98-042




                                                                        No. 98-042

                                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                         1998 MT 103N



                                                        MBNA AMERICA BANK, N.A.,

                                                       Plaintiff and Respondent,

                                                                                     v.

                                                        SANDRA MAY VERSCHOOT and
                                                       ALFRED CHARLES VERSCHOOT,

                                                       Defendants and Appellants/




             APPEAL FROM:                   District Court of the Thirteenth Judicial District,
                                                    In and for the County of Stillwater,
                                               The Honorable G. Todd Baugh, Judge presiding.


                                                               COUNSEL OF RECORD:

                                                                            For Appellants:

                                             Alfred Charles Verschoot and Sandra May Verschoot,
                                                         Pro Se, Absarokee, Montana

                                                                            For Respondent:

                                        Bruce M. Spencer; Smith Law Firm, P.C.; Helena, Montana



                                                                          Submitted on Briefs: April 16, 1998

                                                                           Decided:                   April 30, 1998
                                                                           Filed:


                                                     __________________________________________
                                                                       Clerk


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                 Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1   Pursuant to Section I, paragraph 3(c), Montana Supreme Court 1996
Internal Operating Rules, the following decision shall not be cited as precedent
but shall be filed as a public document with the Clerk of the Supreme Court
and shall be reported by case title, Supreme Court cause number, and result to
the State Reporter Publishing Company and to West Group in the quarterly
table of noncitable cases issued by this Court.

¶2    The plaintiff, MBNA America Bank, N.A., filed a complaint against the
defendants, Sandra and Alfred Verschoot, in the District Court for the
Thirteenth Judicial District in Stillwater County, to recover a credit card
debt.
MBNA moved for summary judgment, and after a hearing, the District Court
granted the motion. Verschoots appeal. We affirm the judgment of the
District Court.

¶3   The sole issue on appeal is whether the District Court erred when it
granted summary judgment.
                   FACTUAL BACKGROUND

¶4   Sandra May and Alfred Charles Verschoot have apparently maintained
a credit card account with MBNA America Bank, N.A., since 1984. As of
August 1, 1994, the outstanding balance on the account was $15,076.36.

¶5   On May 23, 1997, MBNA filed a complaint in the District Court for the
Thirteenth Judicial District in Stillwater County to recover the balance, along
with interest at a rate of ten percent per year. Verschoots' answer to the
complaint on June 25, 1997, asserted that they did not receive any "lawful
money" from MBNA, that the billing was incorrect, that they sent a full
payment to MBNA which MBNA failed to reject in accordance with the
U.C.C., and that MBNA was obligated to cancel all "phoney debt." A month
later, they sought a default judgment against MBNA for its failure to answer
what Verschoots alleged was their counterclaim in the answer. The District
Court denied their motion for judgment on the pleadings and ruled that the
answer did not assert a counterclaim.

¶6   On July 31, 1997, MBNA served Verschoots with requests for
admission in which it stated that pursuant to Rule 36(b), M.R.Civ.P., the
requests would be deemed admitted if not denied within thirty days. The
requests stated, among other things, that Verschoots owed MBNA $15,076.36
and that the billing statement was correct. Verschoots failed to deny or
challenge the requests for admission.

¶7   On November 3, 1997, MBNA moved for summary judgment. It relied
on the admissions and an affidavit from its account manager which set forth
the amount owed by Verschoots. Verschoots moved to dismiss the action on
the basis that MBNA failed to offer proof of a contract, and then reiterated its


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motion for judgment on the pleadings. After a hearing, the District Court
denied Verschoots' motions and granted MBNA's motion for summary
judgment.

                            DISCUSSION
¶8        Did the District Court err when it granted summary judgment?

¶9   Our standard of review in appeals from summary judgment rulings is
de novo. See Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782,
785. We apply the same criteria as the district court. See Brown v. Demaree
(1995), 272 Mont. 479, 482, 901 P.2d 567, 569. When there is no genuine
issue of material fact and the moving party has presented evidence that it is
entitled to judgment as a matter of law, summary judgment is appropriate. See
Rule 56, M.R.Civ.P.; Bruner v. Yellowstone County (1995), 272 Mont. 261,
264, 900 P.2d 901, 903.

¶10 Rule 36, M.R.Civ.P., provides that a party can make requests for
admission, and that if the requests are not denied or challenged within thirty
days, they are "conclusively established." Here, Verschoots did not respond
to the requests, nor did they give any reason why the thirty-day limit within
which to respond should have been extended. Accordingly, the requests were
and are deemed admitted. The substance of the requests is sufficient to
establish as a matter of law that MBNA is entitled to recover $15,076.36 from
Verschoots.

¶11 Verschoots have alleged a variety                                          of defenses to MBNA's claim.
However, they fail to present evidence                                         or legal grounds to support their
assertions. Verschoots failed to raise                                         any genuine issue of fact or to
substantiate why MBNA was not entitled                                         to judgment as a matter of law.

¶12 Verschoots also alleged that MBNA was not entitled to recover because
it failed to respond to their counterclaim. But as the District Court and MBNA
have pointed out, Verschoots' answer is not specific and it does not allege
affirmative legal grounds for judgment.

¶13 Finally, Verschoots contend that MBNA's failure to present the contract
which is the basis of its claim entitles them to dismissal. However, we agree
with the District Court that submission of the written contract is unnecessary
in light of the admission that they owe the debt asserted by MBNA.

¶14 We hold that MBNA was entitled to summary judgment, and we affirm
the District Court's order and judgment.

                                                             /S/       TERRY N. TRIEWEILER


We Concur:

/S/       J. A.        TURNAGE

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/S/       JIM REGNIER
/S/       WILLIAM E. HUNT, SR.
/S/       KARLA M. GRAY




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