|Controverting Summary Judgment Affidavit of Defendant Robert Houle|
disputing authenticity of records, legitimacy of interest rate, and correctness of amount
Genuine Issue of Material Fact
The four elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance, or tendered performance, by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. Restrepo v. All. Riggers & Constructors, Ltd., 538 S.W.3d 724, 740 (Tex.App.-El Paso 2017, no pet.), citing Velvet Snout, LLC v. Sharp, 441 S.W.3d 448, 451 (Tex.App.-El Paso 2014, no pet.). A party is entitled to relief for a stated account where: (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an amount due, and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness. Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 407-08 (Tex.App.-El Paso 2009, no pet.); McFarland v. Citibank (South Dakota), N.A., 293 S.W.3d 759, 763 (Tex.App.-Waco 2009, no pet.); Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex.App.-Dallas 2008, no pet.).
Because an agreement on which an account stated claim is based can be express or implied, a creditor need not produce a written contract to establish the agreement between the parties; an implied agreement can arise from the acts and conduct of the parties. See Walker v. Citibank, N.A., 458 S.W.3d 689, 692-93 (Tex.App.-Eastland 2015, no pet.).
In response to Capital One's motion for summary judgment, Houle filed an affidavit in which he complained that Capital One's documents were not original or exact duplicates of account statements he had received, and noted both that his statements did not contain solid black lines and his account number had numeric digits rather than the "Xs" contained in Capital One's summary judgment evidence. Houle acknowledged that although he had disputes with Capital One regarding charges and credits to his account, Capital One later credited payment and refunded a late penalty. Houle also complained that Capital One had increased its interest rate in an arbitrary manner, specifically in July 2010 when he made a payment and Capital One purportedly doubled the "interest rate," and without specifying, he asserted in a conclusory manner that the account is not true and correct and that he does not owe the amount Capital One claims is due. There is no evidence in the record from Houle or Capital One regarding payments made in July 2010.
The evidence showed that Capital One and Houle entered into a credit card agreement, that Capital One issued a credit card to Houle, that Houle used the credit card to make purchases, and that Houle made payments on the account. Evidence of the card-member agreement was presented to the trial court through Trittipoe's affidavit. The agreement provides that Capital One would allow Houle to purchase goods and services with credit in exchange for payment. According to the terms of the agreement, Capital One would assess interest charges based on the application of the annual percentage rate, which varies as the index for the rate increases or decreases, and in the event of two late payments, the variable annual percentage rate would increase to an unspecified "penalty annual percentage rate." The June 2010 statement having a July 2010 due date shows an annual percentage rate of 13.52%. Further, the record showed that Houle's account was past due for six consecutive months, from January 2013-June 2013, with an annual percentage rate of 29.40%, incurred past due and over limit fees, and was thereafter "charged off," with a final balance of $4007.72.
Based on the card-member agreement, Capital One's extension of credit on Houle's account, Houle's usage of the credit card and failure to pay on the account in accordance with the terms of the agreement, and Capital One's resulting damages, we conclude that Capital One satisfied each element of its breach of contract cause of action and, if necessary for the account-stated cause of action, conclude or reasonably infer that Houle agreed to pay a fixed amount equal to the purchases and cash advances he made, plus interest. See Dulong, 261 S.W.3d at 894; McFarland, 293 S.W.3d at 763-64 (cases holding creditor could collect debt on account stated where, based on series of transactions reflected on account statements, creditor established that card holder agreed to full amount shown on statements and impliedly promised to pay indebtedness). We conclude that no genuine issue of material fact exists as a matter of law as to any element of Capital One's causes of action against Houle. Taking Houle's affidavit as true, and indulging every reasonable inference and resolving any doubts in his favor, we conclude that Houle failed to satisfy his burden of presenting evidence that raises a genuine issue of material fact. See Nixon, 690 S.W.2d at 548-49.
What we can see here is that Texas courts of appeals (or at least some of them) do not give effect to the sworn testimony of the defendant when it is offered to counter a summary judgment motion by the bank suing on a credit card account even though the defendant must necessarily have personal knowledge of the matter.
The same cannot be said of representatives of credit card banks or their servicer who sign affidavits by the hundreds on a regular basis, and can only rely on whatever records are available to them.
To the extent affidavit testimony by a credit card defendant raises credibility issues, those credibility issues should be resolved at a trial on the merits, rather than in a summary judgment proceeding. Summary Judgment, after all, requires that the movant establish its entitlement to judgment conclusively and as a matter of law, which no disputed issue of material facts.
ROBERT G. HOULE, Appellant,
CAPITAL ONE BANK (USA), N.A., Appellee.
Standard of Review
Preservation of Error
Defects of Form
Diana Trittipoe is not an employee of the Plaintiff, nor is she the custodian of records for the Plaintiff. She is an employee of another company and simply claims to have `personal knowledge of the manner and method by which Capital One created and maintains certain business book and record, including computer records of customer accounts.' She does not advise the court as to how she comes by that `personal knowledge.' The Court should be suspicious of her affidavit because she claims: `The attached records are the originals or exact duplicates of the originals.' She identifies the account as consisting of 16 `Xs.' According to the Defendant's Affidavit, his account number did not consist of 16 `Xs' but contained a series of arabic numerals. It is apparent from examining the documents attached as Plaintiff's Exhibit A-1 that information has been redacted from the original document and that these copies are not `exact duplicates' which is the express language of Rule 902 (10), Texas Rules of Evidence for authentication by affidavit. The information set forth in the paragraph above has already noted that the records are not complete, and now there are not the originals or exact duplicates. The summary judgment evidence produced by Plaintiff will not support a summary judgment.
[R]ulings on a motion for summary judgment and objections to summary judgment evidence are not alternatives; nor are they concomitants. Neither implies a ruling—or any particular ruling—on the other. In short, a trial court's ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not `capable of being understood' from the ruling on the motion for summary judgment.
We conclude the trial court did not implicitly rule on Houle's objections to Capital One's summary-judgment evidence. See Seim, 551 S.W.3d at 166. As these complaints have not been preserved, they are waived. TEX.R.APP.P. 33.1.