law credit card debt suit | debt collection | deemed admissions | proof of contract | statute of limitations |
SUIT ON CREDIT CARD DEBT AND RELATED CASE LAW | Houston credit card caselaw
TEXAS SUPREME COURT OPINIONS
Unifund CCR Partners v. Villa, No. 08-1026 (Tex. Oct. 23, 2009)(per curiam)
(sanctions for filing suit to collect debt discharged in bankruptcy reversed)
UNIFUND CCR PARTNERS v. JAVIER VILLA; from Webb County;
4th district (04-07-00465-CV, 273 SW3d 385, 09-17-08)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral
argument, the Court reverses the court of appeals' judgment and renders judgment.
Per Curiam Opinion
Unifund CCR Partners v. Weaver, No. 07-0682 (Tex. Aug. 29,2008)(per curiam)(credit card suit)
UNIFUND CCR PARTNERS v. KENNETH F. WEAVER; from McLennan County; 10th district
(10-06-00207-CV, 231 SW3d 441, 07-11-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral
argument, the Court reverses the court of appeals' judgment and renders judgment.
Per Curiam Opinion
Citing the four-year statute of limitations on debt actions is not a proper objection [ to discovery requests]. A
limitations defense is an affirmative defense, which is in the nature of a confession and avoidance. Tex. R. App. P.
94. As such, it must be asserted in a pleading. Tex. R. Civ. P. 45; see also In re L.A.M. & Assocs., 975 S.W.2d 80,
84 (Tex. App.—San Antonio 1998, orig. proceeding). Accordingly, we grant Unifund’s petition for review and,
without hearing oral argument, reverse the court of appeals’ judgment and render judgment in favor of Unifund. See
Tex. R. App. P. 59.1.
COURTS OF APPEALS - PETITIONS FOR REVIEW DENIED BY TEXAS SUPREME
COURT
08-0425
KENNETH J. MAGNUSON v. CITIBANK (SOUTH DAKOTA) N.A.; from Denton County; 2nd district
(02-06-00465-CV, ___ SW3d ___, 02-14-08, pet. denied Aug 2008)
(credit card suit, proof of contract and elements of contract, Rule 12 motion, failure to appear)
we disagree that Citibank did not provide evidence of a contract and that the amount of damages cannot be
calculated. “The elements of a valid contract are (1) an offer, (2) an acceptance, (3) a 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."[27] “Delivery may be proved by acts or words showing that the parties intended the contract to
become effective."[28] “[W] hen the parties manifest an intent through their actions and words that the contract
become effective, delivery is shown."[29]
To its summary judgment motion, Citibank attached evidence in the form of copies of billing statements from
January 20, 1998, to July 26, 2005. The statements reflect charges made on the account; they also reflect
payments made. Citibank also attached the cardmember agreement (the “Agreement") for the account. The
Agreement states that the cardmember is responsible for all amounts owed on the account and that the
cardmember agrees to pay such amounts according to the terms of the Agreement. It further provides that it is
effective when the cardmember uses the card. The Agreement sets out how the monthly minimum payment is
determined and how finance charges are determined.
Citibank also attached the application for the credit card account. The application has the name “Kenneth J.
Magnuson" and an address preprinted on it. The address is the same address that Magnuson provided to this
court as his current address. The application states that it is for a pre-approved credit line up to $25,000, and it
shows a signature and a date.
These documents establish (1) an offer, (2) an acceptance by Magnuson, (3) a 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. The terms of the contract are set out in the Agreement, which, as the Agreement states, Magnuson
accepted by using the card. The billing statements show that he used the card. Nothing in the record establishes
that Magnuson disputed any of the terms of the account while using the card. Delivery was established by
Magnuson's use of the card and by his making payments on the account for the charges shown on his monthly
billing statement.[30] We overrule Magnuson's argument.
08-0230
RODNEY ELKINS v. CAPITAL ONE BANK AND CAPITAL ONE SERVICES, INC.; from Dallas County; 5th district
(05-06-01539-CV, ___ SW3d ___, 01-29-08, pet. denied Jun 2008) (credit card debt, breach of contract,
defamation, credit reputation)
Elkins notified Capital One he wanted to close his credit card account. The following month, when Proactiv sent
Elkins additional skin care product and charged the amount due to Elkins's credit card, Capital One reopened the
credit card account and billed Elkins. When Elkins complained to Capital One, the company reminded Elkins in
writing of the terms of their agreement that provided for the reopening of his account. Only after Elkins contacted
Proactiv did the company cease periodic shipment of the product and stop charges to his credit card account.
Elkins sued Capital One for breach of contract, violations of federal and statutory regulations, defamation,
negligence and gross negligence, for which he sought a declaratory judgment, damages and attorney's fees.
Following a bench trial, the trial court entered a take- nothing judgment in favor of Capital One. The trial court also
entered findings of fact and conclusions of law.
The evidence shows Elkins signed the customer agreement with Capital One agreeing he would make monthly
payments on any outstanding account balance and that Capital One could report any delinquencies in Elkins's
account to other financial service providers, including credit bureaus. In the credit card application, Elkins further
agreed that, in the event he had set up recurring charges to be made on the account and subsequently requested
the account be closed, Capital One was authorized to re-open the account when the recurring charge was posted
to the account and to charge both a service fee and any past due fees for late payments. The customer agreement
states if a customer closes an account without cancelling preauthorized billing arrangements with a third-party,
Capital One will consider the receipt of such a charge to the credit account as an authorization to reopen the
account.
OTHER CREDIT CARD CASELAW
Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197 (Tex. App.- Houston [1st Dist.] 2007, no pet.)
(op. on reh'g)