On December 17, 2020 a
Motion - PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TAKE JUDICIAL NOTICE
was filed
involving a dispute between
Citibank, N.A.,
and
Machuca, Norberto Z,
for Contract - Other Contract (OCA)
in the District Court of Hidalgo County.
Preview
Electronically Submitted
NO. CL-20-4612-E 6/29/2022 6:37 PM
Hidalgo County Clerk
Accepted by: Gregorio Mata
CITIBANK, N.A. § IN THE COUNTY COURT
vs. § AT LAW NO. 5
NORBERTO Z MACHUCA § HIDALGO COUNTY, TEXAS
Our File: C2004157
PLAINTIFF'S RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION TAKE JUDICIAL NOTICE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW CITIBANK, N.A., Plaintiff in the above styled and numbered cause files
its Response in Opposition to Defendant’s Motion to Take Judicial Notice, and in support thereof
would show the Honorable Court as follows:
I.
INTRODUCTION
Plaintiff brought this suit on a debt on an account stated cause of action seeking to
recover on an unpaid credit card account. Defendant moves the court to take judicial notice of
facts from various booklets, manuals and handbooks. The Court should deny Defendant’s
motion because the facts are not generally known, are subject to reasonable dispute, are taken out
of context, and have no relevance to this lawsuit.
II.
DEFENDANT MISSTATES THE RULE
Pursuant to Texas Rule of Evidence 201, the Court may (not must as stated by Defendant)
judicially notice a fact that is not subject to reasonable dispute if it (1) is generally known within
the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from
sources who accuracy cannot reasonably questioned. Tex. R. Evid. 201. Furthermore, Rule 201
only governs judicial notice of an adjudicative fact. Adjudicative facts are ordinarily required to
be established by evidence. Judicial notice is an exception to the normal requirement of proof,
which must be justified by a high degree of indisputability.
III.
DISPUTED FACTS
A. Modern Money Mechanics
Defendant asks the court to take judicial notice of two clauses from two separate
sentences from Modern Money Mechanics, a 38-page Workbook on Bank Reserves and Deposit
Electronically Submitted
6/29/2022 6:37 PM
Hidalgo County Clerk
Expansion published by the Federal Reserve Bank of Chicago in 1961, and revised in June Accepted
of by: Gregorio Mata
1992. These clauses are presented with no context and have no relevancy to a credit card
account. They are not facts generally known and should not be judicially-noticed facts.
B. October 2018 SEC Prospectus filing
Defendant asks the court to take judicial notice that Plaintiff “(a) has a history of
securitizing its credit card account receivables, and (b) is merely the “seller and servicer” of the
master trust containing such credit card account receivables.” Defendant’s statements are
misleading, taken out of context, and rely upon an incomplete filing of the Prospectus.
Furthermore, there is no evidence that the account made the basis of this lawsuit was ever part of
a pool of credit card accounts used to securitize a master trust.
C. FDIC Risk Management Credit Card Securization Manual
Defendant asks the court to take judicial notice that Plaintiff makes various transfers
when securitizing its credit card receivable. The Manual cited to is dated March 2007 and makes
no reference to Plaintiff. Again, Defendant’s statements are misleading and taken out of context.
Furthermore, there is no evidence that the account made the basis of this lawsuit was ever part of
a pool of credit card accounts used to securitize a master trust.
D. Asset Securitization Comptroller’s Handbook November 1997
Defendant asks the court to take judicial notice of a single sentence from an 89-page
manual that states “because borrowers often do not realize that their loans have been sold, the
originating bank is often able to maintain the customer relationship.” Again, Defendant’s
statements are misleading and taken out of context. Furthermore, there is no evidence that the
account made the basis of this lawsuit was ever part of a pool of credit card accounts used to
securitize a master trust.
IV.
CONCLUSION
Defendant’s attempt to cherry-pick a single sentence, or in other instances, a single clause
from hundreds of pages of documents is a deliberate attempt to mislead the fact finder. A
reasonable dispute exists as to these statements because they are taken out of context and are not
relevant to the account made the basis of this lawsuit. For these reasons, Defendant’s Motion
should be denied.
Electronically Submitted
6/29/2022 6:37 PM
Hidalgo County Clerk
Accepted by: Gregorio Mata
Respectfully submitted,
______________________________
Shawn R. Redman (SBN: 24033112)**
Teri S. Mace (SBN: 12759480)*
Todd L. Hinds (SBN: 24103640)**
Marlei E. Thames (SBN: 24125221)*
Larysa Polunin (SBN: 24122991)**
Reneé Casas (SBN: 24107728)**
Couch Lambert, LLC
*Dallas Office:
4144 North Central Expressway, Ste. 1260
Dallas, Texas 75204
**Houston Office:
6200 Savoy, Ste. 440
Houston, Texas 77036
***Mailing Address:
3501 N. Causeway, Ste. 800
Metairie, LA 70002
(866) 282-3853
servicetx@gulfsouthlegal.com
ATTORNEYS FOR PLAINTIFF
Electronically Submitted
6/29/2022 6:37 PM
Hidalgo County Clerk
Accepted by: Gregorio Mata
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
upon Defendant(s) via:
______ certified U. S. mail, return receipt requested
______ electronic filing manager
______ regular first class U. S. mail, postage prepaid
______ facsimile transmission to __________________________
Said service being made this _____ 29th June
day of _____________________, 22 by sending
20___
to:
NORBERTO Z MACHUCA
2422 SUNSET LN
MISSION TX 78572-4634
___________________________
Shawn R. Redman
Timothy L. Elder
Todd L. Hinds
Teri S. Mace
Marlei E. Thames
Our File: C2004157
Document Filed Date
June 29, 2022
Case Filing Date
December 17, 2020
Category
Contract - Other Contract (OCA)
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Electronically Submitted NO. CL-20-4612-E 6/29/2022 6:37 PM Hidalgo County Clerk Accepted by: Gregorio Mata CITIBANK, N.A. § IN THE COUNTY COURT vs. § AT LAW NO. 5 NORBERTO Z MACHUCA § HIDALGO COUNTY, TEXAS Our File: C2004157 PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TAKE JUDICIAL NOTICE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW CITIBANK, N.A., Plaintiff in the above styled and numbered cause files its Response in Opposition to Defendant’s Motion to Take Judicial Notice, and in support thereof would show the Honorable Court as follows: I. INTRODUCTION Plaintiff brought this suit on a debt on an account stated cause of action seeking to recover on an unpaid credit card account. Defendant moves the court to take judicial notice of facts from various booklets, manuals and handbooks. The Court should deny Defendant’s motion because the facts are not generally known, are subject to reasonable dispute, are taken out of context, and have no relevance to this lawsuit. II. DEFENDANT MISSTATES THE RULE Pursuant to Texas Rule of Evidence 201, the Court may (not must as stated by Defendant) judicially notice a fact that is not subject to reasonable dispute if it (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources who accuracy cannot reasonably questioned. Tex. R. Evid. 201. Furthermore, Rule 201 only governs judicial notice of an adjudicative fact. Adjudicative facts are ordinarily required to be established by evidence. Judicial notice is an exception to the normal requirement of proof, which must be justified by a high degree of indisputability. III. DISPUTED FACTS A. Modern Money Mechanics Defendant asks the court to take judicial notice of two clauses from two separate sentences from Modern Money Mechanics, a 38-page Workbook on Bank Reserves and Deposit Electronically Submitted 6/29/2022 6:37 PM Hidalgo County Clerk Expansion published by the Federal Reserve Bank of Chicago in 1961, and revised in June Accepted of by: Gregorio Mata 1992. These clauses are presented with no context and have no relevancy to a credit card account. They are not facts generally known and should not be judicially-noticed facts. B. October 2018 SEC Prospectus filing Defendant asks the court to take judicial notice that Plaintiff “(a) has a history of securitizing its credit card account receivables, and (b) is merely the “seller and servicer” of the master trust containing such credit card account receivables.” Defendant’s statements are misleading, taken out of context, and rely upon an incomplete filing of the Prospectus. Furthermore, there is no evidence that the account made the basis of this lawsuit was ever part of a pool of credit card accounts used to securitize a master trust. C. FDIC Risk Management Credit Card Securization Manual Defendant asks the court to take judicial notice that Plaintiff makes various transfers when securitizing its credit card receivable. The Manual cited to is dated March 2007 and makes no reference to Plaintiff. Again, Defendant’s statements are misleading and taken out of context. Furthermore, there is no evidence that the account made the basis of this lawsuit was ever part of a pool of credit card accounts used to securitize a master trust. D. Asset Securitization Comptroller’s Handbook November 1997 Defendant asks the court to take judicial notice of a single sentence from an 89-page manual that states “because borrowers often do not realize that their loans have been sold, the originating bank is often able to maintain the customer relationship.” Again, Defendant’s statements are misleading and taken out of context. Furthermore, there is no evidence that the account made the basis of this lawsuit was ever part of a pool of credit card accounts used to securitize a master trust. IV. CONCLUSION Defendant’s attempt to cherry-pick a single sentence, or in other instances, a single clause from hundreds of pages of documents is a deliberate attempt to mislead the fact finder. A reasonable dispute exists as to these statements because they are taken out of context and are not relevant to the account made the basis of this lawsuit. For these reasons, Defendant’s Motion should be denied. Electronically Submitted 6/29/2022 6:37 PM Hidalgo County Clerk Accepted by: Gregorio Mata Respectfully submitted, ______________________________ Shawn R. Redman (SBN: 24033112)** Teri S. Mace (SBN: 12759480)* Todd L. Hinds (SBN: 24103640)** Marlei E. Thames (SBN: 24125221)* Larysa Polunin (SBN: 24122991)** Reneé Casas (SBN: 24107728)** Couch Lambert, LLC *Dallas Office: 4144 North Central Expressway, Ste. 1260 Dallas, Texas 75204 **Houston Office: 6200 Savoy, Ste. 440 Houston, Texas 77036 ***Mailing Address: 3501 N. Causeway, Ste. 800 Metairie, LA 70002 (866) 282-3853 servicetx@gulfsouthlegal.com ATTORNEYS FOR PLAINTIFF Electronically Submitted 6/29/2022 6:37 PM Hidalgo County Clerk Accepted by: Gregorio Mata CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served upon Defendant(s) via: ______ certified U. S. mail, return receipt requested ______ electronic filing manager ______ regular first class U. S. mail, postage prepaid ______ facsimile transmission to __________________________ Said service being made this _____ 29th June day of _____________________, 22 by sending 20___ to: NORBERTO Z MACHUCA 2422 SUNSET LN MISSION TX 78572-4634 ___________________________ Shawn R. Redman Timothy L. Elder Todd L. Hinds Teri S. Mace Marlei E. Thames Our File: C2004157