law-deemed admissions
Deemed Admissions
Texas Rule of Civil Procedure 198.2 requires a party to respond to a request for admission within 30 days,
except that a defendant served with a request before his answer is due has 50 days to respond to the request.
Tex. R. Civ. P. 198.2(a). If a response is not timely served, the request is deemed admitted. Id. 198.2(c).
Landaverde's responses filed on November 15, 2005 were timely; therefore, those denials are given full effect.
The requests for admissions which Landaverde did not respond to were deemed admitted. See id. We must
determine if Centurion established the elements of its suit through the matters deemed admitted.
Landaverde v. Centurion Capital Corporation (Tex.App.- Houston [14th Dist.] Jun. 28, 2007)(Hedges)(credit card
debt suit)(credit card debt suit by assignee not properly brought as sworn account suit)
If a party fails to timely serve a response to a request for admissions, the requests are deemed
admitted without a court order. TEX. R. CIV. P. 198.2(c). A matter admitted this way is conclusively
established as to the party making the admission unless the court permits the party to withdraw or
amend the admission. TEX. R. CIV. P. 198.3. Deemed admissions are competent summary judgment
evidence. Schafer v. Federal Servs. Corp., 875 S.W.2d 455, 457 (Tex. App.—Houston [1st Dist.]1994,
no writ) (holding that trial court was free to consider deemed admissions, although not specifically
referenced in motion for summary judgment); TEX. R. CIV. P. 166a(c).
Unifund CCR Partners v. Gellatly (Tex.App.- Houston [1st Dist.] July 3, 2008)(Nuchia)
(credit card suit by assignee of card issuer against consumer, deemed admissions, assignee's business records
affidavits not conclusory, sufficiency of summary judgment proof, breach of contract and quantum meruit
exclusive of each other)
AFFIRM TC JUDGMENT: Opinion by Justice Sam Nuchia
Before Justices Nuchia, Alcala and Hanks
01-07-00552-CV Unifund CCR Partners v. Sara Morgan Gellatly
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Here, Unifund served Gellatly with requests for admission with its original petition, on December 14, 2006.
Unifund filed its motion for summary judgment on April 5, 2007, at which point no response to its requests for
admissions was on file. Because no response was timely filed, the requests for admissions were deemed
admitted. See TEX. R. CIV. P. 198.2. However, Unifund did argue to the trial court that these deemed admissions
provided some summary judgment evidence in its favor. Specifically, Unifund argued:
Plaintiff’s summary judgment evidence establishes that Defendant was given an extension of credit by Plaintiff’s
predecessor in interest, to purchase goods. The deemed admissions establish that Defendant entered into an
agreement with Plaintiff/Plaintiff’s predecessor in interest, that Defendant received the credit, that Plaintiff/Plaintiff’
s predecessor in interest extended credit to Defendant,and that Defendant made payments less than the total of
the purchases.
The deemed admissions establish: (1) the existence of a contract between Gellatly and Unifund’s predecessor in
interest; (2) that Unifund’s predecessor in interest performed on the contract; (3) that Unifund now owns the
debt; (4) that Gellatly breached the contract by failing to make payments; and (5) that Unifund’s predecessor in
interest and, therefore, Unifund were damaged by Gellatly’s failure to pay. Gellatly presents no argument
regarding the deemed admissions on appeal. The deemed admissions supply conclusive proof of the elements
of Unifund’s breach-ofcontract cause of action. 2 See TEX. R. CIV. P. 198.2; see Overstreet v. Home Indemnity
Co., 669 S.W.2d 825, 827–28 (Tex. App.—Dallas 1984) rev’d on other grounds by 678 S.W.2d 916 (Tex. 1984)
(holding that deemed admissions established right to summary judgment as matter of law.).
We hold that the deemed admissions and affidavits supply conclusive proof of the elements of Unifund’s cause of
action. We overrule Gellatly’s sole issue.
2 The deemed admissions also supply conclusive proof of Unifund’s standing to sue, as the owner of the
account. In addition, Unifund sued on an alternate theory of quantum meruit. Because the deemed admissions
conclusively prove the existence of a contract, quantum meruit is not available as a theory of recovery. Fortune
Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000) (holding that because party to contract bound by
express agreement, quantum meruit not available where express contract proven).
Rowlands v. Unifund CCR Assignee of Citibank (Tex.App.- Houston [14th Dist.] Mar. 27, 2007)(Justice Frost)
(consumer debt case, deemed admissions)
AFFIRMED: Opinion by Justice Frost
Before Justices Fowler, Edelman and Frost
14-05-01122-CV Keith Rowlands v. Unifund CCR as Assignee of Citibank
Appeal from Count Civil Court at Law No 3 of Harris County (Judge Lynn M. Bradshaw-Hull)
Because the deemed admissions establish as a matter of law that no genuine issue of material fact exists as to
the essential elements of Unifund's claim, summary judgment was proper. Accordingly, we overrule Rowland's
issues and affirm the trial court's judgment.
Attorney for Unifund CCR: James N. Hull and Brian Edward Staley
Attorney for Keith Williams Rowlands: John Victor Mastriani
Approximately $14,980.00 v. The State of Texas (Tex.App. - Houston [14th Dist.] Jun. 12, 2008)(Yates)
(default judgment, deemed admission, opportunity to rebut presumption of proper service)
REVERSED AND REMANDED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Guzman and Brown
14-07-00164-CV Approximately $14,980.00 v. The State of Texas
Appeal from 125th District Court of Harris County
CONCURRING: Concurring Opinion by Justice Brown