Rose M. Geister v. Discover Bank

Court of Appeals of Texas

Rose M. Geister v. Discover Bank

Court of Appeals of Texas·Decided September 23, 2015·No. 03-15-00471-CV·Published

Opinion

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@comcast.net

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 2015

be settled by that date, and paid off completely by June 30, 2016.

THIRD COURT OF APPEALS,

\ JEFFREY D-KYLE /

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 original judgment. They also added on to the original amount of $7241.19, another $367.90. that brings the 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". I wonder 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. I then 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, they would have something to fall back on, per se. I believe that it is ridiculous to put an old 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,

Rose M. Geister

ZWICKER & ASSOCIATES, P.C. ATTORNEYS AT LAW OLD TOWN SQUARE 1 CHISHOLM TRAIL, SUITE 301 ROUND ROCK, TX 78681 ZATXATTORNEYS@ZWICKERPC.COM Tel. 512-218-0488 Fax 512-218-0477 NY City 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 aZ 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 an AgreedJudgment. Please sign the originalswhere MASSACHUSETTS indicated and return in the enclosed self-addressed and stamped envelope.

Please keep the copy for your own records. Should you not return both MICHIGAN siened documents enclosed within 14 days 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

PENNSYLVANIA Litigation Assistant 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 § x9 § AT LAW NO <^C

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: 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 long as 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. Defendant(s), 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 of check 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. Time is of the essence for all payments under this Agreement.

Plaintiffwill not take any action to recover attorney's fees or post-judgment interest unless Defendant(s) fails to comply with the terms of the Rule 11 Agreement. Plaintiff will file a copy of this Rule 11 Settlement Agreement and the Agreed Judgment with the Court.

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.

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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@comcast.net

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 2015

be settled by that date, and paid off completely by June 30, 2016.

THIRD COURT OF APPEALS,

\ JEFFREY D-KYLE /

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 original judgment. They also added on to the original amount of $7241.19, another $367.90. that brings the 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". I wonder 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. I then 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, they would have something to fall back on, per se. I believe that it is ridiculous to put an old 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,

Rose M. Geister

ZWICKER & ASSOCIATES, P.C. ATTORNEYS AT LAW OLD TOWN SQUARE 1 CHISHOLM TRAIL, SUITE 301 ROUND ROCK, TX 78681 ZATXATTORNEYS@ZWICKERPC.COM Tel. 512-218-0488 Fax 512-218-0477 NY City 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 aZ 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 an AgreedJudgment. Please sign the originalswhere MASSACHUSETTS indicated and return in the enclosed self-addressed and stamped envelope.

Please keep the copy for your own records. Should you not return both MICHIGAN siened documents enclosed within 14 days 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

PENNSYLVANIA Litigation Assistant 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 § x9 § AT LAW NO <^C

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: 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 long as 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. Defendant(s), 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 of check 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. Time is of the essence for all payments under this Agreement.

Plaintiffwill not take any action to recover attorney's fees or post-judgment interest unless Defendant(s) fails to comply with the terms of the Rule 11 Agreement. Plaintiff will file a copy of this Rule 11 Settlement Agreement and the Agreed Judgment with the Court.

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.

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 the benefit of Plaintiff and Defendant(s), and their respective heirs, administrators, representatives, executors, successors and assigns. This Rule 11 Settlement Agreement is made and entered into within the State of Texas and shall, in all respects be construed, interpreted, enforced and governed by the laws of the State of Texas.

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 any provisions ofthis Rule 11 Settlement Agreement be declared, or be 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 should not be deemed as a partofthis Rule 11 Settlement Agreement.

10. Defendant(s) expressly represents that he enters into this 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. Defendant(s) has read this Rule 11 Settlement Agreement and fully understands it. Defendant(s) further represents that the ramifications and legal consequences of this Rule 11 Settlement Agreement have been explained to him by attorneys ofhis own choosing (or he expressly waives the right and opportunity to obtain such advice by counsel), and he executes it relying wholly upon his own judgment, 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.

N. AGREED:

^ ROSE M. GEISTER Date:

Defendant(s)

Date:

[ 1TROYD.BOLEN I 1ELISE D.MANCHESTER [ 1 LAURA L. BEDFORD I 1 LESLIE L. SUN Attorneys for Plaintiff ZATXATTORNEYS@ZWICKERPC.COM

NO. 14-0679-C

DISCOVER BANK, § IN THE COUNTY COURT Plaintiff § § AT LAW NO

v. § § HAYS COUNTY, TEXAS ROSE M. GEISTER , § Defendant(s) §

AGREED JUDGMENT

On this date came to be considered the above-styled and numbered cause. Plaintiff and Defendant(s) appeared bytheir respective counsel. Both parties announced tothe Court that all matters incontroversy 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 isofthe opinion that judgment should be entered.

Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that DISCOVER BANK does have and recover of and from Defendant(s) ROSE M. GEISTER for the following:

1. A sum of $6,535.19 as the balance due, owing, and unpaid under the Agreement; 2. All costs of this 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

AGREED AS TO FORM AND SUBSTANCE:

^ ROSE M. GEISTER Defendant(s)

[ JTROYD.BOLEN STATE BAR NUMBER 24006199 I J ELISED.MANCHESTER STATE BAR NUMBER 24070566 [ J LAURA L. BEDFORD STATE BAR NUMBER 24025246 [ 1 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: $5,435.00 Total Current Balance $7,609.09

Settlement %

7/.f3 V'c

lo

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 either 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,

Iliana Valenzuela

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

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: $7,609.09

Settlement Amount:

Amount Saved:

Settlement Percentage: % 7/. </3 % Freedom Debt Relief is excited to share this news with you and will continue to work hard to maximize your savings and to complete your program as quickly as possible. If you have any questions or concerns, please feel free to contact our Customer Service department at 1-800-655-6303. Sincerely, Settlement Negotiations Department Freedom Financial Network, LLC

Freedom Debt Relief

4940 South Wendler Drive, Suite 210 Tempe. AZ 85282

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Rose M. Geister v. Discover Bank, (Tex. Ct. App. 2015).

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