THE COURT: Yes, ma'am.
8 (Proceedings concluded.)
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HAYS COUNTY COURT AT LAW
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1 THE STATE OF TEXAS )
2 COUNTY OF HAYS )
3 I, LORI SCHMID, Official Court Reporter
4 in and for the County Court at Law No. 2 of Hays
5 County, State of Texas, do hereby certify that the
6 above and foregoing contains a true and correct
7 transcription of all portions of evidence and other
8 proceedings requested in writing by counsel for the
9 parties to be included in this volume of the
10 Reporter's Record, in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's
14 Record of the proceedings truly and correctly reflects
15 the exhibits, if any, offered by the respective
16 parties.
17 I further certify that the total cost of
18 the preparation of this Reporter's Record is $75.00
19 and was paid by Ms. Rose Geister.
20 WITNESS MY OFFICIAL HAND this the 31st day of
21 August, 2015.
22 Isi Lori Schmid
LORI SCHMID, Texas CSR 4502
23 Expiration Date: 12/31/15
Hays County, Texas
24 712 S. Stagecoach Trail, Suite 2292
San Marcos, Texas 78666
25 (512) 393-7740
HAYS COUNTY COURT AT LAW
Rose M. Geister v. Discover Bank
Combined Opinion