c-I-cv-05-00 14x2 NO.

CITIB ANK (SOUTH DAKOTA) N. A.

VS.

PAMELA M KNIGHT

-. - - .'., -. .. -.- C . . --'.' - i IN THE COUNTY COURT 2' 7 , 5 , , ;

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TRAVIS COUNTY, TEXAS ;:,,i L.: - . . a ... ..- (.n

m W - PLAINTIFF'S ORIGINAL PETITION

COMES NOW, CITIBANK (SOUTH DAKOTA) N.A. ("Plaintiff'), and files this, its Original

Petition, complaining of PAMELA M KNIGHT, Defendant herein, and for cause of action would

respectfully show this Honorable Court the following:

PARTIES. Plaintiff is CITIBANK (SOUTH DAKOTA) N.A. ("Plaintifr'), whose principal place

of business is located at 701 E. 60th Street North, Sioux Falls, SD 571 17.

Defendant is PAMELA M KNIGHT ("Defendant"), who may be sewed with process at

4401 SHOALWOOD AV , AUSTIN TX 78756-3216, or any other valid address.

1. DISCOVERY. Plaintiff intends Discovery to be conducted under Level 1 of Rule 190 of

the Texas Rules of Civil Procedure. Interrogatories, Request for Admissions, Request for Disclosure and

Request for Production are attached.

2. VENUE. Venue is proper in this court because this is where the contract was signed, where

the Defendant resides, or where the events giving rise to Plaintiffs claims occurred. TEX. CIV. PRAC. &

REM. CODE §§ 15.002(a), 15.035(b).

3. FACTS. In the usual course of business, Plaintiff offers credit card accounts. Defendant

obtained a credit card from Plaintiff, designated as Account No. 546653606 1 197868 (the "Account", whether

one or more). The use of the Account and credit card was governed by an agreement with Plaintiff.

Defendant accepted and used this and became bound to repay Plaintiff for the charges. Failure to make

payment constitutes breach of contract. A statement ofaccount is attached hereto and marked as Exhibit " 1 ,"

and is incorporated into this petition by reference. All conditions precedent have been performed or have

occurred.

4. DEBT. Defendant defaulted in making the payments required by the terms of the

agreement. Due to Defendant's breach of the terms of the agreement, Plaintiff accelerated maturity of the

total amount due on the Account. The total balance due Plaintiff on the Account is $8,544.29, after all just

and lawful offsets, credits and payments have been allowed. Plaintiffhas made fimely demand on Defendant

to pay the amounts due and owing, but Defendant has not done so.

5. ACCOUNT STATED. Regular monthly statements were mailed by Plaintiff to Defendant

and were received by Defendant. These dated, monthly statements contain a description of all credits,

payments, purchases, cash advances, finance charges, late charges, and the amount of the total balance then

due. Each monthly statement was retained by Defendant without written objection after the period of time

provided for in the agreement to allow an opportunity to object to the credits, payments, purchases, cash

advances, finance charges, late charges, or the amount of the total balance then due. Under the terms of the

agreement, Defendant has acquiesced as to the total balance due and has agreed to pay Plaintiff the total

balance due contained in the last monthly statement on said account (hereinafter the "Principal").

6 . OPEN ACCOUNT. In the alternative, if necessary, Plaintiff further alleges that Plaintiff

provided credit card services in the form of financial, accounting, billing, and retail-purchase facilitating

services in the regular course of business. Plaintiffs claim is founded upon an open account for a liquidated

money demand based upon a written contract and founded on business dealings between Plaintiff and the

Defendant on which a systematic record has been kept. The Defendant owes Plaintiff the sum of $8,544.29.

7. OUANTUM MERUITIUNJUST ENRICHMENT. Pleading in the alternative, Plaintiff

alleges that it should recover from Defendant for assumpsit, unjust enrichment and quantum meruit, for the

extension of credit rendered to and used by Defendant. Plaintiff would show that Defendant is indebted to

Plaintiff because Defendant received the use and benefit of the account sued for, or ratified or accepted the

benefit of the Plaintiffs extension of credit or as one who became obligated to Plaintiff, whether through

written obligation or quantum meruit; that the extension of credit was tendered and received under

circumstances which reasonably indicated that Plaintiff expected to be repaid, and in fact Plaintiff did expect

to be paid; and, the value of the benefit to Defendant is $8,544.29. Defendant would be unjustly enriched

if permitted to retain these monies.

8. ATTORNEY'S FEES. Defendant's default has made it necessary for Plaintiff to employ the

undersigned attorney to file suit. Plaintiff requests a reasonable fee for the attorney's services rendered and

to be rendered in this case. Plaintiff is entitled to recover attorney's fees pursuant to the terms of the Card

Agreement and the provisions of Chapter 38 of the Texas Civil Practices and Remedies Code.

9. MILITARY SERVICE. As evidenced by Exhibit "2" attached hereto, Defendant is not in

military service.

DISCOVERY

Your answers to these Interrogatories, Requests for Admission and Request for Production should include all information, including that learned through hearsay, which is known to you, your agents, employees, or attorneys, or which appears in any of your records. If you cannot answer an Interrogatory, Request for Admission o r Request for Production after conducting a reasonable investigation, you should so state and answer to the extent you can, stating what information you do have, what information you cannot provide, and stating what efforts you made to obtain the unknown information. When the facts set forth and answers or portions thereof are supplied upon information and belief rather than actual knowledge, you should so state and specifically describe the source(s) of such information and belief.

Responses to Plaintiffs discovery request are due 50 days after service of the request upon the Defendant.

A. REQUEST FOR ADMISSIONS. Pursuant to the Texas Rules of Civil Procedure,

Defendant is requested to admit the truth of each of the matters listed below and to admit the genuineness

of each of the documents described in and exhibited with the attached requested admissions. Responses to

these Requests for Admission are due 50 days after service of the request. Admit that:

I. Defendant requested that Plaintiff open a credit card account in Defendant's behalf.

2. Based on Defendant's request, Plaintiff opened credit account number 5466536061 197868 (the "Account") on Defendant's behalf.

3. Plaintiff and Defendant entered into an agreement to create a revolving charge agreement for credit.

4. Defendant has understood from the time the Account was opened that use of the credit card results in Plaintiff making a loan on Defendant's behalf for the amount charged or cash advance requested.

5 . Defendant has understood from the time the Account was opened that

Defendant is required and obligated to repay all charges or cash advances incurred on the Account.

From the time the Account was opened, Defendant received monthly statements from Plaintiff showing the amount of charges or cash advances incurred for that monthly period, along with any payments or credits to the account, and specifying the monthly installment then due and owing.

The reverse side of each monthly statement provided to Defendant specifically advised of Defendant's right to dispute any error contained on the monthly statement.

Since the Account was opened, Defendant has not notified Plaintiff of a dispute or error regarding any information contained in a monthly statement.

Defendant presently owes Plaintiff the sum of $8,544.29.

The attached statement accurately states the amount of money owed by Defendant to Plaintiff regarding loans obtained by Defendant using the credit card account.

Defendant has breached Defendant's contract with Plaintiff.

Defendant's breach has damaged Plaintiff in the amount of $8,544.29.

Plaintiff mads demand on Defendant before filing suit for payment of the outstanding balance due at that time.

Prior to suit, Defendant received from Plaintiff, or Plaintiffs attorney, a letter requesting payment of $8,544.29.

Defendant is not a member of any military service with assignments or orders that would give the defendant a right to a delay under the law.

The annual percentage rate, as set forth in Exhibit " 1" attached hereto, was agreed to by Plaintiff and Defendant.

Defendant has no defense to this suit, and judgment should be granted as prayed for.

At least $1,965.19 should be awarded to Plaintiff as attorney's fees in this suit.

19. The statement of account attached hereto as Exhibit "1" is a true and a correct copy of the business record maintained by Plaintiff.

20. By the terms of the Card Agreement, Plaintiff is entitled to charge Defendant late fees if Defendant's monthly payments are late, and over credit limit fees if Defendant exceeds the credit limit.

2 1. Plaintiff has applied all just and lawful offsets to the Account.

B. REOUEST FOR DISCLOSURES. Pursuant to Rule 194, Plaintiff requests the

following disclosures from Defendant:

(a) the correct names of the parties to the lawsuit;

(b) the names, addresses, and telephone numbers of any potential parties;

(c) the legal theories and, in general, the factual bases of the responding party's claims or defenses (the responding party need not marshal all evidence that may be offered at trial);

(d) the amount and any method of calculating economic damages;

(e) the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case;

( f ) for any testifying expert:

(1) the expert's name, address, and telephone number;

(2) the subject matter on which the expert will testify;

(3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;

(4) if the expert is retained by, employed by, or otherwise subjected to the control of the responding party;

(A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and

(B) the expert's current resume and bibliography;

(g) any indemnity and insuring agreements described in Rule 192.3(f);

(h) any settlement agreements described in Rule 192.3(g);

(i) any witness statements described in Rule 192.3(h);

(j) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills;

(k) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the

responding party by virtue of an authorization furnished by the requesting Party-

C . INTERROGATORIES.

Identify all persons answering, or assisting in answering these Interrogatories.

If you have denied, or failed to admit, any of the Request for Admissions propounded to you by Plaintiff, state, with regard to each such Request for Admission, every reason, cause, or defense you have or claim for denying or failing to admit the genuineness of the Request for Admission.

If Defendant contends or believes that the balance claimed by Plaintiff is not correct, state all the facts and identify all the documents on which that contention or belief is based.

State the date, amount, and nature of every payment, credit, or offset against the account made the subject of Plaintiffs original petition that Defendant alleges Plaintiff has not allowed to Defendant. As a Request for Production, attach to your answer a copy of each document or written memorandum in support of each such payment, credit, or offset (for example, front and back of each check or cash receipt evidencing each payment) claimed by Defendant; or if you will not produce such records, state the date, amount, and nature of each such payment, credit or offset and identify each piece of supporting documentation.

State whether Defendant or Defendant's attorney on behalf of Defendant has ever denied, either orally or in writing, the account made the subject of Plaintiffs original petition and state whether Defendant or Defendant's attorney on Behalf of Defendant has ever claimed, whether orally or in writing, any payment , credit, or offset to the account. If any such communication was in writing and if you will do so without a formal request to produce, attach a genuine copy of each writing; or if you will not, identify each writing. If any such communication was oral, state the date and substance of communication, state the manner of its delivery, and state the name of the agent, representative, or employee of Plaintiff to whom such communication was directed.

Did Plaintiff present to Defendant a demand for payment of the claim made the subject of this suit? Is so, state the date it was received , the name of the person receiving it, the relationship to Defendant of the person receiving it, and the amount of the demand.

Identify all persons whom you intend to call as witnesses at trial, other than rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before trial.

If Defendant contends or believes that the debt that is the subject of this suit is the obligation of any person or entity other than Defendant, identify such other persons or entities and state the fact and identify the documents on which that contention of belief is based.

This Interrogatory does not include an attorney filing an Appearance in this case. If any person, firm, business, debt negotiation company or debt reduction company (all individually hereinafter referred to as "business"), has helped you, directly or indirectly, in responding to the Plaintiffs claim (whether before or after suit was filed), please provide the following information:

A.) Name, Address, phone number, and website for such business;

B.) Describe the assistance provided;

C.) Describe any documents provided by this business, including but not limited to documents procured from a website (unless produced);

D.) State whether such business is licensed and/or authorized to practice law in Texas;

E.) How you became aware of this business;

F.) Did the business contact you first or did you contact the business;

G.) Did the business tell you they could reduce the amount of debt you owe Plaintiff! If so by how much and on what basis?

H.) How are you paying this business?

I.) How much are you paying this business for their assistance?

REOUEST FOR PRODUCTION.

All documents and tangible things that discuss, relate to, or refer to your defenses to the Claims that are the subject matter of this litigation.

All documents and tangible things that discuss, relate to, or refer to any communication between you and Plaintiff regarding the Claims that are the subject matter of this litigation.

All documents and tangible things that discuss, relate to, or refer to communications, including but not limited to correspondence, sent by you to Plaintiff or any non-privileged third party or received by you from Plaintiff or any non-privileged third party that discuss, relates to, or refers to the Claims that are the subject matter of this litigation.

All documents and tangible things identified in your answers to Interrogatories, if any.

Any witness statements obtained from any person pertaining to the claims, counterclaims, allegations and defenses asserted in this lawsuit.

Any documents and tangible things describing, summarizing, or recording a history of payments, credits, deductions, interest charged, interest paid, principle paid, and charges pertaining to Plaintiffs account with you, including cancelled checks, money order receipts, or other evidence of payment properly credited to the account and those not properly credited to the account.

All documents and tangible things that discuss, relate to, or refer to each and every fact, reason, allegation, or theory under which you deny that you are liable to Plaintiff for the claims that are the subject of this litigation.

All documents and tangible things that discuss, relate to, or refer to the specific dollar amounts that you claim to be indebted to Plaintiff and the method of calculating those amounts.

A copy of all checks sent in payment on this account for which you claim you were not given credit.

10. A copy of all bank statements which evidence payment on this account for which you claim you were not given credit.

1 1. A copy of all money orders or wire transfers which evidence payment on this account for which you claim you were not given credit.

12. This request does not include an attorney filing an appearance in this case. If any person, firm or business, debt negotiation company or debt reduction company (all individually hereinafter referred to as "business"), has helped you respond to the Plaintiffs claim (whether before or after suit was filed). Please provide a copy of the following: All correspondence with such business, copies of all documents evidencing payment to such business, copies of advertisements from such business to which you responded, a copy of any and all forms such business provided to you.

WHEREFORE, Plaintiff prays that-

A. Defendant be cited to appear and answer herein; B. Plaintiff be granted judgment for the amount due; C. Plaintiff be granted interest at the maximum rate per annum allowed by law,

whether contractual or statutory; D. Plaintiff be granted judgment for all costs of court; E. Plaintiff be awarded reasonable attorney's fees, with interest; F. Plaintiff be awarded additional fees and cost in the event of an appeal; and G. Plaintiff be granted such other and further relief, special or general, legal or

equitable, as Plaintiff may be shown to be justly entitled.

Respectfully Submitted,

McCLESKEY, HARRIGER, BRAZILL & GRAF, L.L.P. P.O. Box 3340 Lubbock, Texas 79452-3340 (806) 796-7375 FAX (806) 796-7365

By: Allen L. Adkins State Bar No. 0091 0050 Samuel E. Sprowles State Bar No. 2404 1963 Mark A. Palm State Bar No. 24034249 ATTORNEYS FOR PLAINTIFF

THE DEFENDANT IS PUT ON NOTICE THAT THE TEXAS RULES OF CIVIL PROCEDURE REQUIRE THAT A COPY OF ALL DOCUMENTS FILED WITH THE

COURT BE SENT TO OPPOSING COUNSEL.

PAMELA M KNIGHT ATTNY ACCOUNT-CODE=LC40 AUSTIN T X 7 8 7 5 6 - 3 2 1 6 0 0 0

Citi" Platinum Select" Card A C C O U ~ ~ Number 5466 5360 6119 7868

C I T I CARDS P.0. BOX 6416 THE LAKES, NV 8 8 9 0 1 - 6 4 1 6

Help i s a v a i l a b l e ! Please c a l l t he t o l l - f r e e number shown above t o l e a r n about our spec i a l payment op t ions . C a l l Monday - F r i d a y , 7 am.to 9 pm, o r Saturday, 8 am t o 5 pm, Cent ra l Time. Please g i v e us t h e o p p o r t u n i t y t o a s s i s t you.

Previous (t) Purchases (-1 Payments (+) FINANCE (=) New Account Summary Balance &Advances & Credits CHARGE Balance PURCHASES ADVANCES TOTAL

$0.00 $0.00 SO. 00

Days Thls Billlng Period: 30

Rate Summary Balance Subject to Periodic Nominal ANNUAL Finance Charge Rate APR PERCENTAGE RATE

PURCHASES Standard Purch $0.00 0.07326%(D) 26 -740% 26.740%

ADVANCES Standard Adv $0.00 0.07326%(D) 26.740% 26.740%

CITIBANK (SOUTH DAKOTA) N.A.

VS.

PAMELA M KNIGHT

NO.

IN THE COUNTY COURT

AT LAW NO. - OF

TRAVIS COUNTY, TEXAS

SERVICE MEMBERS CIVIL RELIEF ACT AFFIDAVIT

THE STATE OF TEXAS COUNTY OF LUBBOCK

BEFORE ME, the undersigned authority, on this day personally appeared the below-named affiant, who, being by me duly sworn on oath deposed and said that affiant has read the affidavit; and that every statement contained in this aff~davit is within affiant's personal knowledge and is true and correct.

I am over the age of eighteen (1 8) years and am competent to make this affidavit. I am the Attorney for Plaintiff in the above-entitle and numbered matter. I have researched whether the Defendant is in the military by examining the Soldier and Sailor Civil Relief Act (SSCRA) Web Site at htt~s://www.dmdc.osd.miI/ud~dri/owa~sscra.~a~e~ A true and correct copy ofthe print out from this website, which shows defendant is not in military, is attached hereto and incorporated herein as if set forth at length. As a result of this investigation and the attached documentation, I declare that the above-named defendant is not in the military service on active duty, and is not a dependent of a service member on active duty.

I understand that any false statements on this document are made under penalty of perjury, and that making a false statement is a violation of Federal Law and is subject to both fine and imprisonment.

Dated t h i e 6 d a y of doik ,2005.

MCCLESKEY, HARRIGER, BRAZILL & GRAF, L.L.P.

~ l l e n Adkins State Bar No. 0091 0050 Samuel E. Sprowles State Bar No. 2404 1963 Mark A. Palm State Bar No. 24034249 Attorneys for Plaintiff P.O. Box 3340 Lubbock, Texas 79452 (806) 796-7375 FAX (806) 796-7365

SUBSCRIBED AND SWORN TO before me thi&day of ,2005.

EXHIBIT 2

Request for Military Status ,# - .. ' . ' (. - ,!

Page 1 of 1

Department of Defense Manpower Data Center

Military Status Report Pursuant to the Service Members' Civil Relief Act

Upon searching the information data banks of the Department of Defense Manpower Data Center, the above is the current status of the individual, per the Information provided, as to all branches of the Military.

< Last Name

KNIGHT

Robert J. Brandewie, Director Department of Defense - Manpower Data Center 1600 Wilson Blvd., Suite 400 Arlington, VA 22209-2593

The Defense Manpower Data Center (DMDC) is an organization of the Department of Defense that maintains the Defense Enrollment and Eligibility Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems.

FirstMiddle

Pamela M

The Department of Defense strongly supports the enforcement of the Service Members Civil Relief Act [50 USCS Appx. $5 501 et seql (SCRA) (formerly the Soldiers' and Sailors' Civil Relief Act of 1940). DMDC has issued hundreds of thousands of "does not possess any information indicating that the individual is currently on active duty" responses, and has experienced a small error rate. In the event the individual referenced above, or any family member, friend, or representative asserts in any manner that the individual is on active duty, or is otherwise entitled to the protections of the SCRA, you are most strongly encouraged to contact us by Fax at (703-696-4156) or by phone at (703-696-6762). We will then conduct further research. Your failure to re-contact DMDC may cause provisions of the SCRA to be invoked against you.

Begin Date 1 ~ c t i v e Duty Status I ServiceIAgency

Based on the information you have furnished, the DMDC does not possess any information indicating that the individual is currently on active duty.

This response reflects current active duty status only. For historical information, please contact the military services SCRA point of contact.

See: htt~://www.defenselink.mil/faq/pis/PC09SLDR.html.

Report 1D:QXUXGJK VRX

ALLEN L. ADKINS' Wm F. (PETE) BAKER CLARENCE P. BRAZILL. JR. (1919-1 990) DENNIS R. BURROWS. P.C." DUSTIN R. BURROWS FERNANDO M. BUSTOS DONNA L. COURVILLE BENJAMIN H. DAVIDSON, I1 DON GRAF ANN PHILLIPS HAAG JODY D. JENKINS PAULA M. JOHNSON

MCCLL -CEY, ~ R R I G E R , BRAZILL A ;RAF ATrORNEYS

A REGISTERED LIMITED LIABILITY PARTNERSHIP O F INDIVIDUALS AND PROFESSIONAL CORPORATIONS

LUBBOCK, TEXAS P L A I N S C A P I T A L BANK BUILDING

5 0 1 0 U N I V E R S I T Y - ZIP 79413 P.O. BOX 3340 - ZIP 79452 (866) 796-7378- T e l e p h o n e

(806) 796-7365- F a c s i m i l e

'Also licensed in the State of New Mexico **Abo licensed in the State of Colorado ***Abo licensed in the States of Illmob and Indiana

October 24,2005

JERRY M. KOLANDER. IR.. P C . WlLLlAM P. LANE GEORGE W. McCLESKEY (191 5.1997) JEANNIE N. MARROW MARK PALM"' ANGELA B. POULSON SAMUEL E. SPROWLESm TOMMY J. SWANN I. MARK WAGNON MIKE WORLEY DAN G. YOUNG HAROLD 0 . HARRIGER. OlCounsel R REX AYCOCK, Of Counsel

Writer's Direct Dial Number: (806) 796-7375

C.? -4 :-: <..;I - . -..I . . . : . . -- . . - # - G-- . ..-

Dana DeBeauvoir - - - .. - - :'-.! - - . . -1 , . .. <

TRAVIS COUNTY CLERK ii... 7 : :- . .. o , -

P. 0. Box 149325 , - ... - Austin TX 78714-9325 ! -. . .. . ...

*.- _ -- . . _ _ ' . . . 7" .. . *

, . RE: Cause No. ; CITIBANK (SOUTH DAKOTA) N.A. vs. PAMELA M KNIGHT; In & & b e y -...;

COURT AT LAW NO. - of TRAVIS County, Texas . , . .- $ 2 '-" m A -

Dear x?,"; Clerk: O ~ i s t r i i t Clerk:

Enclosed please find original(s) and dl copies of the following:

&intiffs Original Petition OOrder Setting Hearing. Please allow a t least OPlaintiffs Objection to Mediation 30days from today's date to set hearing. OFinal A reed Judgment P ONotice of Non-Jury Trial (to be cross-served OPlaintif s Motion for Default Judgment upon Defendant) ClFinal Default Judgment (7Plaintiffs Proof of Court Cost and Request for OCertificate of Last Known Address Preparation of Abstract of Judgment OAffidavit Supporting a Request for Attorney's OP intiffs Motion and Order for Non-Suit

Fees E+? elf-Addressed Stamped Envelope OService Members Civil Relief Act Affidavit OP Card for notification of service OPlaintiffs Motion for Summary Judgment & irm check in the amount of OProposed Final Summary Judgment

00 OAffidavit of Service on the %aring otice o for Plaintiffs Motion for Summary Judgment O Other:

Please:

sue a Citation for the Defendant fi the County Sheriff to serve Advise of date of service

OPresent to the Judge of the Court

&turn file-marked co ies OProvide a copy of De f endant's Answer -OReturn file-marked copy of extra cover letter OReturn first page only of file-marked petition OOther:

Thank you for your assistance with this matter. Should you have any questions, comments or concerns, feel free to contact my office.

Occ: via Ofirst class mail Ocertified mail RRR # Ofacsimile