                           NUMBER 13-09-00026-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


CYNTHIA B. ABREGO,                                                        Appellant,

                                          v.

HARVEST CREDIT MANAGEMENT VII,
LLC, AS ASSIGNEE OF CHASE BANK
USA, N.A.,                                                                Appellee.


                  On appeal from the 117th District Court
                        of Nueces County, Texas.


                        MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Benavides and Vela
            Memorandum Opinion by Chief Justice Valdez

      Appellant, Cynthia B. Abrego, appeals from a traditional summary judgment granted

in favor of appellee, Harvest Credit Management VII, LLC, as assignee of Chase Bank
USA, N.A. (“Harvest Credit”). By her sole issue, Abrego argues that the trial court erred

in granting summary judgment because the affidavit relied upon by Harvest Credit in

establishing its right to summary judgment is substantively defective. We reverse and

remand.

                                      I. BACKGROUND

       On January 2, 2008, Harvest Credit filed suit against Abrego on the basis of breach

of contract for allegedly failing to pay debt acquired with a Chase Bank credit card. Abrego

filed an answer wherein she denied (1) ever having a contractual relationship with Harvest

Credit, (2) that all conditions precedent to the filing of the lawsuit had been performed, and

(3) “the genuineness of any indorsement or assignment of any alleged written instrument

upon which this suit is brought.”

       On June 12, 2008, Harvest Credit filed a traditional motion for summary judgment

and attached an affidavit signed by David Ravin (the “Ravin Affidavit”), as an “authorized

agent” for Harvest Credit. Abrego filed a response to Harvest Credit’s motion for summary

judgment and objected to the Ravin Affidavit on the grounds that Ravin lacked personal

knowledge to make the affidavit, the affidavit contained statements based on hearsay, and

it was conclusory. On October 15, 2009, the trial court held a hearing on Harvest Credit’s

motion for summary judgment and Abrego’s response. The trial court overruled Abrego’s

objections to Ravin’s affidavit and the accompanying records, granted summary judgment

in favor of Harvest Credit, and awarded Harvest Credit $13,628.25 as the balance due on

the account and $1,200 in attorney’s fees.

       Abrego moved for a new trial, but her request was subsequently overruled by

operation of law. See TEX . R. CIV. P. 329b(c). This appeal ensued.

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                                     II. DISCUSSION

      In her sole issue, Abrego contends that the trial court erred when it overruled her

objections to Harvest Credit’s summary judgment evidence. Specifically, Abrego asserts

that a sworn affidavit by Ravin, as well as a series of attached documents, were not

admissible because of Ravin’s lack of personal knowledge and because statements in his

affidavit were conclusory and based on hearsay. We agree.

A.    Standard of Review

      We review the trial court’s granting of a traditional motion for summary judgment de

novo. See Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192

(Tex. 2007); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.–Corpus Christi 2003, no

pet.). When reviewing a traditional summary judgment, we must determine whether the

movant met its burden to establish that no genuine issue of material fact exists and that

the movant is entitled to judgment as a matter of law. TEX . R. CIV. P. 166a(c); see Sw.

Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek

Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The movant bears the burden of proof in

a traditional motion for summary judgment, and all doubts about the existence of a genuine

issue of material fact are resolved against the movant. See Sw. Elec. Power Co., 73

S.W.3d at 215. We consider all the evidence in the light most favorable to the nonmovant,

indulging every reasonable inference in favor of the nonmovant and resolving any doubts

against the movant. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756

(Tex. 2007) (per curiam) (citing Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per

curiam); Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam)).

When the trial court’s judgment does not specify which of several grounds proposed was
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dispositive, we affirm on any ground offered that has merit and was preserved for review.

See Joe v. Two Thirty Nine J.V., 145 S.W.3d 150, 157 (Tex. 2004).

B.     Analysis

       Texas Rule of Civil Procedure 166a(f) provides that summary judgment affidavits

“shall be made on personal knowledge, shall set forth such facts as would be admissible

in evidence, and shall show affirmatively that the affiant is competent to the matters stated

therein.” TEX . R. CIV. P. 166a(f). The Ravin Affidavit provides, as follows:

               1. My full name is David Ravin. I am an authorized agent for Plaintiff,
       Harvest Credit Management VII, LLC as assignee of Chase Bank U.S.A.,
       N.A.[] I am competent to testify in this matter related to this account
       concerning the account of Cynthia B[.] Abrego, account number
       XXXXXXXXXXX11710. These said 26 pages of records are kept by Harvest
       Credit Management VII, LLC as assignee of Chase Bank USA, N.A.[ ] Based
       on the documentation as provided by the original creditor and kept in the
       regular course of business, and it was the regular course of business of
       Harvest Credit Management VII, LLC as assignee of Chase Bank USA, N.A.
       for a representative of Harvest Credit Management VII, LLC as assignee of
       Chase Bank USA, N.A., with knowledge of the act, event, condition, opinion,
       or diagnosis, information thereof to be included in such record as provided
       by the original creditor; and the record was made at or near the time or
       reasonably soon thereafter [sic]. The records attached hereto are originals
       or an exact duplicate of the original.

               2. Plaintiff’s business records for the account reflect that the just and
       true balance due and owing by the Defendant on the account is $13,628.25
       according to the business records provided to Plaintiff by the original creditor
       or its assignee at the time the account was purchased together with interest
       and other applicable costs as allowed by law.

The twenty-six pages attached to the Ravin Affidavit include: (1) eight Chase Bank

monthly statements; (2) a “Bill of Sale” from Chase Manhattan Bank USA, N.A. to

CreditMax LLC; (3) a “Bill of Sale” from CreditMax LLC to Harvest Credit; and (4) a Chase

Bank “Cardmember Agreement.” Abrego contends that the Ravin Affidavit, by which

Harvest Credit sought to authenticate these documents, fails to meet the requirements of

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the business records exception to the hearsay rule. See TEX . R. EVID . 803(6).

       “‘Hearsay’ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX . R.

EVID . 801(d). The proponent of hearsay has the burden of showing that the testimony fits

within an exception to the general rule prohibiting the admission of hearsay evidence.

Volkswagen of Am. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004). The predicate for

the introduction of a record under the business records exception requires proof that: (1)

the record was made by or from information transmitted by a person with personal

knowledge of the events or conditions recorded; (2) the record was made at or near the

time of the events or conditions recorded; and (3) that it was in the ordinary course of the

reporting entity’s business to make and keep such records. See TEX . R. EVID . 803(6);

Thomas v. State, 226 S.W.3d 697, 705 (Tex. App.–Corpus Christi 2007, pet. dism’d).

These requirements may be demonstrated through the accompanying affidavit of a

qualified person. See TEX . R. EVID . 902(10).

       “Business records that have been created by one entity, but which have become

another entity’s primary record of the underlying transaction may be admissible pursuant

to rule 803(6).” Martinez v. Midland Credit Mgmt., Inc., 250 S.W.3d 481, 485 (Tex. App.–El

Paso 2008, no pet.).      However, “[d]ocuments received from another entity are not

admissible under rule 803(6), if the witness is not qualified to testify about the entity’s

record keeping.” Id. (citing Powell v. Vavro, McDonald, & Assoc., L.L.C., 136 S.W.3d 762,

765 (Tex. App.–Dallas 2004, no pet.)). While the witness need not be the record’s creator

or have personal knowledge of the record’s contents, the witness is required to have

personal knowledge of the manner in which the records were prepared. Id. A witness may

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be qualified to testify about another entity’s documents if there is testimony that documents

obtained by assignment were kept in the ordinary course of business and formed the basis

for ongoing transactions. See Cockrell v. Republic Mortgage Ins. Co., 817 S.W.2d 106,

112 (Tex. App.–Dallas 1991, no writ).

        A bill of sale attached to the Ravin Affidavit indicates that on November 27, 2006,

Harvest Credit purchased “certain [a]ccounts described in Exhibit ‘A’” from CreditMax LLC.

Exhibit A is a bill of sale between Chase Bank and CreditMax dated June 12, 2006. By its

June 2006 bill of sale, Chase Bank “assign[ed] . . . all rights, title, and interest” to

“judgments or evidences of debt described in Exhibit 1” to CreditMax LLC. However,

neither a document entitled “Exhibit 1,” nor any evidence indicating specifically what was

assigned from Chase Bank to CreditMax is attached to the Ravin Affidavit.1 Without such

evidence, the Ravin Affidavit fails to establish that Abrego’s Chase Bank account was ever

assigned to Harvest Credit. Moreover, in his affidavit, Ravin does not state that he has

personal knowledge of, or is qualified to testify regarding: (1) either CreditMax LLC’s or

Chase Bank’s record keeping practices or policies; or (2) the trustworthiness of the

attached monthly statements from Chase Bank to Abrego.

        We conclude that the Ravin Affidavit does not satisfy the requirements of rule

803(6), and the trial court erred by admitting it. See Martinez, 250 S.W.3d at 485 (holding

that the affiant was unqualified to testify where he failed to provide any information to

indicate that he was qualified to testify as to the predecessor’s record keeping practices).

Because the only summary judgment evidence offered by Harvest Credit, other than the


        1
         At the sum m ary judgm ent hearing, Abrego’s counsel inform ed the trial court that “Exhibit 1” was not
attached to the Ravin Affidavit. Accordingly, we note that the m issing “exhibit” does not appear to have been
inadvertently excluded from the appellate record.
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Ravin Affidavit, was an affidavit concerning attorney’s fees, we conclude that the trial court

erred in granting summary judgment. See id. at 485-86. Accordingly, we sustain Abrego’s

sole issue.

                                      III. CONCLUSION

       The trial court’s judgment is reversed and this case is remanded to the trial court for

further proceedings.


                                                  ROGELIO VALDEZ
                                                  Chief Justice


Delivered and filed the
29th day of April, 2010.




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