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Please review my Opp. to MSJ (due tomorrow)


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Sued by JDB who is referred to as JDB2 in Opposition. They bought from JDB1. JDB1 bought from OC.

JDB2 has filed MSJ.

Text in Dark Orange are commentary (not to be part of final document).

I have to submit the Opposition by Tuesday (11/28). I would greatly appreciate any feedback you may provide. I'm worried I may have gone overboard in some areas and not done enough in others. I am also worried it may look to much like my own MSJ instead of Opposition to MSJ. This is pretty much from scratch, so please be kind.

For slightly easier reference, the following lists what affidavits were included in the MSJ and who was the affiant.

Exhibit A: "Affidavit and Assignment" Affidavit by JDB1

Exhibit B: letter to me

Exhibit C: "Affidavit of Liquidated Damages in a Collection Case" by JDB2

and "Affidavit of Indebtedness" by JDB1

and "Business Records Affidavit" by JDB2, includes 14 pages of OC statements

Exhibit D: "Affidavit In Support of Attorney's Fees For Plaintiff" by JDB2 local counsel

This case in a Texas District Court (not Federal court in Texas;) ).

Side Note: the Preston State Bank v. Jordan is a case that the Plaintiff has used in their MSJ. There is another piece of irony in here, but I'm not going to point it out.

**************

OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Defendant, <my name here>, pro se, hereby responds to Plaintiff <jdb name>'s Motion for Summary Judgment, and, in opposition to that motion, respectfully shows the following:

1. FACTUAL BACKGROUND

1.1 Plaintiff filed Petition for Collection of a Liquidated Amount with the ###th District Court on September ##, 2005.

1.2 Defendant was served on November ##, 2005.

1.3 In compliance with Texas Rules of Civil Procedure 99(B), Defendant filed Answer, Affirmative Defenses, Counterclaims on November ##, 2005.

1.4 Plaintiff submitted Motion for Summary Judgment on November ##, 2006.

1.5 Plaintiff's pleadings are based on an alleged debt between Defendant and OC.

1.6 Plaintiff has not initiated Discovery actions.

1.7 Information included in Plaintiff's Motion for Summary Judgment supports Defendant's claim that Plaintiff's cause of action is barred by the statute of limitations.

1.8 Plaintiff has not provided evidence supporting the suspension or tolling of the statute of limitations.

1.9 Plaintiff has provided inadequate testimony(/evidence?) to support Plaintiff's claim of proper assignment of account from OC.

1.10 Plaintiff has provided inadequate testimony(/evidence?) related to business records of a third party.

1.11 Plaintiff has not provided evidence relating to the terms and conditions of a true and correct copy of the original contract between Defendant and OC that allows for interest rate, costs of suit, or attorney fees to be collected by the Plaintiff.

1.12 The interest rate charged by the Plaintiff is usurious.

2. ARGUMENT AND AUTHORITIES

2.1 To preclude the court from granting Plaintiff's motion for summary judgment, the defendant (non-movant) must identify a fact issue in the summary judgment evidence already in the record or include summary judgment evidence that creates a fact issue. Geiselman v. Cramer Fin. Group, 965 S.W. 2d 532, 534 (Tex.App.-Houston [14th Dist.] 1997, no writ)

2.2 When evaluating a motion for summary judgment based on summary judgment proof, the trial court must assume all the nonmovant's proof is true. Limestone Prods. Distrib. v. McNamara, 71 S.W.3d 22, 23 (Tex. 2000); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex 1985)

2.3 When evaluating a motion for summary judgment based on summary judgment proof, the trial court must indulge every reasonable inference in favor of the nonmovant. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003); M.D. Anderson, 28 S.W.3d at 23; Science Spectrum, 941 S.W.2d at 911; Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Nixon, 690 S.W.2d at 549.

2.4 When evaluating a motion for summary judgment based on summary judgment proof, the trial court must resolve all doubts about the existence of a genuine issue of material fact against the movant. M.D. Anderson, 28 S.W.3d at 23; Johnson Cty. Sheriff's Posse v. Endsley, 926 S.W.2d 284, 285 (Tex.1996); Nixon, 690 S.W.2d at 548-49.

2.5 When evaluating a motion for summary judgment based on the nonmovant's pleadings, the trial court must assume all allegations and facts in the nonmovant's pleadings are true. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Valles v. Texas Comm'n on Jail Stand., 845 S.W.2d 284, 286 (Tex.App.-Austin 1992, writ denied)

2.6 When evaluating a motion for summary judgment based on the nonmovant's pleadings, the trial court must indulge all inferences in the nonmovant's pleadings in the light most favorable to the nonmovant. Medina v. Herrera, 927 S.W.2d 597, 602 (Tex.1996); Natividad, 875 S.W.2d at 699; Valles, 845 S.W.2d at 286.

2.7 When evaluating a motion for summary judgment based on the nonmovant's pleadings, the trial court must ensure that any defects in the pleadings cannot be cured by amendment. In re B.I.V., 870 S.W.2d 12, 13 (Tex. 1994).

2.8 Court should evaluate pro se pleadings by less stringent standards than those applied to formal pleadings drafted by attorneys. Gordon v. Scott, 6 S.W.3d 365, 369 (Tex.App.-Beaumont 1999, no pet.)(citing Thomas v. Collins, 860 S.W.2d 500, 503 (Tex.App.-Houston [1st Dist.] 1993, pet. denied)

2.9 Credit card issued by financial institution did not create the sort of debtor-creditor relationship required in order to bring suit on sworn account. Vernon's Ann. Texas Rules Civ. Proc., Rule 185. - Bird v. First Deposit Nat. Bank, 994 S.W.2d 280.

2.10 Assuming statements contained in Exhibit C of Plaintiff's Motion for Summary Judgment are proven to be admissible (see 2.22 below), information contained on the statement noted as "Statement/Closing Date" of "05/08/2001" indicates a demand for payment had been made by OC. (Defendant has included copy of statement as Exhibit A for ease of reference for the court.) This claim is supported by the "Minimum Amount Due" of "$4778.61" is equal to the "New Balance" of "$4778.61". In addition, the "New Balance" exceeds the "Total Credit Line" of "$3000". Defendant interprets the statement as a demand for payment. An affidavit by Defendant in support of the above statement is attached as Exhibit A. A demand for payment indicates a breach of contract had occurred prior to the demand. Therefore, the breach of contract occurred on, or before, May 8, 2001. Likewise, the statute of limitations commenced on, or before, May 8, 2001. (Need to define breach of contract more specifically??) "Breach" of contract occurs, and statute of limitations accrues, when party fails to perform duty required by contract. Hoover v. Gregory (App. 5 Dist. 1992) 835 S.W.2d 668, rehearing denied, writ denied, rehearing of writ of error overruled. When a cause of action accrues is a question of law. Moreno v. Sterling Drug, 787 S.W.2d 348, 351 (Tex. 1990). The cause of action for a contract accrues either when the breach occurs or when the plaintiff knew or should have known of the breach. Enterprise-Laredo Associates v. Hachar’s, Inc., 839 S.W.2d 822, 837 (Tex. App.—San Antonio), writ denied per curiam, 843 S.W.2d 476 (Tex. 1992); Rose v. Baker & Botts, 816 S.W.2d 805, 810 (Tex. App.—Houston [1st Dist.] 1991, writ denied); see also Taub v. Houston Pipeline Co., 75 S.W.3d 606, 618–20 (Tex. App.—Texarkana 2002, pet. denied) (discovery rule did not apply because the injury was not inherently undiscoverable).

2.11 As noted in paragraph 2.10, the cause of action accrued on, or before, May 8, 2001. Therefore, the statute of limitations expired on May 8, 2005. Plaintiff initiated pleadings on September 26, 2005, or 141 days after statute of limitations expired. Actions for debt, whether on written or oral contracts, must be brought not later than four years after the day the cause of action accrued. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (Vernon Supp. 2003). “Cause of action” means the right to institute suit. Hercules Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 719 (Tex. App.—Corpus Christi 1983, writ ref’d n.r.e.). Limitations commence to run on breach of contract or when claimant has notice of sufficient facts to place him on notice of breach thereof. Maddox v. Oldham Little Church Foundation (Civ.App. 1967) 411 S.W.2d 375, ref. n.r.e. A cause of action generally accrues so as to begin running of period of limitations at time of breach of contract. Hurbrough v. Cain (Civ.App. 1978) 571 S.W.2d 216. Where a demand is an integral part of a cause of action, statute of limitations does not begin to run until a demand is made. Gabriel v. Alhabbal, 618 S.W.2d 894. Many principles of contract law apply to transaction involving bank credit card. Preston State Bank v. Jordan, 692 S.W.2d 740.

2.12 Assuming statements contained in Exhibit C of Plaintiff's Motion for Summary Judgment are proven to be admissible (see 2.22 below), the payments noted on statements with "Statement/Closing Date" of 07/01/01, 08/02/01, 09/03/01, 10/02/01, and 11/01/01 do not serve as acknowledgment of a debt nor do they toll the statute of limitations. These payments occurred after the breach of contract occurred (see paragraph 2.10 above). Mere payment of debt neither interrupts running of statute of limitations on debt nor acknowledges justness of debt with implicit promise to pay it. Siegel v. McGavock Drilling Co., (Civ.App. 1975) 530 S.W.2d 894, ref. n.r.e.. A check issued in part payment of a promissory note neither interrupts running of limitation on the debt nor acknowledges justness of the debt with an implicit promise to pay it. Gabriel v. Alhabbal (Civ.App. 1981) 618 S.W.2d 894, ref. n.r.e.. Mere fact that part payments had been made on alleged debt was not sufficient to toll statute of limitations. Mandola v. Oggero (Civ.App. 1974) 508 S.W.2d 861. Payment made by one obliger on note after it was overdue but before limitation period had run did not operate to toll statute or start running of a new period of limitation. Weber v. Prinz (Civ.App. 1964) 379 S.W.2d 419.

2.13 Plaintiff alleges Defendant made no payments on this account after November 15, 2001. Evidence submitted by Plaintiff indicates last payment was made October 3, 2001, not November 15, 2001.

2.14 Under Texas law, burden of proof with respect to suspending or tolling running of limitations is on plaintiff. Porter v. Charter Medical Corp., N.D.Tex.1997, 957 F.Supp. 1427. In action on note apparently barred by limitation, burden of proving payments that tolled the statute of limitations was on plaintiff. Sauer v. Macy Oil Co., (Civ.App. 1949) 218 S.W.2d 1017, ref. n.r.e..

2.15 Plaintiff has not disclosed a true and correct copy of the assignment contract, including terms and conditions, between OC and <JDB1>.

2.16 Plaintiff has submitted to this court in Plaintiff's Motion for Summary Judgment an affidavit titled "Affidavit and Assignment". Copy of Affidavit is included as Exhibit B for ease of reference for the court. Defendant objects to said affidavit because it does not comply with Texas Rules of Evidence 602 based on a lack of personal knowledge. In the affidavit, Ms. <JDB1personsname>, <JDB1>, averred "…to the best of the affiant's knowledge..." the account was purchased by <JDB1> from the OC and <JDB1> has complete authority to settle, adjust, compromise and satisfy the same and thatOC has no further interest in said debt for any purpose. Defendant hereby respectfully requests the court to exclude the affidavit, in whole, titled "Affidavit and Assignment". Defendant has submitted a Motion to Exclude Plaintiff's Affidavit Titled "Affidavit and Assignment" concurrently with Defendant's Opposition to Plaintiff's Motion for Summary Judgment. A summary judgment affidavit must state that it is based on the affiant's personal knowledge and that facts in it are true. Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex.1996); Garner v. Long, 106 S.W.3d 260, 267 (Tex.App.-Fort Worth 2003, no pet.); Geiselman v. Cramer Fin. Group, 965 S.W. 2d 532, 537 (Tex.App.-Houston [14th Dist.] 1997, no writ). Statements based merely on the affiant's "best knowledge" are insufficient to raise a fact issue and are improper summary judgment evidence. Price v. American Nat'l Ins. Co., 113 S.W.3d 424, 429-30 (Tex.App.-Houston [1st Dist.] 2003, no pet.). An affidavit must be based on the affiant's personal knowledge and must state that the facts in it are true. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994) To be legally sufficient, an affidavit must positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge. Bahm v. State, 184 S.W.3d 792, petition for discretionary review granted.

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2.17 Plaintiff has submitted to this court in Plaintiff's Motion for Summary Judgment an affidavit titled "Affidavit and Assignment". Copy of Affidavit is included as Exhibit B for ease of reference for the court. Defendant objects to said affidavit because it includes conclusory statements not supported by facts. Defendant alleges the following statements contained in the affidavit as conclusory,

A) "By the terms of the agreement between the defendant and the original creditor, interest is accruing at the rate of 2#.## percent per annum."

B)

"The account was originated with
OC
."

C) "<
JDB1
> purchased this account from
OC
."

D)"…there are no uncredited payments, just counterclaims or offsets against the said debt."

The listed statements are facts not supported by evidence. Without the following,

A) a true and correct copy of the referenced terms and conditions of agreement between defendant and
OC

B)

a true and correct copy of the contract between Defendant and
OC

C) a true and correct copy of the purchase agreement between <
JDB1
> and <
JDB2
>

D) a full and complete accounting of all payments and credits, purchases and adjustments, cash advances or finance charges

the statements are unfounded. Defendant hereby respectfully requests the court to exclude the affidavit, in whole, titled "Affidavit and Assignment". Defendant has submitted a Motion to Exclude Plaintiff's Affidavit Titled "Affidavit and Assignment" concurrently with Defendant's Opposition to Plaintiff's Motion for Summary Judgment. Conclusory statements that are not supported by facts are not proper as summary judgment proof. McIntyre v. Ramirez, 109 S.W.3d 741, 749-750 (Tex.2003); Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex.1997); Ryland Group, 924 S.W.2d at 122. Unsupported conclusory statements are not credible and are not susceptible to being readily controverted. Ryland Group, 924 S.W.2d at 122.

2.18 Plaintiff has submitted to this court in Plaintiff's Motion for Summary Judgment an affidavit titled "Affidavit of Indebtedness". Copy of Affidavit is included as Exhibit C for ease of reference for the court. Defendant objects to said affidavit because it does not comply with Texas Rules of Evidence 602 based on a lack of personal knowledge. In the affidavit, Ms. <JDB1personsname>, <JDB1>, does not claim personal knowledge of the statements contained within the affidavit nor states the facts within the affidavit are true. Defendant hereby respectfully requests the court to exclude the affidavit, in whole, titled "Affidavit of Indebtedness". Defendant has submitted a Motion to Exclude Plaintiff's Affidavit Titled "Affidavit of Indebtedness" concurrently with Defendant's Opposition to Plaintiff's Motion for Summary Judgment. A summary judgment affidavit must state that it is based on the affiant's personal knowledge and that facts in it are true. Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex.1996); Garner v. Long, 106 S.W.3d 260, 267 (Tex.App.-Fort Worth 2003, no pet.); Geiselman v. Cramer Fin. Group, 965 S.W. 2d 532, 537 (Tex.App.-Houston [14th Dist.] 1997, no writ). An affidavit must be based on the affiant's personal knowledge and must state that the facts in it are true. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994). To be legally sufficient, an affidavit must positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge. Bahm v. State, 184 S.W.3d 792, petition for discretionary review granted.

2.19 Plaintiff has submitted to this court in Plaintiff's Motion for Summary Judgment an affidavit titled "Affidavit of Indebtedness". Copy of Affidavit is included as Exhibit C for ease of reference for the court. Defendant objects to said affidavit because it includes conclusory statements not supported by facts. Defendant alleges the following statements contained in the affidavit as conclusory,

A) "There is due and payable from <
MED
>, Account Number
#####
, the amount of $10###.## (principal balance in the amount of $4,###.## plus interest up through 07/##/05 in the amount of $6,###.##)."

B)

"By the terms of the agreement between the
defendant
(how did they know I was defendant)
and the original creditor, interest is accruing from the aforesaid date at the rate of 2#.## percent per annum."

C) "This balance reflects any payments, credits or offsets made since the account was charged off."

D) "This account was originated with OC."

E) "<
JDB1
> purchased this account from
OC
."

The listed statements are facts not supported by evidence. Without the following,

A) a full and complete accounting of all payments and credits, purchases and adjustments, cash advances or finance charges

B)

a true and correct copy of the referenced terms and conditions of agreement between defendant and
OC

C) a full and complete accounting of all payments and credits, purchases and adjustments, cash advances or finance charges

D) a true and correct copy of the contract between Defendant and
OC

E) a true and correct copy of the purchase agreement between <
JDB1
> and <
JDB2
>

the statements are unfounded. Defendant hereby respectfully requests the court to exclude the affidavit, in whole, titled "Affidavit of Indebtedness". Defendant has submitted a Motion to Exclude Plaintiff's Affidavit Titled "Affidavit of Indebtedness" concurrently with Defendant's Opposition to Plaintiff's Motion for Summary Judgment. Conclusory statements that are not supported by facts are not proper as summary judgment proof. McIntyre v. Ramirez, 109 S.W.3d 741, 749-750 (Tex.2003); Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex.1997); Ryland Group, 924 S.W.2d at 122. Unsupported conclusory statements are not credible and are not susceptible to being readily controverted. Ryland Group, 924 S.W.2d at 122.

2.20 In accordance with Texas Rules of Evidence 607 (who may impeach), the Defendant questions the credibility of the affidavits titled "Affidavit and Assignment" (Exhibit B) and "Affidavit of Indebtedness" (Exhibit C). The affiant for both affidavits is Ms. <jdb1personsname>. A review of the signatures reveals the signatures are not the same. One appears to contain a first initial and last name and the second appears to contain two initials only. In addition, the signatures appear to bear different writing styles. Defendant hereby respectfully requests the court to exclude the affidavits, in whole, titled "Affidavit and Assignment" and "Affidavit of Indebtedness". If the credibility of the affiant is likely to be a dispositive factor in the resolution of the case, summary judgment is not appropriate. Casso v. Brand, 776 S.W.2d 551, 558; CEBI Metal v. Garcia, 108 S.W.3d 464, 465 (Tex.App.-Houston [14th District] 2003, no pet.). To establish the facts through an interested witness, the testimony must be clear, positive, direct, credible, free from contradiction, and uncontroverted even though it could have been readily controverted. McIntyre v. Ramirez, 109 S.W.3d 741, 749-750 (Tex.2003); Trico Tech. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997). (something is missing here, need to attack differently?)

2.21 Plaintiff has submitted to this court in Plaintiff's Motion for Summary Judgment an affidavit titled "Affidavit of Liquidated Damages In A Collections Case". Copy of Affidavit is included as Exhibit D for ease of reference for the court. Defendant objects to said affidavit because it includes conclusory statements not supported by facts. Defendant alleges the following statements contained in the affidavit as conclusory,

A) "…Defendant's failure to pay funds advanced to Defendant under a credit card contract."

B)

"This credit card agreement constituted a contract executed and delivered by the Defendant…"

C) "There are no conditions remaining which must be satisfied under the contract before this liquidated amount is now fully due and payable."

D) "All credits, payments and offsets have been properly allocated to Defendant and no other offsets are appropriate."

E) "The Defendant's default constitutes a breach of the agreement and has been the proximate cause of damages including the principal balance due of $4,###.##"

F) "The agreement also requires payment of interest and attorney's fees."

The listed statements are facts not supported by evidence. Without the following,

A) a true and correct copy of the contract between Defendant and
OC

B)

a true and correct copy of the contract between Defendant and
OC

C) a true and correct copy of the referenced terms and conditions of agreement between defendant and
OC

D) a full and complete accounting of all payments and credits, purchases and adjustments, cash advances or finance charges

E) a full and complete accounting of all payments and credits, purchases and adjustments, cash advances or finance charges

F) a true and correct copy of the referenced terms and conditions of agreement between defendant and
OC

the statements are unfounded. Defendant hereby respectfully requests the court to exclude the affidavit, in whole, titled "Affidavit of Liquidated Damages In A Collections Case". Defendant has submitted a Motion to Exclude Plaintiff's Affidavit Titled "Affidavit of Liquidated Damages In A Collections Case" concurrently with Defendant's Opposition to Plaintiff's Motion for Summary Judgment. Conclusory statements that are not supported by facts are not proper as summary judgment proof. McIntyre v. Ramirez, 109 S.W.3d 741, 749-750 (Tex.2003); Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex.1997); Ryland Group, 924 S.W.2d at 122. Unsupported conclusory statements are not credible and are not susceptible to being readily controverted. Ryland Group, 924 S.W.2d at 122.

2.22 Plaintiff has submitted to this court in Plaintiff's Motion for Summary Judgment an affidavit titled "Business Records Affidavit". Copy of Affidavit is included as Exhibit E for ease of reference for the court. Defendant objects to said affidavit as it is hearsay and not admissible because it violates Texas Rules of Evidence 802 and 902(10); and does not qualify for an exception under Texas Rules of Evidence 803(6). The form of the affidavit does not follow the form required under 902(10). Specifically, the affidavit is not sworn. The statement "…being by me duly sworn…", or equivalent, was not included in the Plaintiff's affidavit as required by TRE 902(10). The fourteen pages of attached records to the "Business Records Affidavit" are not admissible because they do not qualify for the business record exception to hearsay rule, TRE 803(6). Plaintiff has not disclosed affidavit(s) from either the OC or <JDB1> necessary to meet the required elements to qualify for the business records exception to hearsay rule, TRE 803(6).

Foundation for business record exception to hearsay rule has four requirements: (1) record was made and kept in course of regularly conducted business activity; (2) it was regular practice of business activity to make the record; (3) record was made at or near time of event that it records; and (4) record was made by, or from information transmitted by, person with knowledge; person with knowledge must have acted in the regular course of business, or as it is sometimes put, must have had business duty to report.
Daimler-Benz Aktiengesellschaft v. Olson
(App. 3 Dist. 2000) 21 S.W.3d 707, petition stricken 53 S.W.3d 308, reviewed dismissed w.o.j., rehearing of petition for review overruled, certiorari denied 122 S.Ct. 1960, 535 U.S. 1077, 152 L.Ed.2d 1021.

Records of regularly conducted business activity are admissible under "business records" exception to hearsay rule if they are made at or near time of activity, recorded as part of regularly conducted business activity, and made by or from data provided by a person with knowledge, unless source of information or method of preparation indicates lack of trustworthiness.
Brooks v. State
(App. 2 Dist. 1995) 901 S.W.2d 742, rehearing overruled, petition for discretionary review refused, petition fro discretionary review dismissed.

Predicate for admissibility under business records exception requires, among other things, that party offering evidence prove record was made by, or from information transmitted by, person with knowledge, and that record be kept in course of regularly conducted business activity.
Harris v. State
(App. 1 Dist. 1993) 846 S.W.2d 960, petition for discretionary review refused.

Defendant has submitted a Motion to Exclude Plaintiff's Affidavit Titled "Business Records Affidavit" concurrently with Defendant's Opposition to Plaintiff's Motion for Summary Judgment.

2.23 Plaintiff has not disclosed a true and correct copy of the referenced terms and conditions of agreement between defendant and OC. Without a review of the terms and conditions, or contract provisions, the Plaintiff can not establish that interest rate, costs of suit, or attorney fees may be charged. In action by bank to collect monies allegedly due it by cardholder under "bank credit card agreement," bank had burden at trial to establish existence of contract between itself and cardholder and compliance with contract provisions. Preston State Bank v. Jordan, 692 S.W.2d 740. (Better Case Law?)

2.24 The interest rate of 2#.## percent per annum charged by the Plaintiff is usurious under Texas law. Texas Finance Code §302.001(B). Because Citibank failed to prove the contractual interest rate, Citibank has failed to prove it was entitled to summary judgment. Tully v. Citibank, 173 S.W.3d 212.

WHEREFORE, Defendant respectfully requests that this Court deny Plaintiff <JDB2>'s Motion for Summary Judgment and allow this action to proceed to trial on the merits.

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ATTACHMENTS

Exhibit A - copy of 5/08/01 statement & Defendant's Affidavit in support of demand for payment (paragraph 2.10)

Exhibit B - copy of "Affidavit and Assignment" affidavit (paragraph 2.16, 2.17, 2.20)

Exhibit C - copy of "Affidavit of Indebtedness" affidavit (paragraph 2.18, 2.19, 2.20)

Exhibit D - copy of "Affidavit of Liquidated Damages In A Collections Case" affidavit (paragraph 2.21)

Exhibit E - copy of "Business Records Affidavit" (paragraph 2.22)

Separate Documents to be submitted with Opposition:

- Defendan'ts First Amended Answers, Affirmative Defenses, Counterclaims (add verified pleas)

- Defendant's Motion to Exclude Plaintiff's Affidavit Titled "Affidavit and Assignment" (both as hearsay and facts not in evidence)

- Defendant's Motion to Exclude Plaintiff's Affidavit Titled "Affidavit of Indebtedness" (both as hearsay and facts not in evidence)

- Defendant's Motion to Exclude Plaintiff's Affidavit Titled "Affidavit of Liquidated Damages In A Collections Case" (both as hearsay and facts not in evidence)

- Defendant's Motion to Exclude Plaintiff's Affidavit Titled "Business Records Affidavit" (both as hearsay and facts not in evidence)

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WHEREFORE, Defendant respectfully requests that this Court deny Plaintiff <JDB2>'s Motion for Summary Judgment and allow this action to proceed to trial on the merits.

Why ask for trial? Request dismissal with prejudice. If you don't get it, you'll go to trial anyway.

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Hmmm. From my Factual section (modified since posting above). All of these are statements I deem as fact.

1.5 Plaintiff's pleadings are based on an alleged debt between Defendant and OC. ???

1.6 Plaintiff has not initiated Discovery actions. Affidavit stating I have not received Discovery?

1.7 Plaintiff's Motion For Summary Judgment is insufficient as a matter of law. Don't think I need one here?

1.8 Defendant alleges that this action is time-barred under Texas Civil Practice and Remedies Code §16.004(a)(3). Support this statement in argument below, need affidavit??

1.9 Plaintiff has not provided evidence supporting the suspension or tolling of the statute of limitations. Affidavit stating I have not received evidence??

1.10 The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. Even if such documents were available, a purchasing/assignee’s plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained. Supported by arguments below. Need affidavit??

1.11 Plaintiff has failed to provided adequate evidence to support Plaintiff's claim of proper assignment of account from OC. Supported by statements below, need affidavit?

1.12 Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. need affidavit?

1.13 Plaintiff has not provided evidence relating to the terms and conditions of a true and correct copy of the original contract between Defendant and OC that allows for interest rate, costs of suit, or attorney fees to be collected by the Plaintiff. need affidavit?

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Ok, this is the list of exhibits that are included in my Opposition.

Exhibit A - copy of 5/08/01 statement (from Plaintiff's MSJ) & Defendant's Affidavit in support of demand for payment

Exhibit B - copy of "Affidavit and Assignment" affidavit (from Plaintiff's MSJ)

Exhibit C - copy of "Affidavit of Indebtedness" affidavit (from Plaintiff's MSJ)

Exhibit D - copy of "Affidavit of Liquidated Damages In A Collections Case" affidavit (from Plaintiff's MSJ)

Exhibit E - copy of "Business Records Affidavit" (from Plaintiff's MSJ)

I don't believe the stuff I get from Plaintiff's MSJ requires an affidavit from me??

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Plaintiff's attorney has rescheduled the hearing to 1/18. I now have time to "fix" this one. So, I'm still interested in constructive criticism.

I'm guessing he is going to fix things I pointed out as wrong. It will be interesting to see if they locate the missing documents to prove proper chain of title.

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This is a copy of the final version that was submitted:

(Part 1)

Defendant, _________________, pro se, hereby responds to Plaintiff **JDB**'s Motion for Summary Judgment, and, in opposition to that motion, respectfully shows the following:

1. FACTUAL BACKGROUND

1.1 Plaintiff filed Petition for Collection of a Liquidated Amount with the ___th District Court on September ##, 2005.

1.2 Defendant was served on November ##, 2005.

1.3 In compliance with Texas Rules of Civil Procedure 99(B), Defendant filed Answer, Affirmative Defenses, Counterclaims on November ##, 2005.

1.4 Plaintiff submitted Motion for Summary Judgment on November ##, 2006.

1.5 Plaintiff's pleadings are based on an alleged debt between Defendant and ***OC***.

1.6 Plaintiff has not initiated Discovery actions.

1.7 Plaintiff's Motion For Summary Judgment is insufficient as a matter of law.

1.8 Defendant alleges that this action is time-barred under Texas Civil Practice and Remedies Code §16.004(a)(3).

1.9 Plaintiff has not provided evidence supporting the suspension or tolling of the statute of limitations.

1.10 The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. Even if such documents were available, a purchasing/assignee’s plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

1.11 Plaintiff has failed to provide adequate evidence to support Plaintiff's claim of proper assignment of account from ***OC***.

1.12 Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

1.13 Plaintiff has not provided evidence relating to the terms and conditions of a true and correct copy of the original contract between Defendant and ***OC*** that allows for interest rate, costs of suit, or attorney fees to be collected by the Plaintiff.

1.14 The interest rate charged by the Plaintiff is usurious.

1.15 Account for which Plaintiff’s suit is founded upon is not a sworn account.

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Part 2:

2. ARGUMENT AND AUTHORITIES

2.1 To preclude the Court from granting Plaintiff's motion for summary judgment, the defendant (non-movant) must identify a fact issue in the summary judgment evidence already in the record or include summary judgment evidence that creates a fact issue. Geiselman v. Cramer Fin. Group, 965 S.W. 2d 532, 534 (Tex.App.-Houston [14th Dist.] 1997, no writ).

2.2 When evaluating a motion for summary judgment based on summary judgment proof, the trial court must assume all the nonmovant's proof is true. Limestone Prods. Distrib. v. McNamara, 71 S.W.3d 22, 23 (Tex. 2000); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex 1985).

2.3 When evaluating a motion for summary judgment based on summary judgment proof, the trial court must indulge every reasonable inference in favor of the nonmovant. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003); M.D. Anderson, 28 S.W.3d at 23; Science Spectrum, 941 S.W.2d at 911; Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Nixon, 690 S.W.2d at 549.

2.4 When evaluating a motion for summary judgment based on summary judgment proof, the trial court must resolve all doubts about the existence of a genuine issue of material fact against the movant. M.D. Anderson, 28 S.W.3d at 23; Johnson Cty. Sheriff's Posse v. Endsley, 926 S.W.2d 284, 285 (Tex.1996); Nixon, 690 S.W.2d at 548-49.

2.5 When evaluating a motion for summary judgment based on the nonmovant's pleadings, the trial court must assume all allegations and facts in the nonmovant's pleadings are true. Natividad v. Alexsis, Inc. 875 S.W.2d 695, 699 (Tex.1994); Valles v. Texas Comm'n on Jail Stand., 845 S.W.2d 284, 286 (Tex.App.-Austin 1992, writ denied).

2.6 When evaluating a motion for summary judgment based on the nonmovant's pleadings, the trial court must indulge all inferences in the nonmovant's pleadings in the light most favorable to the nonmovant. Medina v. Herrera, 927 S.W.2d 597, 602 (Tex.1996); Natividad, 875 S.W.2d at 699; Valles, 845 S.W.2d at 286.

2.7 When evaluating a motion for summary judgment based on the nonmovant's pleadings, the trial court must ensure that any defects in the pleadings cannot be cured by amendment. In re B.I.V., 870 S.W.2d 12, 13 (Tex. 1994).

2.8 Court should evaluate pro se pleadings by less stringent standards than those applied to formal pleadings drafted by attorneys. Gordon v. Scott, 6 S.W.3d 365, 369 (Tex.App.-Beaumont 1999, no pet.)(citing Thomas v. Collins, 860 S.W.2d 500, 503 (Tex.App.-Houston [1st Dist.] 1993, pet. denied).

2.9 Credit card issued by financial institution did not create the sort of debtor-creditor relationship required in order to bring suit on sworn account. Vernon's Ann. Texas Rules Civ. Proc., Rule 185. - Bird v. First Deposit Nat. Bank, 994 S.W.2d 280.

2.10 Assuming statements contained in Exhibit C of Plaintiff's Motion for Summary Judgment are proven to be admissible (see 2.23 below), information contained on the statement noted as "Statement/Closing Date" of "05/##/2001" indicates a demand for payment had been made by ***OC***. (Defendant has included copy of statement as Exhibit A for ease of reference for the Court.) This claim is supported by the "Minimum Amount Due" of "$4,###.##" is equal to the "New Balance" of "$4,###.##". In addition, the "New Balance" exceeds the "Total Credit Line" of "$3###". Defendant interprets the statement as a demand for payment. An affidavit by Defendant in support of the above statement is attached as Exhibit A. A demand for payment indicates a breach of contract had occurred prior to the demand. Therefore, the breach of contract occurred on, or before, May ##, 2001. Likewise, the statute of limitations commenced on, or before, May ##, 2001. "Breach" of contract occurs, and statute of limitations accrues, when party fails to perform duty required by contract. Hoover v. Gregory (App. 5 Dist. 1992) 835 S.W.2d 668, rehearing denied, writ denied, rehearing of writ of error overruled. When a cause of action accrues is a question of law. Moreno v. Sterling Drug, 787 S.W.2d 348, 351 (Tex. 1990). The cause of action for a contract accrues either when the breach occurs or when the plaintiff knew or should have known of the breach. Enterprise-Laredo Associates v. Hachar’s, Inc., 839 S.W.2d 822, 837 (Tex. App.—San Antonio), writ denied per curiam, 843 S.W.2d 476 (Tex. 1992); Rose v. Baker & Botts, 816 S.W.2d 805, 810 (Tex. App.—Houston [1st Dist.] 1991, writ denied); see also Taub v. Houston Pipeline Co., 75 S.W.3d 606, 618–20 (Tex. App.—Texarkana 2002, pet. denied) (discovery rule did not apply because the injury was not inherently undiscoverable).

2.11 As noted in paragraph 2.10, the cause of action accrued on, or before, May ##, 2001. Therefore, the statute of limitations expired on May ##, 2005. Plaintiff initiated pleadings on September ##, 2005, or 141 days after statute of limitations expired. Actions for debt, whether on written or oral contracts, must be brought not later than four years after the day the cause of action accrued. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (Vernon Supp. 2003). “Cause of action” means the right to institute suit. Hercules Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 719 (Tex. App.—Corpus Christi 1983, writ ref’d n.r.e.). Limitations commence to run on breach of contract or when claimant has notice of sufficient facts to place him on notice of breach thereof. Maddox v. Oldham Little Church Foundation (Civ.App. 1967) 411 S.W.2d 375, ref. n.r.e.. A cause of action generally accrues so as to begin running of period of limitations at time of breach of contract. Hurbrough v. Cain (Civ.App. 1978) 571 S.W.2d 216. Where a demand is an integral part of a cause of action, statute of limitations does not begin to run until a demand is made. Gabriel v. Alhabbal, 618 S.W.2d 894. Many principles of contract law apply to transaction involving bank credit card. Preston State Bank v. Jordan, 692 S.W.2d 740.

2.12 Assuming statements contained in Exhibit C of Plaintiff's Motion for Summary Judgment are proven to be admissible (see 2.23 below), the payments noted on statements with "Statement/Closing Date" of 07/##/01, 08/##/01, 09/##/01, 10/##/01, and 11/##/01 do not serve as acknowledgment of a debt nor do they toll the statute of limitations. These payments occurred after the breach of contract occurred (see paragraph 2.10 above). Mere payment of debt neither interrupts running of statute of limitations on debt nor acknowledges justness of debt with implicit promise to pay it. Siegel v. McGavock Drilling Co. (Civ.App. 1975) 530 S.W.2d 894, ref. n.r.e.. A check issued in part payment of a promissory note neither interrupts running of limitation on the debt nor acknowledges justness of the debt with an implicit promise to pay it. Gabriel v. Alhabbal (Civ.App. 1981) 618 S.W.2d 894, ref. n.r.e.. Mere fact that part payments had been made on alleged debt was not sufficient to toll statute of limitations. Mandola v. Oggero (Civ.App. 1974) 508 S.W.2d 861. Payment made by one obliger on note after it was overdue but before limitation period had run did not operate to toll statute or start running of a new period of limitation. Weber v. Prinz (Civ.App. 1964) 379 S.W.2d 419.

2.13 Plaintiff alleges Defendant made no payments on this account after November ##, 2001. Evidence submitted by Plaintiff indicates last payment was made October ##, 2001, not November ##, 2001.

2.14 Under Texas law, burden of proof with respect to suspending or tolling running of limitations is on plaintiff. Porter v. Charter Medical Corp., N.D.Tex.1997, 957 F.Supp. 1427. In action on note apparently barred by limitation, burden of proving payments that tolled the statute of limitations was on plaintiff. Sauer v. Macy Oil Co. (Civ.App. 1949) 218 S.W.2d 1017, ref. n.r.e..

2.15 Plaintiff has not disclosed a true and correct copy of the assignment contract, including terms and conditions, between ***OC*** and **JDB**.

2.16 To obtain summary judgment on note, bank that acquired assets of failed bank by transfer and assignment agreement, had to prove, as matter of law, that it was note's holder or owner. Priesmeyer v. Pacific Southwest Bank, F.S.B. (App. 3 Dist. 1996) 917 S.W.2d 937. Judgment. Issue of material fact is present on issue of ownership of note when there is unexplained gap in chain of title. First Gibraltar Bank, FSB v. Farley (App. 4 Dist. 1995) 895 S.W.2d 425. In suit o promissory note, summary judgment proof was insufficient to establish that plaintiff was the owner and holder of note. Sherer v. Bench (Civ.App. 1977) 549 S.W.2d 57. In action brought by alleged assignee of defendant's obligations under indemnity agreement, substantial fact issue existed as to the existence of the alleged assignment, precluding summary judgment. Vahlsing v. Collier Cobb & Associates of Dallas, Inc. (Civ.App. 1977) 560 S.W.2d 117.

2.17 Plaintiff has submitted to this Court in Plaintiff's Motion for Summary Judgment an affidavit titled "Affidavit and Assignment". Copy of Affidavit is included as Exhibit B for ease of reference for the Court. Defendant objects to said affidavit because it does not comply with Texas Rules of Evidence 602 based on a lack of personal knowledge. In the affidavit, Ms. *OLDJDBLADY*, *OLDJDB*, averred "…to the best of the affiant's knowledge..." the account was purchased by *OLDJDB* from ***OC*** and *OLDJDB* has complete authority to settle, adjust, compromise and satisfy the same and that ***OC*** has no further interest in said debt for any purpose. Defendant hereby respectfully requests the Court to exclude the affidavit, in whole, titled "Affidavit and Assignment". To be competent summary judgment proof, affidavit must affirmatively show that it is based on personal knowledge. Weaver v. E-Z Mart Stores, Inc. (App. 6 Dist. 1997) 942 S.W.2d 167. A summary judgment affidavit must state that it is based on the affiant's personal knowledge and that facts in it are true. Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex.1996). Statements based merely on the affiant's "best knowledge" are insufficient to raise a fact issue and are improper summary judgment evidence. Price v. American Nat'l Ins. Co., 113 S.W.3d 424, 429-30 (Tex.App.-Houston [1st Dist.] 2003, no pet.). An affidavit must be based on the affiant's personal knowledge and must state that the facts in it are true. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994). To be legally sufficient, an affidavit must positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge. Bahm v. State, 184 S.W.3d 792, petition for discretionary review granted.

2.18 Plaintiff has submitted to this Court in Plaintiff's Motion for Summary Judgment an affidavit titled "Affidavit and Assignment". Copy of Affidavit is included as Exhibit B for ease of reference for the Court. Defendant objects to said affidavit because it includes conclusory statements not supported by facts. Defendant alleges the following statements contained in the affidavit as conclusory,

A) "By the terms of the agreement between the defendant and the original creditor, interest is accruing at the rate of 2#.## percent per annum."

B)

"The account was originated with
***OC***
."

C) "
*OLDJDB*
purchased this account from
***OC***
."

D) "…there are no uncredited payments, just counterclaims or offsets against the said debt."

The listed statements are facts not supported by evidence. Without the following,

A) a true and correct copy of the referenced terms and conditions of agreement between defendant and
***OC***

B)

a true and correct copy of the contract between Defendant and
***OC***

C) a true and correct copy of the purchase agreement between
*OLDJDB*
and
**JDB**
.

D) a full and complete accounting of all payments and credits, purchases and adjustments, cash advances or finance charges

the statements are unfounded. Defendant hereby respectfully requests the Court to exclude the affidavit, in whole, titled "Affidavit and Assignment". Conclusory statements that are not supported by facts are not proper as summary judgment proof. McIntyre v. Ramirez, 109 S.W.3d 741, 749-750 (Tex.2003); Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex.1997); Ryland Group, 924 S.W.2d at 122. Unsupported conclusory statements are not credible and are not susceptible to being readily controverted. Ryland Group, 924 S.W.2d at 122. Affidavit does not constitute competent summary judgment proof if it is conclusory or based on opinion. Duncan v. Lisenby (App. 14 Dist. 1995) 912 S.W.2d 857.

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Part 3:

2.19 Plaintiff has submitted to this Court in Plaintiff's Motion for Summary Judgment an affidavit titled "Affidavit of Indebtedness". Copy of Affidavit is included as Exhibit C for ease of reference for the Court. Defendant objects to said affidavit because it does not comply with Texas Rules of Evidence 602 based on a lack of personal knowledge. In the affidavit, Ms. *OLDJDBLADY*, *OLDJDB*, does not claim personal knowledge of the statements contained within the affidavit nor states the facts within the affidavit are true. Defendant hereby respectfully requests the Court to exclude the affidavit, in whole, titled "Affidavit of Indebtedness". To be competent summary judgment proof, affidavit must affirmatively show that it is based on personal knowledge. Weaver v. E-Z Mart Stores, Inc. (App. 6 Dist. 1997) 942 S.W.2d 167. A summary judgment affidavit must state that it is based on the affiant's personal knowledge and that facts in it are true. Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex.1996). An affidavit must be based on the affiant's personal knowledge and must state that the facts in it are true. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994). To be legally sufficient, an affidavit must positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge. Bahm v. State, 184 S.W.3d 792, petition for discretionary review granted.

2.20 Plaintiff has submitted to this Court in Plaintiff's Motion for Summary Judgment an affidavit titled "Affidavit of Indebtedness". Copy of Affidavit is included as Exhibit C for ease of reference for the Court. Defendant objects to said affidavit because it includes conclusory statements not supported by facts. Defendant alleges the following statements contained in the affidavit as conclusory,

A) "There is due and payable from _________________, Account Number 4###############, the amount of $10,###.## (principal balance in the amount of $4,###.## plus interest up through 07/##/05 in the amount of $6,###.##)."

B)

"By the terms of the agreement between the defendant and the original creditor, interest is accruing from the aforesaid date at the rate of 2#.## percent per annum."

C) "This balance reflects any payments, credits or offsets made since the account was charged off."

D) "This account was originated with
***OC***
."

E) "
*OLDJDB*
purchased this account from
***OC***
."

The listed statements are facts not supported by evidence. Without the following,

A) a full and complete accounting of all payments and credits, purchases and adjustments, cash advances or finance charges

B)

a true and correct copy of the referenced terms and conditions of agreement between defendant and
***OC***

C) a full and complete accounting of all payments and credits, purchases and adjustments, cash advances or finance charges

D) a true and correct copy of the contract between Defendant and
***OC***

E) a true and correct copy of the purchase agreement between
*OLDJDB*
and
**JDB**

the statements are unfounded. Defendant hereby respectfully requests the Court to exclude the affidavit, in whole, titled "Affidavit of Indebtedness". Conclusory statements that are not supported by facts are not proper as summary judgment proof. McIntyre v. Ramirez, 109 S.W.3d 741, 749-750 (Tex.2003); Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex.1997); Ryland Group, 924 S.W.2d at 122. Unsupported conclusory statements are not credible and are not susceptible to being readily controverted. Ryland Group, 924 S.W.2d at 122. Duncan v. Lisenby (App. 14 Dist. 1995) 912 S.W.2d 857.

2.21 In accordance with Texas Rules of Evidence 607, the Defendant questions the credibility of the affidavits titled "Affidavit and Assignment" (Exhibit B) and "Affidavit of Indebtedness" (Exhibit C). The affiant for both affidavits is Ms. *OLDJDBLADY*. A review of the signatures reveals the signatures are not the same. One appears to contain a first initial and last name and the second appears to contain two initials only. In addition, the signatures appear to bear different writing styles. Defendant hereby respectfully requests the Court to exclude the affidavits, in whole, titled "Affidavit and Assignment" and "Affidavit of Indebtedness". If the credibility of the affiant is likely to be a dispositive factor in the resolution of the case, summary judgment is not appropriate. Casso v. Brand, 776 S.W.2d 551, 558; CEBI Metal v. Garcia, 108 S.W.3d 464, 465 (Tex.App.-Houston [14th District] 2003, no pet.). To establish the facts through an interested witness, the testimony must be clear, positive, direct, credible, free from contradiction, and uncontroverted even though it could have been readily controverted. McIntyre v. Ramirez, 109 S.W.3d 741, 749-750 (Tex.2003); Trico Tech. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997). Statement signed on behalf of affiant is not valid affidavit even if affiant expressly authorizes signature; affidavit is also invalid when notary certificate attesting to affiant's presence before notary is false. De Los Santos v. Southwest Texas Methodist Hosp. (App. 4 Dist. 1990) 802 S.W.2d 79.

2.22 Plaintiff has submitted to this Court in Plaintiff's Motion for Summary Judgment an affidavit titled "Affidavit of Liquidated Damages In A Collections Case". Copy of Affidavit is included as Exhibit D for ease of reference for the Court. Defendant objects to said affidavit because it includes conclusory statements not supported by facts. Defendant alleges the following statements contained in the affidavit as conclusory,

A) "…Defendant's failure to pay funds advanced to Defendant under a credit card contract."

B)

"This credit card agreement constituted a contract executed and delivered by the Defendant…"

C) "There are no conditions remaining which must be satisfied under the contract before this liquidated amount is now fully due and payable."

D) "All credits, payments and offsets have been properly allocated to Defendant and no other offsets are appropriate."

E) "The Defendant's default constitutes a breach of the agreement and has been the proximate cause of damages including the principal balance due of $4,###.##"

F) "The agreement also requires payment of interest and attorney's fees."

The listed statements are facts not supported by evidence. Without the following,

A) a true and correct copy of the contract between Defendant and
***OC***

B)

a true and correct copy of the contract between Defendant and
***OC***

C) a true and correct copy of the referenced terms and conditions of agreement between defendant and
***OC***

D) a full and complete accounting of all payments and credits, purchases and adjustments, cash advances or finance charges

E) a full and complete accounting of all payments and credits, purchases and adjustments, cash advances or finance charges

F) a true and correct copy of the referenced terms and conditions of agreement between defendant and
***OC***

the statements are unfounded. Defendant hereby respectfully requests the Court to exclude the affidavit, in whole, titled "Affidavit of Liquidated Damages In A Collections Case". Conclusory statements that are not supported by facts are not proper as summary judgment proof. McIntyre v. Ramirez, 109 S.W.3d 741, 749-750 (Tex.2003); Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex.1997); Ryland Group, 924 S.W.2d at 122. Unsupported conclusory statements are not credible and are not susceptible to being readily controverted. Ryland Group, 924 S.W.2d at 122.

2.23 Plaintiff has submitted to this Court in Plaintiff's Motion for Summary Judgment an affidavit titled "Business Records Affidavit". Copy of Affidavit is included as Exhibit E for ease of reference for the Court. Defendant objects to said affidavit as it is hearsay and not admissible because it violates Texas Rules of Evidence 802 and 902(10); and does not qualify for an exception under Texas Rules of Evidence 803(6). The form of the affidavit does not follow the form required under 902(10). Specifically, the affidavit is not sworn. The statement "…being by me duly sworn…", or equivalent, was not included in the Plaintiff's affidavit as required by TRE 902(10). The fourteen pages of attached records to the "Business Records Affidavit" are not admissible because they do not qualify for the business record exception to hearsay rule, TRE 803(6). Plaintiff has not disclosed affidavit(s) from either ***OC*** or *OLDJDB* necessary to meet the required elements to qualify for the business records exception to hearsay rule, TRE 803(6).

Foundation for business record exception to hearsay rule has four requirements: (1) record was made and kept in course of regularly conducted business activity; (2) it was regular practice of business activity to make the record; (3) record was made at or near time of event that it records; and (4) record was made by, or from information transmitted by, person with knowledge; person with knowledge must have acted in the regular course of business, or as it is sometimes put, must have had business duty to report.
Daimler-Benz Aktiengesellschaft v. Olson
(App. 3 Dist. 2000) 21 S.W.3d 707, petition stricken 53 S.W.3d 308, reviewed dismissed w.o.j., rehearing of petition for review overruled, certiorari denied 122 S.Ct. 1960, 535 U.S. 1077, 152 L.Ed.2d 1021.

Records of regularly conducted business activity are admissible under "business records" exception to hearsay rule if they are made at or near time of activity, recorded as part of regularly conducted business activity, and made by or from data provided by a person with knowledge, unless source of information or method of preparation indicates lack of trustworthiness.
Brooks v. State
(App. 2 Dist. 1995) 901 S.W.2d 742, rehearing overruled, petition for discretionary review refused, petition for discretionary review dismissed.

Predicate for admissibility under business records exception requires, among other things, that party offering evidence prove record was made by, or from information transmitted by, person with knowledge, and that record be kept in course of regularly conducted business activity.
Harris v. State
(App. 1 Dist. 1993) 846 S.W.2d 960, petition for discretionary review refused.

2.24 Plaintiff has not disclosed a true and correct copy of the referenced terms and conditions of agreement between defendant and ***OC***. Without a review of the terms and conditions, or contract provisions, the Plaintiff can not establish that interest rate, costs of suit, or attorney fees may be charged. In action by bank to collect monies allegedly due it by cardholder under "bank credit card agreement," bank had burden at trial to establish existence of contract between itself and cardholder and compliance with contract provisions. Preston State Bank v. Jordan, 692 S.W.2d 740.

2.25 The interest rate of 2#.## percent per annum charged by the Plaintiff is usurious under Texas law. Texas Finance Code §302.001(B). Because Citibank failed to prove the contractual interest rate, Citibank has failed to prove it was entitled to summary judgment. Tully v. Citibank, 173 S.W.3d 212.

2.26 Defendant’s use of Plaintiff’s pleadings is allowed. Affidavits which had initially been attached to original petition of plaintiff were properly before court on defendant’s motion for summary judgment where defendant attached plaintiff’s original petition as exhibit to motion for summary judgment, also attached affidavits in question, and in motion expressly and specifically identified affidavits as being relied upon as summary judgment evidence. Boeker v. Syptak (App. 1 Dist. 1996) 916 S.W.2d 59. Where motion for summary judgment is made, opponent is entitled to rely upon admissions, depositions and exhibits in the record, though he has not filed counteraffidavits. Freeberg v. Securities Inv. Co. of St. Louis (Civ.App. 1960) 331 S.W.2d 825. On motion for summary judgment, nonmovant may use movant’s own exhibit against movant to establish existence of fact question. Perry v. Houston Independent School Dist. (App. 1 Dist. 1995) 902 S.W.2d 544.

WHEREFORE, Defendant, _________________, respectfully requests this Court deny Plaintiff **JDB**'s Motion for Summary Judgment, and prays for Dismissal with prejudice of the complaint by the Plaintiff for damages of $6,###.## and any further relief this Court deems just and proper.

DATED this __ day of November , 2006.

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