Eaves v. Unifund Ccr Partners

• Decision Date: 18 November 2009
• Docket Number: No. 08-07-00284-CV.,08-07-00284-CV.
• Parties: Tommy L. EAVES, Appellant, v. UNIFUND CCR PARTNERS, Appellee.
• Court: Texas Court of Appeals

301 S.W.3d 402

Tommy L. EAVES, Appellant, v. UNIFUND CCR PARTNERS, Appellee.

No. 08-07-00284-CV.

Court of Appeals of Texas, El Paso.

November 18, 2009.

T. Dean Malone, Dallas, TX, for Appellant.

Anh H. Regent, Regent & Associates, Houston, TX, for Appellee.

Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

GUADALUPE RIVERA, Justice.

Tommy L. Eaves appeals the jury's verdict against him in Unifund CCR Partners ("Unifund Partners") suit to collect unpaid credit-card debt. We affirm.

BACKGROUND

Citibank issued an AT & T credit card to Eaves, and Eaves made purchases with the card. Subsequently, Eaves defaulted on the account in the amount of $7,570.55, and Citibank sold the account to Unifund Portfolio. Unifund Portfolio assigned the rights to collect the debt, including litigation, to Unifund Partners. Unifund Partners notified Eaves of the past due amount, including interest, and that the account was due to be paid in full. It later filed suit alleging open and stated account, breach of contract, and quantum meruit. Eaves moved for partial summary judgment, contending that the suit was barred on principles of sworn account and quantum meruit. The trial court found that Unifund Partners' claim was not for a sworn account and granted Eaves' motion solely as to Unifund Partners' quantum-meruit claim. The case then proceeded to trial, and the jury, solely deciding the case on Unifund Partner's open-account theory, found Eaves liable for the debt, and that Unifund should collect $12,386.57, which included the defaulted amount plus interest.

STANDING

Eaves, contending that Unifund Partners lacked standing, first challenges the trial court's subject-matter jurisdiction over the suit. According to Eaves, there was no evidence that Unifund Partners owned the debt since Joseph Lutz's testimony was incompetent and therefore, no evidence, and neither the bill of sale from Citibank to Unifund Portfolio, nor the subsequent assignment from Unifund Portfolio to Unifund Partners, referenced his credit-card account.

Standard of Review

Standing, a necessary component of subject-matter jurisdiction, is a constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex.1993). Standing cannot be waived and can, therefore, be raised for the first time on appeal. Id. at 445-46. Whether a party has standing to pursue a claim is a question of law reviewed de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

Standing is a party's justiciable interest in a controversy. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661-62 (Tex.1996); Town of Fairview v. Lawler, 252 S.W.3d 853, 855 (Tex.App.-Dallas 2008, no pet.). Only the party whose primary legal right has been breached may seek redress for an injury. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex.App.-Dallas 2005, no pet.). Without a breach of a legal right belonging to that party, that party has no standing to litigate. Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex.App.-Fort Worth 2001, pet. denied). In reviewing standing on appeal, we construe the petition in favor of the plaintiff, and if necessary, review the entire record to determine if any evidence supports standing. See Air Control, 852 S.W.2d at 446.

Unifund Partners had Standing

Unifund Partners' petition, subsequent responses to Eaves' motions for summary judgment, and evidence presented at trial alleged that it was the present owner and holder of Eaves' account and was entitled to sue to collect the debt. The bill of sale from Citibank to Unifund Portfolio conveyed good and marketable title to the account, and more importantly, Unifund Portfolio expressly assigned the rights to collect on the account, including litigation, to Unifund Partners. Based on this evidence, we find Unifund Partners had standing to sue to collect the debt. See Sprint Communications Co., L.P. v. APCC Services, Inc., ___ U.S. ___, 128 S.Ct. 2531, 2541-43, 171 L.Ed.2d 424 (2008) (assignee for collection may properly sue on the assigned claim); Cartwright v. MBank Corpus Christi, N.A., 865 S.W.2d 546, 549 (Tex.App.-Corpus Christi 1993, writ denied) (assignee, who pled that it was a holder of the note and entitled to sue on it, was entitled to sue to collect on the note); Schultz v. Aetna Business Credit, Inc., 540 S.W.2d 530, 532 (Tex.Civ.App.-San Antonio 1976, no writ) (instrument of assignment, which transferred to assignee of promissory note the right to collect installments and to take all proceedings as might have been taken by assignor "[a]gainst all other parties, other than the Buyer" and which stated that assignor guaranteed payment without insisting that assignee "first . . . proceed against Buyer," gave assignee the right to sue "Buyers" who executed the note); Kelley v. Bluff Creek Oil Co., 298 S.W.2d 263 (Tex.Civ.App.-Fort Worth 1956) (where assignment of account had transferred all of assignor's "right, title and interest" in account "with full power and authority to collect and receipt therefor," even though assignment was made as collateral security for assignor's debt, assignee had sole power to sue), aff'd in part, and rev'd in part on other grounds, 158 Tex. 180, 309 S.W.2d 208 (1958).

Nevertheless, Eaves asserts that because the bill of sale did not expressly reference his account, there was no evidence that Unifund Portfolio ever obtained ownership of his account. The bill of sale stated that Citibank sold and assigned the title to the "Accounts described in Section 1.2 of the Agreement . . . ." Presumably, that agreement listed Eaves' account; however, the agreement was not attached to the bill of sale, nor was it admitted at trial. Although we do not condone Unifund Partner's failure to present the agreement listing Eaves' account, other evidence exists in the record that suggests Eaves' account was sold to Unifund Portfolio. Specifically, the affidavits attached to the pleadings alleged that Unifund Partners had purchased the debt, and a Unifund statement was admitted into evidence, which noted Eaves account from Citibank, the defaulted balance, and that he must tender payment to Unifund. Such evidence, at a minimum, supports the inference that Citibank sold Eaves' account to Unifund Portfolio, and that Unifund Partners, assignee of all accounts that Unifund Portfolio "owns or may acquire from time to time" for collection purposes, had standing to sue to collect the debt. See Air Control, 852 S.W.2d at 446 (in determining standing, appellate court should construe the pleadings in plaintiff's favor and, if necessary, review the entire record to determine whether any evidence supports plaintiff's standing to sue).

Eaves also asserts that we may not consider Lutz's trial testimony as that testimony was prohibited by the parol-evidence rule and therefore, is incompetent evidence. Eaves, however, never raised a parol-evidence objection to any of Lutz's testimony. Ins. Co. of N. Am. v. Morris, 928 S.W.2d 133, 156 (Tex.App.-Houston [14th Dist.] 1996), aff'd in part & rev'd in part on other grounds, 981 S.W.2d 667 (Tex.1998); Dallas Bldg. & Repair v. Butler, 589 S.W.2d 794, 796 (Tex.Civ.App.-Dallas 1979, writ dism'd w.o.j.); Ward v. Marino, No. 13-00-00784-CV, 2002 WL 253789, at *1-2 (Tex.App.-Corpus Christi Feb. 21, 2002, no pet.) (op., not designated for publication); Thompson v. Fausto, No. 04-96-00048-CV, 1997 WL 211475, at *3 (Tex.App.-San Antonio Apr. 30, 1997, no writ) (op., not designated for publication) (cases finding parol-evidence complaint not preserved when the complaint was not raised in the trial court). Further, we have relied on the petitions, responses, and exhibits filed and presented at trial in determining standing, rather than Lutz's trial testimony.

Finally, even if we were to consider Lutz's testimony, we do not find it incompetent under a legal-sufficiency review, contrary to Eaves' other assertions raised in his appellate brief. See City of Keller v. Wilson, 168 S.W.3d 802, 812 (Tex.2005) (incompetent evidence will not support a judgment on legal-sufficiency grounds even if the evidence was admitted without objection). Eaves attacks Lutz's statements that Unifund Partners owns the debt by focusing on Lutz's testimony and assertions in his first and third affidavits, which swore that Unifund Partners purchased the debt from Citibank, when the bill of sale was actually between Citibank and Unifund Portfolio, a fact Lutz acknowledged in his second affidavit, and the subsequent assignment of the account from Unifund Portfolio to Unifund Partners stated that Unifund Portfolio retained title and ownership of the account. However, Lutz explained that Unifund Portfolio is an umbrella or holding company created within certain banking restrictions to obtain funds and purchase defaulted accounts. According to Lutz, Unifund Portfolio, acting as an agent for Unifund Partners, purchased the debt, at Unifund Partners' direction, for Unifund Partners. Once the accounts were purchased, Unifund Portfolio assigned the rights to collect on the accounts, including litigation, to Unifund Partners. Thus, Lutz concluded that Unifund Partners now owns the account and the right to sue to collect the debt. This is in accord with the general legal principle that the assignee stands in the shoes of the assignor and may assert those rights that the assignor could assert. See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 420 (Tex.2000); Jackson v. Thweatt, 883 S.W.2d 171, 174 (Tex.1994); Equitable Recovery, L.P. v. Heath Ins. Brokers, 235 S.W.3d 376, 387 (Tex.App.-Dallas 2007, pet. dism'd); Lavender v. Bunch, 216 S.W.3d 548, 552 (Tex.App.-Texarkana 2007, no writ). In other words, Lutz's testimony was not contrary to the other evidence in the record.

Having determined that Unifund Partners had standing to sue to collect the debt, the trial court had subject-matter jurisdiction. Eaves'...