MSJ from Cap 1! Where do I start to file MOSJ?

[yarnaholic]

My background info:

1. Who is the named plaintiff in the suit? Capital One Bank (USA), N.A.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Rausch, Sturm, Isreal, Enerson & Hornik, LLC

3. How much are you being sued for? $10,686.07

4. Who is the original creditor? (if not the Plaintiff) Capital One.

5. How do you know you are being sued? (You were served, right?) Served in person at my home.

6. How were you served? (Mail, In person, Notice on door) Served in person at my home.

7. Was the service legal as required by your state? As far as I can tell, yes.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None.

9. What state and county do you live in? Galveston County, Texas

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Probably about 3 1/2 years ago.

11. What is the SOL on the debt? To find out: 4 years

12. What is the status of your case? I have answered the lawsuit via certified mail, sent discovery, received discovery, and most recently have received MSJ which is scheduled for November 30th.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I've already answered the lawsuit. They are claiming that I breached a contract with them by defaulting on the payment obligation.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. When Plaintiff sent me their response to my discovery questions, they sent account statements and a business record affidavit. With the MSJ they sent the same account statements and a different affidavit signed by a different affiant. The second affidavit appears to be a bit more "personalized" and includes the last 4 numbers of my account, the date the account was opened, etc.

Please help. My brain is fried from trying to study what to do. I think that what I want to do is to file a MOSJ and attack the affidavit but I don't even know where to start. It's my understanding that a MOSJ should be filed no later than 7 days prior to the MSJ hearing. The hearing is scheduled for November 30th so time is of the essence. Any help is greatly appreciated.

[BV80]

Do you have a valid defense? Are there any facts that would give the judge a reason to doubt Cap1's case and deny the MSJ?

If you haven't already done so, check your laws regarding garnishment and liens. In other words, are you judgment proof and will you remain so for the entire time a possible judgment would be in effect?

[yarnaholic]

Do you have a valid defense? Are there any facts that would give the judge a reason to doubt Cap1's case and deny the MSJ?

If you haven't already done so, check your laws regarding garnishment and liens. In other words, are you judgment proof and will you remain so for the entire time a possible judgment would be in effect?

The only fact that I can think of that might possibly cause the judge to deny the MSJ would be if I disputed the amount of the debt. The first statement that they provided does not start from a zero balance so I'm wondering how they can "prove" where the $7K balance on the first statement provided came from. Another issue could be the interest rate changing without any kind of notification. Of course, they did not provide a signed contract or even an application but I've read that this doesn't matter.

As far as being judgement proof, I'm self-employed so they can't garnish my wages. I do own a home though so I don't know what they could do with that. Can they garnish my checking account? What about my husband? I just married back in March. Can they garnish his wages?

Thanks for your help.

[BV80]

Not all courts require an accounting from a -0- balance. As far as interest rate notification goes, that's your word against theirs. Did they provide a copy of the cardmember agreement? If so, that agreement will state the terms regarding interest rates.

In my state, judgments are based on our bankruptcy laws. Exemptions in bk apply to judgments. Read your state statutes regarding judgments and see if the same applies to TX.

I don't know if TX allows garnishment or not. I think the only way they can touch anything related to your husband would be if the account was a joint account or if TX is a community property state.

We have some TX members here. Hopefully, they'll see your post and respond.

[racecar]

Object to the affidavit on the following grounds if they apply to your situation.

1.The affidavit states legal conclusions.

2.The affidavit contains an unsubstantiated opinion.

3.The affidavit is based only on information and belief and not on personal knowledge.

4.The affidavit is based on hearsay (out of court statement offered for the truth of the matter asserted.)

5.The affidavit contains conflicting statements which preclude summary

judgment.

6.The affidavit is made in bad faith.

7.If The attorney representing the plaintiff in the case makes the affidavit the affidavit must be based on personal knowledge.

8.Self-serving statements of interested parties in an affidavit about what they knew or intended are not readily controverted and will not support a motion for summary judgment.Witness must present concrete information.

Edited November 12, 2012 by racecar

[racecar]

To prevail on a breach-of-contract claim, a plaintiff must prove

(1) a valid contract existed between the plaintiff

and the defendant, (2) the plaintiff tendered performance or was excused from doing so, (3) the defendant

breached the terms of the contract, and (4) the plaintiff sustained damages as a result of the defendant's

breach. West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.-Houston [14th Dist] 2008, no pet.).

In order to prevail on a breach of contract claim, a plaintiff must establish: "(1) the existence of a valid

contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the

defendant; and (4) damages sustained by the plaintiff as a result of the breach." Valero Mktg. & Supply Co. v.

Kalama Int'l, LLC, 51 S.W.3d 345, 351 (Tex.App.-Houston [1st Dist] 2001, no pet.); see also Bridgmon v. Array

Sys. Corp., 325 F.3d 572, 577 (5th Cir.2003); Henderson-Smith & Assocs., Inc. v. Nahamani Family Serv. Ctr.,

323 Ill.App.3d 15, 256 Ill.Dec. 488, 752 N.E.2d 33, 43 (2001).

The elements of a breach of contract claim are (1) the existence of a valid

contract between plaintiff and defendant, (2) the plaintiff's performance or

tender of performance, (3) the defendant's breach of the contract, and (4) the

plaintiff's damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.

W.3d 631, 636 (Tex. App.--Houston [1st Dist.] 2002, pet. denied).

Simplified Development Corp. v. Garfield (Tex.App. - Houston [14th Dist.] Feb. 14, 2008)(subst. op. by

Anderson) (breach of contract, jury trial, admission of evidence, damages)

AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Anderson

Before Chief Justice Hedges, Justices Anderson and Seymore

14-06-00526-CV Simplified Development Corp. and James P. Cashiola v. Jon Garfield

Appeal from 295th District Court of Harris County (Judge Tracy Kee Christopher)

The essential elements in a suit for breach of contract are: (1) the existence of a valid contract; (2) the plaintiff

performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was

damaged as a result of the breach. Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 677 (Tex. App.--Houston

[1st Dist.] 2008, pet. denied). Furthermore, a party seeking to recover under a contract bears the burden of

proving that all conditions precedent have been satisfied. CDI Eng'g Group, Inc. v. Admin. Exch., Inc., 222 S.W.

3d 544, 548 (Tex. App.--Houston [14th Dist.] 2007, pet. denied) (citing Associated Indem. Corp. v. CAT

Contracting, Inc., 964 S.W.2d 276, 283 (Tex. 1998)). In an option contract, strict compliance with the

provisions of the option contract is required. Besteman v. Pitcock, 272 S.W.3d 777, 784 (Tex. App.--

Texarkana 2008, no pet.); Tex. State Optical, Inc. v. Wiggins, 882 S.W.2d 8, 10-11 (Tex. App.--Houston [1st

Dist.] 1994, no writ).

Mensa-Wilmot v. Smith International, Inc. (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Alcala) (breach of

contract, option contract, untimely amendment of pleadings prior to summary judgment hearing, finality)

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala

Before Justices Keyes, Alcala and Hanks

01-08-00481-CV Graham Mensa-Wilmot v. Smith International, Inc.

Appeal from 165th District Court of Harris County

Trial Court Judge: Hon. Elizabeth Ray

The elements of a breach of contract claim are: (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. Valero Mktg. & Supply Co. v. Kalama Int’l, L.L.C., 51 S.W.3d 345, 351 (Tex. App.—Houston [1st

Dist.] 2001, no pet.).

Hill v. Hoelke (Tex. App.- Houston [1st Dist.] Mar. 12, 2009)(Taft)

(investment dispute, breach of fiduciary duty, breach of contract, fraud, and promissory estoppel)

AFFIRM TC JUDGMENT: Opinion by Justice Tim Taft

Before Justices Taft, Bland and Sharp

01-07-00702-CV John Hill v. Frederick F. Hoelke and Frederick F. Hoelke, P.C.

Appeal from 151st District Court of Harris County

Trial Court Judge: Hon. Caroline E. Baker

The elements of a breach of contract claim are (1) the existence of a valid contract between plaintiff and

defendant, (2) the plaintiff’s performance or tender of performance, (3) the defendant’s breach of the

contract, and (4) the plaintiff’s damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.

W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). 01-03-00034-CV

[racecar]

The business records exception has four requirements: (1) the records were made and kept in the course of

a regularly conducted business activity; (2) it was the regular practice of the business activity to make the

records; (3) the records were made at or near the time of the event that they record; and (4) the records

were made by a person with knowledge who was acting in the regular course of business. In re E.A.K., 192

S.W.3d 133, 141 (Tex. App.- Houston [14th Dist.] 2006, pet. denied). These requirements must be

established by testimony from the custodian of the records or another qualified witness. Texmarc Conveyor

Co. v. Arts, 857 S.W.2d 743, 748 (Tex. App.- Houston [14th Dist.] 1993, writ denied). Otherwise

inadmissible hearsay must be shown to be reliable or trustworthy in order to be admitted under the business

records exception. See Garcia v. Dutcher Phipps Crane & Rigging Co., No. 08-00-00387-CV, 2002 WL

467932, at *1 (Tex. App.- El Paso Mar. 28, 2002, pet. denied) (not designated for publication); see also

Martinez v. Midland Credit Mgmt., Inc., 250 S.W.3d 481, 485 (Tex. App.- El Paso 2008, no pet.). Cano v.

Nino's Paint and Body Shop, (Tex.App.- Houston [14th Dist.] Apr. 16, 2009)(Boyce)

Edited November 13, 2012 by racecar

[racecar]

Conclusory statements in an affidavit are not proper summary judgment evidence. See Tex. R. Civ. P. 166a

(f) (supporting affidavit must set forth such facts as would be admissible in evidence); see also Ryland

Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam).

To serve as competent summary judgment proof under Texas Rule of Civil Procedure 166a©, an affidavit of

an interested party must be "clear, positive, direct, credible, free from contradiction, and susceptible of being

readily controverted." Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.-Texarkana 2000, no pet.);

see Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997). An affidavit that makes self-serving,

conclusory statements without any underlying factual detail cannot support a summary judgment. Haynes, 35

S.W.3d at 178. Finally, an objection that an affidavit is conclusory is an objection to substance that may be

raised for the first time on appeal. Id.

See Coastal Transport Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (stating

that even unobjected-to conclusory testimony does not raise a fact issue); Dolcefino v. Randolph, 19 S.W.3d

906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (explaining that conclusory allegations in

affidavits are insufficient to raise a fact issue).

AFFIDAVIT REQUIREMENTS FOR SUMMARY JUDGMENT PURPOSES: To serve as competent summary

judgment proof under Texas Rule of Civil Procedure 166a©, an affidavit of an interested party must be

"clear, positive, direct, credible, free from contradiction, and susceptible of being readily controverted."

Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.--Texarkana 2000, no pet.); see Trico Techs.

Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997).

An affidavit that makes self-serving, conclusory statements without any underlying factual detail cannot

support a summary judgment. Haynes, 35 S.W.3d at 178. Finally, an objection that an affidavit is conclusory

is an objection to substance that may be raised for the first time on appeal. Id.

Edited November 13, 2012 by racecar

[yarnaholic]

This affidavit is more "personalized" than the first affidavit that was sent along with the plaintiff's response to discovery. Here is the second affidavit. Maybe y'all can tell me if seems "faulty" or not.

Business Record Affidavit

Account Number ************1234

Before me, the undersigned notary, on this day personally appeared Karen Yarbrough (this underlighting represents that this was a fill in the blank on the form), the affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant testified:

1) "My name is Karen Yarbrough. I am over 18 years of age, of sound mind and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.

2) I am an authorized agent of CAPITAL ONE BANK (USA), N.A.

3) Attached to this affidavit are 116 pages of records from CAPITAL ONE BANK (USA), N.A. Said statements are based upon my personal review and knowledge of the books and records of Plaintiff which contain information of the account referenced below.

4) Those records were kept in the course of a regularly conducted business activity, and I know from my experience in reviewing such records that it was the regular practice of that business activity to make records which were made at or near the time of transactions reflected therein.

5) I am similarly aware by personal experience and by common knowledge that the records are made either by a person having personal knowledge of the information contained herein or based on information conveyed by a person having personal knowledge of the information contained herein.

6) The business records show that defendant opened account number ***********1234 on June 12, 2007.

7) The record was made at or near the time or reasonably soon after that, event, condition, opinion, or diagnosis that was recorded. The records attached to this affidavit are the originals or exact duplicates of the originals.

Karen Yarbrough

Karen Yarbrough, Affiant

Sworn and subscribed before me by Karen Yarbrough on Oct. 1, 2012

Diane P. Trittipoe

Notory Public in and for Chesterfield County

The State of VA

And of course there's the notary stamp.

[yarnaholic]

To prevail on a breach-of-contract claim, a plaintiff must prove

(1) a valid contract existed between the plaintiff

and the defendant, (2) the plaintiff tendered performance or was excused from doing so, (3) the defendant

breached the terms of the contract, and (4) the plaintiff sustained damages as a result of the defendant's

breach. West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.-Houston [14th Dist] 2008, no pet.).

In order to prevail on a breach of contract claim, a plaintiff must establish: "(1) the existence of a valid

contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the

defendant; and (4) damages sustained by the plaintiff as a result of the breach." Valero Mktg. & Supply Co. v.

Kalama Int'l, LLC, 51 S.W.3d 345, 351 (Tex.App.-Houston [1st Dist] 2001, no pet.); see also Bridgmon v. Array

Sys. Corp., 325 F.3d 572, 577 (5th Cir.2003); Henderson-Smith & Assocs., Inc. v. Nahamani Family Serv. Ctr.,

323 Ill.App.3d 15, 256 Ill.Dec. 488, 752 N.E.2d 33, 43 (2001).

The elements of a breach of contract claim are (1) the existence of a valid

contract between plaintiff and defendant, (2) the plaintiff's performance or

tender of performance, (3) the defendant's breach of the contract, and (4) the

plaintiff's damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.

W.3d 631, 636 (Tex. App.--Houston [1st Dist.] 2002, pet. denied).

Simplified Development Corp. v. Garfield (Tex.App. - Houston [14th Dist.] Feb. 14, 2008)(subst. op. by

Anderson) (breach of contract, jury trial, admission of evidence, damages)

AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Anderson

Before Chief Justice Hedges, Justices Anderson and Seymore

14-06-00526-CV Simplified Development Corp. and James P. Cashiola v. Jon Garfield

Appeal from 295th District Court of Harris County (Judge Tracy Kee Christopher)

The essential elements in a suit for breach of contract are: (1) the existence of a valid contract; (2) the plaintiff

performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was

damaged as a result of the breach. Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 677 (Tex. App.--Houston

[1st Dist.] 2008, pet. denied). Furthermore, a party seeking to recover under a contract bears the burden of

proving that all conditions precedent have been satisfied. CDI Eng'g Group, Inc. v. Admin. Exch., Inc., 222 S.W.

3d 544, 548 (Tex. App.--Houston [14th Dist.] 2007, pet. denied) (citing Associated Indem. Corp. v. CAT

Contracting, Inc., 964 S.W.2d 276, 283 (Tex. 1998)). In an option contract, strict compliance with the

provisions of the option contract is required. Besteman v. Pitcock, 272 S.W.3d 777, 784 (Tex. App.--

Texarkana 2008, no pet.); Tex. State Optical, Inc. v. Wiggins, 882 S.W.2d 8, 10-11 (Tex. App.--Houston [1st

Dist.] 1994, no writ).

Mensa-Wilmot v. Smith International, Inc. (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Alcala) (breach of

contract, option contract, untimely amendment of pleadings prior to summary judgment hearing, finality)

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala

Before Justices Keyes, Alcala and Hanks

01-08-00481-CV Graham Mensa-Wilmot v. Smith International, Inc.

Appeal from 165th District Court of Harris County

Trial Court Judge: Hon. Elizabeth Ray

The elements of a breach of contract claim are: (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. Valero Mktg. & Supply Co. v. Kalama Int’l, L.L.C., 51 S.W.3d 345, 351 (Tex. App.—Houston [1st

Dist.] 2001, no pet.).

Hill v. Hoelke (Tex. App.- Houston [1st Dist.] Mar. 12, 2009)(Taft)

(investment dispute, breach of fiduciary duty, breach of contract, fraud, and promissory estoppel)

AFFIRM TC JUDGMENT: Opinion by Justice Tim Taft

Before Justices Taft, Bland and Sharp

01-07-00702-CV John Hill v. Frederick F. Hoelke and Frederick F. Hoelke, P.C.

Appeal from 151st District Court of Harris County

Trial Court Judge: Hon. Caroline E. Baker

The elements of a breach of contract claim are (1) the existence of a valid contract between plaintiff and

defendant, (2) the plaintiff’s performance or tender of performance, (3) the defendant’s breach of the

contract, and (4) the plaintiff’s damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.

W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). 01-03-00034-CV

Regarding whether or not a valid contract exists, the Arguements and Authorities section of the motion says "This lawsuit arises from the Defendant's default on a credit card account. All across Texas, courts have held that a signed contract and/or application for credit is not necessary to establish the existence of a valid contract for a credit card account. The Texas Supreme Court has held that a party may be bound by an agreement even without a signed agreement, provided that the actions of the parties reflect a mutual intent to be bound. Haws & Garrett Gen Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609-10 (Tex. 1972).

Courts have extended the Texas Supreme Court's reasoning to apply specifically in credit card account cases. In Jones v. Citibank, the fort Worth Court of Appeals held that "even if the appellant never signed the card agreement, under Texas law, she entered into a contract with appellee by accepting the benefits of their arrangement" Jones v. Citibank, N.A. 235 S.W.3d 333, 338-39 (Tex. App. - Ft. Worth [2nd Dist.], 2007). The Houston Court of Appeals held that it is not even necessary to prove that a copy of the contract was delivered because use of the credit card and payments on the account can manifest intent that a contract become effective. Winchek v. American Exp. Travel Related, 232 S.W.3d 197, 204 (Tex. app. - Houston [1 Dist.], 2007). Similar decisions have also been reached by the Dallas Court of Appeals and El Paso Court of appeals. Etc. Etc. Etc....

[yarnaholic]

What do y'all think of this paper? Does it have good information (in y'all's opinions)?

[Coltfan1972]

Provided that the actions of the parties reflect a mutual intent to be bound.

That is considered a contract which the courts are referring.

[yarnaholic]

That is considered a contract which the courts are referring.

So I basically, I can't prove that a contract didn't exist just because they can't produce a signed agreement? Use and acceptance is enough?

[BrunoTheJDBkiller]

I don't know if TX allows garnishment or not.

No garnishment.

So I basically, I can't prove that a contract didn't exist just because they can't produce a signed agreement? Use and acceptance is enough?

Credit card agreements are not signed. Did you sign one? Of course not. So why ask for it? Use and acceptance is another way to say "implied contract." They will claim to have sent a cardsholder agreement with the card. You accepted what was in that agreement when you used the card. Some states, like MO and DE, actually have a use and acceptance statute on the books. You only have a shot at defeating the argument if you can somehow get them to admit or say that cardholder agreements are not sent, or that they did not send you one. That's a tough one to do.