Summary Judgment for Debt Collector Reversed | Failure to Prove Terms of Contract |
Fact issues created by Plaintiff's contradictory sj evidence preclude summary judgment

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), summary judgment evidence submitted by Plaintiff contradictory, fact issue, conflicting
representations as to applicable interest rate)

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. * * * 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.

REVERSED AND REMANDED: Opinion by Justice 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          

M E M O R A N D U M    O P I N I O N

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.