                                                                    ACCEPTED
                                                                12-15-00220-CV
                                                   TWELFTH COURT OF APPEALS
                                                                 TYLER, TEXAS
                                                          11/18/2015 4:59:00 PM
                                                                      Pam Estes
                                                                         CLERK

                 NO. 12-15-00220-CV

                                                FILED IN
                      IN THE             12th COURT OF APPEALS
                                              TYLER, TEXAS
            TWELTH COURT OF APPEALS      11/18/2015 4:59:00 PM
                                                PAM ESTES
                                                  Clerk
                   TYLER, TEXAS

 ________________________________________________


           ANNA MARIE INMAN, Appellant

                        VS.

     EQUABLE ASCENT FINANCIAL, LLC, Appellee

_________________________________________________


                APPELLANT’S BRIEF

___________________________________________________




                              Heather Keegan
                              State Bar No. 24065545
                              Richard Tomlinson
                              State Bar No. 20123500
                              LONE STAR LEGAL AID
                              1415 Fannin, 3rd Floor
                              Houston, Texas 77002
                              713/652-0077, ext. 1154
                              Facsimile: 713/652-3814
                              ATTORNEYS FOR APPELLANT

           ORAL ARGUMENT REQUESTED

                         i
                          IDENTITY OF THE PARTIES

Trial Court Cause Number:                 2011B-1051

Plaintiff:                                Equable Ascent Financial, LLC

Defendant:                                Anna Marie Inman

Attorney for Plaintiff:                   Dan G. Young
                                          State Bar No. 22177250
                                          Jenkins, Wagnon & Young, P.C.
                                          P.O. Box 420
                                          Lubbock, Texas 79408-0420
                                          806-687-9172
                                          Fax: 806-771-8755
                                          dgyservice@jwylaw.com

Attorneys for Defendant:                  Heather Keegan
                                          State Bar No. 24065545
                                          hkeegan@lonestarlegal.org
                                          Richard Tomlinson
                                          State Bar No. 20123500
                                          rtomlinson@lonestarlegal.org
                                          Lone Star Legal Aid
                                          1415 Fannin, 3rd Floor
                                          Houston, Texas 77002
                                          713-652-0077, ext. 1154
                                          Facsimile: 713-652-3814




                                     ii
                                     TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

1.      Do the private documents attached to Hasenmiller’s
        affidavit constitute competent summary judgment evidence
        or any evidentiary support for the summary judgment?

2.      Assuming the documents attached to Hasenmiller’s affidavit
        were inadmissible or have no evidentiary value, did the trial
        court err in granting summary judgment based on
        conclusory statements in that affidavit?

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

I.      Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II.     The private documents attached to the Hasenmiller affidavit
        are not competent summary judgment evidence. . . . . . . . . . . . . . . . .8

        A.       The private documents attached to Hasenmiller’s affidavit
                 are not properly authenticated. . . . . . . . . . . . . . . . . . . . . . . . . .9

        B.       The private documents are hearsay in the
                 absence of an authenticating affidavit. . . . . . . . . . . . . . . . . . . 14




                                                      iii
        C.       Even if properly admitted, the private documents
                 are either incompetent summary evidence or lack
                 evidentiary value. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

III.    Assuming the documents attached to Hasenmiller’s
        affidavit were inadmissible, incompetent or lacking
        in evidentiary value, the trial court erred in granting
        summary judgment based on conclusory statements
        in that affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

        A.       The statement in Hasenmiller’s affidavit regarding
                 assignment of the account is a mere conclusion. . . . . . . . . . .17

        B.       The statements in Hasenmiller’s affidavit relating to
                 damages are mere conclusions. . . . . . . . . . . . . . . . . . . . . . . .18

IV.     Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

                                                 Appendix

Plaintiff’s Motion for Summary Judgment . . . . . . . . . . . . . . . . . . . . . . .Tab A

Defendant’s Response to Plaintiff’s Motion for Summary Judgment . .Tab B

Final Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab C

Defendant’s Motion for Reconsideration/Motion for New Trial
and Request for Written Ruling on Defendant’s Objections to
Summary Judgment Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Tab D

Order denying reconsideration and refusing to rule on
objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Tab E



                                                       iv
                                INDEX OF AUTHORITIES

Cases

Abrego v. Harvest Credit Management VII, LLC,
2010 WL 1718953 (Tex. App. – Corpus Christ 2010, no pet.) . . . . . . .14, 15

Arkoma Basin Exploration Co. v. FMF Associates,
249 S.W.3d 380 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Ayers v. Target National Bank,
2012 WL 3043043 (Tex. App. – Houston [14th Dist.] 2012, no pet.) . . . . .14

Baywood Estates Property Owners Association, Inc. v. Caolo,
392 S.W.3d 776 (Tex. App. – Tyler 2012, no pet.) . . . . . . . . . . . . . . . . . . .7

Brown v. Mesa Distributors, Inc.,
414 S.W.3d 279 (Tex. App.—Houston [1st Dist.] 2013, no pet.) . . . . . . . .16

Brownlee v. Brownlee,
665 S.W.2d 111 (Tex. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Collins v. County of El Paso,
954 S.W.2d 137 (Tex.App.-El Paso, 1997, pet. denied) . . . . . . . . . . . . . . .7

Colvin v. TDECU,
2012 WL 5544950 (Tex. App.—Houston [1st Dist.] 2012) . . . . . . . . . . . . .19

The Travelers Insurance Company v. Joachim,
315 S.W.3d 860 (Tex. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Columbia Rio Grande Regional Hospital v. Stover,
17 S.W.3d 387 (Tex. App. – Corpus Christi 2000, no pet.) . . . . . . . . . . 8, 9


                                                v
Fairfield Financial Group, Inc. v. Synnot,
300 S.W.3d 316 (Tex. App. – Austin 2009, no pet.) . . . . . . . . . . . . . . . . . .8

Gilbert v. General Motors Corporation,
2006 WL 1714040 (Tex. App. – Fort Worth 2006, no pet.) . . . . . . . . . .9, 10

Gonzalez v. McKinney Dodge Inc.,
2015 WL 3454399 (Tex. App. – Dallas 2015, pet. pending) . . . . . . . . . . . .8

In re Estate of Guerrero,
 465 S.W.3d 693 (Tex. App. – Houston [14th Dist.] 2015, pet. pending) . . . 9

Hourani v. Katzen,
305 S.W.3d 239 (Tex. App. – Houston [1st Dist.] 2009, pet. denied) . . . . . 8

Kenny v. Portfolio Recovery Associates, LLC,
464 S.W.3d 29 (Tex. App. – Houston [1st Dist.] 2015, no pet.) . . . . . . . . .14

Kleven v. Texas Department of Criminal Justice,
69 S.W.3d 341 (Tex. App- Texarkana 2002, no pet) . . . . . . . . . . . . . 10, 11

Krishnan v. Law Offices of Preston Henrichson, P.C.,
83 S.W.3d 295 (Tex. App. – Corpus Christi 2002, pet. denied) . . . . . . . . 11

Llopa, Inc. v. Nagel,
 956 S.W.2d 82 (Tex. App. – San Antonio 1997, pet. denied) . . . . . . . . . .11

Lyons v. Lyons,
 2009 WL 89728 (Tex. App. – San Antonio 2009, pet. denied) . . . . . .12, 13

MMP, Ltd. v. Jones,
710 S.W.2d 59 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Owens-Corning Fiberglass Corporation v. Malone,
972 S.W.2d 35 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Republic National Leasing Corporation v. Schindler,
717 S.W.2d 606 (Tex. 1986)(per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . .9



                                                 vi
Rockwall Commons Associates, Ltd. v. MRC Mortgage Grantor Trust I,
331 S.W.3d 500 (Tex. App. – El Paso 2010, no pet.) . . . . . . . . . . . . . . . .12

Unifund CCR Partners v. Laco,
2009 WL 4879348 (Tex. App. – Dallas 2009, no pet.) . . . . . . . . . . . . . . . 15

United Blood Services v. Longoria,
938 S.W.2d 29, 30 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Uribe v. Pharia, L.L.C.,
2014 WL 3555529 (Tex. App. – Corpus Christi 2014, no pet.) . . . . . . . . .14

Valerus Compression Services v. Gregg County Appraisal District,
457 S.W.3d 520 (Tex. App.—Tyler 2015) . . . . . . . . . . . . . . . . . . . . . . . . .16

Venable v. State,
113 S.W.3d 797 (Tex. App. – Beaumont 2003) . . . . . . . . . . . . . . . . .12, 13

Wande v. Pharia,
2011 WL 3820774 (Tex. App. – Houston [1st Dist.] 2011, no pet.) . . . . . .14

Winchek v. Am. Exp. Travel Related Servs. Co.,
232 S.W.3d 197 (Tex. App.-Houston [1st Dist.] 2007, no pet.) . . . . . . . . . 19


Rules

TEX.R.CIV.P. 166a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 13

TEX.R.CIV.P. 193.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 11

TEX.R.EVID. 803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

TEX.R.EVID. 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

TEX.R.EVID. 902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 11, 12




                                                   vii
                           NO. 12-15-00220-CV

                                  IN THE

                     TWELTH COURT OF APPEALS

                              TYLER, TEXAS

       ________________________________________________


                     ANNA MARIE INMAN, Appellant

                                    VS.

             EQUABLE ASCENT FINANCIAL, LLC, Appellee

       _________________________________________________

                      APPELLANT’S BRIEF
       _________________________________________________


TO THE HONORABLE COURT OF APPEALS:

     COMES NOW Appellant Anna Marie Inman (“Inman”) and moves this

Court to reverse the final summary judgment awarded to Equable Ascent

Financial, LLC (“Equable”) by the trial court.   The documents attached to

Hasenmiller’s affidavit are inadmissible, incompetent or lacking in

evidentiary value.      The absence of any admissible or supportive

documents attached to this affidavit render a number of vital statements



                                      1
conclusory. Without those conclusory statements and the attached private

documents, there is no basis for summary judgment.

                       STATEMENT OF THE CASE

     The underlying case is a suit to collect on a credit card debt filed by a

debt buyer. Equable filed its suit in the 392nd District Court of Henderson

County, alleging breach of contract and account stated claims. (C.R. 1-6)

After being served, Inman filed a pro se answer. (C.R. 9-10) Equable filed

a motion for summary judgment and a notice of hearing. (C.R. 11-52, 56-

57) More than 7 days before the hearing, Inman retained counsel and filed

a first amended answer with a general denial and a response to the motion.

(C.R. 58-68)   After a hearing, the trial court granted a final summary

judgment, awarding Equable $6,185 in damages, $1,500 in attorney’s fees

through trial and additional attorney’s fees on appeal.         (C.R. 73-74)

Inman then filed a timely motion for reconsideration and new trial as well as

a request for a ruling on objections which were both denied by the trial

court. (C.R. 75-78, 83-85) Inman then filed a timely notice of appeal.(C.R.

86-87)




                                     2
                           ISSUES PRESENTED

                                  Issue 1

        Are the private documents attached to Hasenmiller’s affidavit

competent summary judgment evidence?

                                  Issue 2

        Assuming the documents attached to Hasenmiller’s affidavit are

incompetent or lacking in any evidentiary value, did the trial court err in

granting summary judgment based on conclusory statements in that

affidavit?

                          STATEMENT OF FACTS

        Equable asserted in its petition that Inman failed to pay what she

owed to an unnamed creditor on a credit card debt. (C.R. 1-6)

        In the main body of its motion for summary judgment, Equable

alleged once again that Inman owed a certain amount of unpaid credit card

debt to an unnamed creditor and that Equable was the current owner of the

debt.    (C.R. 11-13)   As support for this motion, Equable attached an

affidavit signed by Jeff Hasenmiller; a number of documents, including a bill

of sale reflecting the sale of a number of accounts from Chase Bank to

Hilco Receivables, public documents relating to the merger of Hilco with

Equable, a number of monthly statements, and a Providian cardholder


                                     3
account agreement; and the affidavit of Dan G. Young on attorney’s fees.

(C.R. 15-52) Neither affidavit authenticated the documents attached to the

motion. (C.R. 10, 50-52) Some of the print on a number of the attached

documents is so small as to be illegible.        (C.R. 25-44) The attached

monthly statements include footers showing an internet address and an

apparent print date of “2/25/2015[.]” (C.R. 25-44), long after Hasenmiller’s

affidavit was executed on August 20, 2011. (C.R. 14)

      In Inman’s response to the motion for summary judgment, she

asserted that Hasenmiller’s affidavit was not a proper business records

affidavit, the bill of sale and merger documents were unauthenticated

hearsay, the Providian account agreement was unauthenticated hearsay

and the Chase monthly statements were both illegible and unauthenticated.

(C.R. 62-66) Given the objections to this documentary evidence, Inman

asserted that Equable had failed to prove the elements of its two claims.

(C.R. 66) Inman explicitly requested the Court to consider “defendant’s

objections so they will be preserved for appeal.” (C.R. 67)

      At the hearing on the motion for summary judgment, Equable’s

counsel argued that summary judgment was appropriate based on the

affidavit of Jeff Hasenmiller and the documents attached to that affidavit. (1

R.R. 4/23-5/1) He goes on to argue that the documents are not hearsay,


                                      4
because they are “proven up by the affidavit itself to be non-hearsay . . . .”

(1 R.R. 6/9-10) Inman’s counsel repeatedly discussed the nature of her

objections to the attached documentary evidence as being unauthenticated

and hearsay and asked the trial court to rule on her objections. (1 R.R. 7/1-

3, 8/4-5, 9/2-4) Specifically, she noted that Hasenmiller’s affidavit was not

a business records affidavit sufficient to both authenticate documents and

render   them   non-hearsay     business      records.     (1   R.R.   6/22-25)

Recognizing that Hasenmiller’s affidavit did not refer to the number of

pages of documents which were attached, counsel for Equable argued that

such language was not necessary to authenticate the documents. (1 R.R.

8/16-20) The judge then awarded summary judgment and refused to rule

on each of Inman’s objections, apparently treating the request as a request

for findings of fact and conclusions of law. (1 R.R. 8/21-25, 9/2-7)

      At the hearing on the motion for reconsideration and new trial and

request for written ruling on objections, Inman’s counsel specifically noted

that she had previously requested the trial judge to rule on her objections

and that the trial judge had mistakenly assumed that she was requesting

findings of fact and conclusions of law. (2 R.R. 3/25-4/20)        Counsel for

Equable argued that the trial court was not required to make a written ruling

on the objections.   (2 R.R. 6/13-21)       When the trial court asked whether


                                        5
he needed to rule on Inman’s objections to the summary judgment

evidence, counsel for Equable stated that the trial court was not required to

do that. (2 R.R. 14/3-10) Counsel for Inman suggested that the trial court

was required to rule on her objections under the rules of appellate

procedure to protect her “client’s right[s,]” and the trial court indicated that

the appellate court could order him to do it. (2 R.R. 14/11-18) When

Inman’s counsel asked if the judge was refusing to make a ruling on the

objections, the trial court then explained that he was “overruling everything”

and that he was not granting any of Inman’s requests at the hearing,

including her request for written rulings on her objections.    (2 R.R. 14/21-

15/7)     The order on the motion for new trial and request for ruling on

objections signed by the trial court crossed out all of the language providing

for rulings on specific objections to summary judgment evidence. (C.R. 83-

84)

                     SUMMARY OF THE ARGUMENT

        The trial court erred in considering the private documents as

competent summary judgment evidence when they are unauthenticated,

hearsay, illegible and lacking evidentiary value.

        The trial court erred in awarding summary judgment for Equable.

Since the documentary evidence was inadmissible, partially illegible and


                                       6
failed to demonstrate the assignment of the credit card account at issue,

the statements in Hasenmiller’s affidavit were no more than conclusions. If

the statements in Hasenmiller’s affidavit are conclusions and the attached

documents are inadmissible or have no evidentiary value, there is no

evidence to support the summary judgment.

                                  ARGUMENT

I.    Standard of Review

      The purpose of summary judgment procedure “is not to deprive a

litigant of his right to . . . trial, but to eliminate patently unmeritorious claims

or untenable defenses.” City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 n.5 (Tex. 1979).             In other words, summary judgment

procedure should not “deprive litigants of their right to a full hearing on the

merits of any real issue of fact.” Collins v. County of El Paso, 954 S.W.2d

137, 145 (Tex.App.-El Paso 1997, pet. denied).

      A traditional summary judgment, like the one in this case, is subject to

de novo review on appeal. The Travelers Insurance Company v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010).              A traditional motion for summary

judgment is properly granted only when a movant establishes that there are

no genuine issues of material fact and that he is entitled to judgment as a

matter of law.      Baywood Estates Property Owners Association, Inc. v.


                                         7
Caolo, 392 S.W.3d 776, 780 (Tex. App. – Tyler 2012, no pet.);

TEX.R.CIV.P. 166a(c). A plaintiff moving for traditional summary judgment

must demonstrate that he is entitled to summary judgment as a matter of

law on each element of his cause of action.        MMP, Ltd. v. Jones, 710

S.W.2d 59, 60 (Tex. 1986); Hourani v. Katzen, 305 S.W.3d 239, 248 (Tex.

App. – Houston [1st Dist.] 2009, pet. denied).      In resolving whether the

movant met its traditional motion for summary judgment burden, evidence

favorable to the non-movant will be taken as true, every reasonable

inference must be indulged in favor of the non-movant, and any doubts

resolved in favor of the non-movant. Id.

      By contrast, a trial court’s rulings concerning the admission or

exclusion of summary judgment evidence is reviewed for an abuse of

discretion. Gonzalez v. McKinney Dodge Inc., 2015 WL 3454399, *3 (Tex.

App. – Dallas 2015, pet. pending); Fairfield Financial Group, Inc. v. Synnot,

300 S.W.3d 316, 319 (Tex. App. – Austin 2009, no pet.).           A trial court

abuses its discretion if it acts without regard to guiding rules or principles.

Owens-Corning Fiberglass Corporation v. Malone, 972 S.W.2d 35, 43 (Tex.

1998).




                                      8
II.   The private documents attached to Hasenmiller’s affidavit are
      not competent summary judgment evidence.

      As a general rule, documents submitted as summary judgment

evidence must be admissible under the rules of evidence.          United Blood

Services v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997); Columbia Rio

Grande Regional Hospital v. Stover, 17 S.W.3d 387, 396 (Tex. App. –

Corpus Christi 2000, no pet.).       The documents attached to Hasenmiller’s

affidavit are not competent summary judgment evidence, because they are

unauthenticated, constitute hearsay, are partially illegible and fail to provide

any support on an element of the claim.

            A.    The private documents attached to Hasenmiller’s
                  affidavit are not authenticated.

      Copies of documents must be authenticated in order to be treated as

competent summary judgment evidence.          TEX.R.CIV.P. 166a(f); Republic

National Leasing Corporation v. Schindler, 717 S.W.2d 606, 607 (Tex.

1986)(per curiam); In re Estate of Guerrero, 465 S.W.3d 693, 703-704

(Tex. App. – Houston [14th Dist.] 2015, pet. pending).

      The rules allow two obvious means of authentication for documents

submitted as summary judgment evidence. First, a sworn affidavit stating

that the attached documents are true and correct copies of the originals

authenticates copies sufficiently.    Republic National Leasing, 717 S.W.2d


                                        9
at 607; Guerrero, 465 S.W.3d at 704; Gilbert v. General Motors

Corporation, 2006 WL 1714040, *4 (Tex. App. – Fort Worth 2006, no pet.).

Second, some documents submitted as summary judgment evidence may

be treated as self-authenticating.   Gilbert, 2006 WL 1714040 at *4.    For

example, the evidence rules recognize a number of documents as self-

authenticating while the rules of procedure recognize that documents

produced by the opposing party in discovery are self-authenticating.

TEX.R.EVID. 902; TEX.R.CIV.P. 193.7.

     In this case, 49 pages of documents are attached to the motion for

summary judgment between Exhibits A and B, including a bill of sale, some

public merger documents, a number of monthly statements and a purported

cardholder agreement, and Inman objected to all of these documents as

unauthenticated. (C.R. 15-49, 62-64) Inman continues to assert that all of

the private documents are unauthenticated and, thereby, do not serve as

competent summary judgment evidence. (C.R. 15, 25-49) None of these

private documents are authenticated by either of the two affidavits attached

to the motion for summary judgment. (C.R. 14, 50-52)

     While Exhibit A, Hasenmiller’s affidavit, does make reference to

business records purportedly relating to Inman’s credit card account,

nowhere does this affidavit verify the accuracy of the copies of the


                                     10
documents attached to the motion.          Given the absence of any language

which verifies the accuracy of the documents, the attached private

documents are not authenticated by that affidavit.          Gilbert, 2006 WL

1714040 at *4 (“Although Gilbert’s affidavit mentions some of the other

attached documents, the affidavit makes no attempt whatsoever to

authenticate the documents”); Kleven v. Texas Department of Criminal

Justice, 69 S.W.3d 341, 344-346 (Tex. App- Texarkana 2002, no

pet.)(affidavit failed to authenticate documents when it failed to state that

the attached copies are true copies of the originals); Llopa, Inc. v. Nagel,

956 S.W.2d 82, 87 (Tex. App. – San Antonio 1997, pet. denied)(affidavit

that only references attached documents does not authenticate).           Had

Exhibit A, Hasenmiller’s affidavit, merely stated that the attached copies

were true copies of original business records, they would have been

treated as authenticated.   Krishnan v. Law Offices of Preston Henrichson,

P.C., 83 S.W.3d 295, 300 (Tex. App. – Corpus Christi 2002, pet.

denied)(medical report authenticated by affidavit which stated that the

report was a true copy of the original).

      In addition, there is no allegation that the attached documents are

self-authenticating.   First, there is nothing in the record that reflects that




                                      11
the attached private records were produced in discovery by Inman, which

would make them self-authenticating under Rule 193.7.

     Second, none of the private records can be treated as self-

authenticating under Rule 902, because these private documents do not fit

any of the documents covered by the rule.     While the private documents

may appear to fit the provision for business records accompanied by an

affidavit, TEX.R.EVID. 902(10), that part of the rule does not apply for the

simple reason that the affidavits attached to the motion for summary

judgment fail to authenticate these attached records.         TEX.R.EVID.

902(10)(B)(second paragraph).

     While only substantial compliance with the sample affidavit provided

by Rule 902(10) is required, Rockwall Commons Associates, Ltd. v. MRC

Mortgage Grantor Trust I, 331 S.W.3d 500, 509 (Tex. App. – El Paso 2010,

no pet.), the failure to provide any authentication of attached records

should be treated as less than substantial compliance.     When deviation

from Rule 902 hinders the underlying legislative purpose and fails to assure

performance of the rule’s essential requirements, there is no substantial

compliance with the rule.   Venable v. State, 113 S.W.3d 797, 800 (Tex.

App. – Beaumont 2003).




                                    12
     Where the authenticating affidavit has no notary seal or any

statement of personal knowledge, the appellate courts have refused to find

substantial compliance with Rule 902(10).      Lyons v. Lyons, 2009 WL

89728, *2 (Tex. App. – San Antonio 2009, pet. denied)(no substantial

compliance when a notary seal was missing); Venable, 113 S.W.3d at 800-

801 (no substantial compliance with no notary seal or statement of

personal knowledge).    Likewise, the failure to provide any authenticating

language in either of the affidavits attached to the motion for summary

judgment here demonstrates a lack of substantial compliance. A contrary

rule would allow the admission of business records into evidence, or

consideration as summary judgment evidence, without any assurance of

accuracy, rendering the requirements for authentication in Rules 166a(f)

and 901(a) entirely superfluous.

     Moreover, some of the documents attached to the Plaintiff’s Motion

for Summary Judgment show on their face that they were printed years

after Hasenmiller’s affidavit was executed. (C.R. 14, 25-44)   The affidavit

cannot be in substantial compliance with Rule 902(10) if it is being offered

to authenticate copies which were not in existence when Hasenmiller

signed his affidavit.   Inman’s objection to the lack of authenticating

language in the affidavit raises more than a mere technicality. Failure to


                                    13
identify the attached exhibits in the affidavit, and failure to include language

confirming that the exhibits are true and correct copies of the records of the

business, are substantive deficiencies that go to the core of the legislative

purpose behind Rule 902.

       B.   The private documents are hearsay in the absence of an
            adequate authenticating affidavit.

       Since the private documents are hearsay unless they fit the exception

for business records set forth in Rule 803(6), they are admissible in this

case only if they were properly authenticated under Rule 902(10).

TEX.R.EVID. 803(6). As explained in the previous section, though, neither

of the affidavits attached to the motion for summary judgment actually

authenticated the private documents.           This failure to authenticate

demonstrates the absence of substantial compliance with Rule 902(10).

As a result, the private documents must be treated as inadmissible

evidence.    Lyons, 2009 WL 89728 at *1-2; Venable, 113 S.W.3d at 799-

801.

       C.   Even if properly admitted, the private documents are
            incompetent or irrelevant summary judgment evidence.

       Even assuming all of the private documents were admissible, most of

these documents do not serve as competent summary judgment evidence

for two reasons.    First, the monthly statements (C.R. 25-44) are largely


                                      14
illegible and, therefore, cannot be treated as competent summary judgment

evidence.   Uribe v. Pharia, L.L.C., 2014 WL 3555529, *5 (Tex. App. –

Corpus Christi 2014, no pet.); Ayers v. Target National Bank, 2012 WL

3043043, *2-5 (Tex. App. – Houston [14th Dist.] 2012, no pet.); Wande v.

Pharia, 2011 WL 3820774, *5 (Tex. App. – Houston [1st Dist.] 2011, no

pet.). As such, these documents provide no factual detail on the terms of

the contract or the basis for calculating the amount of the claimed

outstanding balance.     Most importantly, the numbers in the monthly

statements are illegible, thereby providing no factual support as to the

amount of the claimed balance.

     Second, the one remaining private document, the bill of sale, is only

relevant to show that the account at issue was assigned from Chase Bank

USA, N.A. to Hilco Receivables, LLC, the apparent predecessor of Equable

Ascent Financial, LLC (C.R. 16-24).    By itself, though, the bill of sale only

demonstrates that a portfolio of receivables was assigned from Chase to

Hilco. Without attaching Exhibits 1, C and D referenced in the bill of sale,

the bill of sale provides no evidence that Inman’s account was among the

receivables being assigned. Kenny v. Portfolio Recovery Associates, LLC,

464 S.W.3d 29, 33 (Tex. App. – Houston [1st Dist.] 2015, no pet.); Abrego

v. Harvest Credit Management VII, LLC, 2010 WL 1718953, *3 (Tex. App. –


                                      15
Corpus Christ 2010, no pet.); Unifund CCR Partners v. Laco, 2009 WL

4879348, *4 (Tex. App. – Dallas 2009, no pet.).

III.   Assuming the documents attached to Hasenmiller’s affidavit
       were inadmissible or have no evidentiary value, the trial court
       erred in granting summary judgment based on conclusory
       statements in that affidavit.

       To grant summary judgment to Plaintiff, the trial court needed to have

admissible, competent evidence showing (1) that Defendant owed money

to Plaintiff, and (2) the amount of Plaintiff’s damages.       Hasenmiller’s

affidavit fails to support the judgment, because it offers only unsupported

conclusory statements on the elements Plaintiff was required to prove.

       While a company officer’s affidavit may support summary judgment,

such an affidavit “is sufficient summary judgment evidence only when it

gives detailed accounts of the facts it attests to or when it provides

supporting documents which tend to support the statements made.” Brown

v. Mesa Distributors, Inc., 414 S.W.3d 279, 297 (Tex. App.—Houston [1st

Dist.] 2013, no pet.). Conclusory statements in affidavits are not competent

summary judgment evidence. Valerus Compression Services v. Gregg

County Appraisal District, 457 S.W.3d 520, 530 (Tex. App.—Tyler 2015). A

conclusory statement is one that does not provide the underlying facts to

support the conclusion. Id.     For example, “a witness cannot prove that

equipment is self-powered by merely saying it is self-powered.” Id.
                                      16
     A.    The statement in Hasenmiller’s affidavit regarding
           assignment of the account is a mere conclusion.

     The only evidence that Plaintiff is the owner of the account is the

assertion at paragraph 5 of Hasenmiller’s affidavit: “For good and valuable

consideration, Plaintiff purchased the account from the Original Creditor or

its assignee and Plaintiff is the current creditor of the Account.” (C.R. 14)

This statement is vague and completely devoid of any detail. The factual

statements are entirely general --- Hasenmiller does not give any

information about when the account was purchased or for what

consideration. The affidavit does not specifically identify which party sold

the account to Plaintiff --- the original creditor or an unnamed assignee.

(C.R. 14) The documents attached to the affidavit do not show anywhere

that this account was sold by the original creditor to Plaintiff or its

predecessor in interest. (C.R. 16-24) Hasenmiller’s statement that Plaintiff

is the current creditor of the account is a legal conclusion for which he

offers no factual basis. The affiant’s assertion of a legal conclusion is not

sufficient summary judgment evidence to establish that Plaintiff is entitled

to collect on this account. Brownlee v. Brownlee, 665 S.W.2d 111, 112

(Tex. 1984).




                                     17
      B.          The statements in Hasenmiller’s affidavit relating to
                  damages are mere conclusions.

      The trial court awarded damages to Plaintiff in the amount of

$6165.80, plus attorney fees.        (C.R. 73-74)   As discussed above, the

account statements attached to the Plaintiff’s motion were unauthenticated

and almost entirely illegible, so the only evidence before the court on the

element of damages were Hasenmiller’s following statements in his

affidavit:

      4.          The Defendant defaulted on payments to the Original
      Creditor.
      [. . . .]
      6.          All credits and payments have been properly applied,
      Defendant is not entitled to any additional credits or offsets on
      the account of any kind, and the balance as set forth herein is
      currently due and owing.
      7.          There is now due and payable from the Defendant the
      sum of $6165.80 plus costs and reasonable attorney fees as
      permitted by law or contract.
      (C.R. 14)
Hasenmiller’s affidavit does not set forth the terms of the parties’ credit

agreement. It contains no information about the rate of interest, the date of

default, or how the damages were calculated.




                                        18
       The Hasenmiller affidavit’s recitation of damages is conclusory and

does not support summary judgment for Plaintiff. “Summary judgment

evidence of damages in credit card cases is sufficient where it ‘provide[s]

detailed explanations of the cost of credit’ and ‘the methodology employed’

to calculate the balance owed.” Colvin v. TDECU, 2012 WL 5544950, *6

(Tex. App.—Houston [1st Dist.] 2012), quoting Winchek v. Am. Exp. Travel

Related Servs. Co., 232 S.W.3d 197, 205 (Tex. App.-Houston [1st Dist.]

2007, no pet.). The Hasenmiller affidavit falls short of the standard of proof

required of summary judgment affidavits in credit card cases, because it

contains no information whatsoever about the cost of credit or how the

damages were calculated. (C.R. 14) Without those underlying facts, the

affiant is ultimately presenting a bare conclusion and asking the court to

“take his word for it” that the Plaintiff’s damages are $6165.80. Arkoma

Basin Exploration Co. v. FMF Associates, 249 S.W.3d 380, 389 (Tex.

2008).   Taken as a whole, in the absence of authenticated supporting

documentation, the Hasenmiller affidavit presents no competent summary

judgment evidence on the issue of Plaintiff’s damages.

VII.   Conclusion

       Appellant Inman has established that there is no evidence to support

the underlying summary judgment.          As a result, the underlying final


                                     19
summary judgment should be reversed and the case remanded for further

proceedings.

                                 PRAYER

     For the foregoing reasons, Appellant Inman respectfully prays that

this Court reverse the final judgment in this cause and remand for further

proceedings. Appellant also prays for all other and further relief to which

she may show herself entitled.

                                  Respectfully submitted,

                                  /s/ Heather Keegan
                                  Heather Keegan
                                  SBN: 24065545
                                  hkeegan@lonestarlegal.org
                                  Richard Tomlinson
                                  SBN: 20123500
                                  rtomlinson@lonestarlegal.org
                                  LONE STAR LEGAL AID
                                  1415 Fannin, 3rd Floor
                                  Houston, TX 77002
                                  Ph: (713) 652-0077, ext. 1154
                                  Fax: (713) 652-3814

                                  ATTORNEYS FOR APPELLANT




                                    20
                        CERTIFICATE OF SERVICE

      Pursuant to T.R.A.P. 9.5, I hereby certify that I served a copy of the

foregoing Appellant’s Brief electronically or by fax, certified mail with receipt

requested, or hand delivery, on this the 18th day of November, 2015, as

follows:

Dan G. Young
Jenkins, Wagnon & Young, P.C.
P.O. Box 420
Lubbock, Texas 79408-0420
Fax: 806-771-8755
E-mail: dgyservice@jwylaw.com
ATTORNEY FOR APPELLEE


                                     /s/ Richard Tomlinson
                                     Richard Tomlinson


                     CERTIFICATE OF COMPLIANCE

      Pursuant to T.R.A.P. 9.4(i)(3), I hereby certify that this is a computer-

generated document and the number of words in this brief is 6,455 based

on a word count provided by my Microsoft Word word-processing program.



                                     /s/ Richard Tomlinson
                                     Richard Tomlinson




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