Student Loan Plaintiff EduCap Inc. loses appeal from Take-Nothing Judgment in Texas

EduCap, Inc. v. Mendoza, No. 03-18-00686-CV (Tex.App.- Austin, Sep. 27, 2019, no pet. h.) (take-nothing judgment in favor of student-loan defendant affirmed where EduCap failed to provide admissible evidence at trial that it owned the loan made by bank as program lender and was entitled to recover). 

Counsel for EduCap made the mistake of appealing the trial court's denial of EduCap's motion for summary judgment after entry of a judgment on the merits following a bench trial. Under such circumstances, the prior denial is not reviewable on appeal. 

As for appellate review of the adverse bench-trial judgement, EduCap offered the same affidavit it had used to support its unsuccessful motion for summary judgment and did not offer any live witness testimony or other evidence. The affidavit contained averments beyond those required to establish a predicate for admission of business records, which the student loan defendant’s counsel objected to as hearsay. The trial court sustained the objection and the higher court found no error in this ruling because ex parte affidavits are not admissible in contested cases. 

Nor did the business records attached to the affidavit themselves support the proposition that EduCap had created them. The loan agreement identified 5StarBank as the lender and no evidence established that the records of 5StarBank had become the business records of EduCap. Finding no error in the exclusion of EduCap's evidence, the court of appeals affirmed the trial court’s take-nothing judgment in the defendant's favor. 

 EduCap, Inc., Appellant,
v.
Stephanie L. Mendoza, Appellee.

No. 03-18-00686-CV.

Court of Appeals of Texas, Third District, Austin.

Filed: September 27, 2019.  

Jody D. Jenkins, Jillian A. Beatty, for Educap, Inc., Appellant.

Tom M. Thomas, II, for Stephanie L. Mendoza, Appellee.

Appeal from the 21st District Court of Bastrop County, No. 174-21, the Honorable Carson Talmadge Campbell, Judge Presiding.

Affirmed.

Before Chief Justice Rose, Justices Kelly and Smith.

MEMORANDUM OPINION

CHARI L. KELLY, Justice.

This appeal arises from a suit filed by Educap, Inc. against Stephanie L. Mendoza for breach of a student loan agreement. Following a bench trial, the trial court signed a take-nothing judgment in favor of Mendoza. In three issues, Educap asserts that the trial court erred in denying its motion for summary judgment, in refusing to admit certain evidence at trial, and in denying its motion for new trial. For the reasons that follow, we will affirm the trial court's judgment.

BACKGROUND

In November 2015, Educap filed suit against Mendoza seeking to collect what it alleges are unpaid amounts due under a student loan made to Mendoza in 2005. Educap later filed a combined traditional and no-evidence motion for summary judgment. In support of its motion for summary judgment, Educap attached the affidavit of Susan Martin, a "Legal Collections Coordinator" for Educap. In paragraph one of her affidavit, Martin states:

My name is Susan Martin, I am employed as Legal Collections Coordinator for Plaintiff. I have personal knowledge of the following facts which are true and correct. In my capacity as Legal Collections Coordinator, I have been designated as records custodian for Educap, Inc. I have personal knowledge of the record keeping methods that relate to the account of Stephanie L. Mendoza. Educap, Inc. is authorized to collect the account of Stephanie L. Mendoza. Attached hereto are pages of records kept on this account by Educap, Inc. These pages of said records are kept by Educap, Inc. in the regular course of business and it is the regular course of business of Educap, Inc. for an employee or representative of Educap, Inc with knowledge of the act, event, condition, opinion, or diagnosis recorded to make the record or to transmit information thereof to be included in such record and the records were made at or near the time or reasonably soon thereafter. The pages of records attached hereto are the originals or exact duplicate of the originals.

Educap attached eleven pages of documents to Martin's affidavit, including a document entitled "combined private education loan application and promissory note," signed by Mendoza and identifying "5StarBank" as the lender, as well as a check issued by "5StarBank."

In seven additional paragraphs in her affidavit, Martin testifies to matters unrelated to Educap's recordkeeping methods. Instead, in these paragraphs, Martin makes factual statements related to Educap's underlying breach-of-promissory-note claim against Mendoza. In general, Martin states that Mendoza was required to make monthly payments on the promissory note, that she defaulted on her payments and currently owes $29,406.91, and that Educap is the owner and holder of the note.

Mendoza responded to Educap's combined motion for summary judgment by, in part, objecting to the trial court's consideration of Martin's affidavit. Mendoza argued that the documents attached to Martin's affidavit were unauthenticated and inadmissible hearsay and that the affidavit failed to establish the business records exception to the hearsay rule. See Tex. R. Evid. 801(d) (hearsay rule), R. 803(6) (business records exception). Mendoza also objected to Martin's affidavit on the ground that it included "unsupported conclusions and factual claims" for which Martin had not demonstrated personal knowledge. In a written order, the trial court denied Mendoza's objections and denied Educap's motion for summary judgment.

At the bench trial that followed, Educap did not offer any live witnesses. Instead, Educap offered into evidence Martin's affidavit and the attached documents. Mendoza again objected to the affidavit and documents as inadmissible hearsay. In response, Educap argued that Martin's entire affidavit and the documents attached to it were admissible under the business records exception to the hearsay rule. The trial court sustained Mendoza's objection, and Educap offered no other evidence. The trial court signed a take-nothing judgment in favor of Mendoza.

Educap now raises three issues on appeal.

ANALYSIS

Motion for Summary Judgment

In its first issue, Educap asserts that the trial court erred in denying its motion for summary judgment. Where a motion for summary judgment is denied by the trial court and later tried on its merits, the order denying the motion for summary judgment is not reviewable on appeal. Barnes v. University Fed. Credit Union, No. 03-10-00147-CV, 2013 Tex. App. LEXIS 4871, at *11 n.3 (Tex. App.-Austin Apr. 18, 2013, no pet.) (mem. op.) (citing Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966)). As a result, we do not address this issue. See Cairus v. Gomez, No. 03-06-00225-CV, 2006 Tex. App. LEXIS 10479, at *29 (Tex. App.-Austin Dec. 6, 2006, pet. denied) (mem. op.) ("We do not reach any of the issues relating to the summary judgment motion because the denial of a summary judgment motion is not appealable.").

Exclusion of Evidence

In its second issue, Educap asserts that the trial court erred in refusing to admit Martin's affidavit and attached documents at trial under the business records exception to the hearsay rule. In its third issue, Educap argues that the trial court erred in denying its motion for new trial on this same basis. According to Educap, if the affidavit and documents had been admitted, Educap would have proven each element of its claim against Mendoza.

We review a trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). We must uphold a trial court's evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberlgass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). In addition, we will not reverse a trial court for an erroneous evidentiary ruling unless the error was harmful, that is, it probably resulted in an improper judgment. See Tex. R. App. P. 44.1 (reversible error in civil cases).

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted and is inadmissible unless a statute or rule of exception applies. Tex. R. Evid. 801(d). The proponent of hearsay has the burden of showing that the testimony fits within an exception to the general rule prohibiting the admission of hearsay evidence. Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (citing Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004)).

The business records exception to the hearsay rule, found in Rule 803(6) of the Texas Rules of Evidence, provides for the admission of "[r]ecords of a [r]egularly [c]onducted [a]ctivity" when certain criteria are satisfied. See Tex. R. Evid. 803(6). Under this exception, a record that is otherwise inadmissible as hearsay may be admissible if the proponent demonstrates that (1) the records were kept in the course of a regularly conducted business activity; (2) it was the regular practice of that business activity to make the records; (3) the records were made at or near the time of the events recorded; and (4) the records were made by, or from information transmitted by, a person with knowledge. Id. R. 803(6)(A)-(C); In re E.A.K., 192 S.W.3d 133, 142 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). This predicate for the admissibility of records under the business records exception may be established by the testimony "of the custodian or other qualified witness" or by an affidavit or unsworn declaration that complies with Rule 902(10). Tex. R. Evid. 803(6)(D); see id. R. 902(10)(B) (providing form affidavit for business records exception).

The Rules of Evidence do not require the witness who lays the predicate for admissibility of business records to be the creator of the records or even be an employee of the same company as the creator. Granbury Marina Hotel, L.P. v. Berkel & Co. Contractors, Inc., 473 S.W.3d 834, 842 (Tex. App.-El Paso 2015, no pet.) (citing E.A.K., 192 S.W.3d at 142); Ortega v. CACH, LLC, 396 S.W.3d 622, 629 (Tex. App.-Houston [14th Dist.] 2013, no pet.) (same). The predicate witness does not have to have personal knowledge of the information recorded but need only have knowledge of the manner in which the records were prepared. E.A.K. 192 S.W.3d at 142. In addition, documents authored or created by a third party can become the business records of an organization and, consequently, admissible under Rule 803(6) if the documents are (1) incorporated and kept in the course of the testifying witness's business, (2) the business typically relies upon the accuracy of the contents of the documents, and (3) the circumstances otherwise indicate the trustworthiness of the documents. Simien, 321 S.W.3d at 240; see Roper v. CitiMortgage, Inc., No. 03-11-00887-CV, 2013 Tex. App. LEXIS 14518, *35 (Tex. App.-Austin Nov. 27, 2013, pet. denied) (mem. op.) (citing same).

Here, Mendoza argued at trial that Martin's affidavit was defective as a business records affidavit and therefore inadmissible for two reasons. First, Mendoza argued that the attempt by Martin to establish the predicate for business records exception failed to comply with the form affidavit provided by Rule 902(10)(B). Second, Mendoza argued that the affidavit was inadmissible hearsay because it contains additional factual statements beyond those required for establishing the business records exception. We first consider whether the trial court abused its discretion in excluding Martin's affidavit to the extent it contains statements of fact unrelated to the business records exception.

In paragraph one—the paragraph that Educap contends sufficiently establishes the predicate for the admission of business records under Rule 902(10)—Martin states, "Educap, Inc. is authorized to collect the account of Stephanie L. Mendoza." Similarly, as previously discussed, Martin's affidavit contains seven additional paragraphs that are irrelevant to the issue of whether the attached documents are business records and that instead set out facts that tend to support Educap's underlying claim. In general, Martin states in these paragraphs that:

(2) under the terms of the promissory note, Mendoza was required to make payments;

(3) Mendoza defaulted in paying the total of principal and interest due on the note;

(4) "after all just and lawful offsets, payments, and credits" under the note have been allowed, the balance due on the account is $29,406.91;

(5) interest continues to accrue at a contract rate of 7.3500% per year;

(6) Educap is the owner and holder of the note until the date of judgment;

(7) Educap has made demand for payment which has not been tendered; and

(8) Educap has incurred reasonable and necessary attorney's fees as a result of this litigation.

Unless specifically permitted by statute or rule, affidavits do not constitute evidence in contested cases. Ortega, 396 S.W.3d at 630; Lawson v. Collins, No. 03-17-00003-CV, 2017 Tex. App. LEXIS 8843, at *11-12 (Tex. App.-Austin Sept. 20, 2017, no pet.) (mem. op.). "Accordingly, when an ex parte affidavit presents evidence beyond the simple authentication requirements of Rule 902, the extraneous portions of the affidavit constitute inadmissible hearsay." Ortega, 396 S.W.3d at 630. Martin's statement in paragraph one of her affidavit regarding Educap's authority to collect on the promissory note, along with her statements in paragraphs two through eight, are extraneous to the requirements under Rule 902(10). Consequently, the statements constitute inadmissible hearsay. We conclude that the trial court did not abuse its discretion in excluding Martin's affidavit to the extent the affidavit includes these statements. See id.

Next, we examine whether the trial court abused its discretion in excluding the remainder of Martin's affidavit, which purports to establish the business records predicate, along with the documents attached to it. At trial, Mendoza argued that Martin's affidavit was fatally defective as a business records affidavit because it did not specify the number of attached pages that she was attesting to as business records and because, although Martin states that the promissory note is attached as "Exhibit 1," none of the documents attached were designated as exhibits. See Tex. R. Evid. 803(6) (records otherwise meeting requirements for admissibility as business record under Rule 803(6) are inadmissible if "the source of information or the method or circumstances of preparation indicate lack of trustworthiness"). Upon review of the requirements of Rule 902(10)(B), we disagree with Mendoza's contention that these discrepancies prevented Martin's affidavit from qualifying as a business-records affidavit.

Although Rule 902(10)(B) provides a form affidavit for establishing the predicate for the admission of business records, the form is not exclusive. Simien, 321 S.W.3d at 240. An affidavit that substantially complies with Rule 902(10)(B) is sufficient. Tex. R. Evid. 902(10)(B) ("[A]n affidavit that substantially complies with the provisions of this rule shall suffice. . . ."); Fullick v. City of Baytown, 820 S.W.2d 943, 944 (Tex. App.-Houston [1st Dist.] 1991, no writ). Under this standard, we cannot conclude that the failure to include the number of pages or the failure to label a document as an exhibit necessarily prevents a party from satisfying the business records predicate, especially when, as in this case, it is clear what records are offered as business records.^[1] Comparing Martin's affidavit to the form set forth in Rule 902(10)(B), we conclude that Martin's affidavit provided the predicate necessary to show that any attached records authored or created by Educap comply with requirements of Rule 803(6).

It is not clear, however, from Martin's affidavit or from the face of the documents themselves that the documents were in fact created or authored by Educap. Attached to Martin's affidavit and offered into evidence were eleven pages of documents, comprised of (1) a document entitled "combined private education loan application and promissory note," signed by Mendoza and identifying 5StarBank as the lender; (2) a loan application checklist for "the LendingTree Student Loan Program, powered by Educap," signed by Mendoza; (3) a copy of a "disbursement notice" and check made out to Mendoza in the amount of $22,748.73 from 5StarBank, dated August 9, 2005; (4) a copy of a "truth in lending disclosure statement," identifying 5StarBank as the lender and stating that 229 monthly payments would be due on the loan, beginning on September 5, 2005; (5) a printout of a "balance sheet" without any identifying information as to its creator. Martin's affidavit—the only evidence presented by Educap—does not explain what relationship, if any, Educap has to 5StarBank, and the trial court could have reasonably concluded that the documents were business records of 5StarBank, a third party, and not of Educap. See Barnhart v. Morales, 459 S.W.3d 733, 742 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (explaining that when reviewing evidentiary ruling by trial court, appellate court "examine[s] all bases for the trial court's decision that are suggested by the record or urged by the parties").

Further, Educap did not present any evidence showing that the records of 5StarBank had become the business records of Educap. That is, Educap did not present evidence that the records were incorporated and kept in the course of Educap's business and that Educap typically relies on the accuracy of the records. See Simien, 321 S.W.3d at 240-41 (three-part predicate for third-party business records). Educap also did not present any evidence of circumstances suggesting that the records are trustworthy. See id. Because Educap failed to establish that the records were its own business records, or had been incorporated as such, we conclude that the trial court did not abuse its discretion in excluding the documents as inadmissible hearsay. See Savoy v. National Collegiate Student Loan Tr. 2005-3, 557 S.W.3d 825, 832 (Tex. App.-Houston [1st Dist.] 2018, no pet.) (noting that proponent's business records affidavit included three-part predicate for admission of third-party documents and concluding that it was sufficient under rule 803(6)); cf. Carmouche v. State, No. 14-03-00768-CR, 2004 Tex. App. LEXIS 11164, * 7 (Tex. App.-Houston [14th Dist.] Dec. 14, 2014, no pet.) (mem. op., not designated for publication) (concluding that trial court abused its discretion in admitting third-party records where proponent only provided basic predicate under rule 803(6)).

Because the trial court did not abuse its discretion in excluding Martin's affidavit in its entirety or the documents attached to it, we overrule Educap's first and second issues on appeal.

CONCLUSION

Having overruled Educap's issues on appeal, we affirm the trial court's judgment.

[1] Martin's affidavit and attached records were served on Mendoza at least fourteen days prior to trial, as required by Rule 902(10). See Tex. R. Evid. 902(10)(A). The same affidavit and records were then offered at trial.

May Student Loan Trust sue in its own name? It may depend on state law - NCSLT 2006-3 v Poole

Except as otherwise provided by law, the trustee of an express trust is the proper plaintiff to sue to enforce a right of the trust estate, under Louisiana's Civil Procedure Code.

But when the issue is properly raised in the trial court, it may apparently be fixed by substitution of the trustee as plaintiff, according to recent Louisiana Court of Appeals decision. This appeal was dismissed based on a settlement, so there was no case-dispositive ruling of the proper-plaintiff issue. It is not clear whether the owner trustee (see Trust Agreement) or the Indenture trustee (see Indenture) would be the proper trustee to bring and prosecute a collection suit on a defaulted private student loan. Also see index of SEC filing for NCSLT 2006-3.

In Texas, NCSLT collection suits are always brought in the trust's name, and statutory trusts are considered to have capacity to sue as an exception to the general rule that a trust must sue through a trustee. National Collegiate Student Loan Trusts are formed under and governed by Delaware law.

The Delaware Statutory Trust Act expressly states that a trust formed under it "may sue and be sued" § 3804 Legal proceedings (a). Some attorneys for student loan defendants nevertheless raise "capacity to sue" as a defense, citing Texas caselaw for the proposition that a trust must sue through its trustee. The defense is unlikely to hold up on appeal.

Example of Answer in Debt Suit that raises the capacity to sue defense 

Under Texas law, capacity to sue is distinct from right to sue as assignee, and requires a verified denial to be properly asserted in a defendant's pleading.

A plaintiff must have both standing and capacity to bring a lawsuit. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001). The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a "justiciable interest" in its outcome, whereas the issue of capacity "is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate." See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005)/

A challenge to standing to sue is not subject to the same requirement as a challenge to capacity and may even be raised for the first time on appeal. See Gillespie v NCSLT 2005-3 (Tex.App.- Fort Worth June 29, 2017) (concluding that trust failed to establish its standing to sue on the student loan note.) 

"Although the Gillespies did not clearly raise this particular standing argument in the trial court, standing is a component of subject-matter jurisdiction that may be raised for the first time on appeal and is reviewed de novo as a question of law. See Rolen v. LVNV Funding, LLC, No. 2-09-304-CV, 2010 WL 1633402, at *1 (Tex. App.-Fort Worth Apr. 22, 2010, no pet.) (mem. op.)

LOUISIANA COURT OF APPEALS OPINION

NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3,
v.
TRIONA M. POOLE, WALTER POOLE.

No. 17-CA-473.

Court of Appeal of Louisiana, Fifth Circuit.

March 28, 2018.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 760-625, DIVISION "C", HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING.

APPEAL DISMISSED.

Brian D. Roth, Matthew M. McCluer, COUNSEL FOR PLAINTIFF/APPELLANT, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3.

William G. Cherbonnier, Jr., COUNSEL FOR DEFENDANT/APPELLEE, WALTER POOLE.

Panel composed of Judges Fredericka Homberg Wicker, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore.

FREDERICKA HOMBERG WICKER, Judge.

FHW HJL MFE

Plaintiff-appellant, the National Collegiate Student Loan Trust 2006-3 ("NCSLT"), seeks review of the trial court's judgment sustaining an exception of no right of action filed by defendant-appellee, Walter Poole, dismissing NCSLT's action against defendant with prejudice. Upon consideration of the parties' joint motion to dismiss the appeal, we hereby grant the parties' motion and dismiss the appeal.

On May 6, 2016, NCSLT filed suit against Triona and Walter Poole^[1] to collect on a student loan debt in the amount of $27,166.92. NCSLT filed into the record an "Affidavit and Verification of Account" executed by an employee of Transworld Systems, Inc., the designated custodian of records concerning the education loans at issue, attesting that National Collegiate Funding, LLC sold, assigned, and transferred defendants' student loans to plaintiff, NCSLT on September 28, 2006.

Poole subsequently filed an exception of no right of action, claiming that NCSLT lacked the procedural capacity to file suit and contended rather that the trustee for NCSLT must file suit on its behalf. Poole relied upon La. C.C.P. art. 699, which provides that, "the trustee of an express trust is the proper plaintiff to sue to enforce a right of the trust estate." Poole argued that NCSLT lacks the capacity to file suit in its own right and must, pursuant to La. C.C.P. art. 699, file suit through its trustee.^[2]

On January 27, 2017, the trial court issued a judgment sustaining Poole's exception of no right of action but allowing NCSLT time to amend its petition to name the trustee as the plaintiff in accordance with La. C.C.P. art. 699 and La. R.S. 9:2222. After NCSLT failed to amend its petition within the time provided in the trial court judgment, Poole sought to have the suit dismissed. On March 8, 2017, the trial judge took judicial notice that more than 10 days had elapsed since the signing of the January 27, 2017 judgment, and dismissed NCSLT's petition against Poole with prejudice. This timely appeal followed.

On appeal, NCSLT contends that Delaware law should apply under the facts of this case and that, under Delaware law, NCLST is a business trust with the substantive and procedural capacity to file suit on its own behalf. NCSLT thus asserts that it is not subject to La. C.C.P. art. 699's requirement that an "express trust" file suit through its named trustee. Poole responds that Louisiana's Code of Civil Procedure sets forth the procedural means by which an entity may sue or be sued in Louisiana courts and that, under La. C.C.P. art. 699, the named trustee must file suit on NCSLT's behalf.

On the morning that this matter was docketed for oral argument, NCSLT forwarded correspondence to this Court, informing the Court that the parties had reached a compromise and would not be present for oral argument on that date. Subsequently, the parties filed a joint motion to dismiss the appeal. Upon consideration of the parties' joint motion, we hereby grant the parties' motion and dismiss this appeal.

APPEAL DISMISSED

[1] On November 30, 2016, the trial court issued a default judgment against Triona Poole in the total amount of $27,166.92, reserving all rights against Mr. Walter Poole, defendant herein. That judgment is not before this Court.

[2] La. C.C.P. art. 699 provides: Except as otherwise provided by law, the trustee of an express trust is the proper plaintiff to sue to enforce a right of the trust estate.

National Collegiate Student Loan Trust in Court: Texas appeals court finds proof of ownership in securitized private student loans insufficient to prove collection cases against students and cosigners

Intermediate Texas Court of Appeals finds assignment proof in private student loan debt collection suits filed on behalf of various National Collegiate Student Loan Trusts faulty.  

PADRAIC GILLESPIE AND TRACY GILLESPIE, Appellants,
v.
NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-3, A DELAWARE STATUTORY TRUST, Appellee.

No. 02-16-00124-CV.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: June 29, 2017.

Appeal from County Court at Law No. 3 of Tarrant County Trial Court No. 2014-006194-3.

PANEL: WALKER, MEIER, and GABRIEL, JJ.

MEMORANDUM OPINION^[1]

LEE GABRIEL, Justice.

In this appeal from a bench trial and final judgment, we are asked to determine the admissibility of a business-records affidavit and attendant documents and to determine the sufficiency of the evidence to support several of the trial court's findings of fact. We conclude that even considering the challenged evidence, the trial court's findings and resulting judgment were not supported by legally sufficient evidence. Accordingly, we reverse and render a take-nothing judgment.

I. BACKGROUND

A. THE LOAN

On May 1, 2002, Bank One, N.A. entered into a loan-purchase agreement with The First Marblehead Corporation (First Marblehead) "for loans that were originated under Bank One's . . . EDUCATION ONE Loan Program." Three years later on July 12, 2005, appellant Padraic Gillespie,^[2] as the borrower, and appellant Tracy Gillespie, as a cosigner (collectively, the Gillespies), signed a note^[3] with "Bank One (JP Morgan Chase Bank, N.A.)" under which Bank One agreed to lend $12,500 to the Gillespies under its Education One loan program. Under the terms of the note, the Gillespies' repayment obligations would begin on December 20, 2008, but interest on the loan amount accrued as of the date the funds were disbursed to the Gillespies. Bank One's records reflected that it disbursed the principal amount of the loan—$13,368.98^[4]—to the Gillespies on July 26, 2005.

On October 12, 2005, First Marblehead, The National Collegiate Funding LLC (National Funding), and Bank One entered into "Pool Supplements" regarding "loans that were originated under Bank One's . . . EDUCATION ONE Loan Program" (the pool supplement). That same day, National Funding entered into a deposit and sale agreement (DAS) with appellee National Collegiate Student Loan Trust 2005-3 (the Trust) under which National Funding sold and assigned to the Trust "the student loans listed on Schedule 2 to each of the Pool Supplements set forth on Schedule A." The Gillespies made no payments on their loan between December 2008 and April 2010, but were granted four deferments of their repayment obligations extending from February 1, 2010, through May 31, 2011. Even so, the Gillespies did not meet their repayment obligations.^[5]

B. THE TRUST'S SUIT

On November 14, 2014, the Trust filed suit against the Gillespies seeking repayment of the unpaid balance on the note—$20,824.84—and asserting that it had either originated or acquired the Gillespies' loan through a "qualified financial institution."^[6] The Trust raised a claim for breach of contract against Padraic directly and against Tracy based on her personal guarantee of the note. The Gillespies answered by filing a general denial along with a verified denial raising their assertion that the Trust did not have the capacity to sue because it is not a legal entity. They also raised the affirmative defense of limitations.

A nonjury trial was held on March 29, 2016. No witnesses were called, but the Trust offered into evidence the business-records affidavit of Kayla Chandler, who was a legal case manager for the Trust's loan servicer.^[7] The affidavit attempted to authenticate thirty-six pages of records ostensibly related to the Gillespies' loan. See Tex. R. Evid. 901(a), 902(10). The Gillespies objected to portions of Chandler's affidavit as inadmissible hearsay. The trial court sustained those objections and struck those statements that went beyond certifying that the attached records were true and correct—beyond the authentication requirements of rules 901 and 902. The remainder of the affidavit was admitted, authenticating the attached business records. See Tex. R. Evid. 901(a), 902(10).

The Gillespies also objected to the admissibility of portions of the attached, authenticated records: (1) the pool supplement, which supplemented the May 1, 2002 note-purchase agreement between First Marblehead and Bank One; (2) a single page following the pool supplement (the orphan page), which the Trust asserted was included as part of the pool supplement's schedule 1 and showed that the Gillespies' note was included in those pooled for sale; (3) the DAS, assigning National Funding's rights and interests under the pool supplement to the Trust; and (4) a February 2016 printout of the financial activity on the Gillespies' loan from its inception to the date the Trust declared it to be in default. The trial court overruled most of the objections but sustained the Gillespies' objection to the pool supplement.^[8] The trial court concluded that the pool supplement was not a business record but indicated that it might be admissible as a public record "[i]f [the Trust] wish[es] to introduce it in a different way." The Trust did not re-offer the pool supplement.

At the conclusion of the trial, the trial court found the Gillespies jointly and severally indebted to the Trust for $20,824.84 and awarded that amount in the final judgment. The Gillepsies requested that the trial court enter findings of fact and conclusions of law, which it did. In its findings, the trial court found that the Gillespies entered into a loan agreement with Bank One,^[9] that Bank One transferred and assigned the Gillespies' note to National Funding, and that National Funding simultaneously transferred it to the Trust. In its conclusions, the trial court stated that the Trust's "Business Records Affidavit, and the documents and records attached thereto, were properly admitted into the evidentiary record at trial." It also concluded that because the Trust "acquired" the Gillespies' loan through Bank One and National Funding, the Trust had standing to bring suit to recover under the loan, which was a "valid contract" that the Gillespies breached. The Gillespies now appeal and challenge several of the trial court's evidentiary rulings and the sufficiency of the evidence to support some of the trial court's findings and conclusions.

II. SUFFICIENCY OF THE EVIDENCE

In their second issue, the Gillespies assert that the evidence was legally insufficient to show that the Trust was an assignee of Bank One's interest in the Gillespies' note or that the Gillespies breached a contract with the Trust, leading to the Trust's damages. Although the Gillespies claim in passing that the evidence was factually as well as legally insufficient, their briefing regarding sufficiency argues solely that there was no—legally insufficient—evidence of portions of the Trust's case. We will address their argument as they briefed it and will look to whether the evidence was legally sufficient to support the trial court's challenged findings.^[10] See Tex. R. App. P. 38.1(i); Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at *2 n.4 (Tex. App.-Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op.).

A. STANDARD OF REVIEW

A trial court's findings of fact have the same force and dignity as a jury's answers to jury questions and are reviewable for legal and factual sufficiency of the evidence to support them by the same standards. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When, as here, the appellate record contains a reporter's record, findings of fact on disputed issues are not conclusive if there is no evidence to support the findings. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.-Dallas 2008, pet. denied). We defer to unchallenged findings of fact that are supported by some evidence. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014).

We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh'g). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007).

B. STANDING TO BRING CLAIM FOR BREACH OF CONTRACT

The trial court found that the Gillespies had entered into an educational loan agreement with Bank One at the Gillespies' request, that the parties had mutually agreed to the note's material terms and conditions, and that the Gillespies failed to make payments as agreed. It further found that the Trust acquired the Gillespies' student loan by assignment though National Funding, conferring standing on the Trust to enforce the terms of the note: "[The Trust] has standing to bring the Suit because, when [the Trust] acquired the Student Loan, [National Funding], as assignor of [Bank One], transferred to [the Trust], without limitation or reservation, all rights and privileges it owned, held, or possessed in, or with regard to, the Student Loan."^[11]

The Gillespies attack the lack of evidence to support the existence of a valid and enforceable contract between them and the Trust because there was no evidence that the Trust was a holder in due course of the Gillespies' note with Bank One; therefore, the Gillespies assert the Trust does not have standing to sue to recover under the note.^[12]To recover on an assigned cause of action, the Trust was required to prove that a cause of action capable of assignment existed and that the cause of action was in fact assigned to the Trust. See Tex. Farmers Ins. Co. v. Gerdes ex rel. Griffin Chiropractic Clinic, 880 S.W.2d 215, 217 (Tex. App.-Fort Worth 1994, writ denied). Therefore, the Trust had to produce evidence establishing its privity to Bank One, the lender on the note and the entity in direct privity with the Gillespies. See R & R White Family Ltd. P'ship v. Jones, 182 S.W.3d 454, 459 (Tex. App.-Texarkana 2006, no pet.); Ceramic Tile Int'l, Inc. v. Balusek, 137 S.W.3d 722, 724-25 (Tex. App.-San Antonio 2004, no pet.); Skipper v. Chase Manhattan Bank USA, N.A., No. XX-XX-XXX CV, 2006 WL 668581, at *1 (Tex. App.-Beaumont Mar. 16, 2006, no pet.) (mem. op.).

The admitted evidence shows that the Gillespies entered into the note with Bank One, and the note provided that Bank One could assign the note "at any time." Three months later, National Funding, as the seller and owner "of certain student loans," sold and assigned to the Trust specified student loans in the DAS: "This [DAS] sets forth the terms under which the Seller is selling and the Purchaser is purchasing the student loans listed on Schedule 2 to each of the Pool Supplements set forth on Schedule A attached [to the DAS] (the `Transferred Student Loans')." Further, the DAS provided that National Funding assigned to the Trust its rights "under each of the Pool Supplements listed on Schedule A attached [to the DAS] and the related Student Loan Purchase Agreements listed on Schedule B attached [to the DAS]." Schedule A to the DAS states that First Marblehead, National Funding, and Bank One entered into pool supplements on October 12, 2005, for loans that were originated under Bank One's Education One program. Schedule B states that Bank One and First Marblehead entered into note-purchase agreements on May 1, 2002, for loans that were originated under Bank One's Education One program.^[13]

No document admitted into evidence purports to be the "Schedule 2" referenced in the DAS as specifying which loans were sold by National Funding to the Trust, and the pool supplement was not admitted into evidence. The Trust does not challenge the exclusion of the pool supplement on appeal, but improperly argues that the evidence is sufficient to show its standing based on the DAS as well as the excluded pool supplement.^[14] We conclude the Trust failed to show that it was a holder in due course of the Gillespies' note with Bank One. No evidence shows that the Gillespies' note was indeed included in the loans pooled for sale and assigned to the Trust in the DAS. The Trust asserted that the orphan page was part of schedule 1 to the pool supplement and showed that the Gillespies' loan was part of the pooled loans transferred to National Funding. But the trial court excluded the pool supplement, including its attached schedule 1. Even if the orphan page was not part of the pool supplement document and, thus, was not part of the evidence excluded by the trial court, it proves nothing by itself.^[15] The only information on the orphan page is that Padraic, identified by the last four digits of his social-security number, received a $13,368.98 loan from Bank One under its Education One loan program.

Additionally, although the admitted DAS arguably proved the sale and assignment between National Funding and the Trust of certain unspecified loans, no evidence establishes Bank One's assignment to First Marblehead. First Marblehead was National Funding's alleged predecessor in interest to the Gillespies' note; thus, without the link between Bank One and First Marblehead, First Marblehead's assignment to National Funding and National Funding's to the Trust does not establish the Trust's standing to sue on the note. Indeed, the trial court's findings skip the First Marblehead link in the assignment chain: "On or about October 12, 2005, [Bank One] transferred and assigned [the Gillespies'] promissory note . . . to [National Funding]. . . . On that same date, [National Funding] transferred and deposited [the Gillespies'] promissory note . . . to [the Trust]." Although the pool supplement, if read in tandem with the DAS, arguably supplies the assignment links from Bank One to First Marblehead, from First Marblehead to National Funding, and from National Funding to the Trust, the pool supplement was not before the trial court.

In summary, no evidence supports the trial court's finding that the Trust was a holder in due course of the Gillespies' note and had received by assignment Bank One's right to recover under the note. See, e.g., Ramirez, 2017 WL 929527, at *3-4; Frontier Commc'ns Nw., Inc. v. D.R. Horton, Inc., No. 02-13-00037-CV, 2014 WL 7473764, at *8 (Tex. App.-Fort Worth Dec. 31, 2014, no pet.) (mem. op.); Jenkins v. CACH, LLC, No. 14-13-00750-CV, 2014 WL 4202518, at *6-7 (Tex. App.-Houston [14th Dist.] Aug. 26, 2014, no pet.) (mem. op.); Skipper, 2006 WL 668581, at *1. We sustain issue two.

III. ADMISSION OF EVIDENCE

In their first issue, the Gillespies argue that the trial court abused its discretion by overruling their objections to the Trust's records it admitted through a business-records affidavit to prove its claim against the Gillespies. Because their sufficiency point is dispositive of this appeal, we need not address these evidentiary issues. See Tex. R. App. P. 47.1. However, our consideration of certain portions of the Trust's admitted evidence in our legal-sufficiency review should not be equated to a conclusion that such evidence was, in fact, properly admitted.

IV. CONCLUSION

This appeal is an object lesson in the danger of relying on imprecise or incomplete records to prove a technical issue such as a party's status as a holder in due course on the basis of multiple assignments. The result in this appeal possibly could have been avoided or ameliorated by careful adherence to the rules of evidence and the burden of proof. The mere fact that the subject matter of a suit does not involve a large amount in controversy does not relieve a party of the burden to dot every "i" and cross every "t." Details are important, even where the alleged operative breach seems to be a foregone conclusion. And here, the admitted evidence certainly shows that the Gillespies failed to comply with their repayment obligations under the note. In any event, we cannot turn a blind eye to the absence of any proof that the Trust had standing to assert Bank One's breach-of-contract claim regarding the Gillespies' note even though the result would appear to be inequitable. Accordingly, we reverse the trial court's judgment in the Trust's favor and render a take-nothing judgment in favor of the Gillespies. See Tex. R. App. P. 43.2(c), 43.3. 

[1] See Tex. R. App. P. 47.4.

[2] Padraic was a student at the University of North Texas.

[3] The note consisted of a one-page "NOTE DISCLOSURE STATEMENT" and a four-page "Loan Request/Credit Agreement." Our references to "the note" in this opinion will include these two documents.

[4] This amount reflected the $12,500 amount financed plus an $868.98 "Prepaid Finance Charge."

[5] In fact, their only two payments occurred on April 27, 2010 ($25.00), and December 1, 2010 ($300.00).

[6] The Trust also pleaded for prejudgment interest and attorney's fees, but it waived these amounts at trial.

[7] The Trust had served the affidavit and attached records on the Gillespies more than fourteen days before the trial. See Tex. R. Evid. 902(10)(A).

[8] The Trust does not argue on appeal that this ruling was an abuse of discretion but instead mistakenly briefs the appeal as if the pool supplement had been admitted.

[9] The trial court found that the agreement was with JP Morgan, Bank One's successor after a merger. This difference is not material to this appeal; thus, we will refer to the original lender as Bank One.

[10] The Trust addressed only legal sufficiency in its brief as well.

[11] Although the trial court referred to some of its findings as conclusions, we are not bound by the trial court's designations. See Ray v. Farmers' State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979).

[12] Although the Gillespies did not clearly raise this particular standing argument in the trial court, standing is a component of subject-matter jurisdiction that may be raised for the first time on appeal and is reviewed de novo as a question of law. See Rolen v. LVNV Funding, LLC, No. 2-09-304-CV, 2010 WL 1633402, at *1 (Tex. App.-Fort Worth Apr. 22, 2010, no pet.) (mem. op.).

[13] It bears repeating that this agreement occurred three years before the Gillespies' loan with Bank One was originated.

[14] Although "evidence treated by the trial court and the parties as if it had been admitted is, for all practical purposes, admitted," the trial court did not treat the pool supplement as admitted, and the Gillespies do not rely on the pool supplement as if it had been admitted even though the trial court expressly excluded it. Travelers Indem. Co. of R.I. v. Starkey, 157 S.W.3d 899, 904 (Tex. App.-Dallas 2005, pet. denied). Only the Trust references the pool supplement as if it had been admitted and that appears to be a briefing error. The Gillespies argue the effect of the admission of the pool supplement only in the alternative, and the trial court did not specifically rely on the pool supplement in its findings and conclusions.

[15] We note that the form of the pool supplement excluded by the trial court here is substantially similar to a pool supplement addressed by this court and found to be insufficient, in the absence of more specified information, to establish that the purported holder of a student loan was a holder in due course though assignment from the original lender. Nat'l Collegiate Student Loan Trust 2006-2 v. Ramirez, No. 02-16-00059-CV, 2017 WL 929527, at *3-4 & n.8 (Tex. App.-Fort Worth Mar. 9, 2017, no pet.) (mem. op.). 

NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-2,

 Appellant,

v.
PABLO RAMIREZ, Appellee 

No. 02-16-00059-CV.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: March 9, 2017. 

Appeal from County Court AT Law NO. 2 of Tarrant County Trial Court NO. 2014-001130-2.

PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

MEMORANDUM OPINION^[1]

BONNIE SUDDERTH, Justice.

I. Introduction

Appellant National Collegiate Student Loan Trust 2006-2 (National) appeals a take-nothing judgment rendered in its lawsuit against Appellee Pablo Ramirez for breach of contract and account stated related to Ramirez's alleged default on his student loan. In a single issue, National argues that the trial court abused its discretion by excluding certain portions of evidence attached to a business records affidavit, which it complains prevented it from showing its damages from Ramirez's default on his student loan. 

We affirm.

II. Procedural Background

National filed suit in March 2014 and moved for and obtained a default judgment in October 2014. Ramirez subsequently moved to set aside the default judgment on the basis of defective service, and the trial court vacated the default judgment in December 2014. The case went to a bench trial on January 15, 2016. After National rested at the conclusion of its presentation of evidence,^[2] the trial court granted a take-nothing judgment for Ramirez. National did not request—and the trial court did not make—findings of fact and conclusions of law.

National raised its claims as an alleged assignee, pleading that "Plaintiff is the trust that currently holds these loans [sic], and is entitled to repaying of the loan and all applicable interest," and sued Ramirez for "Suit on Open & Stated Account/Debt/Breach of Contract," quantum meruit, and attorney's fees. Thus, National assumed the burden to prove not only its claims but also its assignee status.^[3]

The 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) resulting damages to the plaintiff. Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 666 (Tex. App.-Fort Worth 2010, no pet.). A valid contract requires an offer, an acceptance in strict compliance with the offer's terms, a meeting of the minds, each party's consent to the terms, and execution and delivery of the contract with the intent that it be mutual and binding, along with consideration. Kang v. Song, No. 02-15-00148-CV, 2016 WL 4903271, at *8 (Tex. App.-Fort Worth Sept. 15, 2016, no pet.) (mem. op.). A party is entitled to relief under the common law cause of action of account stated when (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. Morrison v. Citibank (South Dakota) N.A., No. 02-07-00130-CV, 2008 WL 553284, at *1 (Tex. App.-Fort Worth Feb. 28, 2008, no pet.) (mem. op.). A plaintiff seeking to recover in quantum meruit under an implied promise to pay must show that (1) valuable services or material were furnished; (2) for the defendant; (3) the services or materials were accepted, used, and enjoyed by the defendant; and (4) the circumstances reasonably notified the defendant that the plaintiff was expecting to be paid by the defendant for the services or materials. Wilson v. Andrews, No. 02-06-00429-CV, 2007 WL 2460356, at *3 (Tex. App.-Fort Worth Aug. 31, 2007, pet. denied) (mem. op.). To recover as an assignee under any of these three causes of action, National was required to prove not only that a cause of action existed that was capable of assignment but also that the cause of action was in fact assigned to it. See Tex. Farmers Ins., 880 S.W.2d at 217; see also Rolen,2010 WL 1633402, at *2.

In a trial to the court in which no findings of fact or conclusions of law are filed, the trial court's judgment implies all findings of fact necessary to support it. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766-67 (Tex. 2011); Wood v. Tex. Dep't of Pub. Safety, 331 S.W.3d 78, 79 (Tex. App.-Fort Worth 2010, no pet.).^[4] The judgment must be affirmed if it can be upheld on any legal theory that finds support in the record. Rosemond, 331 S.W.3d at 767; see also Liberty Mut. Ins. Co., 295 S.W.3d at 777 (stating that the judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence).

III. Analysis

In its sole issue, National argues that the trial court abused its discretion by excluding from evidence the loan financial activity report and the loan payment history record that were attached to its business records affidavit. National contends that such error prevented it from proving its damages from Ramirez's default on his student loan. Ramirez responds by pointing out that even assuming that the trial court abused its discretion by excluding portions of National's exhibit, the exclusion was harmless because, among other things, National's evidence was insufficient to support the other essential elements on which National had the burden of proof. See Tex. R. App. P. 44.1(a).

Approximately forty-five days prior to trial, National filed its "Notice of Filing of Plaintiff's Affidavit and/or Other Trial Related Documents," giving notice "to all parties that it intends to rely upon said documents to establish one or more elements of its claims and/or defenses." At the beginning of the bench trial, National sought to introduce the affidavit and business records as "Plaintiff's Exhibit 1," stating that

[i]t contains the affidavit and verification of account of Plaintiff's custodian of records, note disclosure statement, credit agreement signed by the Defendants[^[5]] with the applicable cosignor notices, pool supplement and deposit and sale agreement illustrating the chain of title to the loan, loan financial activity reports, deferment/forbearance details and loan payment history report.^[6]

The affidavit purported to sponsor an exhibit containing thirty-six documents.

Ramirez objected to the form of the business records affidavit and asked that extraneous hearsay testimony contained within paragraphs 3 and 6 be stricken prior to admission. After the trial court sustained Ramirez's objections to paragraphs 3 and 6, National's counsel responded, "Your Honor, that's fine with 3 and 6," but then asked that two sentences from paragraph 6—"Attached hereto and incorporated as Exhibit `A' are 36 pages of business records," and "Within Exhibit `A' is a true copy of the underlying Credit Agreement/Promissory Note"— be admitted. The trial court agreed to admit those two sentences but excluded the remainder of paragraph 6 and all of paragraph 3.^[7] National does not complain of these rulings in its appeal.

Ramirez then objected to the loan financial activity report and the loan payment history record, and the trial court sustained his objections. National did not seek to present by other means any of the evidence that was excluded.

National's documents included a document entitled "2006-2 Pool Supplement Charter One Bank, N.A.," which referenced a note purchase agreement by and between First Marblehead Corporation and Charter One Bank, N.A., in which Charter One Bank, N.A. assigned to National Collegiate Funding LLC the student loans set forth on "the attached Schedule 2." The agreement further provided that National Collegiate Funding LLC "will sell the Transferred Loans to The National Collegiate Student Loan Trust 2006-2." Schedule 1 of that document lists a variety of note purchase agreements between First Marblehead Corporation and financial entities and programs between 2002 and 2005 but does not list "Charter One Bank, N.A." Instead, it lists "the Program Lender for the Charter One Referral Loan Program (including loans in the UPromise, Collegiate Solutions, College Board and Axiom Alternative Loan Programs)" and it lists separately "the Program Lender for Nextstudent." None of these loan program names match the name of the program on the purported loan's note disclosure statement. The last page of that set of documents includes a header for "Schedule 2" at the bottom of the page, but nothing listed for "Schedule 2" appears on the next or any subsequent page.^[8]

National's documents also include a deposit and sale agreement between it and National Collegiate Funding LLC referring to the sale "of certain student loans," which were "listed on Schedule 2 to each of the Pool Supplements set forth on Schedule A attached hereto." "Schedule B attached hereto" contains a list of the related Student Loan Purchase Agreements.

The name of the purported loan at issue is "Next Student Undergraduate Loan," and the bottom of the disclosures page included the footer, "NSTCDP Next Student UGrad Loan," but Schedule A to the deposit and sale agreement, listing the "Pool Supplements," does not list either of these names. Instead, it references,

Charter One Bank, N.A., dated June 8, 2006, for loans that were originated under the following Charter One programs: AAA Southern New England Bank, AES EducationGAIN Loan Program, Axiom Alternative Loan Program, CFS Direct to Consumer Loan Program, Citibank Flexible Education Loan Program, College Board Alternative Loan Program, College Loan Corporation Loan Program, Collegiate Solutions Alternative Loan Program, Comerica Alternative Loan Program, Custom Educredit Loan Program, EdFinancial Loan Program, Extra Credit II Loan Program (North Texas Higher Education), M&I Alternative Loan Program, National Education Loan Program, NextStudent Alternative Loan Program, NextStudent Private Consolidation Loan Program, SAF Alternative Loan Program, START Education Loan Program, and UPromise Alternative Loan Program. [Emphasis added.]

Schedule B lists Charter One Bank, N.A. student loan purchase agreements, but it also lists "Charter One's NextStudent Alternative Loan Program" and "Charter One's NextStudent Private Consolidation Loan Program," and not the name of the purported loan at issue here.

National offered no other evidence at trial to support its claims.

On the record before us, the trial court reasonably could have concluded, among other things, that National had failed to demonstrate that it was the holder of the note that National's exhibit purported to show had been made between Ramirez and Charter One Bank, N.A., of Albany, New York, as a "Next Student Undergraduate Loan." Because in the absence of findings and conclusions, the trial court's judgment must be affirmed if it can be upheld on any legal theory that finds support in the record, we therefore affirm the trial court's judgment without needing to reach National's sole issue complaining of the exclusion of evidence related to damages. See Rosemond, 331 S.W.3d at 767; Liberty Mut. Ins. Co., 295 S.W.3d at 777; see also Tex. R. App. P. 44.1(a), 47.1; Rolen,2010 WL 1633402, at *6 (concluding that there was a lack of evidence to show assignee status).

IV. Conclusion

For these reasons, we affirm the trial court's judgment.

[1] See Tex. R. App. P. 47.4.

[2] National attempted to nonsuit the case before resting, but the trial judge refused to permit it. But see Tex. R. Civ. P. 162. National does not complain of this ruling on appeal.

[3] To recover on an assigned cause of action, the party claiming the assigned rights must prove a cause of action existed that was capable of assignment and the cause was in fact assigned to the party seeking recovery. Tex. Farmers Ins. Co. v. Gerdes, 880 S.W.2d 215, 217 (Tex. App.-Fort Worth 1994, writ denied). An assignee stands in the shoes of the assignor and may assert those rights that the assignor could assert, but the plaintiff must prove that the defendant was a party to an enforceable contract with either it or with a third party who assigned its cause of action to the plaintiff. Rolen v. LVNV Funding, LLC, No. 02-09-00304-CV, 2010 WL 1633402, at *2 (Tex. App.-Fort Worth Apr. 22, 2010, no pet.) (mem. op.); see Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, No. 03-14-00738-CV, 2017 WL 279598, at *3 (Tex. App.-Austin Jan. 20, 2017, no pet. h.) (mem. op.) ("Privity is established by proof that the defendant was a party to an enforceable contract with either the plaintiff or a party who assigned its cause of action to the plaintiff.").

[4] When a reporter's record is filed, these implied findings are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency of the evidence issues. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 777 (Tex. App.-Fort Worth 2009, no pet.). However, National does not raise any legal or factual sufficiency challenges.

[5] National initially sued both Ramirez and another defendant, but it nonsuited the other defendant in January 2016.

[6] The affidavit itself, by Graham Hord, "Legal Case Manager," stated that he was employed by Transworld Systems Inc., National's designated custodian of records "pertaining to the Defendants' education loan(s) forming the subject matter of the above-captioned Complaint."

[7] Paragraph 3 stated that the lawsuit had arisen "out of an unpaid loan or loans owed by" Ramirez and that Ramirez had "failed, refused, and/or neglected to pay the balance or balances pursuant to the agreed repayment schedule or schedules." The portions of paragraph 6 that were excluded provided, in pertinent part, that no payment had been made on the loan since April 21, 2011, and that Ramirez owed $47,817 (principal and accrued interest) as of November 3, 2015.

[8] The header of the 2006-2 Pool Supplement states "Page 1 of 4" and lists part of a website address and a date in the footer. The header for "Schedule 2" begins at the bottom of "Page 4 of 4," and the next page lists no page number and does not include the web address of the preceding four pages. Therefore, it does not appear to be part of the "Schedule 2" referred to in the 2006-2 Pool Supplement.