Rose M. Geister v. Discover Bank

October 22, 2015 /RECBVED^
OCT 19 2015
Docket Number: 03-15-00471-CV
TWI® COURT OF APPEALS.

(Trial Court Number: 14-0679-C)

IN THE

COURT OF APPEALS

»RD
FOR THE 3™ JUDICIAL DISTRICT OF TEXAS

ROSE MARIE GEISTER,
APPELLANT
PRO SE LITIGANT

VS.

DISCOVER BANK/ZWICKER AND ASSOCIATES,
APPELLEES

BRIEF OF APPELLANT

ORAL ARGUMENT REQUESTED

(1)
 TABLE OF CONTENTS

Pages:

COVER 1

TABLE OF CONTENTS 2

IDENTITIES OF ALL PARTIES 3

LIST OF AUTHORITIES 4,5

ISSUES PRESENTED FOR REVEIW 5,6,7,8

STATEMENTS OF THE CASE 8,9

STATEMENT REGARDING ORAL ARGUMENTS 9,10

STATEMENT OF FACTS 10,11,12,13,14

SUMMARY OF THE ARGUMENT 14,15

ARGUMENT AND AUTHORITIES 16,17,18,19

PRAYER 20

APPENDIX 21

CERTIFICATE OF COMPLIANCE 22

CERTIFICATE OF SERVICE 23

CERTIFICATE OF SERVICE II 24

(2)
 IDENTITIES OF ALL PARTIES

Appellant certifies that the following is a complete list of all parties
interested in the outcome of this appeal, and their attorneys of record.

1. Appellant (Pro Se), ROSE MARIE GEISTER, 156 Granite Shoals Drive
Kyle, Texas 78640. (512) 644-7221

2. The Honorable DAVID SCOTT GLICKLER, Trial Judge, Hays County
Government Center, 712 S. Stagecoach Trail, SUITE 2292
San Marcos, Texas 78666. (512) 393-7625

3. Appellee, DISCOVER BANK

4. Lead attorney for Appellee, TROY DEAN BOLEN, SBN: 24006199,
he is with Zwicker and Associates, Old Town Square,
1 Chisholm Trail, Suite 301, Round Rock, Texas 78681.
(512) 218-0477

5. Trial Court attorney for Appellee, PAULVAN SWEARINGEN,
also with Zwicker and Associates, Old Town Square, 1 Chisholm Trail
Suite 301, Round Rock, Texas 78681. (512) 218-0477

(3)
 LIST OF AUTHORITIES

CASES:
1. Lizette DiResta v. Discover Bank, Supreme Court, State of N.Y.,
County of N.Y. (Class Action Suit), Case No. 155611-2015 11
2. Discover Bank (APPELLANT) v. Maurie L. and Linda Lemley,
Court of Appeals in Washington, Division 3, Case No. 31080-9-111,
Decided March 18,2014 11
3. Diana M. Elinich v. Discover Bank, DB Servicing Corp., and
Weltman, Weinberg& Reis, LPA, (Class Action Suit, Civil Action),
Pennsylvania Eastern District Court, Philadelphia, Pa.,
Case No. 2:12-cv-01227, Dist. Judge Mitchell Goldberg. Presiding 11
4. Valence Operating Co. v Dorsett, 164 S.W. 3d 656,651 Tex. 2005)... 16
5. Ins. Co. of N. Am. v. Sec. Ins. Co., 790 S.W. 2d 407,410,
(Tex. App. - Houston (1st Dist.) 1990, no writ 17
6. Okorafor v. Uncle Sam & Associates Inc. 295 S.W., 3d, 27,38,
Tex. App. - Houston (1st Dist., 2009) 18
7. McGraw v. Maris, 828 S.W. 2d 756,758, (Tex. 1992) 19
8. Mathews v. Eldridge, 424 U.S. 319,333,96, S. Ct., 893,902,47,
LEd, 2d 18 (1976). (quoting Armstrong v. Manzo, 380, U.S. 545,
552,85 S. Q, 1187,1191,14 L. Ed. 2d 62 (1965)) 19
9. Cetaq Realty Inc. v. Sieglar, 899 S.W. 2d 195,197 (Tex. 1995) 17
10. Garrett Operators Inc. v. City of Houston No. 01-13-0076 CV, 2015...15
15. Maher v. Hiberia Ins. Co. 67 N.Y. 292 17
16. Studer v. Bleistein 115 N.Y. 31G, 22 X.E. 243 LR.A. 702 8

RULES:
1. Tex. R. App. P. 44.1 (a), (1) and (2) 5,18
2. Tex. R. App. P. 39.7 9
4. Tex. R. Civ. P. 166a, (c), (h) 16
5. Texas Rule of Evidence Rule (Hearsay) 902. (10) 11,17,18

(4)
CODES:
1. Tex. Government Code Ann. S51.901 6,9,12
2. Tex. Code of Judicial Conduct, Canon 1: Canon 2: (a).
Canon 3: (5), (6), (8), and (9) 15

OTHER AUTHORITIES:
1. Abuse of Discretion 5,9,16,18
2. Due Process of Law, and the 14th Amendment 5,6,15,18,19
3. Rico Violations 5,11
4. Deceptive Trade 5,11
5. The Fair Debt Collection Practices Act 5,11
6. The State Consumer Protection Law 5,11
7. Statute of Fraud 8,16
8. Breach of Contract 7

ISSUES PRESENTED FOR REVUE

1. The trial court Judge erred, after abusing his discretion by

allowing the fraudulent Business Records Affidavit, and the unsigned

generic Agreement into Evidence, despite being in violation

of the Rico Violations, violations of The Fair Debt Collection Practices

Act, Deceptive Trade, and the State Consumer Protection Law,

as well as, Tex. R. App. P. 44.1 (a), (1) and (2).

2. The Trial Court Judge erred by not exercising Due Process

of Law, the Court issued an improper judgment, and prevented the

defendant from properly presenting her case.

(5)
Due Process is the legal requirement, that the state must respect

all legal rights that are owed to a person. Due process balances the

power of law of the land, and protects the individual from it. When

a government harms a person by not following the exact course of

the law, this constitutes a Due Process violation, which offends the

rule of law. The 14th Amendment addresses many aspects of

citizenship, and the rights of citizens. The most commonly used,

and frequently litigated phrase in the Amendment is:

"Equal protection of the laws", which figures prominently in a

wide variety of landmark cases, including Brown v. Board of

Education, Roe v. Wade, Bush v. Gore, Reed v. Reed and,

University of California v. Bakke.

3. The court reporter, Lori Schmid's transcript was obviously

changed, or intentionally entered wrongly, to favor the Judge, and

put me, the defendant, at a disadvantage. That would be a criminal

act, and I have filed a complaint to her superiors, who are

investigating it at this time. (Tex. Gov't Code Ann. S51.901)

(6)
4.1 have never received a response, from Discover/Zwicker &

Associates, for any of the Motions, or Requests, that I have properly

filed into the clerk's office. SUCH AS:

I have twice informed them, that I dispute the debt that they are

trying to collect from me, and I filed twice that they provide proof

of validation for the debt's legitimatecy.

I have requested a Federal Fair Debt Collection Practices Act

debt verification, I have put through a Sworn Denial of account,

as I do not think the amount is correct.

I have asked for a copy of the SIGNED CONTRACT, I was supposed

to have breached, and I came to find, that all the Breach of Contract

wording is the same as all others. They just put in a different name

and amount. In trial court, I was not allowed to argue, or bring up

issues, so my issues went totally ignored.

I asked for more information concerning their firm, and proof of

their authority to collect this debt. They first forwarded to me,

a bunch of papers that meant nothing.

The Fraudulent Business Records Affidavit, that, Mr. Swearingen did

(7)
not even attach a name to, this so-called person, he just called her

"she", as he read from a notebook, and the Judge did not even

question this. On the paperwork Zwicker sent to me, the same that was

shown to the Judge, the name on the affidavit was Franklin T. Akers,

a male. The Judge did not question anything that the Plaintiff said, or did.

5. The trial court erred in granting a Final Summary Judgment,

regarding Plaintiffs illegal entry into the court, the bias to plaintiff,

and the fact, that he did not allow defendant to present her case.

6. The trial court erred in allowing fraud. Fraud consists of some

deceitful practice or willful device, resorted to with intent, to deprive

another of his, or her right, or in some manner to do him injury.

The gravamen of fraud is deceit, and you cannot have fraud without

deceit. (Studer v. Bleistein, 115 N.Y. 31G, 22 X. E. 243, L.R.A. 702).

STATEMENTS OF THE CASE

This is an appeal from the County Civil Court at Law Number Two (2),

in Hays County, Texas, before Judge David Scott Glickler, regarding a

Summary Judgment, after a non-jury trial, in favor of Appellees.

1. Appellant's central issue in this appeal is, (8)
Judge David Glickler's Abuse of Discretion, as he showed bias in favor

of the Plaintiff, and he denied me, the Defendant, the chance to tell my

side of the matter, an inconsiderate action, and one that is against the

law. He did not exercise cautious judgment. The Judge's actions

were out of bounds, and Itruly did not receive a fair, and just trial.

2. The court reporters transcript, concerning what was

actually said between Judge Glickler, and Rose Geister, the

defendant, was grossly altered.

The court reporters name is Lori Schmid, and I have filed a complaint

with the Judicial Branch Certification Commission, and it is under an

investigation at this time. I have given a copy of that complaint to

Mr. Courtland Crocker, to file with the 3Rd court of appeals on

September 23,2015.... (Texas Government Code Ann. S51.901)

STATEMENTS REGARDING ORAL ARGUMENTS

1. Pursuant to Rule 39.7 of the Texas Rules of Civil Procedure,

Appellant Rose M. Geister requests that this court hear oral argument of

this appeal. Oral argument is imperative, so Appellant may accurately, and
(9)
clearly, convey to the court, the efforts Appellant tried to make, to raise

objections in the trial court, of the prevalent issues with Appellee's standing.

2. Further, Appellant must in person, articulate the importance of the

factual, and procedural issues, which exist regarding the standing argument.

STATEMENT OF THE FACTS

1. The people who execute summary judgment affidavits

for Discover Bank in debt collection suits, are employees of the servicers.

Some identify themselves as employee of one servicer, on some affidavits,

and as employees of the other entity, on others. They are full time affidavit

signers, but their job titles are typically given as "Legal Placement Account

Managers" or "Litigation Support Specialist". These people do not have

personal knowledge of anyone's accounts, most certainly, not mine. They

churn these affidavits out, at the rate of 200 to 400 a day. A legitimate

"Business Records Affidavit" is required in order to enter the court.

Discover/Zwicker & Associates did not have one.

I opened my Discover Bank credit card in 2005. The Agreement that

Plaintiff attached, was dated 01/11/2011, printed at 9:41 A.M, and

(10)
I am being told by Discover Bank, and Zwicker and Associates, that

this is my Credit Card Agreement. That would be impossible,

and has come under a considerable amount of scrutiny lately, across

the nation, in a variety of lawsuits, and complaints.

(1. DiResta v. Discover Bank, 2. Elinich v. Discover Bank, and
3. Discover Bank (Appellant) v. Lemley.
Violations: RICO, Deceptive Trade, the Fair Debt Collections
Practices Act, and the State Consumer Protection Law,
plus, too many more to list here).

The fact that Plaintiff has entered into evidence, with the court, these

fraudulent documents: "Business Records Affidavit, and the

Agreement", as Plaintiff describes them, is deceptive,

unjust, and also constitutes The Hearsay Rule of Evidence to apply.

The hearsay rule is a rule of evidence which prohibits admitting

testimony or documents into evidence, when the statements

contained therein are offered to prove their truth, and the maker

of the statements is not able to testify about it in court.

Hearsay is "second-hand" information. Because the person who

supposedly knew the facts is not in court to give testimony,

(11)
the Trier of fact cannot judge the demeanor, and credibility, of the

alleged first hand witness, and the other party, or their lawyer

cannot cross-examine the "real" witness who originally saw, or

heard something.

Also, in order to enter the court legally. Plaintiff had to possess a

SIGNED Agreement, signed by the Defendant, Rose M. Geister.

If a lawyer, for the collection company, files a suit without having

that contract in hand, he is in violation of the law. He either has

to have a SIGNED contract, or, he has to have someone coming into

court, who has personnel knowledge of that SIGNED contract,

and he had neither. Lacey, of Discovers Litigation Dept. told me over

the phone that there was no signed contract, on Aug. 17,2015.

The Plaintiffs, Discover Bank, and a Zwicker and Associates Attorney,

Paul Van Swearingen, had illegally entered the Court of Law No. 2,

on July 13,2015.

3. I was genuinely appalled to find that the court reporters

transcript was very altered, or entered incorrectly in the first place.

Why she would do such a thing, is beyond me. It is under investigation

(12)
at this time, with the Judicial Branch Certification Commission. I am

anxiously awaiting an answer from them. (Tx. Gov't Code Ann. S51.901).

4. Motions, and Requests, were never responded to, by

Discover Bank, or, Zwicker and Associates. Todd Dean Bolen is

the Lead Attorney for Zwicker, and, this case.

5. The debt, which is at issue in this Appeal, has been settled

with Freedom Debt Relief, of whom I am a Client, on July 31,2015.

It was settled for $5435.00.

It is the sixth account that they have settled for me, in the last

nineteen months. The Discover account will be paid in full by

June 30,2016. The Zwicker firm, was well aware of how I was

dealing with my debts, since last year. They knew that they would

be up for settlement by August 1,2015. And just before that, they

sued for Summary Judgment, so that they could keep me under

their thumbs, and ask for more money than owed.

They already added another $367.90, to the Freedom account.

So, instead of 7241.19, they have settled for $7609.09, of which,

they will be paid 71.43%, which comes to $5435.00. However, they

(13)
have, on August 4, asked me to sign, AFTERAPPEALING, an

Agreed Judgment document, which I did not do, as they were

asking me for $6535.19, (which is 7241.19, minus the $706.00, that

they were paid on July 31,2015, from Freedom Debt Relief), and

all costs of the proceedings, even though they entered the court

illegally, in the first place. As of 10/29/2015, they have received

$1300.00, so far. They will receive $516.00 for 7 months, and

a final payment of $517.00, by June 30,2016.1 will sign only the

Rule 11 Agreement they sent to me, and will present it in open court,

as long as Zwickers lead attorney, Todd Bolen, also signs a copy,

but I will not sign the Agreed Judgment.

SUMMARY OF THE ARGUMENT

1. The trial court erred in granting a Final Summary

Judgment, regarding Plaintiff's improper entry into the court,

without the proper paperwork in hand. I asked in court, if the

Agreement that Plaintiff was showing the Judge, was signed by me,

and I was snapped at, by the Judge, to, "Ma'am, hold on.

You'll get your chance to rebut". Which, by the way, I never did.
(14)
He was very biased towards the Plaintiff, and very short, and

pushy towards myself, the Defendant. This was Abuse of

Discretion. (Canon 3: (5), (6), (8), and (9)).

2. I was not treated justly, and fairly, as I was not given

Due Process of law. The Judge, and the Plaintiff, did not give me a

chance to state my case, without intimidation, or interruption.

The Judge finally just said to me, "I am not listening to another

word you say, as I have already made up my mind".

He then just signed the Judgment, and asked us to follow

the Bailiff. Thus, he abruptly ended that trial, quite prematurely.

(Tex. Code of Judicial Conduct, Canon 1: and Canon 2: (a).

The U.S Constitution provides that "No person shall: be deprived

of life, liberty, or property, without Due Process of Law", and is

applied to all States, by the 14th Amendment

3. I am very concerned about the court reporters

reasoning behind her actions, to turn in a fraudulent report.

For these reasons, and all the fraudulent reasons brought up

in this brief, this case should be vacated, or, dismissed for cause,

with prejudice, as though it never happened. (15)
 ARGUMENT AND AUTHORITIES

1. Standard of Review

Summary Judgments are reviewed de novo. Valence Operating

Co. v. Dorsett, 164 S.W. 3d 656,651 (Tex. 2005). A movant is

entitled to traditional summary judgment if; (1) there are no genuine

issues as to any material fact, and, (2) the moving party is entitled to

judgment as a matter of law. (Tex. R. Civ. P. 166 a (c); Garrett

Operators, Inc. v. City of Houston, No. 01-13-00767-CV, 2015 WL

293305, at *3 (Tex. App. - Houston [1st Dist.] 2015).

Fraud, as applied to contracts, is the cause of an error, bearing

on a material part of the contract, created or continued by artifice,

with design to obtain some unjust advantage to the party, or to

cause an inconvenience or loss to the other.

There were questions and issues to material fact, such as: fraud,

failing to answer defendant's motions as requested by her,

not specifying the particular ground on which the Judgment is based.

I, the Appellant, am without knowledge sufficient to form an

opinion, as to the accuracy, of the Plaintiff's claim, and, the ruling of,

Summary Judgment, as a Matter of Law. (16)
So, I do not think it can be, as a matter of law, due to not allowing

Defendant to speak, and properly present her case.

Also, entering fraudulent Agreements, and Affidavits, into the court.
(Maher v. Hiberia Ins. Co., 67 N.Y. 292).

Parties form a binding contract when the following elements are

present: (1) offer; (2) acceptance; (3) meeting of the minds;

(4) mutual consent; and (5) execution and delivery of the agreement.

These elements did not happen.

To obtain traditional summary judgment on an opposing party's,

claims, the movant must conclusively establish each element of

an affirmative defense. And, They did not.
Centeq Realty, Inc. v. Siegler, 899 S.W. 2d 195,197 (Tex. 1995).

If a final summary judgment order does not specify the particular

ground on which it is based, it must be shown that each independent

argument alleged in the motion for summary judgment, is insufficient

to support the trial court's order. And, they did not let me speak.

(Ins. Co. of N. Am. v. Sec Ins. Co., 790 S.W. 2d 407,410 (Tex. App. -
Houston [1st Dist] 1990, no writ).

Here the trial court allowed a fraudulent Business Records

Affidavit, along with a fraudulent Customer Agreement,
(17)
into evidence despite being a Violation of the Texas Rules of

Evidence 902(10), which specifically requires that we have to have an

individual, that is a custodian of the records, that can speak to how

these business records were made. Here the Business Records Affidavit

presents, Franklin T. Akers, as the affiant. Akers is not a Custodian of

Records for Discover Bank. Janice Dorr, the Notary on my affidavit is

the affiant on another affidavit that has appeared in lawsuits by

Discover Bank in Texas Courts, with Phyllis A. Scholey as Notary.

However, we must apply a de novo standard of review, to the

Trial Courts legal conclusions because, this trial court has no discretion

in determining what the law is, which law governs, or how to apply

the law.... (Okorafor v Uncle Sam & Assocs, Inc. 295 S.W. 3d 27,38,

Tex. App - Houston [1st Dist.] 2009).

These were offered by Plaintiff, in court, as Exhibits A & B.

Hence, all of this culminates into Abuse of Discretion, and Hearsay

Rule of Evidence, appellant not receiving due process, as well as fraud.

The trial court erred in issuing an improper judgment, and

deliberately prevented the defendant, Rose M. Geister, from

(18)
properly presenting her case.

To vacate the judgment on appeal, the Court must conclude that

any error probably caused the rendition of an improper judgment, or,

prevented the Appellant, from properly presenting her case, and or,

appeal. (Tex. R. App. P. 44.1(a)). To make a determination, the court

must review the entire record.

(McGraw v. Maris, 828 S. W. 2d 756,758. (Tex. 1992)).

The fundamental requirement of due process is the

opportunity to be heard at a meaningful time, and in a

meaningful manner. (Mathews v. Eldridge, 424 U.S. 319,333,

96 S. Q., 893,902,47 L. Ed. 2d 18 (1976) (quoting Armstrong v.

Manzo, 380 U.S. 545,552,85 S Ct. 1187,1191,14 L Ed. 2d 62 (1965)).

A review of the reporter's record will show that the Appellant

was never given a fair opportunity to present evidence of her own.

To disallow this right to present evidence, or to cross examine

Appellee, created a fatal flaw, that the right of Due Process

guarantees, to all litigants.

(19)
 PRAYER

WHEREFORE, Appellant respectfully requests:

1. That this Court vacate, or, dismiss for cause, with prejudice

the trial court's judgment, as though it never happened.

And, to remove all costs that the Plaintiff asked for,

in this Summary Judgment, as a Matter of Law.

2. That this Court award costs to the Appellant, including

preparation costs for the Clerk's record, and the Reporter's

record, as well as the fee paid to the Appellate Court.

The total is $377.00.

3. That this Court will have Discover Bank, and Zwicker & Associates,

remove this Judgment from all Public records, and Credit

Bureau records, immediately, if dismissed.

Respectfully Submitted

Rose M. Geister
Pro Se Litigant

(20)
 APPENDIX

APPENDIX "A" Trial Court's Final Judgment.

APPENDIX "B" Proposed findings of fact and conclusions
of law.

APPENDIX "C" The Complaint, sent to the Judicial
Branch Certification Commission about
the Court Reporters, improper reporting,
is ON FILE, with the 3rd court of Appeals.

APPENDIX "D" The Rule 11 Agreement and an Agreed
Judgment from Zwicker & Associates,
Is ON FILE, with the 3rd Court of Appeals.

APPENDIX "E" The Trial Clerk's Records of Motions and
Requests, isON FILE, with the 3rd Court of
Appeals.

APPENDIX "F" Motion for extension of time to file the
Brief....1st filing, and correction and answer,
to the 1st filing.

(21)
 CERTIFICATE OF COMPLIANCE

Relying on the word count function in the word processing

software used to produce this document, I certify that the number of

words in this brief, including any caption, cover, table of contents,

identities of all parties, list of authorities, issues presented for review,

statements of the case, statement regarding oral arguments, statements

of facts, summary of the argument, argument and authorities, prayer,

appendix, certificate of compliance, and certificate of service is 3793.

AU&

(22)
 CERTIFICATE OF SERVICE

I hereby certify that on this the 19th day of October 2015, a true

and correct copy of the foregoing was served, in person, to the

address stated below, pursuant to the Texas Rules of Civil Procedure.

Third Court of Appeals
Price Daniel Sr. Bldg.
209W. 14th Street, Room 101 Rose M. Geister
Austin, Texas 78701
 CERTIFICATE OF SERVICE

I hereby certify that on this the 19, day of October, 2015, a true and

correct copy of the foregoing was served, by mail, 1st class with

confirmation, to the address stated below, pursuant to the

Texas Rule of Civil Procedure.

Zwicker & Associates, P.C.
Old Town Square
1 Chisholm Trail, Suite 301
Round Rock, Texas 78681
 "A"
APPENDIX "A
 NO. 14-0679-C

DISCOVER BANK, § IN THE COUNTYCeU^^' - '°
Plaintiff §
§ ATLAWNO O ^
v.. §
§ HAYS COUNTY, TEXAS
ROSE M. GEISTER, §
Defendants) §

SUMMARY JUDGMENT
On this date came on to be considered the Motion of Plaintiff in the above-styled and
numbered cause for Summary Judgment Aftercareful consideration of the pleadings, the other
summary judgment evidence, and the arguments ofthe parties, itappears to the Court that there is
no genuine issue of material fact and the Plaintiff is entitled to judgment as a matter of law.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that DISCOVER BANK have
andrecover of and from Defendant ROSE M. GEISTER for the following:
1. A sum of$7,241.19 asthe balance due,owing, and unpaid under the Agreement
2. All costs ofthis proceeding;
IT IS FURTHER ORDERED that this Judgment finally disposes of all parties and all
claims, and is appealable.

SIGNED and ENTERED this K3 straof
day vJU I ,20 \5.
y
£UJ* JUDGE PRESIDING
APPROVED AS TO FORM:

/m^-
| fTROYD. BOLEN
STATE BAR NUMBER 24006199
(A ELKE D. MANCHESTER
STATE BAR NUMBER 24070566
[ ] LAURA L. BEDFORD
STATE BAR NUMBER 24025246
[ ] LESLIE L. SUN
STATE BAR NUMBER 24088490
OLD TOWN SQUARE
1 CHISHOLM TRAIL, SUITE 301
ROUND ROCK, TX 78681
ZATXATTORNEYS@ZWICKERPC.COM
• *

SinM
APPENDIX "B
 FILED
8/17/2015 12:51:00 PM
Liz Q. Gonzalez
County Clerk
Hays. TX

NO. 14-0679-C

DISCOVER BANK, § IN THE COUNTY COURT
Plaintiff §
§ ATLAWNOl
§
§ HAYS COUNTY, TEXAS
ROSE M GEISTER, §
Defendant §

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above-captioned cause came on for Plaintiff's summaryjudgment hearing beforethe

Courton July 13,2015. Attorney for Plaintiffandpro se Defendantwere present at the hearing.

Defendant filed to file a response or an affidavit to Plaintiff's Motion for Summary Judgment

After considering the pleadings, the evidence, and the arguments from both parties, the Court

makes its findings offact and conclusions of law as follows:

FINDINGS OF FACT

1. Plaintiffand Defendant entered into a binding contract ("the Agreement"). The terms of

the contract were outlined in the Card Member Agreement Under the terms ofthe

Agreement, Plaintiffmade cash advances to Defendant, either as actual cash or in

payment ofpurchases made by Defendantfrom third parties. Defendant accepted each

advance and under the Agreement because bound to pay Plaintiffthe amounts of such

advances, plus additional charges under the Agreement

2. Plaintiffextended credit to Defendant through an account ending in 245. Defendant

failed to repay all ofthe advances made under the Agreement, and was therefore in

breach ofthe Agreement andl is liable for breach of contract

DISCOVER BANK v. ROSE M GEISTER
Proposed Findings ofFact and Conclusions of Law
 3. Defendant admitted thatshedidowe thedebt to Plaintiff. Discover Bank is theoriginal
creditor ofthe account ending in245 and Plaintiffinthis action. Zwicker &Associates,
P.C. are attorneys ofrecordfor Plaintiffin this action.

4. Plaintiffis entitled to $7,241.19 in damages plus courtcostsfromDefendant

CONCLUSIONS OF LAW

5. Defendant is indebted to Plaintiff for the sum of $7,241.19 plus court costs.

6. Plaintiff's right to collection ofsuch indebtedness isnot barred bylimitations.

17th August
Signed this day of 2015.

tU!jt&J£ JUDGE PRESIDING

Apprised asTofoj ce:

) 6'
KJ'TRQyDr BOLEN ROSE M. GEISTER
£rATE BAR NUMBER 24006199 156 Granite Shoals Drive
[ ]ELISED.MANCHESTER Kyle, TX 78640
STATE BAR NUMBER 24070566 rmg721@comcastnet
[ ] LAURA L BEDFORD Pro Se Defendant
STATE BAR NUMBER 24025246
[ ] LESLIE L SUN
STATE BAR NUMBER 24088490
Zwicker & Associates, P.C.
Old Town Square
1 Chisholm Trail, Suite 301
Round Rock, IX 78681
zatxattomeys@zwickerpc.com
Attorneysfor Plaintiff

DISCOVER BANK v. ROSE M. GEISTER
Proposed Findings ofFact and Conclusions of Law
 ur>»
APPENDIX "C

FILED TO THE 3rd COURT OF APPEALS INTO THE

APPELLANTS FILE, ON SEPTEMBER 23,2015
 "r\»
APPENDIX "D
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.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@comca5t.n6t

Dear Mr. Kyle;

I would like to have this proposed Rule 11 Settlement and
Agreed Judgment, which I have not, and will not, sign, entered
into my file as part of my record. As you can see, it was sent to
me about two weeks after I filed my Notice to Appeal the
Trial Court Judgment.

I will be bringing up in appeals court the fact that they want to
get as much money as they can from me. This paperwork proves it.
On the Rule 11 Settlement you could see that the account with
Discover/Zwicker has been settled with Freedom Debt Relief, of
whom I am a client. It was settled on July 31, 2015. Zwicker and
Associates was told by me, and Freedom Debt Relief, that it was to
SEP 2 3 Z015
be settled by that date, and paid off completely by June 30, 2016.
\ JEffflEYD.
If you look on the Agree to Judgment, you will see that are asking me
to pay $6535.19.„.$706.00 already was paid on August 1st, 2015. That
adds up to $7241.19, the amount of the originaljudgment. They also
added on to the original amount of $7241.19, another $367.90.
that bringsthe total that they have asked Freedom Debt Relief for
was $7609.09. Which is what they are collecting from Freedom.
They settled for 71.43% of $7609.09 which equals $5435.17.
They also want me to pay all court costs of the proceedings, of which
what the amount will be, I can only imagine.

Paul Swearingen, the lawyer from Zwicker for the trial court
proceedings, denied that he even knew what Freedom Debt Relief was.
He was saying, "What is that". "I don't know what that is".
Iwonder why Troy Bolen, the lead lawyer at Zwicker, would send
someone to court to fight the case, who did even know what was going on.
He also said that he had a witness, but failed to produce that witness.
He just read words from a notebook, saying that is what the witness,
(from Discover Bank), said.

Freedom Debt Relief is my power of attorney where certain accounts
are concerned, including Discover Bank/Zwicker and Associates.

When I called Zwicker and Associates to tell them that I would NOT sign
the Rule 11 Settlement, and Agree to Judgment papers, I spoke with
Michael Pineda, their Litigation Assistant, he told me that if I did not sign,
then they would cancel the settlement. I told him that if you do that,
there would be a lawsuit against Zwicker and Discover Bank. Ithen
called Discover Bank, and spoke to Lacey, in their legal department.
The date was August 17,2015.1 made her aware, as she was not aware
yet, that the account had been settled. She spoke to a Zwicker &
Associates while I waited on the phone. I am not sure which Zwicker
that was, as there are many of them. She said yes it was settled, and
I gave her the breakdown of how it would be paid.
She also said, that Zwicker gets a judgment first, so in case I renege,
the^y would have something to fell back on, per se.
Ibelteve that it is ridiculous to putanold person (70), who just had
chemotherapy and radiation therapy, for the first six months of this
year, for breast cancer through something as serious as this,
for 'JUST IN CASE SAKE' sake.

Thank you so much in advance for your time.

Respectfully submitted by,

njp*K
Rose M. Geister
 ZWICKER & ASSOCIATES, P.C.
Attorneys At Law
OLD TOWN SQUARE 1CHISHOLM TRAIL, SUITE 301
ROUND ROCK, TX 78681
ZATXATTORNEYS@ZWICKERPC.COM
Tel. 512-218-0488 Fax 512-218-0477
NY CrrY Residents Only Call (877) 368-4531
THIS LAW FIRM
EMPLOYS ONE OR
MORE ATTORNEYS
ADMITTED TO
PRACTICE IN THE August 4, 2015
FOLLOWING STATES:

ALASKA HAYS COUNTY CLERK
712 S STAGECOACH TRLSUITE 2008
ARIZONA
SAN MARCOS, TX 78666
CALIFORNIA

COLORADO

CONNECTICUT

FLORIDA Re: DISCOVER BANK v. ROSE M. GEISTER
GEORGIA In the COUNTY Court AT LAW NO eg HAYS County, Texas
Case Number. 14-0679-C
IDAHO

ILLINOIS Dear ROSE M. GEISTER
KENTUCKY
Enclosed, please find an original and one copy of the proposed Rule 11
MARYLAND
Settlement Agreement and anAgreed Judgment Please signtheoriginals where
MASSACHUSETTS indicated and return in the enclosed self-addressed and stamped envelope.
MICHIGAN
Please keep the copy for your own records. Should vou not return both
signed documents enclosed within 14 davs of the date of this
MINNESOTA correspondence, litigation ofthis cause will continue
NEW JERSEY
Please do not hesitate to contact our office if you have any questions or
NEW HAMPSHIRE
concerns. Your assistance is greatly appreciated.
NEW YORK

NORTH CAROLINA Very truly yours,
OHIO

OREGON

Litigation Assistant
f,W£j>A
PENNSYLVANIA
ZWICKER & ASSOCIATES, P.C.
SOUTH CAROLINA
A Law Firm Engaged in Debt Collection
TENNESSEE

TEXAS

VIRGINIA

WASHINGTON

WEST VIRGINIA

WISCONSIN

DISTRICT OF
COLUMBIA
 NO. 14-0679-C
DISCOVER BANK, § IN THE COUNTY COURT
Plaintiff § -
§ AT LAW NO ^
v. §
§ HAYS COUNTY, TEXAS
ROSE M. GEISTER, §
Defendant(s) §

RULE 11 SETTLEMENT AGREEMENT

All parties to this lawsuit have agreed to settle on the following terms:
1. The parties will approve an Agreed Judgment in favor of Plaintiff for the full amount of
Plaintiffs claim, including the balance due on the debt and all court costs. The Agreed
Judgment will be filed with the court. So longas Defendant(s) complies with the terms of
this agreement, Plaintiff agrees not to abstract the Agreed Judgment or take any post-
judgment remedies. However, Plaintiff will consider the judgment satisfied after
Defendant(s) makes the payments on time described in paragraph two (2) below.
2. Defendants), ROSE M. GEISTER will return a signed original of this Rule 11 Settlement
Agreement with a signed original of the Agreed Judgment to Plaintiff at ZWICKER &
ASSOCIATES, P.C. OLD TOWN SQUARE 1 CHISHOLM TRAIL, SUITE 301
ROUND ROCK, TX 78681 along with the first payment described below, payable to
ZWICKER & ASSOCIATES, P.C, P.C. Trust Account, unless that first payment has
already been made. All checks and money orders for payments made after the first payment
shall be payable to ZWICKER & ASSOCIATES, P.C, P.C. Trust Account and sent to
ZWICKER & ASSOCIATES, P.C, P.C, 80 Minuteman Road, Andover, Massachusetts
01810. Defendant(s) agrees to make monthly payments as described below until the total
sum balance is paid in full. Defendant(s) will pay in the form ofcheck or money order the
total sum of $5,435.00 of which $706.00 has been received up to date, as follows:
a. Starting on August 30,2015 Defendant will make a monthly payment of $ 200.00
to be received by Plaintiff on or before the 30th of each month for 3 consecutive
month(s)
b. Starting on November 30,2015 Defendant will make a monthly payment of$ 516.00
to be received by Plaintiff on or before the 30th of each month for 7 consecutive
month(s)
c Starting on June 30,2016 Defendant will make a payment of $ 517.00 to be received
by Plaintiff on or before the 30th of June, 2016.
3. Time is ofthe essence for all payments under this Agreement.
4. Plaintiffwill nottake any action torecover attorney's fees orpost-judgment interest unless
Defendants) fails to complywith theterms ofthe Rule 11 Agreement.
5. Plaintiff will file a copyof this Rule 11 Settlement Agreement and the Agreed Judgment
with the Court.

6. This Rule 11 Settlement Agreement constitutes the entire agreement of the parties for
settlement of the indebtedness which is the basis of this lawsuit, and supersedes all prior
negotiations and agreements. There are no oral agreements between the parties not set
forth herein.

7. This Rule 11 Settlement Agreement may be revised or modified only by a written
instrument signed by both parties, and it shall be binding upon and inure to thebenefit of
Plaintiff and Defendant(s), and their respective heirs, administrators, representatives,
executors, successors and assigns.
8. This Rule 11 SettlementAgreement is madeand entered into within the StateofTexas and
shall, in all respects be construed, interpreted, enforced and governed by the laws of the
State ofTexas.

9. The language of this Rule 11 Settlement Agreement shall, in all cases, be construed as a
whole, according to its fair meaning, and not strictly for, or against, any of the parties.
Should anyprovisions ofthis Rule 11 Settlement Agreementbe declared, orbe determined,
by any court to be unenforceable or invalid, the validity of the remaining parts, terms or
provisions of this Rule 11 Settlement Agreement shall not be affected and any
unenforceable or invalid part, term or provision shouldnot be deemed as a part ofthis Rule
11 Settlement Agreement.
10. Defendant(s) expressly represents that heenters intothis Rule 11 Settlement Agreement of
his own free will and accord, and is not relying upon any representations by any
representative or attorney of Plaintiff. Defendants) has read this Rule 11 Settlement
Agreement and fully understands it. Defendants) further represents that the ramifications
and legal consequences of thisRule 11 Settlement Agreement havebeen explained to him
byattorneys ofhisown choosing (orheexpressly waives theright and opportunity toobtain
such advice by counsel), and he executes it relying wholly upon his ownjudgment, belief
and knowledge of the nature, extent, effect, and duration of the claims and the liabilities
compromised and settled by this Rule 11 Settlement Agreement.
AGREED:
Date:
ROSE M. GEISTER
Defendant(s)
Date:
I 1TROY D. BOLEN
I 1ELISED. MANCHESTER
( J LAURA L. BEDFORD
( J LESLIE L. SUN
Attorneys for Plaintiff
ZATXATTORNEYS@ZWICKERPC.COM
 NO. 14-0679-C
DISCOVER BANK, § IN THE COUNTY COURT
Plaintiff §
§ ATLAWNO
v §
§ HAYS COUNTY,TEXAS
ROSE M. GEISTER, §
Defendant(s) §

ACREED JUDGMENT

On this date came to be considered the above-styled and numbered cause. Plaintiff and
Defendants) appeared by their respective counsel. Both parties announced to the Court that all matters
in controversy had been compromised and settled, and requested and stipulated that the Court enter the
following Judgment The Court heard the evidence and the arguments ofcounsel, and is ofthe opinion
that judgment should be entered.
Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that DISCOVER BANK
does have and recover ofand fiom Defendant(s) ROSE M. GEISTER for the following:
1. A sumof$6,535.19 asthebalance due, owing, and unpaid under the Agreement;
2. All costs ofthis proceeding; and
Plaintiff shall have all writs and other process necessary to enforce this Judgment All
relief not expressly granted herein is denied. This Judgment finally disposes of all parties and all
claims, and is appealable.

SIGNED this day of _ »20

JUDGE PRESIDING
,5 ,"?

AGREED AS TO FORM AND SUBSTANCE:

^ ROSE M. GEISTER
Defendants)

I 1TROY D. BOLEN
STATE BAR NUMBER 24006199
[ ) ELISE D. MANCHESTER
STATE BAR NUMBER 24070566
I 1LAURA L. BEDFORD
STATE BAR NUMBER 24025246
I ) LESLIE L. SUN
STATE BAR NUMBER 24088490
OLD TOWN SQUARE
1 CHISHOLM TRAIL, SUITE 301
ROUND ROCK, TX 78681
ZATXATTORNEYS@ZWICKERPC.COM
Rose Geister

From: noreply@salesforce.com on behalf of Freedom Settlement [nharrop@freedomdebtrelief.com]
Sent: Wednesday, July 29, 2015 12:35 PM
To: rmg721 @comcast.net; rmg721 @comcast.net
Subject: •"SETTLEMENT FROM FREEDOM DEBT RELIEF*"

Follow Up Flag: Follow up
Flag Status: Flagged

Categories: Red Category

freedom
DEBT RELIEF

Dear Rose Geister.

Congratulations, Freedom has successfully negotiated a settlement of one of your
creditor accounts. In order to process this settlement and facilitate the payment in
a timely manner, your authorization of this settlement is required.

You may authorize this settlement in one of the following ways:

• Please click the button below to approve your settlement.

Call 800-655-6303 to review and approve the settlement terms with an Agent
Log on to the Freedom Debt Reliefs Client Portal at www.Fdrclient.com with your
username and password and follow the on-screen prompts.
o You will need to register first if you have not already done so.
Settlement Detail:

The Creditor being paid: Zwicker & Associates

Original Creditor: Discover

The Account Number with that Creditor
Total Settlement Amount: S5.435.00
Total Current Balance S7.609.09

Settlement %
7/- f3 %
 71.43

This settlement and any associated fees are scheduled to be paid over the next 12 months.

SETTLEMENTS ARE TIME SENSITIVE, AND A DELAYED AUTHORIZATION MAY
JEOPARDIZE THE SETTLEMENT AGREEMENT THAT HAS BEEN NEGOTIATED
WITH THIS CREDITOR. If FDR does not receive your authorization, we will not be
able to process the payment to your creditor, which will cause you to lose the
settlement.

Please complete the authorization as soon as possible.

If the total amount of your settlement is to be paid in more than one installment, your
creditor may, from time to time, request or agree to adjust cither the payment date or the
payment amount of any installment. By your execution, below, you are authorizing us to
accept a creditor request or agreement to the adjustment of either the payment date or the
payment amount of any installment, PROVIDED that under no circumstances will any such
adjustment increase the "Total Settlement Amount" set forth above.

Thank You,

lliana Valenzucla

Again for your convenience you can click the button below to approve your
settlement.

•••§•••1
Rose Geister

From: noreply@salesforce.com on behalf of Client Services [support@freedomdebtrelief.com]
Sent: Wednesday, July 29, 2015 1:31 PM
To: rmg721@comcast.net
Subject: Congratulations from Freedom Debt Relief

1(800)655-6303

freedom
DEBT RELIEF

Dear Rose:

Congratulations! Freedom Debt Relief has successfully negotiated a settlement on one
of the accounts in your Debt Reduction Program Listed below is a summary of the
settlement terms obtained on your behalf.

Creditors Name:

Original Creditor: Discover

Date of Settlement: 07/31/2015

Current Balance: S7.609.09

Settlement Amount:

Amount Saved:

Settlement Percentage: % 7A .

1. The trial court, cause number, and style of this are shown in the

caption above.

2. The was signed on

July 13,2015.

3. Rose M. Geister desires to appeal all portions of the judgment.

4. This appeal is beingtaken to the 3rd Court of Appeals,in

Austin, Texas.

5. This notice of appeal is being filed by Rose M. Geister.
< -ft

Respectfully submitted,

Rose M. Geister

156 Granite Shoals Drive

Kyle, Texas 78640

Tel: (512) 644-7221

By:/^^^
 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was this date served

upon all counsel of record by delivering it, in person, to:

Hays County Clerk,

and the.

Hays County Court of Law,

both located at:

712 S. Stagecoach Trail

San Marcus, Texas 78666
—^-

On this ^ / - dayof July, 2015.

Respectfully submitted by:

Rose M. Geister

$/^/,^X^
156 Granite Shoals Drive

Kyle, Texas 78640

(512)644-7221

63
 urn
APPENDIX "F
October 15.2015

CORRECTION OF THE MOTION FOR AN EXTENSION OF TIME TO FILE A BRIEF

DOCKET NUMBER - 03-15-0O471-CV

CAUSE NUMBER- 14-0679-C

ROSE M. GEISTER
APPELLANT (PRE SE)

DISCOVER BANK/ZWICKER & ASSOCIATES
PLAINTIFF

I, Rose M. Geister, the Appellant, have tried repeatedly in the past

week to confer with Zwicker & Assocs. to see if there was any

opposition to my taking the additional time. The first time I called,

on 10/07/2015,1 spoke to Jessica, a litigation asst., told her what

I needed, then asked to speak to Troy Bolen. She told me to hold on,

and I did for three minutes. I then called back, and it went straight

into the answering machine. Each time I called after that it went

straight into the answering machine. I will be in the Deputy Asst.

office, Mr. Crocker, at the 3rd court of appeals on Monday,

10/19/2015, to pay the $10.00 due, enter this corrected Motion,

and to file my brief.
Thank you for your time in advance.

Respectfully submitted by:

Rose M. Geister

156 Granite Shdals Drive
Kyle, Texas 78640
(512) 644-7221
rmg721@comcast.net
September 30, 2015

MOTION FOR AN EXTENSION OF TIME TO FILE APPELLANTS BRIEF

DOCKET NUMBER - 03-15-00471-CV

CAUSE N NUMBER - 14-0679-C

ROSE M. GEISTER
Defendant

ZWICKER & ASSOCIATES
(DISCOVER BANK)
Plaintiff

I, Rose M. Geister, the appellant, would like to file a "Motion for an

Extension of Time to File my Brief. I would like the extension to be

30 days, resulting in a due time for the brief to be due as

November 12, 2015, if possible.

Respectfully Submitted by:

Rose M. Geister

156 Granite Shoals Drive
Kyle, Texas 78640
(512) 644-7221
rmg721@comcast.net