Weissman v. Unifund CCR Partners (Tex.App.- Houston [14th Dist.] Apr. 2, 2009)
(debt collection suit, FDCPA debt validation claim rejected)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Seymore and Boyce
14-07-00863-CV Janice M. Weissman v. Unifund CCR Partners Assignee of Discover
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey
M E M O R A N D U M O P I N I O N [hyperlinks and highlights added]
Appellant Janice M. Weissman appeals from the trial court’s judgment in favor of appellee
Unifund CCR Partners Assignee of Discover ("Unifund”) in a debt-collection suit. Weissman
claims the trial court’s judgment was in error because (1) she received no notice of a summary
judgment hearing and (2) Unifund failed to respond to her debt validation request under the
Fair Debt Collection Practices Act ("FDCPA”). See 15 U.S.C. § 1692g.
Unifund filed suit against Weissman on January 20, 2006, for amounts allegedly owing on an
unpaid credit card account Unifund had purchased from Discover. Unifund’s petition included
documents showing Unifund’s demand that Weissman pay the past due amount that Discover
claimed was owed on Weissman’s account. The record shows, and Weissman admits, that
she was served with citation and Unifund’s petition in March 2006.
The trial court granted summary judgment in Unifund’s favor on January 25, 2007. Weissman
subsequently filed a motion for new trial, which the trial court granted. Unifund filed another
motion for summary judgment, followed by an amended motion for summary judgment.
Weissman filed four separate, but substantially identical, responses to the amended motion.
Each requested, without argument, that the court deny Unifund’s motion in all respects.
Among the documents attached to each response was a copy of an FDCPA debt validation
request dated April 2, 2006. However, none of Weissman’s summary judgment pleadings
presented any argument regarding an FDCPA debt validation request or any argument on or
reference to the documents attached to each of her four responses.
At trial, Unifund presented proof of the debt in the form of a business records affidavit, the
account agreement, a copy of the bill of sale transferring the debt to Unifund, a copy of the
note, and Discover statements. Weissman made no argument regarding an FDCPA debt
validation request in response. Instead, she repeatedly claimed, despite Unifund’s proof, that
Unifund did not show proof of debt and that she had no knowledge of having made the
charges. The trial court found there was sufficient proof of the debt and rendered judgment for
Unifund for $21,504.99 plus prejudgment interest, $4,000 in attorney’s fees, court costs, and
post-judgment interest on the entire amount. Weissman made no argument in her post-
judgment motions regarding an FDCPA debt validation request. She now appeals.
In her first issue, Weissman contends she was never notified of the hearing on Unifund’s initial
summary judgment motion, which resulted in the January 25, 2007 judgment in Unifund’s
favor. However, the trial court overturned that judgment by granting Weissman’s motion for
new trial, thereby curing any notice error. See Moncrief v. Harvey, 805 S.W.2d 20, 24 (Tex.
App.- Dallas 1991, no writ) (stating that the primary purpose of a motion for new trial is to give
the trial judge an opportunity to cure errors by granting a new trial).
We overrule Weissman’s first issue.
In her second issue, Weissman contends that the trial court’s judgment was in error because
Unifund failed to respond to her April 2, 2006 FDCPA debt validation request. Unifund
contends that Weissman waived this complaint by failing to present it to the trial court. We
agree. To preserve a complaint for appellate review, a party must make a timely request,
objection, or motion with sufficient specificity to apprise the trial court of the complaint. See
Tex. R. App. P. 33.1; Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235
(Tex. 2007); see also Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (A[a]s a rule, a
claim, including a constitutional claim, must have been asserted in the trial court in order to be
raised on appeal.”). The only place in the record in which Weissman’s FDCPA debt
validation request appears is as an attachment to her responses to appellant’s amended
motion for summary judgment. However, she neither referenced that document in her
responses nor made any argument regarding a claim or defense under the FDCPA in her
pleadings, at trial, in her post-judgment motions, or otherwise. Therefore, Weissman failed to
preserve this issue for our review. See Tex. R. App. P. 33.1; Bay Area Healthcare Group,
Ltd., 239 S.W.3d at 235.
Moreover, even if Weissman had preserved this issue for appeal, the record reflects that
Unifund provided her with sufficient information to satisfy an FDCPA debt validation
request. Debt validation under the FDCPA requires "nothing more than the debt collector
confirming in writing that the amount being demanded is what the creditor is claiming is
owed.” Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999). Here, Weissman admits
that she received Unifund’s petition, which included documents showing Unifund’s demand
that Weissman pay the past due amount that Discover claimed was owed on Weissman’s
account. The attachments to Unifund’s subsequent pleadings, several of which Weissman
responded to, included copies of monthly credit card statements and affidavits that added to
that documentation substantially. Thus, even if Weissman preserved this issue for our
review, the record reflects that Unifund provided sufficient documentation to satisfy her
FDCPA debt validation request. See id.
We overrule Weissman’s second issue.
Having overruled both of Weissman’s issues, we affirm the trial court’s judgment.
/s/ Leslie B. Yates
Panel consists of Justices Yates, Seymore, and Boyce.
 Although Congress amended the FDCPA to provide that communications in the form of formal pleadings are
insufficient under the FDCPA as of October 13, 2006, that was not the state of the law at the time Unifund initiated suit
against Weissman in January 2006. See Fed. Home Loan Mortgage Corp. v. Lamar, 503 F.3d 504, 509 n.3 (6th Cir.
2007) (noting that pleadings were considered sufficient communication prior to amendment). Therefore, we assume
that the pleadings, and the documentation of appellant’s debt attached to them, were a sufficient form of
communication when Unifund brought suit. See id. (assuming that a summons and complaint were a sufficient
communication where debt collector brought suit and served the summons and complaint before amendment added
section 1692g(d) to the FDCPA).
Also see: Other credit card debt suit decisions from the Houston Courts of Appeals |
FDCPA cases | DTPA and other consumer rights litigation | Unifund CCR Partners in the courts of
appeals (other cases)
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