Janet Oloyede and Olu Oloyede v. Citizens Bank, N.A.

• Court: Court of Appeals of Texas
• Decided: August 1, 2023
• Docket: 05-22-00141-CV
• Status: Published

Opinion

REVERSE and REMAND and Opinion Filed August 1, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00141-CV

JANET OLOYEDE AND OLU OLOYEDE, Appellants V. CITIZENS BANK, N.A., Appellee

On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-05931

MEMORANDUM OPINION Before Justices Reichek, Nowell, and Garcia Opinion by Justice Reichek Janet Oloyede and Olu Oloyede appeal a summary judgment in favor of

Citizens Bank, N.A. (“Citizens Bank”) in its suit for breach of a student loan

agreement. In four issues, the Oloyedes contend: Citizens Bank, an entity not named

as the lender in the agreement, failed to prove it had standing to collect the loan; the

trial court abused its discretion in overruling objections to the bank’s summary

judgment evidence; and the judgment erroneously disposed of their counterclaims

and affirmative defense. Because the bank did not establish it was entitled to

traditional summary judgment on its claims and the trial court erroneously granted a no-evidence summary judgment for the bank on the Oloyedes’ counterclaims, we

reverse and remand.

Background

On January 10, 2008, Janet Oloyede, as student borrower, and Olu Oloyede,

as cosigner, took out a student loan to finance Janet’s college education. Both Janet

and Olu signed a “Non-Negotiable Credit Agreement.” The agreement and

accompanying note disclosure statement identified the lender as RBS Citizens, N.A.

(“RBS Citizens”). Olu also signed a “Notice to Cosigner,” which referred to the

credit agreement for the name of the lender. Payments were deferred until July 14,

2012.

In May 2021, Citizens Bank filed its original petition against the Oloyedes.

The bank alleged “the original creditor” advanced funds to the Oloyedes pursuant to

a credit agreement. The bank further alleged the Oloyedes failed to make the

required payments and owed it $41,156.16. Citizens Bank asserted a breach of

contract claim, alternative claims for account stated and quantum meruit, and also

sought attorney’s fees.

The Oloyedes each filed a pro se answer, using a form from a website. They

checked boxes next to a list of affirmative defenses. And in a space provided for

additional affirmative defenses, they asserted the bank failed to perform conditions

precedent and failed to mitigate. In that space, they also alleged the bank did not

release a copy of the signed agreement and failed to prove Truth-in-Lending

–2– disclosures were given and that therefore “the monies received were not legally

binding which violates the Fair Debt Collection Practices Act and the Higher

Education Opportunity Act of 2008.”

Citizens Bank moved for traditional and no-evidence summary judgment.

The motion for summary judgment conflictingly asserted the Oloyedes “entered into

an agreement with Citizens Bank, N.A.” and also that the bank acquired the records

associated with the Oloyedes’ account from “the original creditor.” The bank sought

traditional summary judgment on its claims for breach of the credit agreement and

account stated and presented three affidavits with supporting documents. The bank

also asserted the Oloyedes had no evidence of any element of their affirmative

defenses and no evidence the bank violated any State or Federal debt collection act.

After the motion for summary judgment was filed, the Oloyedes hired

counsel. On February 7, 2022, seven days before submission of the motion, the

Oloyedes filed four documents—a first amended answer, an original counterclaim,

a plea to the jurisdiction, and a response to the motion for summary judgment. In

their amended answer, the Oloyedes dropped the affirmative defenses in their

original answers and raised a new affirmative defense, limitations.

In a separate document, they asserted counterclaims for violations of Chapter

392 of the Texas Finance Code, known as the Texas Debt Collection Act. The

Oloyedes alleged Citizens Bank was a debt collector who violated § 392.301 of the

Act by using criminal means to cause harm to a person or property and by threatening

–3– to take an action prohibited by law. See TEX. FIN. CODE ANN. § 392.301(a)(1) & (8).

They further alleged the bank violated § 392.304 of the Act by misrepresenting the

character and amount of a consumer debt and the status of the debt in a judicial

proceeding and by using false representations and deceptive means to collect a debt.

See id. § 392.304(a)(8) & (19). The Oloyedes asserted the bank’s violations of

Chapter 392 were also violations of the Texas Deceptive Trade Practices Act. See

id. § 392.404 (violation of Chapter 392 is also actionable under DTPA).

In both their plea to the jurisdiction and their summary judgment response,

the Oloyedes argued Citizens Bank lacked standing to bring a suit on the credit

agreement because Citizens Bank did not originate the loan and did not demonstrate

it had a justiciable interest in the controversy. Their summary judgment response

also raised objections to the bank’s summary judgment evidence.

No hearing was held on the summary judgment motion. On July 15, 2022,

the trial court signed a written order overruling all of the Oloyedes’ objections to the

bank’s summary judgment evidence and overruling their argument about standing.

That same day, the court granted summary judgment in favor of Citizens Bank. The

court ordered that Citizens Bank was entitled to recover from Janet Oloyede and Olu

Oloyede, jointly and severally, $41,156.16, attorney’s fees of $1,500, conditional

appellate attorney’s fees, costs, and post-judgment interest. The judgment recites

that all relief not expressly granted is denied and purports to finally dispose of all

claims and parties. This appeal followed.

–4– Applicable Law

To recover on a claim for breach of a note, a plaintiff must establish (1) the

existence of the note in question, (2) the defendant signed the note or the guaranty,

(3) the plaintiff is the owner and holder of the note, and (4) a certain balance is due

and owing on the note. Napoleon v. Strategic Dealer Servs., LP, No. 05-15-04154-

CV, 2017 WL 894540, at *3 (Tex. App.—Dallas Mar. 6, 2017, no pet.) (mem. op.).

We review the granting of a motion for summary judgment de novo.

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). A party moving

for a traditional summary judgment has the burden of proving that there is no

genuine issue of material fact and that the movant is entitled to judgment as a matter

of law. TEX. R. CIV. P. 166a(c). The pleading of an affirmative defense does not, in

itself, defeat a motion for summary judgment by a plaintiff whose proof conclusively

establishes its right to summary judgment. Thompson v. Chrysler First Bus. Credit

Corp., 840 S.W.2d 25, 28 (Tex. App.—Dallas 1992, no writ).

When a motion is presented under rule 166a(i) asserting there is no evidence

of one or more essential elements of the nonmovant’s claims upon which the

nonmovant would have the burden of proof at trial, the burden is on the nonmovant

to present enough evidence raising a genuine fact issue entitling the nonmovant to

trial. Jinright v. N. Tex. Mun. Water Dist., No. 05-21-00027-CV, 2022 WL 2302167,

at *4 (Tex. App.—Dallas June 27, 2022, no pet.) (mem. op.). The court must grant

–5– the motion unless the nonmovant produces summary judgment evidence raising a

genuine issue of material fact. TEX. R. CIV. P. 166a(i).

Rule 166a(i) requires a no-evidence summary judgment motion to specifically

state the element or elements of the nonmovant’s claims for which there is no

evidence. TEX. R. CIV. P. 166a(i); Community Health Sys. Prof. Servs. Corp. v.

Hansen, 525 S.W.3d 671, 695 (Tex. 2017). The Texas Supreme Court has called

for strict enforcement of this requirement. Community Health, 525 S.W.3d at 695.

A no-evidence motion that only generally challenges the sufficiency of the

nonmovant’s case and fails to state specific elements that the movant contends lack

supporting evidence is fundamentally defective and cannot support summary

judgment as a matter of law. Jose Fuentes Co. v. Alfaro, 418 S.W.3d 280, 283 (Tex.

App.—Dallas 2013, pet. denied).

Analysis

In their first issue, the Oloyedes contend the trial court erred in granting

summary judgment for Citizens Bank on its claims because the bank failed to prove

it had standing to collect the loan, as the credit agreement is between RBS Citizens

and the Oloyedes. They assert that nothing in the record explains this discrepancy.

Citizens Bank responds that it presented evidence it was the owner and holder of the

note and directs this Court to an affidavit from John Masello. The bank also asks

this Court to take judicial notice of the fact that RBS Citizens changed its name to

Citizens Bank.

–6– The issue of standing focuses on whether a party has a sufficient relationship

with the lawsuit so as to have a justiciable interest in its outcome. Austin Nursing

Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). A plaintiff has standing when

it is personally aggrieved. Id. The standing doctrine requires a real controversy

between the parties that will actually be determined by the judicial declaration

sought. Id. at 849. Without standing, a court lacks subject matter jurisdiction to

hear the case. Id.

As summary judgment evidence, Citizens Bank provided affidavits from

Masello, the bank’s Collection Recovery Senior Specialist, and Christopher J.M.

Jones, its Recovery Agency Manager, as well as a third affidavit about attorney’s

fees. Masello’s affidavit states that he is the bank’s records custodian and has

personal knowledge of the facts in the affidavit. He states that records kept on the

Oloyedes’ account are attached to his affidavit, including a true and correct copy of

the contract. The affidavit says, “Plaintiff is the owner and holder of this account.”

Generally, in a suit on a note, an affidavit made on a bank officer’s personal

knowledge that identifies a note and the amount owed is not conclusory and is

sufficient evidence to support a summary judgment. American 10-Min. Oil Change,

Inc. v. Metro. Nat’l Bank-Farmers Branch, 783 S.W.2d 598, 601 (Tex. App.—

Dallas 1989, no writ). Absent controverting evidence, such affidavit testimony

together with a true and correct copy of a note proves ownership for summary

judgment purposes. Bean v. Bluebonnet Sav. Bank FSB, 884 S.W.2d 520, 522 (Tex.

–7– App.—Dallas 1994, no writ); see Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983)

(per curiam); Colvest Mortg. Inc. v. Thompson, No. 05-98-00384-CV, 2000 WL

1100879, at *2 (Tex. App.—Dallas Aug. 8, 2000, pet. denied) (not designated for

publication).

Masello’s affidavit does not have the loan documents attached to it as required

by the rules of civil procedure. See TEX. R. CIV. P. 166a(f) (sworn or certified copies

of all papers referred to in summary judgment affidavit shall be attached thereto or

served therewith); see also Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—

Dallas 2004, pet. denied) (affidavit is substantively defective when absence of

referenced papers from summary judgment evidence makes affidavit conclusory);

Acrey v. Kilgore & Kilgore, PLLC, No. 05-15-01229-CV, 2017 WL 1173830, at *3

(Tex. App.—Dallas Mar. 30, 2017, no pet.) (mem. op.). The credit agreement, notice

to cosigner, and note disclosure statement are instead attached to Jones’s affidavit.1

Because the loan documents are part of the summary judgment record, we will

consider them in conjunction with Masello’s affidavit. Even so, the documents do

not support Masello’s conclusion that Citizens Bank is the owner and holder of the

account. The documents refer to the lender as “RBS Citizens.” Masello’s affidavit

contains no underlying facts to support his conclusion that Citizens Bank owns the

1 It appears the documents attached to Masello’s affidavit were meant to be attached to Jones’s affidavit and vice versa. Jones’s affidavit does not mention the agreement between the parties or even mention the Oloyedes. His affidavit states that when an account is placed in collection, there is an electronic spreadsheet that shows the charge-off balance. Jones indicates that a spreadsheet is attached, but there are no spreadsheets attached to his affidavit. –8– account. See Alphaville Ventures, Inc. v. First Bank, 429 S.W.3d 150, 160–61 (Tex.

App.—Houston [14th Dist.] 2014, no pet.) (bank failed to conclusively establish it

was owner and holder of note where documentary evidence cast doubt on averment

in affidavit that it was owner and holder), disapproved of on other grounds by B.C.

v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 262 n.30 (Tex. 2020). Citizens

Bank’s summary judgment proof did not conclusively establish that it was the owner

and holder of the account.

In its brief, Citizens Bank asks this Court to take judicial notice of the fact that

RBS Citizens and Citizens Bank are the same entity. It directs us to the website of

the Federal Deposit Insurance Corporation, which shows that RBS Citizens changed

its name to Citizens Bank on April 16, 2014. See BankFind Suite: Institution Details

(fdic.gov) (last visited July 24, 2023).

Courts may judicially notice an adjudicative fact that is not subject to

reasonable dispute because it can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned. TEX. R. EVID. 201(b). Courts

may take judicial notice of certain matters at any time, even on appeal. City of Glenn

Heights, Tex. v. Sheffield Dev. Co., 55 S.W.3d 158, 162 (Tex. App.—Dallas 2001,

pet. denied). As a general rule, appellate courts do so “only to determine jurisdiction

over an appeal or to resolve matters ancillary to decisions which are mandated by

law,” such as the calculation of prejudgment interest. Id. at 162–63 (quoting SEI

Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 840–41 (Tex. App.—Dallas

–9– 1991, no writ)). Appellate courts are reluctant to take judicial notice of matters

which go to the merits of a dispute. SEI Bus. Sys., 803 S.W.2d at 840–41. To do so

runs the risk that an appellate court is effectively functioning as one of original, not

appellate, jurisdiction. City of Glenn Heights, 55 S.W.3d at 163.

We take judicial notice of the name change because it impacts the trial court’s

jurisdiction and our jurisdiction. If Citizens Bank did not own the Oloyedes’

account, it would not have standing to bring this lawsuit and we would be required

to dismiss for lack of jurisdiction. See Webb v. Voga, 316 S.W.3d 809, 815 (Tex.

App.—Dallas 2010, no pet.). We decline, however, to take judicial notice of the

name change to uphold the summary judgment because the name change goes to the

merits of the case. Nothing in the record indicates Citizens Bank asked the trial court

to take judicial notice that RBS Citizens changed its name to Citizens Bank or

informed the trial court that RBS Citizens and Citizens Bank were the same entity.

Nor did the bank present any argument to the trial court that might have prompted it

to take judicial notice on its own. See TEX. R. EVID. 201(c)(1); PNC Mortg. v.

Howard, 618 S.W.3d 75, 82 (Tex. App.—Dallas 2019), rev’d on other grounds, 616

S.W.3d 581 (Tex. 2021). To the contrary, both the bank’s petition and motion for

summary judgment suggested there was a different “original creditor.” Because

Citizens Bank did not prove in the trial court that it was the lender, the trial court

erred in granting traditional summary judgment for the bank. We sustain the

Oloyedes’ first issue.

–10– In their second and third issues, the Oloyedes contend the trial court erred in

overruling various objections to Jones’s and Masello’s affidavits, as well as the

attorney’s fees affidavit. They argue the trial court should not have considered the

affidavits. Because we have determined the trial court erred in granting traditional

summary judgment, even with the bank’s affidavits, we need not consider the

Oloyedes’ evidentiary complaints. See TEX. R. APP. P. 47.1.

In their fourth issue, the Oloyedes argue the trial court erroneously disposed

of their counterclaims and their limitations defense when it granted summary

judgment for the bank. We agree that by granting summary judgment on the

Oloyedes’ counterclaims, the trial court granted more relief than the bank requested.

The Oloyedes acknowledge that Citizens Bank did not have an obligation to

negate their affirmative defense. But they argue the bank’s own summary judgment

proof demonstrated that its claims were time barred, at least as to some of the

allegedly missed payments, and thus their limitations defense should have barred the

granting of summary judgment. Because we have concluded that Citizens Bank did

not establish that it was entitled to summary judgment on its claims, it is unnecessary

for us to consider whether a limitations defense also precluded summary judgment.

See id.

Next, the Oloyedes contend the trial court’s judgment erroneously disposed

of their counterclaims. They assert that because the bank’s motion for summary

judgment was filed before they pleaded counterclaims, the bank did not move for

–11– summary judgment on their claims.2 Citizens Bank argues that its no-evidence

motion encompassed violations of the Texas Debt Collection Act, which form the

basis for the counterclaims, and contends it is entitled to summary judgment because

the Oloyedes did not present any evidence in response to the motion.

Summary judgment may only be granted upon grounds expressly asserted in

the summary judgment motion. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297

(Tex. 2011). Granting summary judgment on a claim not addressed in the summary

judgment motion therefore is, as a general rule, reversible error. Id.

It is not clear that the Oloyedes’ original pro se answers, which were their live

pleadings when the bank moved for summary judgment, asserted any counterclaims.

They stated the bank violated the Fair Debt Collection Practices Act in a space

provided for additional affirmative defenses. But if the Oloyedes’ original answers

could be said to assert a counterclaim for violation of the Texas Debt Collection Act,

any claim was based on the bank’s alleged failure to provide copies of the loan

agreement and certain disclosures. These are not the same violations of the Act

alleged in the Oloyedes’ Original Counterclaim, filed after the bank moved for

summary judgment. And their Original Counterclaim asserted a DTPA claim, which

was not mentioned in the pro se answers. The bank did not move for summary

2 The trial court’s judgment expressly disposes of all claims and thus is a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).

–12– judgment on the claims contained in the Original Counterclaim, and thus the trial

court erred in disposing of the Oloyedes’ counterclaims.

Even if the bank’s no-evidence motion for summary judgment encompassed

the Oloyedes’ counterclaims, the bank did not comply with rule 166a(i)’s

requirement to specifically state the elements of the counterclaims for which there

is no evidence. TEX. R. CIV. P. 166a(i); Community Health, 525 S.W.3d at 695. Its

motion merely asserted that “Defendants can present no evidence of a violation of

any Federal or State debt collection act and this claim must be dismissed as a matter

of law.” This general challenge is fundamentally defective and cannot support

summary judgment. Jose Fuentes Co., 418 S.W.3d at 283. The no-evidence motion

was not sufficient to invoke rule 166a(i)’s requirement that the Oloyedes come

forward with sufficient evidence to raise a genuine issue of material fact on their

counterclaims. See Jenkins v. Stewart Title Co., No. 05-12-00685-CV, 2013 WL

3487741, at *2 (Tex. App.—Dallas July 10, 2013, no pet.) (mem. op.). For these

reasons, the trial court erred in granting summary judgment against the Oloyedes on

their counterclaims. We sustain the Oloyedes’ fourth issue.

–13– We reverse the trial court’s judgment and remand for further proceedings

consistent with this opinion.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE 220141F.P05

–14– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JANET OLOYEDE AND OLU On Appeal from the 193rd Judicial OLOYEDE, Appellants District Court, Dallas County, Texas Trial Court Cause No. DC-21-05931. No. 05-22-00141-CV V. Opinion delivered by Justice Reichek. Justices Nowell and Garcia CITIZENS BANK, N.A., Appellee participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.

It is ORDERED that appellants JANET OLOYEDE AND OLU OLOYEDE recover their costs of this appeal from appellee CITIZENS BANK, N.A.

Judgment entered this 1st day of August 2023.

–15–