Richard G. Ortega v. Cach, LLC

396 S.W.3d 622, 2013 WL 326317, 2013 Tex. App. LEXIS 830
CourtCourt of Appeals of Texas
DecidedJanuary 29, 2013
Docket14-11-00768-CV
StatusPublished
Cited by49 cases

This text of 396 S.W.3d 622 (Richard G. Ortega v. Cach, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richard G. Ortega v. Cach, LLC, 396 S.W.3d 622, 2013 WL 326317, 2013 Tex. App. LEXIS 830 (Tex. Ct. App. 2013).

Opinions

MAJORITY OPINION

JEFFREY V. BROWN, Justice.

This appeal arises from a debt-collection action in which appellee CACH, LLC, sued appellant Richard G. Ortega seeking to recover against him as the alleged assign-ee of Ortega’s credit-card debt. Following a bench trial, the trial court rendered judgment against Ortega. On appeal, he challenges the legal and factual sufficiency of the evidence as well as certain eviden-tiary rulings of the trial court. Concluding that the trial court erroneously admitted hearsay evidence and that this error probably resulted in an improper judgment, we reverse and remand.

I

CACH sued Ortega for breach of contract based upon Ortega’s failure to repay a debt under an agreement for consumer credit. According to the pleadings, MBNA — which later became Bank of America — originally issued a credit card in Ortega’s name in 1998, and Ortega used or authorized use of the card, thereby incurring charges that he later failed and refused to pay. The credit card was ean-celled when Ortega defaulted in making payments on the account. CACH alleges that it purchased the account with an outstanding balance of $13,741.73 and consequently brought suit as the alleged assign-ee of this debt.

Ortega answered the suit, asserting, among other defenses, that there had been no valid assignment of the account to CACH. In a counterclaim, Ortega asserted violations of the Texas Fair Debt Collection Practices Act.

During a bench trial in the court below, Ortega stated his name and acknowledged that he lived at 6423 Monahiti Place Northeast, Albuquerque, New Mexico 87107 (“Address”), between 1998 and 2009. Ortega testified that he had a couple of credit cards in 1998 but could not recall which ones they were or whether one was from MBNA. When asked whether he received a billing statement from MBNA at the Address, Ortega testified, “Just like I said, I don’t remember if I had Bank of America.” When asked whether he had been notified by MBNA that the company had become Bank of America, Ortega testified that he did not remember that either.1 Nor did Ortega recall whether he received a credit card from Bank of America. Nevertheless, when presented with a Bank of America account statement bearing his name and the Address, Ortega conceded that he must have had a credit card from Bank of America and probably received that type of statement. Ortega also agreed that a billing statement, dated July 2009, from Bank of America reflected his name, correct mailing address, and a balance of $13,741.73. Ortega could not recall using the credit card, but testified that if he had, it would have been for [626]*626family and household items and groceries. Ortega could not recall whether he submitted any written disputes to Bank of America relating to interest rates or fees associated with the use of the card.

CACH moved to admit into evidence a business-record affidavit signed by Magic West of CACH as Plaintiffs Exhibit 1. Twenty-one pages of records were attached to the affidavit, including the following:

(1) a second affidavit signed by Magic West (“West Affidavit”);
(2) a document entitled “Affidavit of Claim and Certification of Debt” signed by Debra L. Pellieciaro of Bank of America, N.A. (“Pellieciaro Affidavit”);
(3) a document entitled “Affidavit of Claim and Certification of Debt” signed by Elisabeth W. Plummer of Bank of America, N.A. (“Plummer Affidavit”);
(4) a November 2008 billing statement from Bank of America reflecting a payment of $258 on 11/03, an unpaid balance of $12,602.72, the Address, and an account number of [XXXXXXXXXXXX4161];
(5) a September 2008 billing statement from Bank of Amei’ica reflecting a payment of $268 on 8/30, an unpaid balance of $12,865.85, the Address, and an account number of [XXXXXXXXXXXX4161];
(6) a July 2009 billing statement from Bank of America reflecting an unpaid balance of $13,741.73, the Address, and an account number of [XXXXXXXXXXXX4161];
(7) a general statement of the provisions of a Bank of America, N.A. card-member agreement that is not signed by Ortega; and
(8) a general statement of the provisions of an MBNA America Bank, N.A., credit-card agreement that is not signed by Ortega.

At trial, Ortega objected to the admission of the portions of the West, Pelliccia-ro, and Plummer Affidavits that related to the alleged sale and assignment of his account to CACH, arguing that those portions were hearsay and were also not the best evidence of CACH’s ownership of the account. The trial court overruled Ortega’s objections and admitted Plaintiffs Exhibit 1 in its entirety. Ortega challenges these evidentiary rulings in this appeal.

In the West Affidavit, West states that she is an authorized agent for and a custodian of records of CACH and states the following in pertinent part:

• As authorized agent and custodian of the business records for [CACH], I have personal knowledge based upon the review of the documentation provided by the original creditor (attached hereto) that, after all just and lawful offsets, payments, and credits have been allowed, the total balance on the account of $13,741.73 is just and true and is due and owing from [Ortega] to [CACH],
• Demand for payment of the just amount owing [CACH] by [Ortega] was made upon [Ortega] more than thirty (30) days prior to filing of [CACH’s] original petition, and payment for the just amount owing has not been tendered.

In the Pellieciaro Affidavit, Pellieciaro states that she is employed as a bank officer by Bank of America, NA, and states “[t]hat as a result of the sale of said accounts, CACH and/or its authorized agent, has complete authority to settle, adjust, compromise and satisfy the account and that Bank of America has no further interest in this account for any purpose.”

[627]*627In the Plummer Affidavit, Plummer states that she is employed as a bank officer by Bank of America, NA, successor in interest to MBNA Bank, NA, and, in relevant part, states the following:

• That there is due and payable from RICHARD G. ORTEGA as of 8/18/2009 the sum of $13,741.73 withstanding [sic] legally chargeable post charge-off interest, pursuant to the terms of the card member agreement with Bank of America.
• That said agreement and account was, on 8/18/2009 sold, transferred and set over unto CACH, LLC, with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise or satisfaction of the said claim.
• That as a result of the sale of said account, CACH, LLC, and/or its authorized agent, has complete authority to settle, adjust, compromise and satisfy same that Bank of America had no further interest in this account for any purpose.

CACH’s counsel testified regarding attorney’s fees. The trial court ruled in favor of CACH and signed a final judgment ordering that CACH recover actual damages of $13,741.73 from Ortega as well as attorney’s fees and court costs. This appeal followed.

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Cite This Page — Counsel Stack

Bluebook (online)
396 S.W.3d 622, 2013 WL 326317, 2013 Tex. App. LEXIS 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-g-ortega-v-cach-llc-texapp-2013.