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
Opinion by Justice Eva Guzman  
Before Justices Frost, Seymore and Guzman
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
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
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.


Eva M. Guzman


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.