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Cooper v. Discover Bank

Court of Appeals of Arkansas, Division III

March 6, 2019

Randolph C. COOPER, Appellant
v.
DISCOVER BANK, Appellee

Page 574

          APPEAL FROM THE RANDOLPH COUNTY CIRCUIT COURT [NO. 61CV-16-92], HONORABLE HAROLD S. ERWIN, JUDGE

          Randolph C. Cooper, pro se appellant.

         Allen and Withrow, by: Lori Withrow; Little Rock, and Gary J. Barrett, Stuttgart, for appellee.

          Opinion

         RITA W. GRUBER, Chief Judge

          Pro se appellant Randolph Cooper appeals from an order granting summary judgment in favor of appellee Discover Bank (Discover) on its action to recover a balance due on a credit card account. Because we conclude that a genuine issue of material fact remains, we reverse and remand for further proceedings.

          On August 22, 2016, Discover filed a complaint against Cooper seeking to recover the balance due on a credit card account. Attached to the complaint was the cardmember agreement and an affidavit of account indicating that Cooper’s account was in default and had a balance due of $ 15,493.23. Two credit card statements were attached as exhibits to the affidavit— exhibit A was the last periodic statement sent by Discover and exhibit B was the current balance owed and included any activity since the last periodic statement.

          Cooper was served with the summons and complaint on November 17, 2016. He filed an answer on December 13, 2016, denying the allegations and raising numerous affirmative defenses. In response to the allegation that he was a resident of Randolph County, Cooper denied the allegation and stated that he maintained a post office address in Maynard, Arkansas, but was homeless and sleeps in his vehicle.

          Discover filed requests for admission, as well as interrogatories and requests for production of documents, on February 17, 2017; the certificate of service indicates that both were mailed on February 13, 2017, to the following address:

          RANDOLPH C COOPER

          PO BOX 1 714 Cree Trl

          Maynard, AR 72444-0001

         Discover filed a motion for summary judgment on November 9, 2017, alleging that (1) Cooper failed to respond to its requests for admission containing the allegations of the complaint; (2) the requests for admission are deemed admitted pursuant to Ark. R. Civ. P. 36; (3) the admissions taken together with the pleadings reveal there is no genuine issue as to any material fact; and (4) Discover is entitled to summary judgment.

         Cooper filed a response to the motion for summary judgment on November 29, 2017. Cooper asserted the defense of lack of personal jurisdiction, stating that he was amending his answer to include this defense as he had reserved the right to amend his answer to assert additional defenses. He alleged that he was not a resident of Arkansas and did not own property, work, or do business in Arkansas. He denied the following: the genuineness ...


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