Barajas v. Harvest Credit Management VI-B, LLC
(Tex.App.- Houston [14th Dist.] Aug. 28, 2008)(Guzman)
(credit card debt suit, summary judgment for debt collector reversed, contract terms not proven with requisite
summary judgment evidence, requirement for formation of binding and enforceable contract)
SJ FOR CREDITOR'S ASSIGNEE REVERSED AND CASE REMANDED: Opinion by Justice Eva Guzman
Before Justices Frost, Seymore and Guzman
14-07-00048-CV
Celia Barajas v. Harvest Credit Management, VI-B, LLC as assignee of Metris Direct Merchants Bank
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey
TYPE OF CREDIT CARD SUIT APPEAL: Appeal from summary judgment in favor of Plaintiff-Creditor
CAUSE OF ACTION ON WHICH PLAINTIFF MOVED FOR SUMMARY JUDGMENT: Breach of Contract
DISPOSITION OF APPEAL: Summary judgment for the Plaintiff is reversed, and case remanded to trial court
REASON: Plaintiff as movant did not meet evidentiary burden for traditional summary judgment.
Underlying agreement containing terms was missing, nor did Plaintiff come forth with other evidence of the terms of the loan.
Plaintiff's summary judgment evidence was contradictory.
M E M O R A N D U M O P I N I O N [higlights and links added]
In this suit to collect a credit-card debt, debtor Celia Barajas asks us to reverse the traditional
summary judgment granted in favor of the creditor's assignee, appellee Harvest Credit
Management, VI-B, LLC ("Harvest"). Because Harvest failed to establish its entitlement to
judgment on its contract claim as a matter of law, we reverse and remand.
I. Factual and Procedural Background
Celia Barajas received, signed, and returned an application for a credit card from Metris Direct
Merchants Bank ("Metris"). Metris issued her a credit card, and Barajas accepted and agreed to
the terms and conditions associated with its use. Under the terms of the account, Barajas was
required to pay in full for all charges incurred through her use of the credit card.
Harvest, in its asserted capacity as Metris's assignee, subsequently sued Barajas for her alleged
indebtedness on the account. The trial court granted traditional summary judgment in Harvest's
favor, and this appeal ensued.
II. Issue Presented
In her sole issue on appeal, Barajas contends the summary judgment in favor of Harvest should be
reversed because (a) some of the exhibits offered in support of the motion are defective and are not
competent summary judgment evidence, and (b) no other evidence supports the summary judgment.
III. Standard of Review
We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005). To prevail on a summary judgment motion, the movant must establish that there are no
genuine issues of material fact and that it is entitled to judgment as a matter of law. See Tex. R.
Civ. P. 166a(c). Once the movant establishes a right to judgment as a matter of law, the burden
shifts to the non‑movant to produce evidence raising a genuine issue of material fact. Id.; City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). In our review, we take
as true all evidence favorable to the non-movant, and we indulge every reasonable inference and
resolve any doubts in the non-movant's favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215
(Tex. 2002).
IV. Analysis
Barajas asserts that Harvest failed to prove that she "made purchases and cash advances on [the]
credit card, and the items, dates, amounts, and [these] were made [sic] signed for or by" her. In
connection with this argument, we note that in her statement of facts, Barajas made the
uncontroverted assertion that "no agreement has been introduced to establish what terms and
conditions Appellant agreed to by accepting and using the Card to purchase various goods, wares,
merchandise, services, or to take cash advances."[1]
To be entitled to summary judgment on its breach-of-contract claim, Harvest was required to
prove, as a matter of law, the following essential elements of its claim: (1) the existence of a valid
contract, (2) performance or tendered performance by the plaintiff, (3) breach of contract by the
defendant, and (4) damages sustained as a result of the breach. See Winchek v. Am. Express
Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.- Houston [1st Dist.] 2007, no pet.).
Parties form a binding contract when the following elements are present: (1) an offer, (2) an
acceptance in strict compliance with the terms of the offer, (3) meeting of the minds, (4) each party's
consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual
and binding. Id. To be enforceable, a contract must be sufficiently certain to enable a court to
determine the rights and responsibilities of the parties. Id. (citing T.O. Stanley Boot Co. v. Bank of
El Paso, 847 S.W.2d 218, 221 (Tex.1992)). The material terms of a contract must be agreed upon
before a court can enforce the contract. See T.O. Stanley Boot, 847 S.W.2d at 221 (holding that
interest rate is material term in context of contract to loan money).
Here, Harvest's summary-judgment evidence did not include the actual agreement or any other
evidence that established the agreed terms, including the applicable interest rate or the method
for determining the applicability and amount of finance charges. Harvest also produced no
evidence regarding any transactions or cash advances associated with the account or any
statements issued to Barajas. Moreover, statements contained in affidavits offered in support of
Harvest's motion for summary judgment conflict with Harvest's representations in its pleadings and
in its summary-judgment motion. For example, Harvest attached two documents to its original
petition. The first document is identified by Harvest as an affidavit by Martin Ravin, Harvest's
general manager, in which he stated that the interest rate applicable to Barajas's account is 23.9%.
The second document is entitled "Direct Merchants Credit Card Bank Last Statement Details," and
identifies the applicable interest rate as 29.99%. As summary-judgment evidence,[2] however,
Harvest attached David Ravin's affidavit, in which he asserted that Barajas's indebtedness includes
interest at an unspecified "legal rate."
The summary-judgment motion and evidence also presented conflicting statements regarding the
basis for the alleged indebtedness. Contrary to the representations in its pleadings and summary-
judgment motion that Harvest purchased the account from Metris, Harvest's summary-judgment
evidence includes David Ravin's statement that Harvest "is the original and current owner and
holder of the account." (emphasis added).[3] He further represented that "Defendant became
obligated to Plaintiff on this debt by purchasing items of goods, wares, merchandise, or services
sold to the Defendant by Plaintiff and for which Plaintiff sues." (emphasis added).
We conclude that the evidence offered in support of Harvest's motion for traditional summary judgment
presents questions of material fact and is insufficient to establish the terms of a valid contract as a matter of
law. See Williams v. Unifund CCR Partners Assignee of Citibank, ___ S.W.3d __, No. 01-06-00927-CV,
2008 WL 339855, at *4 (Tex. App.- Houston [1st Dist.] Feb. 7, 2008, no pet.) (reversing summary judgment
where the creditor failed to produce evidence establishing the contract's terms).
We therefore sustain Barajas's sole issue on appeal.
V. Conclusion
Because Harvest failed to carry its summary-judgment burden, we reverse the trial court's judgment
and remand the case for further proceedings consistent with this opinion.
/s/
Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed August 28, 2008.
Panel consists of Justices Frost, Seymore, and Guzman.
[1] See Tex. R. App. P. 38.1(f) ("In a civil case, the court will accept as true the facts stated unless another
party contradicts them."). Further, Barajas's statement of facts is consistent with her answers to requests for
admissions, which she filed as an attachment to her answer to Harvest's petition in the trial court. There, she
admitted that she applied to Metris for a credit card; that her application was approved; and that she
accepted and agreed to the terms and conditions associated with the credit card account, including terms
requiring her to pay Metris in full for all charges incurred by her use of the card. See Tex. R. Civ. P. 166a(c)
(trial court considers pleadings and admissions of the parties in rendering summary judgment).
[2] The exhibits Harvest offered in support of its motion for summary judgment include:
A. Defendant's Original Answer and Original Cross-Complaint, with attached Affidavit of Celia Barajas;
B. Two Affidavits by David Ravin;
C. A computer print-out of the amounts alleged by Harvest as the original claim amount, interest, and
total amount due;
D. Affidavit of Harvest's attorney regarding attorneys' fees;
E. A demand letter from Harvest's attorney to Celia Barajas, dated December 12, 2005; and
F. A computer print-out of the text of 15 U.S.C.A. § 1666.
Barajas argues that an unidentified exhibit is "[n]ot a copy of agreement indicating terms, conditions, and
attorneys['] fees." In support of her position that such particulars must be included with these exhibits,
Barajas relies solely on Guthrie v. Suiter. 934 S.W.2d 820, 824-25 (Tex. App.-Houston [1st Dist.] 1996, no
writ). In Guthrie, the First Court of Appeals applied Texas Rule of Civil Procedure 166a(f), and held that the
trial court did not abuse its discretion in refusing to consider an expert-opinion affidavit in which the expert
referred to documents that were not attached to or filed with the affidavit. Id. (citing Tex. R. Civ. P. 166a(f)).
Rule 166a(f) provides in pertinent part that "[s]worn or certified copies of all papers or parts thereof referred
to in an affidavit shall be attached thereto or served therewith." Tex. R. Civ. P. 166a(f) (emphasis added).
Here, Exhibits C, E, and F are not affidavits and do not refer to other papers; hence, Guthrie's application of
Rule 166a(f) does not apply to them.
Exhibit B, however, contains two affidavits by Harvest employee David Ravin. In the first of these, Ravin
states that he is the custodian of Harvest's records, but he makes no reference to any of Harvest's records.
The only documents referred to in this affidavit are Harvest's motion for summary judgment, and Harvest's
original petition. Both of these documents were filed with the court and served on Barajas, and the affidavit
was attached to the motion for summary judgment. In his second affidavit, the only document to which Ravin
refers is Barajas's answer, and a copy of the answer was served with the affidavit and the motion for
summary judgment. Thus, neither the reasoning in Guthrie nor the text of Rule 166a(f) requires the
exclusion of these affidavits.
[3] Barajas did not argue, at trial or on appeal, that the affidavits were improperly attested or failed to
demonstrate how the affiant obtained personal knowledge of the facts recited therein.